Exhibit 10.1


 


FACILITIES AGREEMENT


 


Dated 12th March 2009


 


(1)                                  Sauer-Danfoss Inc.
     as Parent, Original Borrower and
Guarantor


 


(2)                                  Danfoss A/S
     as Lender


 




 





for


 


USD 490,000,000

Multicurrency Term Loan and Revolving Credit Facilities




 





 

















 


CONTENTS


 


	
  Clause

  	
   

  	
  Page

  
	
  1

  	
  BACKGROUND

  	
  3

  
	
  2

  	
  INTERPRETATION

  	
  4

  
	
  3

  	
  COMMITMENT, CURRENCY AND
  PURPOSE

  	
  12

  
	
  4

  	
  CONDITIONS PRECEDENT

  	
  12

  
	
  5

  	
  DRAWDOWN

  	
  12

  
	
  6

  	
  INTEREST

  	
  14

  
	
  7

  	
  DEFAULT INTEREST

  	
  14

  
	
  8

  	
  PREPAYMENT AND
  CANCELLATION

  	
  15

  
	
  9

  	
  REPAYMENT

  	
  16

  
	
  10

  	
  PAYMENTS IN GENERAL

  	
  16

  
	
  11

  	
  FEES

  	
  18

  
	
  12

  	
  GUARANTEE AND INDEMNITY

  	
  18

  
	
  13

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
  21

  
	
  14

  	
  COVENANTS

  	
  22

  
	
  15

  	
  EVENTS OF DEFAULT

  	
  24

  
	
  16

  	
  INCREASED COSTS

  	
  26

  
	
  17

  	
  FORCE MAJEURE AND SIMILAR
  EVENTS

  	
  27

  
	
  18

  	
  ACCELERATION

  	
  27

  
	
  19

  	
  MITIGATION

  	
  28

  
	
  20

  	
  CURRENCY INDEMNITY

  	
  28

  
	
  21

  	
  OTHER INDEMNITIES

  	
  29

  
	
  22

  	
  ASSIGNMENT

  	
  30

  
	
  23

  	
  CHANGES TO THE BORROWERS

  	
  30

  
	
  24

  	
  LIABILITY

  	
  32

  
	
  25

  	
  SET-OFF

  	
  32

  
	
  26

  	
  BORROWER’S AGENT

  	
  32

  
	
  27

  	
  COMMUNICATIONS

  	
  32

  
	
  28

  	
  APPLICABLE LAW AND LEGAL
  VENUE

  	
  33

  
	
  29

  	
  MISCELLANEOUS

  	
  34

  
	
  30

  	
  SIGNATORIES

  	
  35

  
	
  1

  	
  FORM OF DRAWDOWN
  NOTICE

  	
  36

  
	
  2

  	
  FORM OF SELECTION
  NOTICE

  	
  37

  
	
  3

  	
  FORM OF ACCESSION
  LETTER

  	
  38

  
	
  4

  	
  FORM OF RESIGNATION
  LETTER

  	
  39

  
	
  5

  	
  FORM OF POWER OF
  ATTORNEY

  	
  40

  
				



 


2

















 


THIS
AGREEMENT is dated
and made on 12th March 2009


 


BETWEEN


 


(1)                                  Sauer-Danfoss Inc.

250 Parkway Drive, Suite 270

Lincolnshire, Illinois 60069

USA


 


(hereinafter referred to as
the “Parent”
or the “Original Borrower” or the “Guarantor” as the case may be)


 


(2)                                  DANFOSS A/S


(CVR no. 20165715)


Nordborgvej 81


DK-6430 Nordborg


Denmark


(hereinafter referred to as
the “Lender”)


 


1.             BACKGROUND


 


(A)                              The Parent has requested the Lender to
provide to the Borrowers (as hereinafter defined) 18 month revolving credit and
term loan facility facilities in an amount of up to USD 490,000,000 (the “Facility”) or the equivalent thereof in any
Optional Currency (as hereinafter defined).


 


(B)                                The Lender has agreed that subject to the
terms of this Agreement, certain Group Companies (as hereinafter defined) may
accede to the Agreement and become Additional Borrowers.


 


(C)                                The Lender has requested and the Parent has
agreed as a condition precedent to the extension of the Facility that the
Parent will guarantee any borrowings by any Additional Borrower under this
Agreement.


 


3

















 


2.                                       INTERPRETATION


 


2.1                                 Definitions: In this Agreement the following words and
expressions, except where the context otherwise requires, shall have the
following meaning:


 


	
  2.1.1

  	
   

  	
  “Accession Letter”

  	
   

  	
  shall mean the accession
  letter to be delivered by the Parent, the Guarantor and the Additional
  Borrower to the Lender in accordance with Clause
  23.1 (Additional Borrowers) substantially in the form attached as Schedule 3 (Form of Accession Letter);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.2

  	
   

  	
  “Additional Borrower”

  	
   

  	
  shall mean any Subsidiary
  which becomes an Additional Borrower in accordance with Clause 23 (Changes to the Borrowers);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.3

  	
   

  	
  “Agreement”

  	
   

  	
  shall mean this Agreement
  so designated, with pertaining Schedules as amended from time to time;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.4

  	
   

  	
  “Authorised Persons”

  	
   

  	
  shall mean in respect of
  the Parent and  Guarantor
  each of the chief executive officer, the chief financial officer or the
  treasurer or any person authorised by a duly signed Power of Attorney and in
  respect of each other Borrower any person authorised by a power of attorney
  duly signed on behalf of such Borrower;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.5

  	
   

  	
  “Availability Period”

  	
   

  	
  shall mean the period from
  and including the  Signing
  Date up to and including the date falling 30 days before the Final Maturity
  Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.6

  	
   

  	
  “Banking Day”

  	
   

  	
  shall mean any day on
  which banks are open  for
  the transaction of business (i) in Copenhagen and New York and
  (ii) in relation to a transaction involving an Optional Currency (other
  than EUR) the principal financial centre of the country of the relevant
  Optional Currency and (iii) (in relation to any date for payment or
  purchase of EUR) which is a TARGET Day (a day on which payments in EUR are
  settled in the Trans-European Automated Realtime Gross Settlement Express
  Transfer System);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.7

  	
   

  	
  “Base Currency”

  	
   

  	
  shall mean USD or such
  other currency as the  Lender
  and the Parent may agree at the request

  



 


4

















 


	
   

  	
   

  	
   

  	
   

  	
  of the Parent;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.8

  	
   

  	
  “Borrowers”

  	
   

  	
  shall mean the Parent and
  each Additional Borrower acceding to the Agreement and Borrower means any or
  each of them;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.9

  	
   

  	
  “Calculation Period”

  	
   

  	
  shall mean each period of
  four consecutive quarterly financial periods ending on 31.03, 30.06, 30.09
  and 31.12, as applicable;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.10

  	
   

  	
  Intentionally left blank.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.11

  	
   

  	
  “CIBOR”

  	
   

  	
  (Copenhagen Interbank
  Offered Rate) shall mean for a term of any Loan or overdue amount in DKK

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
   

  	
  the rates which appears on
  the applicable screen (i.e. Reuters page DKNA13) or any successor
  page thereof; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
   

  	
  if no screen rate is
  available for DKK or term of that Loan or overdue amount, the arithmetic mean
  (rounded upward to four decimal places) of the rates, as supplied to the
  Lender in the Copenhagen interbank market,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  as of 11.00 a.m.
  (Copenhagen time) on the rate fixing day for the offering of deposits in DKK
  for a period comparable to that term;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.12

  	
   

  	
  “Contractual Currency”

  	
   

  	
  shall mean the currency
  specified as such in  Clause 20.1 (Indemnity);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.13

  	
   

  	
  “Control”

  	
   

  	
  shall mean in relation to
  any entity an entity  holding
  directly or indirectly more than 50% of the capital and voting rights of
  another entity;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.14

  	
   

  	
  “Default Interest”

  	
   

  	
  shall mean the interest
  specified as such in  Clause 7 (Default Interest);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.15

  	
   

  	
  “DKK”

  	
   

  	
  shall mean the lawful
  currency for the time  being
  of the Kingdom of Denmark;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.16

  	
   

  	
  “Drawing Date”

  	
   

  	
  shall mean the date of the
  making of a Loan  pursuant
  to Clause 5 (Drawdown);

  



 


5

















 


	
  2.1.17

  	
   

  	
  “Effective Date”

  	
   

  	
  shall mean the date as of
  which the Facility  will
  become available for drawing in accordance with Clause 4 (Conditions Precedent);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.18

  	
   

  	
  “End Date”

  	
   

  	
  shall mean the maturity
  date of a Loan  pursuant
  to Clause 5 (Drawdown);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.19

  	
   

  	
  “EUR”

  	
   

  	
  shall mean euro being the
  lawful single  currency
  unit of the participating member states of the European Monetary Union;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.20

  	
   

  	
  “EURIBOR”

  	
   

  	
  (Euro Interbank Offered
  Rate) shall mean for a  term
  of any Loan or overdue amount in EUR:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
  the rates which appear on
  the applicable screen (i.e. Reuters page EURIBOR01) or any successor
  page thereof; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
  if no screen rate is
  available for that term of that Loan or overdue amount, the arithmetic mean
  (rounded upward to four decimal places) of the rates as supplied to the
  Lender in the European interbank market,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  as of 11.00 a.m.
  (Brussels time) on the rate fixing day for the offering of deposits in EUR
  for a period comparable to that term;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.21

  	
   

  	
  “Event of Accelerated
  Repayment”

  	
   

  	
  shall mean an event
  specified as such in Clause 18
  (Acceleration);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.22

  	
   

  	
  “Event of Default”

  	
   

  	
  shall mean an event
  specified as such in  Clause 15 (Events of Default);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.23

  	
   

  	
  “Facility”

  	
   

  	
  shall mean the revolving
  credit facility made  available
  under this Agreement as described in Clause 1(A) and Clause 3.1 (Facility);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.24

  	
   

  	
  “Final Maturity Date”

  	
   

  	
  shall mean the 30
  September 2010;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.25

  	
   

  	
  “Finance Documents”

  	
   

  	
  shall mean this Agreement
  with all its  appendices
  and each Accession Letter;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.26

  	
   

  	
  “Financial
  Indebtedness”

  	
   

  	
  shall mean any
  indebtedness for or in respect  of:

  



 


6

















 


	
   

  	
   

  	
   

  	
   

  	
  a)

  	
   

  	
  moneys borrowed;

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  b)

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  c)

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  d)

  	
   

  	
  the amount of any
  liability in respect of any lease or hire purchase contract which would, in
  accordance with IFRS or any other applicable accounting principles, be
  treated as a finance or capital lease;

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  e)

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  f)

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  g)

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  h)

  	
   

  	
  any counter-indemnity
  obligation in respect of a guarantee, indemnity, bond, standby or documentary
  letter of credit or any other instrument issued by a bank or financial
  institution; and  

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  the amount of any
  liability in respect of any guarantee or indemnity for any of the items
  referred to in paragraphs (a) to (h) above;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.27

  	
   

  	
  “Group” and “Group
  Companies”

  	
   

  	
  shall mean the Parent and
  its Subsidiaries;

  



 


7

















 


	
  2.1.28

  	
   

  	
  “Guarantor”

  	
   

  	
  shall mean the Parent;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.29

  	
   

  	
  “IBOR”

  	
   

  	
  shall mean LIBOR, CIBOR or
  EURIBOR, as  applicable;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.30

  	
   

  	
  “IFRS”

  	
   

  	
  shall mean international
  accounting standards  within
  the meaning of IAS Regulations 1606/2002 to the extent applicable to the
  relevant financial statements;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.31

  	
   

  	
  “Increased Costs”

  	
   

  	
  shall mean (without double
  counting):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  a)

  	
   

  	
  an additional or increased
  cost;

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  b)

  	
   

  	
  a reduction in the rate of
  return under a Finance Document or on its overall capital; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  c)

  	
   

  	
  reduction of an amount due
  and payable under any Finance Document;

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  which is incurred or
  suffered by the Lender or any of its affiliates but only to the extent
  attributable to the Lender having entered into any Finance Document or
  funding or performing its obligations under any Finance Document;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.32

  	
   

  	
  “Interest Payment Date”

  	
   

  	
  shall subject to Clause 8.12 (Voluntary Prepayment) mean
  the last day of each Interest Period;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.33

  	
   

  	
  “Interest Period”

  	
   

  	
  shall mean a period of 1
  (one), 3 (three), 6  (six),
  or 12 (twelve) months or such other period as agreed upon in advance between
  the relevant Borrower and the Lender for the calculation of the interest on
  the Loan, provided that any such period:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  1)

  	
  shall start on the Drawing
  Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  2)

  	
  which would otherwise end
  on a day which is not a Banking Day shall be extended to the next succeeding
  day which is a Banking Day in the same calendar month (if there is one) or
  the proceeding Banking Day (if there is not) or whatever day the Lender
  determines is market practice;

  



 


8

















 


	
   

  	
   

  	
   

  	
   

  	
  3)

  	
  which would otherwise end
  on a day occurring after the Final Maturity Date shall be shortened to end on
  the Final Maturity Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.34

  	
   

  	
  “Interest Rate”

  	
   

  	
  shall mean the rate of
  interest payable by the  relevant
  Borrower to the Lender in respect of any Loan equal to the aggregate of LIBOR
  (if the Loan is denominated in USD), CIBOR (if the Loan is denominated in
  DKK) or EURIBOR (if the Loan is denominated in EUR) or LIBOR for any other
  Optional Currency and the applicable Margin;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  If at any date LIBOR,
  EURIBOR or CIBOR does not reflect the Lender’s cost of funds excluding the
  Lenders margin, the Lender shall notify the relevant Borrower. Subsequent to
  such notice, the Interest Rate shall mean the aggregate of the greater of
  (i) the Lender’s cost of funds (excluding the Lender’s margin) and the
  applicable Margin, or (ii) LIBOR and the applicable Margin.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.35

  	
   

  	
  “LIBOR”

  	
  (London Interbank Offered
  Rate) shall mean  for a
  term of any Loan or overdue amount denominated in USD or any currency other
  than EUR and DKK:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
  the rates which appears on
  the applicable screen (i.e. Reuters page LIBOR01/LIBOR02 or any
  successor page thereof); or

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
  if no screen rate is
  available for the relevant currency or term of that Loan or overdue amount,
  the arithmetic mean (rounded upward to four decimal places) of the rates, as
  supplied to the Lender in the London interbank market,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as of 11.00 a.m.
  (London time) on the rate fixing day for the offering of deposits in the
  currency of that Loan or overdue amount for a period comparable to that term;

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1.36

  	
   

  	
  “Loan”

  	
  shall mean a loan/draw
  down made or to be

  
								



 


9

















 


	
   

  	
   

  	
   

  	
   

  	
  made under this Facility;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.37

  	
   

  	
  “Margin”

  	
   

  	
  shall mean the margin
  specified as such in Clause
  6.1
  (Margin);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.38

  	
   

  	
  “Material Adverse Effect”

  	
   

  	
  shall mean the occurrence
  of one or more  events
  which in the reasonable opinion of the Lender have a material adverse effect on:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  a)

  	
   

  	
  the ability of the
  Borrowers and/or the Guarantor or the Group (taken as a whole) to perform
  their obligations under the Finance Documents; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  b)

  	
   

  	
  the validity or
  enforceability of any of the Finance Document or the rights or remedies of
  the Lender under any of the Finance Document;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.39

  	
   

  	
  “Notice”

  	
   

  	
  shall mean a communication
  specified as such in Clause 27.1
  (Communications);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.40

  	
   

  	
  “Notice of Drawdown”

  	
   

  	
  shall mean a notice from a
  Borrower to the Lender substantially in the form set out in Schedule 1 (Form of Notice of Drawdown) whereby
  a Borrower requests a Loan;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.41

  	
   

  	
  “Optional Currency”

  	
   

  	
  shall mean USD or EUR and
  subject to the prior approval of the Lender or such other currency as agreed
  between the Borrower and the Lender which is freely convertible into USD and
  available to the Lender in the Lender’s sole opinion;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.42

  	
   

  	
  “Original Borrower”

  	
   

  	
  Shall mean the Parent;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.43

  	
   

  	
  “Parent”

  	
   

  	
  Shall mean Sauer-Danfoss
  Inc., situated at 250 Parkway Drive, Suite 270, Lincolnshire, Illinois 60069,
  USA, existing under the laws of the State of Delaware.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.44

  	
   

  	
  “Party(ies)”

  	
   

  	
  Shall mean any or all of
  the parties hereto as indicated in each instance by context;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.45

  	
   

  	
  “Relevant Amount”

  	
   

  	
  Shall mean the amount
  specified as such in Clause 20.1.2 (Payment
  of Deficit);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.46

  	
   

  	
  “Repayment Date”

  	
   

  	
  Shall mean the Final
  Maturity Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.47

  	
   

  	
  “Repeating

  	
   

  	
  Shall mean each of the
  representations and

  



 


10

















 


	
   

  	
   

  	
  Representations”

  	
   

  	
  warranties set out in Clause 13.1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.48

  	
   

  	
  “Resignation Letter”

  	
   

  	
  Shall mean the resignation
  letter to be  delivered
  by the Parent and the relevant Borrower to the Lender in accordance with Clause 23.6 (Resignation of a Borrower) substantially
  in the form attached as Schedule 4
  (Form of Resignation Letter);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.49

  	
   

  	
  “Selection Notice”

  	
   

  	
  shall mean a notice from a
  Borrower to the  Lender
  substantially in the form set out in Schedule
  2 (Form of Selection Notice) whereby a Borrower request a new
  Interest Period and/or request a change of currency for the Facility;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.50

  	
   

  	
  “Signing Date”

  	
   

  	
  shall mean the date of
  this Agreement;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.51

  	
   

  	
  “Subsidiary”

  	
   

  	
  shall mean an entity
  (whether or not now  existing)
  Controlled by the Parent;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.52

  	
   

  	
  “Taxes”

  	
   

  	
  shall mean all present and
  future income and  other
  taxes, value added tax, withholding tax, levies, imposts, stamp, registration
  and other duties, deductions, charges, compulsory loans and withholdings
  whatsoever together with interest thereon and penalties with respect thereto,
  if any, and any payments made on or in respect thereof imposed by any
  authority at any time in respect of any payments made or to be made to the
  Lender hereunder;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.53

  	
   

  	
  “USD”

  	
   

  	
  shall mean the lawful
  currency for the time  being
  of the United States of America.

  



 


	
  2.2

  	
   

  	
  References:
  In this Agreement,
  unless the contrary intention appears, a reference to:

  
	
   

  	
   

  	
   

  
	
  2.2.1

  	
   

  	
  A provision of law is a
  reference to that provision as amended or re-enacted;

  
	
   

  	
   

  	
   

  
	
  2.2.2

  	
   

  	
  A Clause or a Schedule is
  a reference to a clause or a schedule to this Agreement;

  
	
   

  	
   

  	
   

  
	
  2.2.3

  	
   

  	
  A person or entity
  includes its transferees and assigns;

  
	
   

  	
   

  	
   

  
	
  2.2.4

  	
   

  	
  Words importing the
  singular shall include the plural and vice versa.

  
					



 


11
















 


3.             FACILITY, CURRENCY AND
PURPOSE


 


3.1           Facility: Subject
to the terms and conditions of this Agreement, the Lender hereby agrees to make
available to the Borrower a term loan and revolving credit facility in an
aggregate amount equal to the Facility, as defined in Clause 1(A).


 


3.2           Liability several and not joint: The liability of each of the Borrowers
hereunder shall be several and not joint, however subject to the Guarantors
obligations in accordance with Clause 12
(Guarantees and Indemnity).


 


3.3           Purpose: The Facility is extended for the refinancing of the
Borrowers’ existing committed term loans and revolving facilities (Syndicate,
USPP and FIH) and leasing arrangements with FIH (total approximately USD 400
million) and projected operational requirements (approximately USD 90 million).
The Facility is extended as
a revolving credit facility for general corporate purposes.


 


3.4           Currency: Any
Loan made hereunder shall be denominated in the Base Currency or in any
Optional Currency.


 


3.5           Expiry of the Facility: The Facility shall lapse at the end of the Availability Period.


 


4.             CONDITIONS PRECEDENT


 


4.1           Conditions Precedent: It is a condition precedent to the availability of the Facility to the
Borrowers that the Lender has received the following documents and evidence in
the form and substance as satisfactory to the Lender:


 


4.1.1        Notice of Drawdown: Each Notice of Drawdown in accordance with Clause 5.1.5 (Notice of Drawdown);


 


4.1.2        Agreement: An original copy of this Agreement, duly executed by all Parties.


 


4.2           Completion Failure: The commitment of the Lender to make the Facility available to the
Borrowers shall lapse if the conditions precedent referred to in Clause 4.1 (Conditions Precedent) have not
been satisfied with respect to the Borrowers, the Parent and the Guarantor
prior to the first drawdown. Upon the occurrence of an automatic cancellation
as per this Clause 4 (Conditions Precedent) the
Parent shall (subject to receipt of documentation of such costs) reimburse the
Lender the market costs of unwinding any funding obtained plus any other costs
incurred by the Lender in connection with the cancellation of the funding.


 


5.           DRAWDOWN


 


5.1           Availability: For the duration of the Availability Period, Loans in the Base Currency
or an Optional Currency, approved by the Lender, may be requested by any
Borrower and shall be made subject to:


 


12

















 


5.1.1        Conditions Precedent: the conditions precedent set out in Clause
4 (Conditions Precedent) having been and continuing to be fulfilled
with respect to the Borrower in question and/or the Guarantor;


 


5.1.2        No Event of Default: no Event of Default or Event of Accelerated Repayment having occurred
with respect to the Borrower in question and no other event having occurred
with respect to said Borrower which would constitute an Event of Default or an
Event of Accelerated Repayment provided that in each case such event is
continuing; and


 


5.1.3        Free Transferability: with respect to the requested Loan no hindrances in the transfer of
convertible currency from any member of the European Monetary Union, to the
Kingdom of Denmark, the United States of America or to any country the currency
of which is an Optional Currency (if relevant) has occurred or is threatening;
and


 


5.1.4        Representation and Warranties: each of the representations and warranties
mentioned in Clause 13 (Representations and
Warranties) with respect to the Borrower in question remaining
accurate and true in all material respects on each Drawing Date as if given on
that date by reference to the facts and circumstances then existing; and


 


5.1.5        Notice of Drawdown: the receipt by the Lender of a duly completed Notice of Drawdown from a
Borrower in the form set out in Schedule 1
(Form of Notice of Drawdown) prior to 10.00 a.m.
Copenhagen time 10 (ten) Banking Days in advance of the requested Drawing Date;
and


 


5.1.6        Completion of Notice of Drawdown: Each Notice of Drawdown is irrevocable and
will not be regarded as having been duly completed unless a) it identifies the
Borrower; b) it states the proposed Base Currency or Optional Currency amount
to be made; c) the Interest Period for the relevant Loan; d) the Drawing Date
for the relevant Loan; e) the End Date for the relevant Loan and d) the
proposed Drawing Date is a Banking Day falling within the Availability Period;
and


 


5.1.7        Drawings: For
the duration of the Availability Period and subject to the terms of this
Agreement the Facility shall be available for drawings, however, in each event
in a minimum amount of USD 1,000,000 (USD one million) and furthermore in
integral multiples of USD 100,000 (USD one hundred thousand) or the equivalent
thereof in any Optional Currency in integral multiples of 1,000,000 (one
million); and


 


5.1.8        Authorisation: Each Borrower hereby irrevocably and unconditionally authorises the
Lender to draw and settle (by way of set-off or otherwise) without the receipt
of a Notice of Drawdown to such effect the proceeds of a Loan for the purposes
of discharging interest accrued and payable as set out herein or fees and costs
incurred and reimbursable by that Borrower as set out in Clauses 11 (Fees) and 21 (Other Indemnities).


 


13

















 


6.             INTEREST


 


6.1           Margin: The
Margin shall be 8.00% p.a.


 


6.2           Interest Payment: A Borrower to which a Loan has been made shall subject to Clause 6.4 (Payment of Interest) pay
interest in respect of that Loan in arrears on each Interest Payment Date
calculated at the rate of the Interest Rate.


 


6.3           Selection of Interest Period: A Borrower’s choice of Interest Period shall
be specified in the Notice of Drawdown in the form set out in Schedule 1 (Form of Notice of Drawdown) in
a Selection Notice in the form set out in Schedule
2 (Form of Selection Notice), to be received by the Lender
prior to 10.00 a.m. Copenhagen time 4 (four) Banking Days in advance of
the first day of the requested Interest Period. If an Interest Period has not
been selected by the relevant Borrower in the Notice of Drawdown or in the
Selection Notice where applicable, the Interest Period shall be for a duration
of 1 (one) month.


 


6.4           Selection of Currency: A Borrower may at the end of an Interest Period, select another
Optional Currency subject to the Lender receiving from the Borrower a duly
completed and irrevocable Selection Notice.


 


6.5           Payment of Interest: The Borrower shall pay accrued interest on outstanding Loans on the
last day of each Interest Period. Interest accrued in respect of any Loan with
an Interest Period of a duration in excess of 6 (six) months shall fall due, be
paid and discharged in instalments whereof the first payment shall be made on
the day occurring 6 (six) months after the Drawing Date in relation to such
Loan for the period then lapsed and hence at the end of each following 6 (six)
months period and the balance in respect of any residual period which is of a
duration of less than 6 (six) months shall be made by the relevant Borrower at
the end of the Interest Period in respect of such Loan.


 


6.6           Calculation of Interest: The Interest Rate on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable Margin and
LIBOR, CIBOR or EURIBOR as defined under Interest Rate herein.


 


6.7           Day Count Convention: Interest shall be calculated on the actual number of days elapsed on a
360 days year basis or on such other basis as is customary in respect of the
relevant currency.


 


7.             DEFAULT INTEREST


 


7.1           Default Interest: In the event that any Borrower fails to pay any principal, interest or
any other amount due and payable hereunder, that Borrower shall pay to the
Lender interest (the “Default Interest”)
on such amount from the due date until payment is received by the Lender at a
rate of the lesser of 5% p.a. above the Interest Rate or the maximum allowed by
applicable law (in respect of such period as determined by the Lender in its
reasonable opinion). The Default Interest will be compounded at the end of the
funding period determined by the Lender as per this Clause 7 (Default Interest) and is payable on demand.


 


14

















 


8.             PREPAYMENT AND CANCELLATION


 


8.1           The
terms, rates, and general conditions in this Agreement may at any time be changed
by Lender with 15 days’ notice to Borrower, subject to the following
limitations:


 


8.1.1        Lender
shall not modify the Final Maturity Date or the amount of the Facility;


 


8.1.2        No
change shall have the effect of increasing the Margin to an annual rate in
excess of 8% unless the independent directors of the Parent’s Board of
Directors reasonably determine that a proposed Margin in excess of 8% is fair;


 


8.1.3        No
change shall be made to the Agreement except to the extent required by
applicable law or substantially equivalent changes to Lender’s credit
facilities;


 


8.1.4        At the
time of making any change, Lender must reasonably believe, after consultation
with Parent, that the change will not result in or lead to a default by any
Borrower under this Agreement or any other agreement to which such Borrower is
a party.


 


8.2           Voluntary Prepayment: A Borrower may at any time during the Period subject to that Borrower
giving the Lender 15 (fifteen) days’ irrevocable prior written notice and
subject to Clauses 8.3 (Funding Costs) and
8.6 (Minimum Amounts) prepay part
or all of any Loan.


 


8.3           Funding Costs: If the date of repayment as selected by a Borrower falls before the lapse
of an Interest Period, that Borrower shall reimburse the Lender the market
costs of unwinding the funding obtained (i.e. for the period commencing at the
date of repayment and ending on the applicable Interest Payment Date(s)) in
addition to any other costs incurred by the Lender (as reasonably determined by
the Lender and subject to documentation thereof) in connection with the
cancellation of any funding obtained or otherwise. Any broken funding benefits
shall accrue for the account of and be paid to the relevant Borrower.


 


8.4           Redrawing: Any
amounts voluntarily prepaid (but not cancelled) in accordance with this Clause 8 (Prepayment and Cancellation) may
be redrawn up to the maximum of the Facility as stipulated at any given point
in time according to Clause
1(A) (Facility), such redrawing to be in accordance with Clause 5 (Drawdown).


 


8.5           Cancellation Notice - Parent: The Parent may at any time during the Availability
Period subject to the Parent giving the Lender 15 (fifteen) days’ irrevocable
prior written notice and subject to Clauses
8.3 (Funding Costs) and 8.7
(Minimum Amounts) cancel part or all of the unutilised part of the
Facility such cancellation giving rise to the payment of a cancellation fee of
2 %. No amount of the Facility cancelled may subsequently be reinstated.


 


8.6           Minimum Amounts: A cancellation (wholly or partly) of the Facility or prepayment (wholly
or partly) of any Loan shall be in minimum amounts of USD 5,000,000 (USD five
million) and furthermore in integral multiples of USD 1,000,000 (USD


 


15

















 


one million) or the equivalent thereof in any
Optional Currency in integral multiples of 1,000,000 (one million).


 


8.7           Rollover:
Any Loan
made hereunder shall be repaid in full at the occurrence of the relevant
Repayment Date. Such repayment can, however, subject to Clause 9.1 (Final Maturity Date) and
furthermore conditional on the receipt of a Notice of Drawdown to such effect
by the Lender and compliance by the relevant Borrower with the other terms
hereof be made by application of the proceeds of a new Loan in an amount
equivalent to the Loan to be repaid.


 


9.           REPAYMENT


 


9.1           Final
Maturity Date: The Facility together with all unpaid accrued interest, fees, charges and
any other sum payable by each Borrower hereunder shall in any event be repaid
in full at the Final Maturity Date in the currency in which any Loan and other
amounts are owed.


 


10.           PAYMENTS
IN GENERAL


 


10.1         Payments:
All
payments by a Borrower to the Lender under this Agreement shall be made as
follows:


 


10.1.1     Account
and Banking Day: All payments shall be paid to the Lender to such account or accounts as
the Lender may nominate from time to time, not later than 10.00 a.m.
Copenhagen time on the Banking Day when such payments become due and payable.
If any Taxes are payable and reimbursable by a Borrower as set out in Clause 10.1.3 (Tax Indemnity) solely due to
the nomination by the Lender of an account to which a payment shall be made in
a specific country that Borrower shall however be entitled to require the
Lender to nominate an account prior to the making of such payment in i) the
principal financial centre of the country of the relevant currency in relation
to which a payment is to be made; or ii) if the payment is to be made in EUR in
the principal financial centre of any member state of the European Communities
that has adopted EUR as its lawful currency. If a payment falls due on a day
which is not a Banking Day, unless such Banking Day would fall into the next
calendar month or if the day on which that payment was otherwise due was the
Final Maturity Date. In such case, the amount to be paid shall be due and
payable on the immediately preceding Banking Day;


 


10.1.2     Free of
Set-off: All
payments to be made by the Lender or the Guarantor under this Agreement shall
be made with value on the due date in full in immediately available cleared
funds without any set-off or counterclaim regardless of whether set-off or
counterclaim arises from this Agreement or from any other relationship between
the Parties hereto. However, the respective Borrower and the Guarantor shall be
entitled to set-off claims that have been acknowledged in writing by the Lender
or claims that have been finally settled by arbitration in accordance with Clause 28 (Applicable law and legal venue);


 


16

















 


10.1.3     Tax
Indemnity: All payments by a Borrower under this Agreement shall be made free and
clear and without any deduction for or on account of any Taxes (other than the
Lender’s net income tax) imposed by any country or by any authority except to
the extent that a Borrower is required by law to make payment subject to any Taxes.
If any Taxes or amounts in respect of Tax must be deducted, or any other
deductions must be made, from any amounts payable or paid by a Borrower to the
Lender under this Agreement, that Borrower shall pay on demand on a full
indemnity basis or in any event within 10 (ten) Banking Days such additional
amounts as will result in the Lender receiving a net amount equal to the full
amount which it would have received had payment not been made subject to Tax or
other deduction. For the avoidance of doubt the parties hereto agree that all
amounts set out, or expressed to be payable under this Agreement by a Borrower
which (in whole or in part) constitute the consideration for value added tax
purposes shall be deemed to be exclusive of any value added tax which is
chargeable on such supply, and accordingly, subject to the paragraph below, if
value added tax is chargeable on any supply made by the Lender to a Borrower
under this Agreement, that Borrower shall pay to the Lender (in addition to and
at the same time as paying the consideration) an amount equal to the amount of
the value added tax (and the Lender shall promptly provide an appropriate value
added tax invoice to that Borrower). Furthermore where this Agreement requires
a Borrower to reimburse the Lender for any costs or expenses, that Borrower
shall also at the same time pay and indemnify the Lender against all value
added tax incurred by the Lender in respect of the costs or expenses to the
extent that the Lender reasonably determines that neither it nor any other
member of any group of which it is a member for value added tax purposes is
entitled to credit or repayment from the relevant tax authority in respect of
the value added tax;


 


10.1.4     Gross-Up:
In the
event of a Borrower being compelled by law to make any deduction that Borrower
shall pay any such additional amounts as will result in the Lender receiving
the full amounts due under this Agreement;


 


10.1.5     Credits: If a Borrower makes any
increased payment pursuant to Clause 10.1.3
(Tax Indemnity) or Clause 10.1.4 (Gross-Up) for the account of the
Lender and the Lender receives a credit against or relief or remission for or a
repayment of any Tax paid or payable by it in respect of or calculated with
reference to the deduction or withholding giving rise to such payment, the
Lender shall, to the extent that it can do so without prejudice to the
retention of the amount of such credit, relief, remission or repayment and
provided that the relevant Borrower has not already recovered such amount paid
by way of a credit relief, remission of payment pay to the Borrower the amount
recovered and attributable to such deduction or withholding;


 


10.1.6     Order of
Appropriation: In the event that the Lender receives a payment insufficient to discharge
all the amounts then due and payable by a Borrower under this Agreement, the
Lender shall in the first


 


17

















 


instance apply that payment towards the discharge
of any fees, charges, expenses or other costs, in the second instance against
interest, in the third instance towards the repayment of the principal Loan and
in the fourth instance in or towards payment of any other sum due but unpaid
under this Agreement. The order of appropriation set out in this Clause 10.1.6 (Order of Appropriation) shall
override any appropriation made by that Borrower;


 


10.1.7     Prima
Facie Evidence: Save in the case of manifest error and subject to 10 (ten) days notice
from the Lender causing no reasonable protest from the Parent in such regard, the
books and accounts of the Lender shall always be considered prima facie
evidence so that the payment of any amount being claimed by the Lender as due
and payable cannot be suspended or withheld by a Borrower by reason of a
dispute on what is due and payable. Payment by a Borrower is without prejudice,
however, to the obligation of the Lender to repay any amount collected or
received in excess.


 


11.         FEES


 


11.1         Facility
Fee: The
Parent shall pay to the Lender a one-time up front fee of 1,75% (the “Facility
Fee”). The Facility is payable within 3 (three) days of the Signing Date.


 


11.2         Commitment
Fee on the undrawn amount of the Facility: The Parent shall pay to the Lender a commitment fee
of 50 % of the Margin p.a. of any undrawn amount of the Facility, accruing from
the Signing Date and calculated quarterly in arrears on 31 March, 30 June, 30 September and
31 December, first time 31 March 2009, and on the basis of the actual
number of days elapsed and a calendar year of 360 days. Accrued Commitment Fee
is payable in the Base Currency on the above calculation days and on the date
the Facility is cancelled in full.


 


12.         GUARANTEES
AND INDEMNITY


 


12.1         Guarantee
and Indemnity: The Guarantor unconditionally and irrevocably guarantees as primary
obligor and not merely as surety to the Lender:


 


(a)     the due and punctual
performance by each of the Borrowers of all their respective obligations under
or in respect of the Finance Documents;


 


(b)     the due and punctual
payment by each of the Borrowers of any and all sums, which are now or at any
time hereafter will be payable by such Borrowers under or in connection with
the Finance Documents (including, without limitation, principal, interest,
default interest, fees and other costs payable as a result of the occurrence of
an Event of Default); and


 


(c)     to indemnify the Lender
immediately on demand against any losses, liabilities or any other costs
suffered, incurred or paid or to be paid by it if, any obligation guaranteed by
it is or becomes unenforceable, invalid or illegal. The


 


18

















 


amount of the loss, liability or
cost under this indemnity shall be equal to the amount which the Lender would
otherwise have been entitled to recover.


 


12.2         Continuing
Guarantee: This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by the Borrowers under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.


 


12.3         Reinstatement:
If any
payment by any Borrower or the Guarantor or any discharge given by the Lender
(whether in respect of the obligations of any Borrower or the Guarantor or any
security for those obligations or otherwise) is avoided or reduced as a result
of insolvency or any similar event:


 


(a)     the liability of each
Borrower or the Guarantor shall continue as if the payment, discharge,
avoidance or reduction had not occurred; and


 


(b)     the Lender shall be
entitled to recover the value or amount of that security or payment from each
Borrower or the Guarantor, as if the payment, discharge, avoidance or reduction
had not occurred.


 


12.4         Waiver
of Defences: The obligations of the Guarantor under this Clause 12 will not be affected by an act, omission, matter or
thing which, but for this Clause 12,
would reduce, release or prejudice any of its obligations under this Clause 12 (without limitation and whether
or not known to it or the Lender) including:


 


(a)     any time, waiver or
consent granted to, or composition with, any Borrower or the Guarantor or other
person;


 


(b)     the release of any
Borrower or the Guarantor or any other person under the terms of any
composition or arrangement with any creditor of any member of the Group;


 


(c)     the taking, variation,
compromise, exchange, renewal or release of, or refusal or neglect to perfect,
take up or enforce, any rights against, or security over assets of, any
Borrower or the Guarantor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;


 


(d)     any incapacity or lack of
power, authority or legal personality of or dissolution or change in the
members or status of any Borrower or the Guarantor or any other person;


 


(e)     any amendment, novation,
supplement, extension (whether of maturity or otherwise) or restatement (in
each case, however fundamental and of whatsoever nature) or replacement of a
Finance Document or any other document or security;


 


(f)      any unenforceability,
illegality or invalidity of any obligation of any person under the Finance
Documents or any other document or security; or


 


(g)     any insolvency or similar
proceedings.


 


19

















 


12.5         Guarantor
Intent:
Without prejudice to the generality of Clause
12.4 Waiver of Defences), the Guarantor expressly confirms that it
intends that this guarantee shall extend from time to time to any (however
fundamental) variation, increase, extension or addition of or to any of the
Finance Documents and/or any facility or amount made available under any of the
Finance Documents for the purposes of or in connection with any of the
following: acquisitions of any nature; increasing working capital; enabling
investor distributions to be made; carrying out restructurings; refinancing
existing facilities; refinancing any other indebtedness; making facilities
available to new borrowers; any other variation or extension of the purposes
for which any such facility or amount might be made available from time to
time; and any fees, costs and/or expenses associated with any of the foregoing.


 


12.6         Immediate
Recourse: The Guarantor waives any right it may have of first requiring the Lender
to proceed against or enforce any other rights or security or claim payment
from any person before claiming from the Guarantor under this Clause 12. This waiver applies irrespective
of any law or any provision under any of the Finance Documents to the contrary.


 


12.7         Appropriations:
Until
all amounts which may be or become payable by the Borrowers under or in
connection with the Finance Documents have been irrevocably paid in full, the
Lender may:


 


(a)     refrain from applying or enforcing any other
moneys, security or rights held or received by the Lender in respect of those
amounts, or apply and enforce the same in such manner and order as it sees fit
(whether against those amounts or otherwise) and the Guarantor shall not be
entitled to the benefit of the same; and


 


(b)     hold in an interest-bearing suspense account any
moneys received from the Guarantor or on account of the Guarantor’s liability
under this Clause 12.


 


12.8         Deferral
of the Guarantor’s Rights: Until all amounts which may be or become payable by the
Borrowers under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Lender otherwise directs, the Guarantor
will not exercise any rights which it may have by reason of performance by it
of its obligations under the Finance Documents:


 


(a)     to be indemnified by any Borrower; and/or


 


(b)     to take the benefit (in whole or in part and
whether by way of subrogation or otherwise) of any rights of the Lender under
the Finance Documents or of any other guarantee or security taken pursuant to,
or in connection with, the Finance Documents by the Lender.


 


If the Guarantor receives any benefit, payment or
distribution in relation to such rights it shall hold that benefit, payment or
distribution to the extent necessary to enable all amounts which may be or
become payable to the Lender by the Borrowers under or in connection with the
Finance Documents to be repaid in full on trust for the Lender and shall
promptly pay or transfer the same to the Lender.


 


20
















 


12.9                          Additional
Security: This guarantee is in addition to and is not in any way
prejudiced by any other guarantee or security now or subsequently held by the
Lender.


 


13.          REPRESENTATIONS AND WARRANTIES


 


13.1                          Representations
and Warranties: Each Borrower and the Guarantor hereby represents and warrants for itself
to the Lender that:


 


13.1.1                Corporate
Existence: It is a duly organised and validly existing entity under the law of its
jurisdiction of incorporation;


 


13.1.2                Ultra
Vires Activities: It is not engaged in any business activities other than allowed for in
its Articles of Association;


 


13.1.3                Powers
and Authorisations: The execution and delivery of the Finance Documents and
the transactions contemplated herein are within its power and authority and have
been duly authorised by proper corporate resolutions and/or other necessary
actions and will not violate any laws, rules or regulations applying to
it;


 


13.1.4                License
and Registration: Any and all authorisations, consents, licenses or approvals of (if any)
and all registrations and filings with any administrative agency or
governmental or other body required pursuant to the laws of the State of
Delaware and the laws of any other relevant jurisdiction in connection with the
signing and execution by it of the Finance Documents or for the performance by
it or for the validity and enforceability of the terms hereof have been made or
obtained as the case may be;


 


13.1.5                Validity
and Enforceability: The Finance Documents constitute legal, valid and binding
obligations of the relevant Borrower and the Guarantor and - to the knowledge
of the Borrower and the Guarantor - are enforceable in accordance with their
terms;


 


13.1.6                Performance:
The
performance or undertaking by a Borrower and the Guarantor of the obligations
set out in the Finance Documents will - to the knowledge of the Borrower and
the Guarantor - not contravene any applicable law or regulation or any
agreement binding upon it;


 


13.1.7                  Information:


 


All information provided by the Borrowers, the Parent and
the Guarantor to the Lender is true and accurate in every material respect and
all information relevant to the provision of the Facility has been disclosed to
the Lender;


 


13.1.8                Pari
Passu: It’s
obligations under the Finance Documents rank at least pari passu with all its
other unsecured and unsubordinated obligations (unless mandatorily preferred by
law);


 


21

















 


13.1.9                No
Default: No
Event of Default has occurred and none will occur as a result of the exercise
of its rights or the performance of its obligations under the Finance
Documents;


 


13.1.10          No
Material Adverse Change: As of the Signing Date no
circumstance or condition has occurred which could reasonably be expected to
have a Material Adverse Effect on the Parent or the Group (seen as a whole);


 


13.1.11          No
proceedings pending or threatened. No litigation,
arbitration or administrative proceedings of or before any court, arbitral body
or agency which, if adversely determined, might reasonably be expected to have
a Material Adverse Effect on the Parent or the Group (seen as a whole) have (to
the best of its knowledge and belief) been started or threatened against it or
any of the Group Companies;


 


13.1.12          Repetition. The Repeating
Representations are deemed to be made by the Borrowers and the Guarantor by
reference to the facts and circumstances then existing on:


 


a)              the date of each Drawdown
Request and the first day of each Interest Period;


 


b)             in the case of an
Additional Borrower, the day on which the Subsidiary becomes (or it is proposed
that the Subsidiary becomes) an Additional Borrower; and


 


c)              the date of delivery of a
Selection Notice to the Lender.


 


14.                                 COVENANTS


 


14.1                         Covenants:
Each
Borrower and the Guarantor hereby on its own behalf covenants and undertakes
vis-à-vis the Lender that for as long as the Facility of the Lender is in force
or the Facility or any other amount remains outstanding under this Agreement:


 


14.1.1               Obligations: to discharge all its
obligations as they fall due, including all undisputed indebtedness, operation
expenses and taxes;


 


14.1.2               Events of
Default: forthwith
to inform the Lender upon that Borrower or the Guarantor becoming aware of the
occurrence or the threatening occurrence of an event which would constitute an
Event of Default, and provide the Lender with full details of any steps which
the relevant Borrower or the Guarantor is taking or considering to take, in
order to remedy or mitigate the effects of such event or otherwise in
connection therewith; the relevant Borrower or the Guarantor shall supply to
the Lender promptly at any time, if the Lender so requests, a certificate
signed by Authorised Persons on its behalf certifying that: (i) no Event
of Default is outstanding or, if an Event of Default is outstanding, specifying
the Event of Default and the steps, if any, being taken to remedy it; and that (ii) no
threatening Event of Default seems likely to occur;


 


22

















 


14.1.3               Pari Passu Ranking:
to
procure that the obligations of each Borrower under this Agreement do and will
rank at least pari passu in all respects with all that Borrower’s other present
and future unsecured obligations towards any third party (apart from
obligations mandatorily preferred by law);


 


14.1.4               Execution
of Further Documents: to issue and/or execute any such further assurances and
documents required by law, or which the Lender reasonably considers necessary
or expedient to establish, maintain, preserve or protect the Lender’s rights
under these terms and generally to carry out the true intent of these terms;


 


14.1.5               Disposal of Assets: The Borrowers and the Guarantor will not dispose of any asset
or series of disposals of assets which disposal would cause a Material Adverse
Effect. The Borrowers and the
Guarantor will
also ensure that no Group Company will dispose of any asset or series of
disposals of assets if such disposal would have a Material Adverse Effect.
These restrictions do not, however, apply to:


 


a)                 sales in the ordinary
course of business; or


 


b)                disposals on arm’s length
terms for fair market value;


 


14.1.6               Negative Pledge: The Borrowers and the
Guarantor will not create or permit any security (“Security”) for Financial Indebtedness over any of its assets.
It will also ensure that no Group Companies creates or permits any Security for
Financial Indebtedness over any of its assets. These prohibitions do not,
however, apply to the following:


 


14.1.6.1          any Security already in
existence at the date of this Agreement;


 


14.1.6.2          liens arising by
operation of law;


 


14.1.6.3          any Security on any asset of any company existing
at the time that company is acquired by a member of the Group. This exception
will, however, only apply to an acquisition made after the date of this
Agreement where the Security is:


 


(a)               not created in
contemplation of that acquisition;


 


(b)              remains confined to the
asset it covered at the date of the acquisition; and


 


(c)               does not Secure any
indebtedness not secured by it at the date of the acquisition;


 


14.1.6.4          any Security created on any asset acquired after
the date of this Agreement to secure Financial Indebtedness incurred solely for
the purpose of financing all or any part


 


23

















 


of the purchase price or acquisition cost of that asset.
This exception will, however, only apply if the Security remains confined to
that asset and attaches at the time of its acquisition;


 


14.1.6.5          any Security created with the prior written consent
of the Lender;


 


14.1.6.6          any Security arising out of the refinancing of any
Financial Indebtedness secured by any Security permitted by any of sub-clause
(1), (2), (3), (4) or (5). This exception will, however, only apply if the
amount of that Financial Indebtedness is not increased and is not secured by
any additional assets;


 


14.1.7     Insurance: The Borrowers and the
Guarantor will effect and maintain and will ensure that the Group Companies
effects and maintains insurance against risks relating to its activities,
property, assets and liabilities at commercially prudent levels;


 


14.1.8     Compliance with Laws: The Borrowers and the
Guarantor will comply, and will ensure that the Group Companies complies in all
material respects, with all applicable laws and regulations, and the terms of
all consents, authorisations, permits and licences, which, for the avoidance of
doubt, shall include environmental laws and permits and authorisations;


 


14.1.9                Change
of Business: The Borrowers and the Guarantor shall procure that no substantial change
is made to the general nature of the business of the Borrowers or the Group
from that carried on at the date of this Agreement without the consent of the
Lender, such consent not to unreasonably withheld;


 


14.1.10           Merger. No Borrower or Guarantor
shall (and the Parent shall ensure that no other member of the Group will)
enter into any amalgamation, demerger, merger or corporate reconstruction,
which could reasonably be expected to have a Material Adverse Effect and the
Parent and any Borrower shall only enter into any such amalgamation, demerger,
merger or corporate reconstruction if the Parent or Borrower shall be the
surviving company.


 


15.                                 EVENTS
OF DEFAULT


 


15.1                           Any of the following
events shall be deemed to constitute an event of default under this Agreement:


 


15.1.1             Payment
Failure: Failure
by a Borrower to pay promptly and for value on the due date any sum whatsoever
due for payment by a Borrower to the Lender under this Agreement except that
any failure to pay any amount when due shall not constitute an Event of Default
if such failure is due to a clerical error or is remedied within 3 (three)
Banking Days


 


24

















 


following the remittance by the Lender of a written Notice
to the relevant Borrower of such payment failure;


 


15.1.2               Other Non-compliance:
If a
Borrower fails in complying with any other of its obligations according to this
Agreement, after having received 10 (ten) Banking Days’ Notice from the Lender
of such failure;


 


15.1.3               Misrepresentation. Any representation or statement made or deemed to be made by
a Borrower or the Guarantor in the Finance Documents or any other document
delivered by or on behalf of a Borrower or the Guarantor under or in connection
with any Finance Document is or proves to have been incorrect or misleading in
any material respect when made or deemed to be made;


 


15.1.4               Validity and
Enforceability: If a Finance Document or any other instrument or document delivered
hereunder has not been duly authorised, executed and delivered or does not constitute legal, valid and binding
obligations of a Borrower or the Guarantor enforceable against that Borrower or
the Guarantor in accordance with its terms or cease to be enforceable by the
Lender for any reason whatsoever;


 


15.1.5               Null and
void: If
this Agreement or any of the
provisions thereof shall at any time for any reason cease to be in full force
and effect, be declared void or shall be repudiated by a Borrower or the
Guarantor or the validity or enforceability thereof shall at any time be contested
by a Borrower or the Guarantor, or a Borrower or the Guarantor shall deny it
has any or any further liability or obligation thereunder;


 


15.1.6               Inability: If a Borrower or the Guarantor is unable or admits its
inability to pay its debts;


 


15.1.7               Liquidation and
Bankruptcy: If a Borrower or the Guarantor goes into voluntary liquidation or is
wound-up, suspends payments (de facto or by petition to the applicable
authorities), seeks a composition in respect of any Financial Indebtedness, is
declared bankrupt, is dissolved, liquidated, reconstructed or petitions are
raised for dissolution, liquidation or bankruptcy, or similar proceedings are
instituted by or against that Borrower or the Guarantor;


 


15.1.8               Cross Default:
Any Financial Indebtedness of the Group
and any of the Group Companies:


 


15.1.8.1         is
not paid or repaid when due or within any originally applicable grace period;
or


 


15.1.8.2         becomes
capable of being declared due and payable before its stated date of payment,


 


25

















 


unless the amount of Financial Indebtedness to which
sub-clause 15.1.8.1 or 15.1.8.2 applies does not exceed USD
5,000,000 (or the equivalent in any other currency;


 


15.1.9                        Ownership
of the Group Companies. A Borrower (other than the Parent) is not or ceases to be
a Subsidiary of the Parent;


 


15.1.10                  Unlawfulness. It is or becomes
unlawful for a Borrower or the Guarantor to perform any of its material
obligations under the Finance Documents;


 


15.1.11                  Repudiation.
A
Borrower or the Guarantor repudiates a Finance Document or evidences an
intention to repudiate a Finance Document.


 


15.2                          No
Implied Waiver: Any remedy period granted as per Clause
15 (Events of Default) or any other time or waiver otherwise granted
by the Lender in connection with the occurrence of an Event of Default shall
have no consequences as to any costs, increased interest or other amount
payable by the relevant Borrower or the Guarantor following the occurrence of
that Event of Default.


 


16.                                INCREASED
COSTS


 


16.1                        Notification:
If as a
result of any change in, or any change in the interpretation or application of,
any law or regulation or any other provision having a similar effect (whether
having the force of law or not) or compliance with any regulation made after
the date of this Agreement, (including any law or regulation relating to
taxation, or reserve asset, special deposit, cash ratio, liquidity or capital
adequacy requirements or any other form of banking or monetary control) the
Lender incurs an Increased Cost then and in each such case the Lender shall
notify the Parent in writing of such Increased Cost promptly upon it becoming
aware of the same and the Parent shall either:


 


16.1.1                        Compensation
Payment: pay
to the Lender such amount as shall compensate the Lender for such Increased
Cost relating to this Agreement upon demand from time to time by the Lender.
The Borrower may request
reasonable evidence including details of the Increased Cost and the events
giving rise to it, but the Lender does not necessarily need to disclose any
information which is, in its reasonable opinion, confidential or if disclosure
would be contrary to any of its banking policies as such banking policies are
evidenced in writing; or


 


16.1.2                           Prepayment:
prepay
the Loan in accordance with Clause 8
(Prepayment and Cancellation); or


 


16.1.3                        Transfer
of Loan: enter
into negotiations with the Lender as set out in Clause 19 (Mitigation) unless to do so might, in the opinion
of the Lender be prejudicial to the Lender.


 


16.2                         Clause
16 (Increased Costs) does not apply to any Increased Cost provided for by the
operation of Clause 10.1.3 (Tax Indemnity) or
attributable i) to any change in


 


26

















 


the rate of tax on overall net income of the Lender; or
ii) to any mandatory cost existing and levied at the date hereof as a result of
any regulatory requirement.


 


17.                                FORCE
MAJEURE AND SIMILAR EVENTS


 


17.1                        Force
Majeure: The
Lender and/or the Borrower/Parent/Guarantor shall not be liable for any failure
by such party to perform, or delays in performing, the whole or any part of
this Agreement due to reason of any causes beyond such party’s reasonable
control (including but not limited to war, acts of war or civil commotion,
floods, electricity power cuts, storms, action or regulation of any
governmental body or local authority, from strikes, employees’ meetings
regarding matters concerning the trade, blockades or boycotts or from other
work stoppages relating to the collective agreements). Such events will
constitute force majeure.


 


17.2                          Similar
Events: Notwithstanding
any other provisions of this Agreement, the obligation of the Lender to make or
maintain the Loan shall cease if funds in the stipulated currency, markets,
interest rates or interest periods are unavailable or subject to conditions
under which the Lender cannot reasonably fulfil its obligations under this
Agreement.


 


18.                            ACCELERATION


 


18.1                        Event of
Accelerated Repayment: Each of the following events, (“Event of Accelerated Repayment”), shall be deemed to constitute
an event the occurrence of which shall warrant a demand from the Lender for the
immediate - and no later than 10 (ten) days - repayment of the Facility and any
other outstanding hereunder:


 


18.1.1                  Illegality:
the
making or maintaining of the Facility in full or complying with the Finance
Documents becomes unlawful by any applicable law or regulation;


 


18.1.2                  Event of
Default: the
occurrence of an Event of Default as per Clause 15 above (Events of Default);


 


Consequences. Should an event of
illegality or an Event of Default occur and the Lender in its reasonable
opinion determines that the Event of Default is incapable of remedy within a
period of 30 days from the occurrence of the relevant event, the Lender is
entitled to demand immediate repayment of the outstanding Loan(s) in
respect of which such event of illegality or Event of Default has occurred with
the addition of accrued interest thereon - and in case of an Event of Default -
in addition to (subject to receipt of documentation of such costs) any costs
and expenses, loss or damage including but not limited to loss of margin to the
Lender) incurred by the Lender resulting from the event and from the resulting
termination of the Facility provided that any breakage costs or any loss of
Margin shall be calculated on the basis of the period until the next Interest
Payment Date(s) in respect of any Loan(s) forming part of the
Facility, any reasonable costs in connection with steps to protect the Lender’s
interests, any costs or loss sustained or incurred in connection with the
funding of Loans under the Facility in the market, any costs or loss which the
Lender may sustain because the Facility cannot be re-employed at the same rate
of interest as provided for in this Agreement and for any other reason
whatsoever.


 


27

















 


18.2                          Event of
Accelerated Repayment: Should any Event of Accelerated Repayment as per Clause 18 (Acceleration) occur the Lender
is entitled to demand immediate repayment of the Facility together with any
interest due but unpaid, and any costs incurred in such connection (including
unwinding costs).


 


18.3                          Default
Interest: After the occurrence of an Event of Default, interest on the outstanding
Loans under the Facility and all other sums due shall be calculated at the rate
of the Default Interest as per Clause 7
(Default Interest) until the Event of Default is remedied or the
Facility and such other sums are discharged.


 


19.           MITIGATION


 


19.1         Mitigation: If circumstances arise in
respect of the Lender which would, or would upon the giving of notice, result
in:


 


19.1.1                  a Borrower or the
Guarantor being obliged to pay to the Lender additional amounts pursuant to Clauses 10.1.3 (Tax Indemnity), 10.1.4 (Gross-up) or any amounts pursuant
to Clause 16 (Increased Costs); or


 


19.1.2                  a Borrower or the
Guarantor being obliged to repay the Loan pursuant to Clause 18 (Acceleration);


 


then, without in any way limiting, reducing or otherwise
qualifying the relevant Borrower’s and the Guarantors obligations under Clauses 10.1.3 (Tax Indemnity), 10.1.4 (Gross-up) or 16 (Increased Costs) the Lender shall in
consultation with that Borrower or the Guarantor take such reasonable steps as
may be open to them to mitigate or remove such circumstances, including
(without limitation) by way of transfer of their rights and obligations under
this Agreement to another bank or financial institution acceptable to that
Borrower and the Guarantor for a consideration agreed between the Lender and
the prospective transferee, unless to do so might (in the reasonable opinion of
the Lender) be prejudicial to the Lender.


 


20.         CURRENCY
INDEMNITY


 


20.1                          Indemnity:
If the
Lender receives an amount in respect of a Borrower’s liability under the
Agreement or if that liability by a court order is converted into a currency
other than the currency (the “Contractual
Currency”) in which the amount is expressed to be payable under the
Agreement:


 


20.1.1                  Conversion
Loss: that
Borrower or the Guarantor shall indemnify the Lender as an independent obligation
against any loss or liability arising out of or as a result of the conversion;
and


 


20.1.2                  Payment
of Deficit: if the amount received (the “Relevant
Amount”) by the Lender, when converted into the Contractual Currency
at a market rate in the usual course of its business, is less than the amount
owed in the Contractual Currency, that Borrower or the Guarantor shall
forthwith pay to the Lender an amount in the Contractual Currency equal to the
deficit and if the Relevant Amount is more than the amount


 


28

















 


owed in the Contractual Currency, the Lender shall pay to
that Borrower an amount in the Contractual Currency equal to the Margin; and


 


20.1.3                  Exchange
Costs and Taxes: that Borrower or the Guarantor shall pay to the Lender any exchange costs
and Taxes payable in connection with any such conversion.


 


20.2                          Waiver: A Borrower waives any
right it may have in any jurisdiction to pay any amount under the Agreement in
a currency other than that in which it is expressed to be payable.


 


21.                              OTHER
INDEMNITIES


 


21.1                        Subsequent
Fees and Costs: The Parent shall indemnify and/or reimburse the Lender against or for all
reasonable costs and expenses (subject to receipt of documentation of such
costs) (including, but not limited to the internal cost to the Lender (as
determined by the Lender in its reasonable opinion) towards administration of
the Facility upon the occurrence or threatening occurrence of an Event of
Default communicated to a Borrower and the Parent by the Lender) incurred by
them:


 


21.1.1                  in protecting any of
their rights, in enforcing any claim against the relevant Borrower or in suing
for or recovering any sum due to it under this Agreement or any opinion or
document contemplated hereby, subject to such expenses and costs being incurred
as a consequence of the relevant Borrower not complying with the terms of this
Agreement as determined by the Lender;


 


21.1.2                  as a result of an
amendment to this Agreement or any document contemplated hereby, subject to such
amendment being required for reasons attributable to a Borrower.


 


21.2                          Default
Interest: All such costs and expenses incurred by the Lender and reimbursable by
the Parent as per 21.1 (Subsequent Fees and
Costs) shall carry interest for the period commencing at the lapse
of 14 (fourteen) days from the day written demand was made by the Lender to the
Parent until the day the Lender receives reimbursement at the rate of the
Default Interest as per Clause 7 (Default
Interest).


 


21.3                          Amendments:
In
respect of any amendment to this Agreement (including alterations or addenda to
the body of this document or to any Schedule hereto or any other arrangement
carried out with the purpose of amending the terms herein) requested by the
Parent and agreed to by the Lender, the Parent shall indemnify and/or reimburse
the Lender for any reasonable cost and expenses incurred by it in arranging the
amendment(s) requested.


 


21.4                          Base
Currency Excess: If the aggregate outstanding under this Facility, including outstanding
in Optional Currencies converted into the Base Currency using the exchange rate
applied by the Lender, exceeds 110 % of the aggregate Facility in the Base
Currency due to currency fluctuations or for other reasons measured over the


 


29

















 


preceding 3 months period, the Borrowers or the Guarantor
shall prepay the amount of such excess on demand by the Lender.


 


22.          ASSIGNMENT


 


22.1                          Assignment
by the Borrower: The Borrowers and the Parent may not assign, transfer, novate or dispose
of any of its rights or obligations hereunder without the prior written consent
of the Lender, which may be denied by the Lender at its sole discretion.


 


22.2                          Assignment
by the Lender: The Lender may without costs or increased obligations to any of the
Borrowers (with respect to gross-up or otherwise), at any time:


 


a)                        assign, transfer, novate
or sub-participate all or any of its rights and benefits and obligations under
this Agreement within its group (either to a parent company of the Lender or to
a subsidiary of the Lender) provided that the assignee provable is capable of
continuing to fulfil the obligations of the assignor; or


 


b)                       sub-participate (silent
participation) any of its rights and benefits and obligations under this
Agreement to other banks or companies, or


 


c)                        assign, transfer, novate
or sub-participate all or any of its rights and benefits and obligations under
this Agreement to other banks or companies, subject to the Parent’s prior
approval not to be unreasonably withheld.


 


22.3                          Disclosure:
The
Lender may disclose to any person with whom it is proposing to enter, or has
entered into, any kind of assignment, transfer, novation or sub-participation:


 


22.3.1      a
copy of the Agreement; and/or


 


22.3.2      any
information which the Lender has received under or in connection with this
Agreement.


 


The right to assign, transfer, novate or sub-participate
is subject to the cost and expense being paid by the assignee Lender entering
into such transaction;


 


22.4                          Legal
requirement to disclose: The Lender may in any event disclose information obtained
in connection with this Agreement to a third party where such disclosure is
required by applicable law or regulation so requires.


 


23.                              CHANGES
TO THE BORROWERS


 


23.1                        Additional
Borrowers: Subject to the following provisions of this Clause 23 (Changes to the Borrowers), the Parent may request
that any Group Company becomes an Additional Borrower under the Agreement
guaranteed by the Guarantor according to Clause
12 (Guarantees and Indemnity).


 


30
















 


23.2                          Lender’s
Discretion: Upon receipt of such request as referred to in Clause 23.1 (Additional Borrowers) from the Parent, the Lender


 


shall within 15 (fifteen) days notify the Parent of its
decision as to whether to accept the relevant Group Company as an Additional
Borrower. The Lender may at its sole discretion deny to give such acceptance.


 


23.3                          Information:
Subject
to Clause 23.2 (Lender’s Discretion) the
relevant Group Company shall become an Additional Borrower if:


 


23.3.1                    the Lender approves the addition
of that Group Company;


 


23.3.2                  the Parent confirms that
no Event of Default is continuing or would occur as a result of that Group
Company becoming an Additional Borrower; and


 


23.3.3                  the Lender has received
all of the documents and other evidence set out in Clause 4.1 (Conditions Precedent) in relation to that
Additional Borrower each in form and substance satisfactory to the Lender and
an Accession Letter to this Agreement executed by the Additional Borrower, the
Parent and the Guarantor.


 


23.4                           Notification
of Receipt of Clause 23.3.3 Documentation: The Lender shall notify the Parent promptly upon
being satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence required under Clause 23.3.3.


 


23.5                           Repetition
of Representations: delivery of an Accession Letter constitutes confirmation
by the relevant member of the Group that the representations and warranties
referred to in Clause 13 are true
and correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.


 


23.6                          Resignation
of a Borrower: The Parent may request that a Borrower (other than the Parent) ceases to
be a Borrower by delivering to the Lender a Resignation Letter substantially in
the form set out in Schedule 4 (Resignation
Letter).


 


23.7                          Acceptance
of the Resignation Letter: The Lender shall accept a Resignation Letter and notify
the Parent of its acceptance if:


 


23.7.1                  the Parent has confirmed
that no Event of Default is continuing or would result from the acceptance of
the Resignation Letter;


 


23.7.2                  no payment is due from
the relevant Borrower and the relevant Borrower has no further liabilities to
the Lender; and


 


23.7.3                  the relevant Borrower is
under no contractual or contingent obligations as a Borrower under the Finance
Documents.


 


23.8                          Notification
of Acceptance of Resignation: Upon notification by the Lender to the Parent of its
acceptance of the resignation of the relevant Borrower, that Subsidiary shall
cease to be a Borrower and shall have no further rights or obligations under
the Finance Documents as a Borrower.


 


31

















 


24.          LIABILITY


 


24.1                          Several
Liability: The obligations of each Borrower under the Finance Documents are several
and not joint, however subject to the Guarantors obligations in accordance with
Clause 12 (Guarantees and Indemnity).


 


25.         SET-OFF


 


25.1                          Set-Off:
The
Lender may set-off any matured obligation from the Borrowers under the Finance
Documents (to the extent beneficially owned by the Lender) against any matured
obligation owed by the Lender to the relevant Borrower, regardless of the place
of payment, booking branch or currency of either obligation. If the obligations
are in different currencies, the Lender may convert either obligation into the
Base Currency using the exchange rate applied by the Lender and/or other
currency at the Lenders discretion for the purpose of the set-off.


 


26.          BORROWER’S
AGENT


 


26.1                          Each Borrower irrevocably
appoints the Parent as its agent in relation to the Finance Documents for the
purposes of executing and delivering any Notice of Drawdown, any Accession
Letter and other documents required pursuant to the Finance Documents on its
behalf and generally agreeing and executing any notices, documents, consents,
waivers and amendments (howsoever fundamental and notwithstanding any increase
in obligations of or other effect on a Borrower) entered into in connection
with the Finance Documents (including confirmation of continuation of
obligations in connection with any modification, waiver or amendment in
relation to the Facility) and receiving and acknowledging on its behalf all
amendments and other notices delivered to it pursuant to the terms of the
Finance Documents.


 


27.          COMMUNICATIONS


 


27.1                          Communications:
All
notices, advice, statements, requests, demands and other communications (all of
which hereinafter in this Clause and for the purposes of the Agreement called “Notice”) shall be made in writing and in
the English language and shall be given or made (unless provided otherwise in
this Agreement) by airmail or air courier (but then, in the event of non
routine Notices, to be confirmed by airmail), facsimile, telegram or cable and
shall be addressed as follows


 


In the case of the Parent,
the Guarantor and/or Additional Borrowers to:


 


Sauer-Danfoss Inc.


250
Parkway Drive, Suite 270

Lincolnshire, Illinois 60069 USA


 


Attn.:
Chuck Cohrs


Telephone:
1 847 876 1713


E-mail:
ccohrs@sauer-danfoss.com


 


32

















 


In the case of the Lender,
regarding Contact for Operational
Matters (Drawdown Notice, Selection Notice etc.) and Contact for Credit Matters (Financial
Statements, Budget etc.) to:


 


Danfoss A/S


(CVR-no 20165715)


Nordborgvej 81


DK-6430 Nordborg 

Denmark


 


Attn.: Ole Albertsen or Henrik Garboel Andersen

Telephone: +45 74 88 52 89 or +45 74 88 51 12

E-mail: Albertsen@danfoss.com or HGA@danfoss.com


 


or to such other address as may from time to time be
notified in writing by either party to the other, provided that any such
variation shall take effect as from the third day after the day of receipt of
the respective Notice by the other party (unless a later date should have been
notified therein).


 


27.2                          Effectively
Given Notice: Any Notice given hereunder shall be deemed received by the party or other
entity to whom notice is to be given:


 


27.2.1                           3 (three) days after the
date of sending if sent by airmail; or


 


27.2.2                           2 (two) Banking Days
after the date of sending if sent by air courier; or


 


27.2.3                              on the date of
transmission if sent by e-mail, facsimile, telegram or cable unless received on
a non-working day or after business hours in the place of receipt, in which
event the Notice shall be deemed to have been received on the next following
working day in such place.


 


27.3                          No
Implied Waiver: The failure of a party to forward any Notice or the failure thereof to
arrive shall never be deemed to release the other parties hereto from any of
their respective obligations under the Agreement or any other document
envisaged hereunder.


 


28.          APPLICABLE LAW AND LEGAL VENUE


 


28.1                          Governing
Law: This
Agreement shall be governed by and construed in accordance with the laws of the
Kingdom of Denmark, with the exception of its conflict of law provisions.


 


28.2                          Jurisdiction:
Disputes
etc. in connection with this Agreement shall be submitted to the jurisdiction
of the City Court of Copenhagen (Københavns Byret).


 


28.3                          Enforceability:
The
obligations of each Borrower and the Guarantor under this Agreement constitutes
unconditional unilateral payment obligations of that Borrower and the Guarantor
and shall be enforceable by the Lender in accordance with the provisions of §
478, 1st paragraph, no 5 of the Danish Act no 905/1992-11-10
(“Retsplejeloven”).


 


33

















 


28.4                          Legal
Venue: Any
dispute arising out of this Agreement which cannot be solved amicable shall
subject to Clause 28.3 (Enforceability) be
subject to final and binding arbitration in accordance with the rules of
the Danish Institute of Arbitration in force from time to time.


 


28.5                          Language:
The
language of any proceedings as per Clause
28.3 (Enforceability) and 28.4
(Legal Venue) shall be Danish, provided that the Lender and the
Parent explicitly agree that neither of the parties hereto shall be required to
translate any document filed or produced in preparation of or in connection
with such proceedings which has originally been drafted in the English language
(including but not limited to this Agreement and the Schedules hereto) into the
Danish language as a precondition for the instigation or furtherance of any
legal proceedings except to the extent that it is required by law and
regulation of mandatory application. In the event that a translation of any
document is required pursuant to applicable law and regulation the submission
thereof for the purposes of any proceedings shall solely be permissible to the
extent that such translation has been prepared by an authorised translator
appointed by the Lender at its sole discretion and furthermore provided that
any discrepancy or ambiguity in any translated document shall be resolved by
reference to the English version thereof. Any cost incurred in connection with
such translation shall be for the account of the Parent as set out in Clause 21 (Other Indemnities).


 


29.                                 MISCELLANEOUS


 


29.1                          Entire
Agreement: This Agreement constitutes the entire agreement between the Parent, the
Borrower and the Guarantor and the Lender in relation to the Facility and such
documents shall not be varied in their terms by any oral agreement or
representation or otherwise than by a written document of the same date or
later than this Agreement executed by or on behalf of the relevant parties.


 


29.2                          Severability:
If any
term or provision of these terms is to any extent held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
terms or provisions (and any other application of the said terms or provisions)
shall not in any way be affected or impaired.


 


29.3                          No Implied
Waiver: No
failure or delay on the part of the Lender in exercising any right, power or
remedy will operate as a waiver of it nor will any single or partial exercise
of any such right, power or remedy preclude any other or further exercise of
such right, power or remedy.


 


29.4                          Binding
Agreement This Agreement and the pertaining documents shall be binding upon and
enure to the benefit of each party hereto and its or any subsequent successors
and permitted assignees.


 


29.5                          Counterparts
of Agreement: This Agreement is made in 3 (three) counterparts, 1 (one) for the Parent,
1 (one) for the Guarantor and 1 (one) for the Lender. Each counterpart shall be
considered as an original.


 


34

















 


30.      SIGNATORIES


 


IN WITNESS WHEREOF each of the Parties
hereto has caused this Agreement to be signed on the date of this Agreement.


 


 


 


	
  /s/ Karl Schmidt

  	
   

  
	
  Sauer-Danfoss Inc.

  
	
  as the Parent, Guarantor and the Original Borrower

  
	
   

  
	
   

  
	
   

  
	
  /s/ Frederik Lotz

  	
   

  
	
  Danfoss A/S

  
	
  as the Lender

  



 


35

















 


SCHEDULE 1


 


FORM OF DRAWDOWN NOTICE


 


[LETTERHEAD OF THE
BORROWER]


To:         DANFOSS A/S (the “Lender”)


Nordborgvej
81


DK-6430
Nordborg


Denmark


 


E-mail: Albertsen@danfoss.com
and HGA@danfoss.com


 


Dated: [DD Month 20xx]


 


Re: USD 490,000,000 Multicurrency
Term Loan and Revolving Credit Facilities Agreement dated 12th March 2009
(the “Agreement”) – Notice of Drawdown


 


1)        We refer to the
Agreement. This is a Notice of Drawdown. Terms defined in the Agreement have
the same meaning in this Notice of Drawdown unless given a different meaning in
this Notice of Drawdown.


 


2)         We hereby request that a
Loan is made as provided for by Clause 5
(Drawdown) of the Agreement as follows:


 


·                  Amount:


·                  Currency:


·                  Interest Period:


·                  Drawing Date:


·                  End Date:


 


3)         The proceeds of this Loan
shall be credited to our account, account number [ ].


 


4)        We confirm that each of
the conditions specified in Clause 4
(Conditions Precedent) of the Agreement is satisfied, that the
representations and warranties as per Clause
13 (Representations and Warranties) are true and correct on the date
of this request and that no Event of Default is threatening or has occurred.


 


5)   This Drawdown Notice is irrevocable.


 


[Place
and date]


 


 


	
   

  	
   

  
	
  Sauer-Danfoss Inc.

  
	
  [SIGNATURES OF DULY AUTHORISED
  PERSONS]

  



 

















 


SCHEDULE 2


 


FORM OF SELECTION NOTICE


 


[LETTERHEAD OF THE BORROWER]


 


To:                         DANFOSS
A/S (the
“Lender”)


Nordborgvej
81


DK-6430
Nordborg


Denmark


 


E-mail: Albertsen@danfoss.com
and HGA@danfoss.com


 


Dated: [DD Month 20xx]


 


Re: USD 490,000,000Multicurrency Term
Loan and Revolving Credit Facilities Agreement dated 12th March 2009 (the “Agreement”) – Selection
Notice


 


1)        We refer to the
Agreement. This is a Selection Notice. Terms defined in the Agreement have the
same meaning in this Selection Notice unless given a different meaning in this
Selection Notice.


 


2)        We refer to the Facility
in [identify currency] with an Interest Period ending on [DD Month 20xx].


 


3)        [We request that the
Facility to be divided into [specify] with the following Base Currency Amount
and Interest Periods]


 


or


 


[We request that the next Interest Period for the above
Facility is [ ].]


 


4)        We request that the above
Facility is [denominated in the same currency for the next Interest
Period]/[denominated in the following currencies: [ ]].


 


5)         The proceeds of any
change in currency should be credited to account, account number [ ].


 


6)        We confirm that each of
the conditions specified in Clause 4
(Conditions Precedent) of the Agreement is satisfied, that the
representations and warranties as per Clause
13 (Representations and Warranties) are true and correct on the date
of this request and that no Event of Default is threatening or has occurred.


 


7)    This
Selection Notice is irrevocable.


 


[Place and date]


 


	
   

  	
   

  
	
  Sauer-Danfoss Inc.

  
	
  [SIGNATURES OF DULY AUTHORISED
  PERSONS]

  



 


37

















 


SCHEDULE 3


 


FORM OF ACCESSION LETTER


 


[LETTERHEAD OF THE PARENT]


 


To:                         DANFOSS
A/S (the
“Lender”)


                                           Nordborgvej 81


DK-6430
Nordborg


Denmark


 


E-mail: Albertsen@danfoss.com
and HGA@danfoss.com


 


From:     [Subsidiary]
and Sauer-Danfoss Inc.


 


Dated: [DD Month 20xx]


 


Re: USD 490,000,000 Multicurrency Term
Loan and Revolving Credit Facilities Agreement dated 12th March 2009 (the “Agreement”) –
Accession Letter


 


1.                                      We refer to the
Agreement. This is an Accession Letter. Terms defined in the Agreement have the
same meaning in this Accession Letter unless given a different meaning in this
Accession Letter.


 


2.                                      [SUBSIDIARY] agrees to become an Additional Borrower and to be
bound by the terms of the Agreement, and the other Finance Documents as an
Additional Borrower pursuant to Clause 23.1
(Additional Borrowers). [SUBSIDIARY] is a company duly incorporated
under the laws of [NAME
OF RELEVANT JURISDICTION] and is a limited liability company
with registered number [NUMBER].


 


3.                                      [SUBSIDIARY] administrative details are as follows:


 


(A)       Address:         [ADDRESS]


 


(B)       Fax No.:           [NUMBER]


 


(C)       E-Mail:            [E-MAIL ADDRESS]


 


(D)       Attention:       [SPECIFY]


 


4.             This
Accession Letter is governed by and construed in accordance with the laws of
the Kingdom of Denmark.


 


[Place and date]


 


	
  Accepted as Parent and Guarantor:

  	
   

  	
  Accepted as Additional Borrower:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Sauer-Danfoss Inc.

  	
   

  	
  [SUBSIDIARY]

  



 


38

















 


SCHEDULE 4


 


FORM OF RESIGNATION LETTER


 


[LETTERHEAD OF THE PARENT]


To:                                      DANFOSS
A/S (the
“Lender”)


Nordborgvej
81


DK-6430
Nordborg


Denmark


 


E-mail: Albertsen@danfoss.com
and HGA@danfoss.com


 


From:        [Subsidiary]
and Sauer-Danfoss Inc.


 


Dated: [DD Month 20xx]


 


Re: USD 490,000,000 Multicurrency Term
Loan and Revolving Credit Facilities Agreement dated 12th March 2009 (the “Agreement”) –
Resignation Letter


 


1.                                           We refer to the
Agreement. This is a Resignation Letter. Terms defined in the Agreement have the
same meaning in this Resignation Letter unless given a different meaning in
this Resignation Letter.


 


2.                                           Pursuant to Clause 23.6 (Resignation of a Borrower), we
request that [RESIGNING BORROWER] be released from its
obligations as a Borrower under the Agreement and the Finance Documents.


 


3.                                            We confirm that:


 


3.1                                      No Event of Default is
continuing or would result from the acceptance of this request;


 


3.2                                     No payment is due from [RESIGNING
BORROWER] and [RESIGNING BORROWER] has no further liabilities to the Lender; and


 


3.3                                     [RESIGNING
BORROWER] is under no contractual or contingent obligations as a Borrower under the
Finance Documents.


 


4.                                        This Resignation Letter
is governed by and construed in accordance with the laws of the Kingdom of
Denmark.


 


[Place and date]


 


 


	
   

  	
   

  	
   

  
	
  [PARENT]

  	
   

  	
  [RESIGNING BORROWER]

  
	
  [SIGNATURES OF DULY AUTHORISED PERSONS]

  	
   

  	
   

  



 


39

















 


SCHEDULE 5


 


FORM OF POWER OF ATTORNEY


 


To:                                     DANFOSS
A/S (the
“Lender”)


Nordborgvej
81


DK-6430
Nordborg


Denmark


 


E-mail: Albertsen@danfoss.com
and HGA@danfoss.com


 


Re: USD 490,000,000 Term Loan and
Revolving Credit Facilities Agreement dated 12th March 2009 (the
“Agreement”) – Power of Attorney


 


The undersigned Sauer-Danfoss Inc. hereby authorises – any
two persons jointly:


 


	
  Passport no.:

  	
   

  	
  Name:

  	
   

  	
  Signature:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Passport no.:

  	
   

  	
  Name:

  	
   

  	
  Signature:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Passport no.:

  	
   

  	
  Name:

  	
   

  	
  Signature:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Passport no.:

  	
   

  	
  Name:

  	
   

  	
  Signature:

  



 


·                  to sign any future
Drawdown notice and Promissory Notes, Selection Notice, Accession Letter, Resignation
Letter (as described in schedule 1 to 4 of the Agreement).


 


·                  to take all action and/or
to make or receive any declaration which, in the opinion of the Attorney,
appears to be necessary or useful to consummate such agreements.


 


Sauer-Danfoss Inc.Danfoss A/S This Power of Attorney shall
be in force until the maturity date or until the Lender receives a written
notice of termination or amendment to this Power of Attorney, in each case duly
signed by Authorised Persons of Sauer-Danfoss Inc. as the “Original Borrower”, the “Guarantor” and the “Parent”.


 


[Place and date]


 


 


	
   

  	
   

  
	
  Sauer-Danfoss Inc.

  
	
  [SIGNATURES OF DULY AUTHORISED
  PERSONS]

  



 


40