|  | **Exhibit 10.1**                  |
|--|-----------------------------------|
|  | **LIMITED LIABILITY PARTNERSHIP** |

 

**CONFORMEDCOPY**(incorporating amendments made on 5 December 2006and 19 January 2007)

22 NOVEMBER 2006

 

For

SIRONA DENTALSYSTEMS, INC.

arranged by

J.P. MORGAN PLC

and

UBS LIMITED

with

JPMORGAN CHASEBANK, N.A.

and

UBS LIMITEDacting as Original Lenders

and

J.P. MORGAN PLC

and

UBS LIMITEDacting as Bookrunner

and

J.P. MORGAN EUROPELIMITEDacting as Facility Agent

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EUR 275,000,000AND USD 300,000,000SENIOR FACILITIES AGREEMENT

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**CONTENTS**
| Clause | ** ** | ** **                                                                            | **Page** |
|--------|------------|---------------------------------------------------------------------------------------|----------|
|   |       |                                                                                  |     |   |
| 1.     |       | Definitions And Interpretation                                                        |     | 2 |
|   |       |                                                                                  |     |   |
| 2.     |       | The Facilities                                                                        |     | 27 |
|   |       |                                                                                  |     |   |
| 3.     |       | Purpose                                                                               |     | 31 |
|   |       |                                                                                  |     |   |
| 4.     |       | Conditions Of Utilisation                                                             |     | 31 |
|   |       |                                                                                  |     |   |
| 5.     |       | Utilisation Of Loans                                                                  |     | 34 |
|   |       |                                                                                  |     |   |
| 6.     |       | Utilisation By Way Of Bank Guarantees                                                 |     | 35 |
|   |       |                                                                                  |     |   |
| 7.     |       | Bank Guarantees                                                                       |     | 37 |
|   |       |                                                                                  |     |   |
| 8.     |       | Optional Currencies                                                                   |     | 40 |
|   |       |                                                                                  |     |   |
| 9.     |       | Ancillary Facilities                                                                  |     | 40 |
|   |       |                                                                                  |     |   |
| 10.    |       | Repayment                                                                             |     | 45 |
|   |       |                                                                                  |     |   |
| 11.    |       | Prepayment And Cancellation                                                           |     | 46 |
|   |       |                                                                                  |     |   |
| 12.    |       | Interest                                                                              |     | 54 |
|   |       |                                                                                  |     |   |
| 13.    |       | Interest Periods And Terms                                                            |     | 56 |
|   |       |                                                                                  |     |   |
| 14.    |       | Changes To The Calculation Of Interest                                                |     | 57 |
|   |       |                                                                                  |     |   |
| 15.    |       | Fees                                                                                  |     | 59 |
|   |       |                                                                                  |     |   |
| 16.    |       | Tax Gross Up And Indemnities                                                          |     | 60 |
|   |       |                                                                                  |     |   |
| 17.    |       | Increased Costs                                                                       |     | 67 |
|   |       |                                                                                  |     |   |
| 18.    |       | Other Indemnities                                                                     |     | 68 |
|   |       |                                                                                  |     |   |
| 19.    |       | Mitigation By The Lenders                                                             |     | 69 |
|   |       |                                                                                  |     |   |
| 20.    |       | Costs And Expenses                                                                    |     | 70 |
|   |       |                                                                                  |     |   |
| 21.    |       | Guarantee And Indemnity                                                               |     | 71 |
|   |       |                                                                                  |     |   |
| 22.    |       | Representations                                                                       |     | 78 |
|   |       |                                                                                  |     |   |
| 23.    |       | Information Undertakings                                                              |     | 84 |
|   |       |                                                                                  |     |   |
| 24.    |       | Financial Covenants                                                                   |     | 89 |
|   |       |                                                                                  |     |   |
| 25.    |       | General Undertakings                                                                  |     | 93 |
|   |       |                                                                                  |     |   |
| 26.    |       | Events Of Default                                                                     |     | 107 |
|   |       |                                                                                  |     |   |
| 27.    |       | Changes To The Lenders                                                                |     | 114 |
|   |       |                                                                                  |     |   |
| 28.    |       | Changes To The Obligors                                                               |     | 118 |
|   |       |                                                                                  |     |   |
| 29.    |       | Role Of The Facility Agent, The Mandated Lead  Arrangers, The Issuing Bank And Others |     | 121 |
|   |       |                                                                                  |     |   |
| 30.    |       | Conduct Of Business By The Finance Parties                                            |     | 127 |
|   |       |                                                                                  |     |   |
| 31.    |       | Sharing Among The Finance Parties                                                     |     | 127 |

 

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|                                            |   |                          |                                                                    |   |
|--------------------------------------------|--------|-------------------------------|-------------------------------------------------------------------------|--------|
| 32.                                        |   | Payment Mechanics             |                                                                    | 130    |
|                                       |   |                          |                                                                    |   |
| 33.                                        |   | Set Off                       |                                                                    | 132    |
|                                       |   |                          |                                                                    |   |
| 34.                                        |   | Notices                       |                                                                    | 133    |
|                                       |   |                          |                                                                    |   |
| 35.                                        |   | Calculations And Certificates |                                                                    | 136    |
|                                       |   |                          |                                                                    |   |
| 36.                                        |   | Partial Invalidity            |                                                                    | 136    |
|                                       |   |                          |                                                                    |   |
| 37.                                        |   | Remedies And Waivers          |                                                                    | 136    |
|                                       |   |                          |                                                                    |   |
| 38.                                        |   | Amendments And Waivers        |                                                                    | 137    |
|                                       |   |                          |                                                                    |   |
| 39.                                        |   | Counterparts                  |                                                                    | 140    |
|                                       |   |                          |                                                                    |   |
| 40.                                        |   | USA Patriot Act               |                                                                    | 140    |
|                                       |   |                          |                                                                    |   |
| 41.                                        |   | Governing Law                 |                                                                    | 141    |
|                                       |   |                          |                                                                    |   |
| 42.                                        |   | Enforcement                   |                                                                    | 141    |
|                                       |   |                          |                                                                    |   |
| 43.                                        |   | Waiver Of Jury Trial          |                                                                    | 141    |
|                                       |   |                          |                                                                    |   |
| Schedule 1 The  Original Lender            |   | 143                           |
|                                       |   |                          |                                                                    |   |
| Schedule 2 Conditions  Precedent           |   | 144                           |
|                                       |   | Part I                        | Conditions Precedent To Delivery Of A Utilisation  Request              |   | 144 |
|                                       |   | Part IA                       | Conditions Precedent To Drawdown                                        |   | 145 |
|                                       |   | Part II                       | Conditions Precedent Required To Be Delivered By An  Additional Obligor |   | 147 |
|                                       |   |                          |                                                                    |   |
| Schedule 3 Requests                        |   | 150                           |
|                                       |   | Part IA                       | Utilisation Request Loans                                               |   | 150 |
|                                       |   | Part IB                       | Utilisation Request Bank Guarantees                                     |   | 151 |
|                                       |   | Part II                       | Selection Notice Applicable To A Term Loan                              |   | 152 |
|                                       |   |                          |                                                                    |   |
| Schedule 4 Mandatory  Cost Formulae        |   | 153                           |
|                                       |   |                          |                                                                    |   |
| Schedule 5 Form Of  Transfer Certificate   |   | 156                           |
|                                       |   |                          |                                                                    |   |
| Schedule 6 Form Of  Accession Letter       |   | 158                           |
|                                       |   |                          |                                                                    |   |
| Schedule 7 Form Of  Resignation Letter     |   | 159                           |
|                                       |   |                          |                                                                    |   |
| Schedule 8 Form Of  Compliance Certificate |   | 160                           |
|                                       |   |                          |                                                                    |   |
| Schedule 9  Timetables                     |   | 162                           |
|                                       |   | Part I                        | Loans                                                                   |   | 162 |
|                                       |   | Part II                       | Bank Guarantees                                                         |   | 164 |
|                                       |   |                          |                                                                    |   |
| Schedule 10 Form Of  Letter Of Credit      |   | 165                           |
|                                       |   |                          |                                                                    |   |
| Schedule 11  Guarantee Principles          |   | 168                           |
|                                       |   |                          |                                                                    |   |
| Schedule 12 Certain  Funds Defaults        |   | 174                           |
|                                            |        |                               |                                                                         |        |  |  |

 

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|                                                         |   |   |   |   |
|---------------------------------------------------------|--------|--------|--------|--------|
| Schedule 13 Overview  Loans And Securities Subsidiaries |   | 175    |
|                                                    |   |   |   |   |
| Schedule 14 Form Of  Certificate                        |   | 177    |

** **

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**THISAGREEMENT**is dated 22 November 2006 and made

**BETWEEN**:

(1)                                  **SIRONA DENTAL SYSTEMS, INC.,**anincorporated company with business address 30-00 47th Avenue, Long Island City,New York, NY 11101 incorporated in Delaware with tax payer ID 11-3374812  as original guarantor (the “**Company**”);

(2)                                  **SCHICK TECHNOLOGIES, INC.,**an incorporatedcompany with business address 30-00 47th Avenue, Long Island City, New York, NY11101 incorporated in New York with tax payer ID 11-3106069 as originalborrower and original guarantor (“**SchickTechnologies, Inc.**”);

(3)                                  **SIRONA DENTAL SYSTEMS GMBH,**a limitedliability company (*Gesellschaft mitbeschränkter Haftung*) incorporated in the Federal Republic ofGermany, having its business address at Fabrikstr. 31, 64625 Bensheim, Germany,which is registered in the commercial register (*Handelsregister*) of the local court (*Amtsgericht*) of Darmstadt under HRB 24948as original borrower and original guarantor (“**SironaDental Systems GmbH**”);

(4)                                  **SIRONA DENTAL SERVICES GMBH,**a limitedliability company (*Gesellschaft mitbeschränkter Haftung*) incorporated in the Federal Republic ofGermany, having its business address at Fabrikstr. 31, 64625 Bensheim, Germany,which is registered in the commercial register (*Handelsregister*) of the local court (*Amtsgericht*) of Darmstadt  under HRB 25819 as original borrower andoriginal guarantor (“**Sirona Dental ServicesGmbH**”);

(5)                                  **SIRONA DENTAL SYSTEMS LLC**, a limitedliability company with business address 4835 Sirona Drive, Charolotte, NC28273, PO Box 410100 incorporated in the State of North of Carolina with taxpayer ID 56-2078958 as original guarantor (“**SironaDental Systems LLC**”);

(6)                                  **SIRONA HOLDING GMBH**, a limited liabilitycompany (*Gesellschaft mit beschränkterHaftung*) incorporated in the Federal Republic of Germany, having itsbusiness address at Fabrikstr. 31, 64625 Bensheim, Germany, which is registeredin the commercial register (*Handelsregister*)of the local court (*Amtsgericht*)of Darmstadt under HRB 25817 as original guarantor (**Sirona Holding GmbH**”);

(7)                                  **SIRONA IMMOBILIEN GMBH**, a limited liabilitycompany (*Gesellschaft mit beschränkterHaftung*) incorporated in the Federal Republic of Germany, having itsbusiness address at Fabrikstr. 31, 64625 Bensheim, Germany, which is registeredin the commercial register (*Handelsregister*)of the local court (*Amtsgericht*)of Darmstadt under HRB 24987 as original guarantor (“**Sirona Immobilien GmbH**”);

(8)                                  **J.P. MORGAN PLC** and **UBS LIMITED** as mandated lead arrangers (the“**Mandated Lead Arrangers**”);

(9)                                  **JPMORGAN CHASE BANK, N.A.** and **UBS LIMITED** as original lenders (the “**Original Lenders**”); and

 

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(10)                            **J.P. MORGAN EUROPE LIMITED** as FacilityAgent of the Lenders (the “**Facility Agent**”).

**IT ISAGREED**as follows:

**SECTION1**

**INTERPRETATION**

# **1.****                                      DEFINITIONSAND INTERPRETATION**

## **1.1****                               Definitions**

In this Agreement:

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

“**Accounting Principles**”means generally accepted accounting principles in the United States of America.

“**Acquisition**” means theacquisition by Blitz F04-506 GmbH of the shares of Sirona Dental SystemsBeteiligungs-und Verwaltungs GmbH pursuant to a sale and purchase agreementdated 4 May 2005.

“**Acquisition Costs**” meansall non-periodic fees, costs and expenses, stamp, registration and otherTaxes incurred by the Company or any other member of the Group in connectionwith the Acquisition up to a maximum aggregate amount of EUR 42,000,000and other such fees, costs, expenses and Tax relating to acquisitions permittedunder Clause 25.7 (*Acquisitions*).

“**Additional Borrower**”means a company which becomes an Additional Borrower in accordance with Clause28 (*Changes to the Obligors*).

“**Additional Cost Rate**” hasthe meaning given to it in Schedule 4 (*MandatoryCost Formulae*).

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

“**Additional Obligor**” meansan Additional Borrower or an Additional Guarantor.

“**Affiliate**” means, inrelation to any person, a Subsidiary of that person or a Holding Company ofthat person or any other Subsidiary of that Holding Company.

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

“**Ancillary Commitment**”means, in relation to an Ancillary Lender and an Ancillary Facility thecommitment of that Lender under the Ancillary Facility as notified to theFacility Agent pursuant to Clause 9.3 (*Approvalprocess*) to the extent that amount is

 

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not cancelled or reduced under this Agreement or the AncillaryDocuments relating to that Ancillary Facility.

“**Ancillary Document**” meanseach document relating to or evidencing the terms of an Ancillary Facility.

“**Ancillary Facility**” meansany ancillary facility made available upon request as described in Clause 9 (*Ancillary Facilities*).

“**Ancillary Lender**” meanseach Lender (or Affiliate of a Lender) which makes available an AncillaryFacility in accordance with Clause 9 (*AncillaryFacilities*).

“**Ancillary Outstandings**”means, at any time, in relation to an Ancillary Facility the aggregate of thefollowing amounts outstanding under that Ancillary Facility then in force:

(a)                                  theprincipal amount under each overdraft facility and on demand short term loanfacility calculated on a net basis;

(b)                                 theface amount of each guarantee, bond and letter of credit under each guarantee,bonding or letter of credit facility; and

(c)                                  theamount fairly representing the aggregate exposure (excluding interest andsimilar charges) of that Ancillary Lender under each other type ofaccommodation provided under that Ancillary Facility as determined by suchAncillary Lender in accordance with the relevant Ancillary Document or marketpractice.

“**Anti-Terrorism Law**” meanseach of:

(a)                                  ExecutiveOrder No. 13224 of September 23, 2001 - Blocking Property and ProhibitingTransactions With Persons Who Commit, Threaten To Commit, or Support Terrorism(the Executive Order);

(b)                                 theUniting and Strengthening America by Providing Appropriate Tools Required toIntercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly knownas the USA Patriot Act);

(c)                                  theMoney Laundering Control Act of 1986, Public Law 99-570;

(d)                                 theInternational Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq, theTrading with the Enemy Act, 50 U.S.C. App. §§ 1 et seq, any Executive Order orregulation promulgated thereunder and administered by the Office of ForeignAssets Control (“**OFAC**”) of theU.S. Department of the Treasury; and

(e)                                  anylaw or regulation relating to economic sanctions, terrorism or money launderingenacted in the United States of America subsequent to the date of thisAgreement.

 

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“**Authorisation**” means anauthorisation, consent, approval, resolution, licence, exemption, filing,notarisation or registration.

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

“**Availability Period**”means:

(a)                                  inrelation to each Term Facility, the period from and including the date of thisAgreement to and including 45 days after the date of this Agreement;  and

(b)                                 inrelation to the Revolving Facility, the period from and including the date ofthis Agreement to and including the day which is one month prior to theTermination Date for the Revolving Facility.

“**Available Commitment**”means, in relation to a Facility, a Lender’s Commitment under that Facilityminus (subject as set out below):

(a)                                  theBase Currency Amount of its participation in any outstanding Utilisations underthat Facility and, in the case of the Revolving Facility only, the BaseCurrency Amount of the aggregate of its Ancillary Commitments; and

(b)                                 inrelation to any proposed Utilisation, the Base Currency Amount of itsparticipation in any other Utilisations that are due to be made under thatFacility on or before the proposed Utilisation Date and, in the case of theRevolving Facility only, the Base Currency Amount of its Ancillary Commitmentin relation to any new Ancillary Facility that is due to be made available onor before the proposed Utilisation Date.

For the purposes of calculating a Lender’s Available Commitment in relationto any proposed Utilisation under the Revolving Facility only, the followingamounts shall not be deducted from a Lender’s Commitment under that Facility:

(i)                                     thatLender’s participation in any Revolving Utilisations that are due to be repaidor prepaid on or before the proposed Utilisation Date; and

(ii)                                  thatLender’s Ancillary Commitments to the extent that they are due to be reduced orcancelled on or before the proposed Utilisation Date.

“**Available Facility**”means, in relation to a Facility, the aggregate for the time being of eachLender’s Available Commitment in respect of that Facility.

“**Bank Guarantee**” means:

(a)                                  aletter of credit, substantially in the form set out in Schedule 10 (*Form of Letter of Credit*) or in any otherform requested by the Company and agreed by the Facility Agent (with the priorconsent of the Majority Lenders) and the Issuing Bank; or

 

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(b)                                 anyother guarantee, bond, indemnity, letter of credit, documentary or other creditor any other instrument of suretyship or payment, issued, undertaken or made bythe Issuing Bank under the Revolving Facility in a form requested by theCompany and agreed by the Facility Agent (with the prior consent of theMajority Lenders) and the Issuing Bank.

“**Bank Guarantee Proportion**”means in relation to a Lender in respect of any Bank Guarantee, the proportion(expressed as a percentage) borne by that Lender’s Available Commitment to theAvailable Facility in relation to the Revolving Facility immediately prior tothe issue of that Bank Guarantee, adjusted to reflect any assignment ortransfer under this Agreement to or by that Lender or pursuant to Clause 31.6 (*Commitment**Exchange following acceleration*).

“**Base Currency**” means:

(a)                                  inthe case of Facility A1 and the Revolving Facility, USD; and

(b)                                 inthe case of Facility A2, euro.

“**Base Currency Amount**”means:

(a)                                  inrelation to a Utilisation, the amount specified in the Utilisation Requestdelivered by a Borrower for that Utilisation (or, if the amount requested isnot denominated in the Base Currency, that amount converted into the BaseCurrency at the Agent’s Spot Rate of Exchange on the date which is threeBusiness Days before the Utilisation Date or, if later, on the date theFacility Agent receives the Utilisation Request); and

(b)                                 inrelation to an Ancillary Commitment, the amount specified in the noticedelivered to the Facility Agent by the Company pursuant to sub-paragraph (a)(v) of Clause 9.3 (*Approval Process*)(or, if the amount specified is not denominated in the Base Currency, thatamount converted into the Base Currency at the Agent’s Spot Rate of Exchange onthe date which is three Business Days before the Commencement Date for thatAncillary Facility or, if later, the date the Facility Agent receives thenotice of the Ancillary Commitment),

as adjusted to reflect any repayment, prepayment, consolidation ordivision of a Utilisation, or (as the case may be) cancellation or reduction ofan Ancillary Facility.

“**Borrower**” means anOriginal Borrower or an Additional Borrower unless it has ceased to be aBorrower in accordance with Clause 28 (*Changesto the Obligors*).

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

(a)                                  theinterest (excluding, for the avoidance of doubt, the Margin and Mandatory Cost)which a Lender should have received for the period from the date of receipt ofall or any part of its participation in a Loan or Unpaid Sum to the last day ofthe current Interest Period in respect of that Loan or Unpaid Sum,

 

5

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had the principal amount or Unpaid Sum received been paid on the lastday of that Interest Period;

exceeds:

(b)                                 theamount which that Lender would be able to obtain by placing an amount equal tothe principal amount (including for the avoidance of doubt any component inrespect of interest and fees) or Unpaid Sum received by it on deposit with aleading bank in the Relevant Interbank Market for a period starting on theBusiness Day of receipt (in the case of prepayments of which the Facility Agenthas at least 2 Business Days notice), and on the Business Day following receiptor recovery (in the case where less than 2 Business Days notice is given) andending on the last day of the current Interest Period.

“**Business Day**” means a day(other than a Saturday or Sunday) on which banks are open for general businessin London, Frankfurt am Main and New York, and:

(a)                                  (inrelation to any date for payment or purchase of a currency other than euro) theprincipal financial centre of the country of that currency; or

(b)                                 (inrelation to any date for payment or purchase of euro) any TARGET Day.

“**Business Plan**” means thefinancial model including profit and loss, balance sheet and cash flowprojections from the date of this Agreement for a period of three years, inagreed form relating to the Group.

“**Cash**” means, at any time,cash at bank denominated in Swiss Francs, sterling, dollars, euro, JapaneseYen, Canadian dollar or any other currency which is the lawful currency of anyother member state of the OECD (or any other country in which a member of theGroup operates) and credited to an account in the name of a member of Group andto which, in each case, such member of the Group is alone beneficially entitledand for so long as:

(a)                                  thatcash is repayable on demand or within 30 days of demand;

(b)                                 repaymentof that cash is not contingent on the prior discharge of any other indebtednessof any member of the Group or of any other person whatsoever or on thesatisfaction of any other condition;

(c)                                  thereis no Security over that cash except as permitted hereunder; and

(d)                                 suchcash is freely and immediately available or within 30 days of demand to beapplied in repayment or prepayment of the Facilities, whether as a result ofdividend payments, loans or other payments made to the relevant member of theGroup.

“**Cash Equivalent Investments**”means:

(a)                                  debtsecurities denominated in Swiss Francs, sterling, dollars, euro, Japanese Yen,Canadian dollar or any other currency which is the lawful currency of

 

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any other member state of the OECD issued by orunconditionally guaranteed by Switzerland, the United Kingdom, the UnitedStates of America, a Participating Member State, Japan or any other memberstate of the OECD which are not convertible into any other form of security andhaving not more than one year to final maturity;

(b)                                 debtsecurities denominated in Swiss Francs, sterling, dollars, euro, Japanese Yen,Canadian dollar or any other currency which is the lawful currency of anymember state of the OECD which are not convertible into any other form ofsecurity and having not more than one year to final maturity, at all timesrated P-1 by Moody’s or A-1 by Standard & Poors’ and which are not issuedor guaranteed by any member of the Group;

(c)                                  certificatesof deposit denominated in Swiss Francs, sterling, dollars, euro, Japanese Yen,Canadian dollar or any other currency which is the lawful currency of anymember state of the OECD issued by, and acceptances by, banking institutionsauthorised under applicable legislation of Switzerland, the United Kingdom, theUnited States of America, a Participating Member State, Japan or any othermember state of the OECD rated P-1 by Moody’s or A-1 by Standard & Poors’;

(d)                                 anyinvestment accessible within 30 days in money market funds which have a creditrating of either A-1 or higher by Standard & Poors’ or Fitch Rating Ltd orP-1 or higher by Moody’s and which invest substantially all their assets insecurities of the types described in paragraphs (a) to (c) above; or

(e)                                  othersecurities (if any) approved in writing by the Facility Agent,

in each case, to which any member of the Group is beneficially entitledat that time and which is not issued or guaranteed by any member of the Groupor subject to any Security (other than as permitted hereunder).

“**Certain Funds Default**”means the occurrence of (i) a Change of Control (as defined in Clause 11.7 (*Exit*) or (ii) any event or circumstancementioned under any of the paragraphs listed in Schedule 12 (*Certain Funds Defaults*).

“**Certain Funds Period**”means the period from the date of this Agreement until and including theearlier of (i) the Closing Date and (ii) the last day of the AvailabilityPeriod for Facility A1 and Facility A2 **providedthat** such period shall be suspended at all times while the relevantparties are negotiating as envisaged by paragraph (b) in Schedule 12 (*Certain Funds Defaults*).

“**Closing Date**” means thedate on which first utilisation of any of the Facilities occurs.

“**Code**” means, at any date,the U.S. Internal Revenue Code of 1986 and the regulations promulgated and thejudicial and administrative decisions rendered under it, all as the same may bein effect at such date.

 

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“**Commencement Date**” means,in relation to an Ancillary Facility, the date on which that Ancillary Facilityis first made available, which date shall be a Business Day within theAvailability Period for the Revolving Facility.

“**Commitment**” means aFacility A1 Commitment, a Facility A2 Commitment or a Revolving Commitment.

“**Commitment Fee**” means anyfees payable by the Company pursuant to Clause 15.1 (*Commitment Fee*).

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

“**Consolidated Adjusted EBITDA**”has the meaning given to such term in Clause 24.1 (*Financial definitions*).

“**Consolidated Total Net Debt**”has the meaning given to such term in Clause 24.1 (*Financial definitions*).

“**Default**” means an Eventof Default or any event or circumstance which would (with the expiry of a graceperiod or the giving of notice under the Finance Documents or any combinationof any of the foregoing) be an Event of Default.

“**Environmental Claim**”means any claim, proceeding or investigation by any person in respect of anyEnvironmental Law.

“**Environmental Law**” meansany applicable law or regulation which relates to:

(a)                                  thepollution or protection of the environment;

(b)                                 harmto or the protection of human health; or

(c)                                  thehealth of animals or plants.

“**Environmental Permits**”means any permit, licence, consent, approval and other authorisation and thefiling of any notification, report or assessment required under anyEnvironmental Law for the operation of the business of any member of the Groupconducted on or from the properties owned or used by any member of the Group.

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

(a)                                  theapplicable Screen Rate; or

(b)                                 (ifno Screen Rate is available for the Interest Period of that Loan) thearithmetic mean of the rates (rounded upwards to four decimal places) assupplied to the Facility Agent at its request quoted by the Reference Banks toleading banks in the European interbank market,

as of the Specified Time on the Quotation Day for the offering ofdeposits in euro for a period comparable to the Interest Period of the relevantLoan.

 

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“**ERISA**” means, at anydate, the United States Employee Retirement Income Security Act of 1974 and theregulations promulgated and rulings issued thereunder, all as the same may bein effect at such date.

“**ERISA Affiliate**” meansany person that for purposes of Title I and Title IV of ERISA and Section 412of the Code would be deemed at any relevant time to be a single employer withan Obligor, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section4001 of ERISA.

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

“**Existing Mezzanine FacilityAgreement**” means the mezzanine facility agreement dated 30 June 2005(as amended) between, *inter alia*,Blitz F04-506 GmbH as original borrower and J.P. Morgan Europe Limited asfacility agent.

“**Existing Senior Facilities Agreement**”means the senior facility agreement dated 30 June 2005 (as amended) between, *inter alia*, Blitz F04-506 GmbH as originalborrower and J.P. Morgan Europe Limited as facility agent.

“**Expiry Date**” means for aBank Guarantee, the last day of its Term.

“**Facility**” means FacilityA1, Facility A2 or the Revolving Facility.

“**Facility A1**” means theterm loan facility made available under this Agreement as described insub-paragraph (a) (i) of Clause 2.1 (*TheFacilities*).

“**Facility A1 Borrower**”means Schick Technologies, Inc.

“**Facility A1 Commitment**”means:

(a)                                  inrelation to an Original Lender, the amount in the Base Currency set oppositeits name under the heading “Facility A1 Commitment” in Schedule 1 (*The Original Lenders*) and the amount of anyother Facility A1 Commitment transferred to it under this Agreement; and

(b)                                 inrelation to any other Lender, the amount in the Base Currency of any FacilityA1 Commitment transferred to it under this Agreement,

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

“**Facility A1 Loan**” means aloan made or to be made under Facility A1 or the principal amount outstandingfor the time being of that loan.

“**Facility A1 Repayment Date**”means each of the dates specified in Clause 10.1 (*Repayment of Facility Term Loans*) as a Facility A1 RepaymentDate.

“**Facility A1 Repayment Instalment**”means each instalment for repayment of the Facility A1 Loans referred to inClause 10.1 (*Repayment of Facility TermLoans*).

 

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“**Facility A2**” means the termloan facility made available under this Agreement as described in sub-paragraph(a) (ii) of Clause 2.1 (*The Facilities*).

“**Facility A2 Borrower**”means Sirona Dental Services GmbH.

“**Facility A2 Commitment**”means:

(a)                                  inrelation to an Original Lender, the amount in the Base Currency set oppositeits name under the heading “**Facility A2Commitment**” in Schedule 1 (*TheOriginal Lenders*) and the amount of any other Facility A2 Commitmenttransferred to it under this Agreement; and

(b)                                 inrelation to any other Lender, the amount in the Base Currency of any FacilityA2 Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under thisAgreement,

“**Facility A2 Loan**” means aloan made or to be made under Facility A2 or the principal amount outstandingfor the time being of that loan.

“**Facility A2 Repayment Date**”means each of the dates specified as a Facility A2 Repayment Date in Clause10.1 (*Repayment of Facility Term Loans*).

“**Facility A2 Repayment Instalment**”means each instalment for repayment of the Facility A2 Loans referred to inClause 10.1 (*Repayment of Facility TermLoans*).

“**Facility Office**” meansthe office or offices notified by a Lender or the Issuing Bank to the FacilityAgent in writing on or before the date it becomes a Lender or the Issuing Bank(or, following that date, by not less than five Business Days’ written notice)as the office or offices through which it will perform its obligations underthis Agreement.

“**Fee Letter**” means:

(a)                                  anyletter or letters between the Mandated Lead Arrangers and the Company (or theFacility Agent and the Company) setting out any of the fees referred to inClause 15 (*Fees*); and

(b)                                 anyother agreement setting out fees referred to in Clause 7.2 (*Fee payable in respect of Bank Guarantees*)or Clause 9.7 (*Interest, CommitmentCommission and Fees on Ancillary Facilities*).

“**Finance Document**” meansthis Agreement, any Fee Letter, any Accession Letter, any Resignation Letter,any Compliance Certificate, any Utilisation Request, any Selection Notice, theSubordination Agreement, any Ancillary Document, the Pooling Agreement and anyother document designated as a “**FinanceDocument**” by the Facility Agent and the Company.

“**Finance Party**” means theFacility Agent, the Mandated Lead Arrangers, a Lender, the Issuing Bank or anyAncillary Lender.

 

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“**Financial Indebtedness**”means any indebtedness for or in respect of:

(a)                                  anymonies borrowed or raised;

(b)                                 anyamount raised by acceptance under any acceptance credit facility or dematerialisedequivalent or by a bill discounting or factoring credit facility;

(c)                                  anyamount raised pursuant to any note purchase facility or the issue of bonds,notes (other than credit notes issued in the ordinary course of trade),debentures, loan stock or any similar instrument;

(d)                                 theamount of any liability in respect of any lease or hire purchase contract orother agreement which would, in accordance with the Accounting Principles, betreated as a finance or capital lease;

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

(f)                                    anyderivative transaction entered into in connection with protection against orbenefit from fluctuation in any rate or price (and, when calculating the valueof any derivative transaction, only the marked to market value shall be takeninto account);

(g)                                 anycounter indemnity obligation in respect of a guarantee, indemnity, bond,standby or documentary letter of credit or any other instrument issued by abank or financial institution;

(h)                                 anyamount raised by the issue of shares which are redeemable on or before theTermination Date;

(i)                                     anyamount of any liability under an advance or deferred purchase agreement if (i)one of the primary reasons behind the entry into the agreement is to raisefinance or (ii) the agreement is in respect of the supply of assets or servicesand payment is due more than 180 days from the date on which the goods weredelivered or services were performed other than any liability arising under theU.S. Exclusivity Agreement;

(j)                                     anyamount raised under any other transaction (including any forward sale orpurchase agreement) required to be accounted for as a borrowing (but excludingfor the avoidance of doubt any employee profit sharing scheme) to the extentthat item is treated as debt in the Group’s balance sheet; and

(k)                                  (withoutdouble counting) the amount of any liability in respect of any guarantee orindemnity or similar assurance against financial loss for any of the itemsreferred to in the preceding paragraphs of this definition and any agreement tomaintain the solvency of any person whether by investing in, lending to orpurchasing the assets of such person.

“**Financial Quarter**” hasthe meaning given to that term in Clause 24.1 (*Financialdefinitions*).

 

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“**Funds Flow Statement**”means the funds flow statement delivered by the Company to the Facility Agentpursuant to paragraph 2(c) of Part 1 of Schedule 2 (*Conditions Precedent to Delivery of a Utilisation Request*)in form and substance satisfactory to the Facility Agent.

“**General Investments Threshold**”means, at any time EUR 100,000,000.

“**German Borrower**” has themeaning given to that term in paragraph (h) of Clause 21.9 (*Limitation on Payment Obligations by GermanGuarantors and limitation regarding LTIBRs*).

“**Group**” means the Company,and each of its respective Subsidiaries for the time being.

“**Gross Assets**” means (byreference to the Accounting Principles), restricted short term investments,accounts receivable, net inventories, prepaid expenses and other currentassets, property, plant and equipment and intangible assets (but excludinggoodwill and all other assets or step up amounts that have been capitalised asa result of a purchase price allocation)

“**Guarantee Principles**”means the principles set out in Schedule 11 (*GuaranteePrinciples*).

“**Guarantor**” means eachOriginal Guarantor and each Additional Guarantor unless it has ceased to be aGuarantor in accordance with Clause 28 (*Changesto the Obligors*).

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

“**Incremental Facility**”means the increased amount of the existing Facilities or a term loan facilityor a revolving loan facility made available under this Agreement as describedin sub-paragraph (a)(iv) of Clause 2.1 (*TheFacilities*).

“**Incremental Facility Commitment**”has the meaning given to it in Clause 2.2 (*IncrementalFacility*).

“**Incremental Facility Loan**”means a loan made or to be made under the Incremental facility or the principalamount outstanding for the time being of that loan.

“**Information Memorandum**”means the document in the form approved by the Company concerning the Groupwhich is to be prepared in relation to this transaction, approved by theCompany and distributed by the Mandated Lead Arrangers prior to the SyndicationDate in connection with the syndication of the Facilities.

“**Initial Investors**” means(i) Madison Dearborn Partners, (ii) funds managed and/or advised by MadisonDearborn Partners and (iii) MDCP IV Global Investments LP, Beecken Petty O’KeefeFund II, L.P., Northwestern University, John W. Madigan, Harry M. JansenKraemer, Jr., and K&E Investment Partners, LLC - 2004-B DIF and (iv) any ofthe following funds whose investment is to be made on or shortly after theClosing Date: Beecken Petty O’Keefe QP Fund II, L.P., Beecken Petty O’Keefe

 

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Executive Fund II, L.P. and (v) certain members of management of theCompany and/or affiliates of EQT Partners AB and (vi) any other persons agreedto by the Lenders.

“**Intellectual Property**”means:

(a)                                  anypatents, trade marks, service marks, designs, business names, copyrights,design rights, moral rights, inventions, confidential information, know-how andother intellectual property rights and interests, whether registered orunregistered; and

(b)                                 thebenefit of all applications and rights to use such assets of each member of theGroup.

“**Interest Period**” means,in relation to a Loan, each period determined in accordance with Clause 13 (*Interest Periods and Terms*) and, inrelation to an Unpaid Sum, each period determined in accordance with Clause12.4 (*Default Margin*).

“**Invested Funds**” means theaggregate amount of all monies invested, paid, allocated, guaranteed,indemnified, applied or spent since the date hereof under sub-paragraph b(v) ofClause 25.7 (*Acquisitions*),paragraph (b) of Clause 25.8 (*Joint ventures*),sub-paragraph (b)(vii) of Clause 25.14 (*Loansand credit*) and/or sub-paragraph (b)(v) of Clause 25.15 (*No Guarantees or indemnities*) butdeducting any such amounts which are repaid, no longer outstanding andinvestment returns on investments made pursuant to the foregoing paragraphs.

“**Investors**” means fundsmanaged and advised by Madison Dearborn Partners and other investors selectedby Madison Dearborn Partners as part of the equity (and quasi-equity)syndication of the equity and quasi-equity funding for the Acquisition (subjectto Madison Dearborn Partners at all times owning a majority interest in, andbeing able to direct the affairs and control the composition of the board ofdirectors or equivalent body of, such investors), and each of their or anysubsequent successors or assignees or transferees.

“**Issuing Bank**” means anyLender which has notified the Facility Agent that it has agreed to the Company’srequest to be an Issuing Bank pursuant to the terms of this Agreement (and ifmore than one Lender has so agreed such Lenders whether acting individually ortogether shall be referred to as the “**IssuingBank**”).

“**Joint Venture**” means anyjoint venture entity, whether a company, unincorporated firm, undertaking,association, joint venture or partnership or any other entity.

“**Legal Opinions**” means thelegal opinions delivered to the Facility Agent pursuant to Clause 4.1 (*Initial Conditions Precedent*) andparagraph 9 of Part II of Schedule 2 (*ConditionsPrecedent*).

 

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“**Legal Reservations**” means

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

(b)                                 thetime barring of claims under the Limitation Acts;

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

(d)                                 anygeneral principles which are set out in the qualifications as to matters of lawin the Legal Opinions.

“**Lender**” means:

(a)                                  anyOriginal Lender; and

(b)                                 anybank, financial institution, trust, fund or other entity which has become aParty in accordance with Clause 27 (*Changesto the Lenders*),

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

“**LIBOR**” means, in relationto any Loan:

(a)                                  theapplicable Screen Rate; or

(b)                                 (ifno Screen Rate is available for the currency or Interest Period of that Loan)the arithmetic mean of the rates (rounded upwards to four decimal places) assupplied to the Facility Agent at its request quoted by the Reference Banks toleading banks in the London interbank market,

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

“**LTIBR**” means any longterm interest-bearing receivables as set out in the decrees of the German FederalMinistry of Finance (*Bundesfinanzministerium*)of 15 July 2004 (IV A2-S 2742a-20/04), paragraphs 20 and 37, and of 22 July2005 (IV-B7-S2742a-31/05), or as set out in any future law, administrativedecree, guideline or other pronouncement which overrules the aforementioneddecrees.

“**Loan**” means a Term Loanor a Revolving Loan.

“**LMA**” means the LoanMarket Association.

“**Majority Lenders**” means:

(a)                                  forthe purposes of paragraph (a) of Clause 38.1 (*Requiredconsents*) in the context of a waiver in relation to a proposedUtilisation of the Revolving

 

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Facility (other than a Utilisation on the Closing Date) of thecondition in Clause 4.2 (*Further ConditionsPrecedent*) a Lender or Lenders whose Available Commitments andAvailable Ancillary Commitments with respect to the Revolving Facilityaggregate more than 662/3 per cent. of the AvailableFacility and aggregate Available Ancillary Commitments with respect to theRevolving Facility; and

(b)                                 inany other case, a Lender or Lenders whose Commitments aggregate more than 662/3 per cent. of the Total Commitments (or,if the Total Commitments have been reduced to zero, aggregated more than 662/3 per cent. of the Total Commitmentsimmediately prior to that reduction).

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

“**Margin**” means in relationto any Revolving Loan or Term Loan, 0.75 per cent. per annum or such rate perannum as may be in effect from time to time in accordance with Clause 12.3 (*Margin Ratchet*).

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

“**Material Adverse Effect**”means any event or series of events which is materially adverse to:

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

(b)                                 theability of any Obligor to perform its payment obligations under the FinanceDocuments; or

(c)                                  thevalidity or enforceability of any material term of the Finance Documents or therights and remedies of any Finance Party under the Finance Documents in amanner or to an extent which is materially adverse to the interests of theFinance Parties under the Finance Documents.

“**Material Company**” means,at any time:

(a)                                  anObligor; or

(b)                                 amember of the Group which:

(i)                                     hasearnings before interest, tax, depreciation and amortisation (calculated on thesame basis as Consolidated Adjusted EBITDA, as defined in Clause 24 (*Financial Covenants*)) and discounting anyintra-group items, shares in subsidiaries and the earnings of subsidiaries)representing 5 per cent. or more of Consolidated Adjusted EBITDA of the Group;or

(ii)                                  hasgross assets (excluding intra group items) representing 5 per cent. or more ofthe consolidated Gross Assets of the Group,

 

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in each case calculated on a consolidated basis.

Compliance with the conditions set out in sub-paragraphs (b) (i) and(ii) above shall be determined by reference to the most recent ComplianceCertificate supplied by the Company and the latest audited annual and unauditedsemi-annual consolidated financial statements of the Group.

A report by the auditors of the Company that a Subsidiary is or is nota Material Company shall, in the absence of manifest error, be conclusive andbinding on all Parties.

“**Material Intellectual Property**”means the Intellectual Property which is material to the Group’s business.

“**Maximum Incremental Facility Amount**”means USD 100,000,000 or, if the Non-Leveraged Criteria has been met,USD 150,000,000.

“**Month**” means a periodstarting on one day in a calendar month and ending on the numericallycorresponding day in the next calendar month, except that:

(a)                                  (subjectto paragraph (c) below) if the numerically corresponding day is not a BusinessDay, that period shall end on the next Business Day in that calendar month inwhich that period is to end if there is one, or if there is not, on theimmediately preceding Business Day;

(b)                                 ifthere is no numerically corresponding day in the calendar month in which thatperiod is to end, that period shall end on the last Business Day in thatcalendar month; and

(c)                                  ifan Interest Period begins on the last Business Day of a calendar month, thatInterest Period shall end on the last Business Day in the calendar month inwhich that Interest Period is to end.

The above rules will only apply to the last Month of any period.  “**Monthly**”shall be construed accordingly.

“**Moody’s**” means Moody’sInvestor Services, Inc. and any successors to its rating business.

“**Non-Leveraged Criteria**”means (i) pro forma Consolidated Total Net Debt to Consolidated Adjusted EBITDAis less than 2.5:1 as evidenced in the relevant Compliance Certificatedelivered to the Facility Agent pursuant to Clause 23.2 (*Compliance Certificate*); and/or (ii) thelong term rating of the Group’s senior indebtedness is not less than “investmentgrade” (BBB- or Baa3 as rated by Standard and Poors or Moody’s respectively).

“**Obligor**” means a Borroweror a Guarantor.

“**Obligor’s Agent**” meansthe Company.

 

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“**Original Borrower**” meansthe Facility A1 Borrower, the Facility A2 Borrower and the Revolving FacilityBorrowers.

“**Optional Currency**” meansa currency (other than the Base Currency) which complies with the conditionsset out in Clause 4.4 (*Conditions relatingto Optional Currencies*).

“**Original Financial Statements**”means:

(a)                                  theun-audited consolidated financial statements of the Group dated 30 June 2006;and

(b)                                 theaudited consolidated financial statements of the Group for its financial yearending 30 September 2005.

“**Original Guarantor**” meanseach of the Company, Schick Technologies, Inc., Sirona Dental Systems GmbH,Sirona Dental Services GmbH, Sirona Dental Systems LLC, Sirona Holding GmbH andSirona Immobilien GmbH.

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

“**Party**” means a party tothis Agreement.

“**Patterson Note**” means thejunior subordinated promissory note issued pursuant to paragraph IX(D) of theU.S. Exclusivity Agreement subject to such subordinated intercreditorprovisions as may be acceptable to the Facility Agent (acting on theinstruction of the Majority Lenders).

“**Permitted Bensheim Disposal**”means the sale of land located at Werner-von-Siemens Strasse 4, 64625 Bensheim,Germany  registered at the Land Registryof Bensheim at page 10724, boundary 2975 Bensheim, Land Parcel 125/8 (the “**Land**”) and the completion of a long termlease agreement with a third party relating to the leasing of the Land togetherwith a new building situated thereon and the demolition of the existingbuilding according to the sale and lease back agreement which has beennotarized by Mrs. Ingrid Walter-Meinig in the notarial deed 129/2005 dated July19, 2005.

“**Permitted Disposal**” meansany disposal of assets or a business as a whole pursuant to a PermittedReorganisation, provided that the conditions related thereto are satisfied atthe date of the relevant disposal and such disposal is not adverse to theinterest of the Lenders.

“**Permitted Reorganisation**”means any reorganisation as set out in the Structure Memorandum **provided that**in relation to the proposedrestructuring of the Group set out in pages 20 to 29 thereof, such restructuringis not adverse to the interest of the Lenders, and any member of the Group thatwould become a Guarantor (a) pursuant to

 

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the terms of Clause 25.23 (*Guarantors*)if the test set out therein was carried out on the date of the restructuringrather than by reference to the most recently delivered Compliance Certificate,(b) envisaged to become a Guarantor under the Structure Memorandum; and (c)Newco 1 and Newco 2 (as referred to in the Structure Memorandum), shall accedeto this Agreement as an Additional Guarantor on the date of such restructuring.

“**Pooling Agreement**” meanseach of the profit and loss transfer agreement between Sirona Holding GmbH andSirona Dental Services GmbH dated 24 August 2006, the profit and loss transferagreement between Sirona Dental Services GmbH and Sirona Dental Systems GmbHdated 24 February 2004 and the profit and loss transfer agreement betweenSirona Dental Systems GmbH and Sirona Immobilien GmbH dated 23 September 2002.

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

(a)                                  (ifthe currency is euro) two TARGET Days before the first day of that periodprovided such TARGET Day is also a Business Day in London or, if not, theimmediately preceding TARGET Day which is also a Business Day in London; or

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

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

“**Reference Banks**” means,the principal office in London of JPMorgan Chase Bank, N.A. UBS Limited and nofewer than two other prime banks in the London interbank market as will beappointed by the Facility Agent in consultation with the Company.

“**Refinancing Costs**” hasthe meaning given to it in Clause 24.1 (*Financialdefinitions*).

“**Regulations T, U and X**”means, respectively, Regulations T, U and X of the Board of Governors of theFederal Reserve System of the United States (or any successor) as now and fromtime to time hereafter in effect.

“**Related Fund**”, inrelation to a fund (the “**first fund**”),means a fund which is managed or advised by the same investment manager oradvisor as the first fund or, if it is managed by a different investmentmanager or advisor, a fund whose investment manager or advisor is an Affiliateof the investment manager or advisor of the first fund.

“**Relevant Interbank Market**” means inrelation to euro, the European interbank market, and, in relation to any othercurrency, the London interbank market.

 

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

(a)                                  itsjurisdiction of incorporation; and

(b)                                 anyjurisdiction where it conducts its business.

“**Relevant Period**” has themeaning given to it in Clause 24.1 (*Financialdefinitions*).

“**Repeating Representations**”means each of the representations set out in Clause 22.1 (*Status*), Clause 22.3 (*Non-conflict with other obligations*),Clause 22.4 (*Power and authority*),Clause 22.6 (*Governing law and enforcement*),  paragraph (e) of Clause 22.10 (*No misleading information*), Clause 22.16 (*Good Title Assets*), Clause 22.21 (*Margin Stock*) and Clause 22.24 (*Anti-Terrorism Laws*).

“**Restricted Party**” meansany person listed:

(a)                                  inthe Annex to the Executive Order;

(b)                                 onthe “Specially Designated Nationals and Blocked Persons” list maintained by theOFAC; or

(c)                                  inany successor list to either of the foregoing.

“**Resignation Letter**” meansa letter substantially in the form set out in Schedule 7 (*Form of Resignation Letter*).

“**Revolving Commitment**” means:

(a)                                  inrelation to an Original Lender, the amount in the Base Currency set oppositeits name under the heading “**RevolvingCommitment**” in Schedule 1 (*TheOriginal Lenders*) and the amount of any other Revolving Commitmenttransferred to it under this Agreement; and

(b)                                 inrelation to any other Lender, the amount in the Base Currency of any RevolvingCommitment transferred to it under this Agreement,

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

“**Revolving Facility**” meansthe revolving credit facility made available under this Agreement as describedin sub-paragraph (a)(iii) of Clause 2.1 (*TheFacilities*).

“**Revolving Facility Borrower**”means Sirona Dental Systems GmbH, Schick Technologies, Inc. and Sirona DentalServices GmbH or an Additional Borrower unless it ceases to be a Borrower inaccordance with Clause 28 (*Changes to theObligors*).

“**Revolving Loan**” means aloan made or to be made under the Revolving Facility or the principal amountoutstanding for the time being of that loan.

“**Revolving Utilisation**”means a Revolving Loan or a Bank Guarantee.

 

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“**Rollover Loan**” means oneor more Revolving Loans:

(a)                                  madeor to be made on the same day that:

(i)                                     amaturing Revolving Loan is due to be repaid; or

(ii)                                  ademand by the Facility Agent pursuant to a drawing in respect of a BankGuarantee is due to be met;

(b)                                 theaggregate amount of which is equal to or less than the maturing Revolving Loanor the relevant claim in respect of that Bank Guarantee;

(c)                                  inthe same currency as the maturing Revolving Loan (unless it arose as a resultof the operation of Clause 8.2 (*Unavailabilityof a currency*)) or the relevant claim in respect of that BankGuarantee; and

(d)                                 madeor to be made to the same Borrower for the purpose of:

(i)                                     refinancinga maturing Revolving Loan; or

(ii)                                  satisfyingthe relevant claim in respect of that Bank Guarantee.

“**Screen Rate**” means:

(a)                                  inrelation to LIBOR, the British Bankers’ Association Interest Settlement Ratefor the relevant currency and period; and

(b)                                 inrelation to EURIBOR, the percentage rate per annum determined by the BankingFederation of the European Union for the relevant period,

displayed on the appropriate page of the Telerate screen. If the agreedpage is replaced or service ceases to be available, the Facility Agent mayspecify another page or service displaying the appropriate rate afterconsultation with the Company and the Lenders.

“**SEC**” means the UnitedStates Securities and Exchange Commission or any successor thereof.

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

“**Selection Notice**” means anotice substantially in the form set out in Part II ofSchedule 3 (*Selection Notice*)given in accordance with Clause 13 (*InterestPeriods and Terms*) in relation to a Term Facility.

“**Semi-Annual Financial Statements**”has the meaning given to it in Clause 24.1 (*Financialdefinitions*).

“**Senior Management**” meansthe chief executive officer and the chief financial officer from time to time.

 

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“**Specified Time**” means atime determined in accordance with Schedule 9 (*Timetables*).

“**Standard and Poors**” meansStandard and Poor’s Rating Services, a division of McGraw-Hill Companies Inc.or any successor to its rating business.

“**Structure Memorandum**”means the structure paper describing the Group and including a group structurechart and a funds flow showing the flow of funds at closing and prepared byErnst & Young in a form and substance satisfactory to the Facility Agent(acting reasonably).

“**Subordination Agreement**”means the subordination agreement dated on or about the date of this Agreementmade between, *inter alia*, theCompany and the Facility Agent relating to the subordination of certainintra-group loans to amounts due to the Finance Parties under the FinanceDocuments.

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

(a)                                  whichis controlled, directly or indirectly, by the first mentioned company orcorporation;

(b)                                 morethan half the issued share capital of which is beneficially owned, directly orindirectly by the first mentioned company or corporation; or

(c)                                  whichis a Subsidiary of another Subsidiary of the first mentioned company or corporation,

and for this purpose, a company or corporation shall be treated asbeing controlled by another if that other company or corporation is able todirect its affairs and/or to control the composition of its board of directorsor equivalent body.

“**Super Majority Lenders**”means a Lender or Lenders whose Commitments aggregate more than 80 per cent. ofthe Total Commitments (or, if the Total Commitments have been reduced to zero,aggregated more than 80 per cent. of the Total Commitments immediately prior tothat reduction).

“**Syndication Date**” meansthe day which is 4 Months after the later of the Closing Date or such earlierdate specified by the Mandated Lead Arrangers as the day on which theFacilities have been successfully syndicated as described in the Fee Letter.

“**TARGET**” means TransEuropean Automated Real time Gross Settlement Express Transfer payment system.

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

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

 

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“**Term**” means each perioddetermined under this Agreement for which the Issuing Bank is under a liabilityunder a Bank Guarantee.

“**Term Facility**” meansFacility A1 or Facility A2.

“**Term Loan**” means aFacility A1 Loan or a Facility A2 Loan, as the case may be.

“**Termination Date**” meansthe date falling 5 years after the Closing Date.

“**Total Commitments**” meansthe aggregate of the Total Facility A1 Commitments, the Total Facility A2Commitments and the Total Revolving Commitments.

“**Total Facility A1 Commitments**”means the aggregate of the Facility A1 Commitments.

“**Total Facility A2 Commitments**”means the aggregate of the Facility A2 Commitments.

“**Total Revolving Commitments**”means the aggregate of the Revolving Commitments.

“**Transfer Certificate**”means a certificate substantially in the form set out in Schedule 5 (*Form of Transfer Certificate*) or any otherform agreed between the Facility Agent and the Company.

“**Transfer Date**” means, inrelation to a transfer, the later of:

(d)                                 theproposed Transfer Date specified in the Transfer Certificate; and

(e)                                  thedate on which the Facility Agent executes the Transfer Certificate.

“**Treasury Transactions**”means any derivative transaction entered into in connection with protectionagainst or benefit from fluctuations in any rate or price.

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

“**U.S.**” and “United States”means the United States of America, its territories, possessions and otherareas subject to the jurisdiction of the United States of America.

“**U.S. Borrower**” means aBorrower whose jurisdiction of organisation is a state of the United States ofAmerica or the District of Columbia.

“**U.S. Exclusivity Agreement**”means a distributorship agreement dated 27 April 1998 between Sirona DentalSystems GmbH and Paterson Companies, Inc., as amended and restated from time totime.

“**U.S. Group Company**” meansthe Company and its direct and indirect Subsidiaries which are organised underthe law of any State of the United States of America or the District ofColumbia.

 

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“**U.S. Guarantor**” means aGuarantor whose jurisdiction of organisation is a state of the United States ofAmerica or the District of Columbia.

“**U.S. Obligor**” means anyU.S. Borrower or U.S. Guarantor.

“**Utilisation**” means a Loanor a Bank Guarantee.

“**Utilisation Date**” meansthe date on which a Utilisation is made.

“**Utilisation Request**”means a notice substantially in the form set out in Part I of Schedule 3 (*Requests*).

“**VAT**” means value addedtax and any other tax of a similar nature.

**1.2          Construction**

### (a)                                  Unlessa contrary indication appears a reference in this Agreement to:

#### (i)                                     the“**Facility Agent**”, the “**Mandated Lead Arrangers**”, any “**FinanceParty**”, any “**Lender**”, any “**Issuing Bank**”, any “**Obligor**”, any “**Party**” or any other person shall be construed so as toinclude its successors in title, permitted assigns and permitted transferees;

#### (ii)                                  adocument in “**agreed form**” is a document whichis previously agreed in writing by or on behalf of the Company and the FacilityAgent or, if not so agreed, is in the form to be agreed between the FacilityAgent and the Company, each acting reasonably;

#### (iii)                               “**assets**” includes present and future properties, revenues andrights of every description;

#### (iv)                              the“**equivalent**”, on any day, in onecurrency (the “**first currency**”) of a sumdenominated in a second currency (the “**second currency**”)means the amount of the first currency calculated by the Facility Agent asbeing that which would be required by it to purchase the relevant sum in thesecond currency in the London spot exchange market at or about 11.00 a.m. onthat day in accordance with its usual practice;

#### (v)                                 the“**European interbank market**” means theinterbank market for euro operating in Participating Member States;

#### (vi)                              a“**Finance Document**” or any otheragreement or instrument is a reference to that Finance Document or other agreementor instrument as amended or novated (however fundamentally);

#### (vii)                           “**indebtedness**” includes any obligation (whether incurred asprincipal or as surety) for the payment or repayment of money, whether presentor future, actual or contingent;

#### (viii)                        “**materiality**” and other qualifications will be determinedobjectively and not at the discretion of the Facility Agent;

 

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#### (ix)                                a“**participation**” of a Lender in:

##### (A)                              aLoan, means the amount of such Loan which such Lender has made or is to makeavailable and thereafter that part of the Loan which is owed to such Lender; or

##### (B)                                aBank Guarantee, means such Lender’s actual and contingent liabilities inrespect of such Bank Guarantee pursuant to paragraph (b) of Clause 7.4 (*Indemnities*);

#### (x)                                   a“**person**” includes any person,firm, company, corporation, government, state or agency of a state or anyassociation, trust or **partnership**(whether or not having separate legal personality) of two or more of theforegoing;

#### (xi)                                “**promptly**” and “**immediately**”means without undue delay;

#### (xii)                             a“**regulation**” includes anyregulation, rule, official directive, request or guideline (whether or not havingthe force of law but, if not, **compliance** withwhich is customary) of any governmental, intergovernmental or supranationalbody, agency, department or regulatory, self regulatory or other authority ororganisation;

#### (xiii)                          aprovision of law is a reference to that provision as amended or re enacted; and

#### (xiv)                         atime of day is a reference to London time.

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

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

### (d)                                 ABorrower providing “**cash cover**” fora Bank Guarantee or an Ancillary Facility means a Borrower paying an amount inthe currency of the Bank Guarantee (or, as the case may be, Ancillary Facility)to an interest bearing account in the name of that Borrower and the followingconditions being met:

#### (i)                                     theaccount is with the Facility Agent (if the cash cover is to be provided for allthe Lenders) or with a Lender or Ancillary Lender (if the cash cover is to beprovided for that Lender or Ancillary Lender);

#### (ii)                                  untilno amount is or may be outstanding under that Bank Guarantee or AncillaryFacility, withdrawals from the account may only be made to pay a Finance Partyamounts due and payable to it under this Agreement in respect of that Bank Guaranteeor Ancillary Facility; and

 

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#### (iii)                               thatBorrower has executed a security document in respect of that account, in formand substance satisfactory to the Facility Agent, the Lender or AncillaryLender with which that account is held, creating a first ranking securityinterest over that account.

### (e)                                  ADefault (including an Event of Default) is “**continuing**”or “**outstanding**” to the extent it has notbeen waived, remedied or has not ceased to exist.

### (f)                                    ABorrower “**repaying**” or “**prepaying**”(or any derivative form thereof) a Bank Guarantee or any Ancillary Outstandingsthe liability in respect of which is contingent means:

#### (i)                                     thatBorrower providing cash cover for that Bank Guarantee or in respect of theAncillary Outstandings;

#### (ii)                                  themaximum amount payable under or in respect of the Bank Guarantee or AncillaryOutstandings being reduced or cancelled in accordance with its terms; or

#### (iii)                               theIssuing Bank, Lender or, as the case may be, Ancillary Lender being satisfiedthat it has no further liability under or in respect of that Bank Guarantee orAncillary Outstandings,

and the amount by which a Bank Guarantee is, orAncillary Outstandings are, repaid or prepaid under sub-paragraphs (f)(i) and(f)(ii) above is the amount of the relevant cash cover or reduction.

### (g)                                 ALender funding its participation in a Utilisation includes a Lenderparticipating in a Bank Guarantee.

### (h)                                 Anoutstanding amount of a Bank Guarantee at any time is the maximum amount thatis or may be payable by the relevant Borrower in respect of that Bank Guaranteeat that time.

### (i)                                     Thereshall be no breach of any basket hereunder where such amount has beencalculated in a currency, other than the Base Currency and upon the day of suchconversion it falls within the basket but at a subsequent conversion back intothe Base Currency such basket is breached solely due to the fluctuation in thecurrency markets.

**1.3          Currency Symbols and Definitions**

“**$**”, “**dollars**” and “**USD**” denote lawful currency of the United States of Americaand “**EUR**”, “**€**” and “**euro**”means the single currency unit of the Participating Member States.

**1.4          Third party rights**

### (a)                                  Unlessexpressly provided to the contrary in a Finance Document, a person who is not aParty has no rights under the Contracts (Rights of Third Parties) Act 1999 toenforce or enjoy the benefit of any term of this Agreement.

 

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### (b)                                 Notwithstandingany term of any Finance Document, the consent of any person who is not a Partyis not required to rescind or vary this Agreement at any time.

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**SECTION2**

**THEFACILITIES**

# 2.**                                 THEFACILITIES**

## 2.1**                           TheFacilities**

### (a)                                      Subject to theterms of this Agreement, the Lenders make available:

#### (i)                        a term loan facility in anaggregate amount equal to the Total Facility A1 Commitments being USD150,000,0000 at the date of this Agreement;

#### (ii)                     a term loan facility in anaggregate amount equal to the Total Facility A2 Commitments being EUR275,000,000 at the date of this Agreement;

#### (iii)                  a multicurrency revolving creditfacility in an aggregate amount equal to the Total Revolving Commitments beingUSD 150,000,000 at the date of this Agreement; and

#### (iv)                 Subject to the terms of Clause 2.2 (*Incremental Facility*) an uncommittedincremental facility in an aggregate principal amount not to exceed the MaximumIncremental Facility Amount.

### (b)                                     The RevolvingFacility will be available to the Revolving Facility Borrowers.  Facility A1 will only be available to theFacility A1 Borrower and Facility A2 will only be available to the Facility A2Borrower.

### (c)                                      Subject to theterms of this Agreement and the Ancillary Documents, an Ancillary Lender maymake available an Ancillary Facility to any of the Borrowers in place of all orpart of its Commitment under the Revolving Facility.

## 2.2**                           IncrementalFacility**

### (a)                                      Subject to Clause2.3 (*Incremental Facility Conditions*),a Borrower may by written notice to the Facility Agent establish from time totime after the Closing Date one or more additional term loans or revolvingloans (an “**Incremental Loan**”) from one ormore existing Lenders and/or another bank or financial institution (a “**Further Lender**”) that in each case agrees to make such loansto the Borrower.  Such notice (an “**Incremental Commitment Notice**”) shall include:

(i)                        theprincipal amount of the Incremental Loan it wishes to establish;

(ii)                     that suchprincipal amount, when aggregated with any existing Incremental Loans is lessthan the Maximum Incremental Facility Amount;

 

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(iii)                  the terms andconditions (including the name and jurisdiction of incorporation of theproposed borrower) of the proposed Incremental Loan;

(iv)                 the date on whichthe proposed Incremental Loan shall become effective and the purpose for whichthe proceeds of such Incremental Loan shall be applied;

(v)                    an invitationto each Lender to participate in the Incremental Loan (the amount of suchparticipation to be *pro-rata*tothe proportion that Lender’s Commitments bear to the Total Commitments);

(vi)                 confirmation(with supporting calculations where necessary) that each of the conditions setout in Clause 2.3 (*Incremental FacilityConditions*) have or will be met at the date such Incremental Loanbecomes effective,

the IncrementalCommitment Notice shall be signed by a director of the Company.

### (b)                                     As soon asreasonably practicable following receipt of an Incremental Commitment Notice,the Facility Agent shall forward such Incremental Commitment Notice to theLenders requesting that each Lender confirms in writing within 10 Business Daysof the date of the Incremental Commitment Notice whether they accept or declineto participate in the relevant Incremental Loan.

### (c)                                      If any Lenderdoes not wish to participate in an Incremental Loan or fails to respond to theinvitation set out in the relevant Incremental Commitment Notice within 10Business Days of the date of such Incremental Commitment Notice, the portion ofthe Incremental Loan offered to it pursuant to such Incremental CommitmentNotice shall be offered to other existing Lenders *pro-rata* to the proportion that each Lender’s Commitmentsbear to the Total Commitments for the purpose of this paragraph the definitionof which shall be amended to exclude the Commitments of any declining Lenders.

### (d)                                     To the extent theexisting Lenders decline or fail to accept the invitation to participate inIncremental Loan in an amount equal to the amount  offered to the Lenders pursuant tosub-paragraphs (a)(v) and paragraph (c) above (the “**DeclinedAmount**”) within 10 Business Days of the date of the relevantIncremental Commitment Notice, the Company may nominate a Further Lender toparticipate in the relevant Incremental Loan in an amount not exceeding theDeclined Amount.  The Company shallarrange for each Further Lender to confirm to the Facility Agent in writingthat it has agreed to participate in an Incremental Loan up to the Declined Amounton the terms set out in the relevant Incremental Commitment Notice within 20Business Days of the date of such notice or such other shorter period requestedby the Company.

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###  

### (e)                                      A Further Lendermay only participate in a Incremental Loan if it has acceded to this Agreementas a Lender and each of the conditions set out in Clause 2.3 (*Incremental Facility Conditions*) have orwill be satisfied on the date the Incremental Facility Commitment inestablished).

### (f)                                        Commitments inrespect of Incremental Loans shall become Commitments under this Agreementpursuant to an amendment to this Agreement, executed by the relevant Borrower,each Lender and each Further Lender that agrees to participate in the relevantIncremental Loan and the Facility Agent. For the avoidance of doubt the Facility Agent shall be authorisedwithout the consent of the Majority Lenders to execute such amendment whichshall include such technical amendments to the terms of this Agreement as arerequired to enable the operation of the relevant Incremental Facilitiesprovided only that the conditions in Clause 2.3 (*Incremental Facility Conditions*) are met.

## 2.3**                           IncrementalFacility Conditions**

An Incremental Loan mayonly be effective if:

### (a)                                      no Default orEvent of Default has occurred and is continuing nor would the drawing of anyamount under the Incremental Loan cause there to be a Default or Event ofDefault;

### (b)                                     each of thefinancial covenants set out in Clause 24 (*FinancialCovenants*) would be satisfied on a *pro-forma*basis on the assumption that the Incremental Loan is drawn in full as of thelast day of the most recently ended Relevant Period;

### (c)                                      the maturity dateof the Incremental Loan is no earlier than the Termination Date hereunder andthe weighted average life to maturity of the Incremental Loan is no shorterthan that of Facilities A1 and A2;

### (d)                                     the claims of theLenders in respect of the Term Facilities and the Revolving Facility rank atleast *pari passu* with the claimsof the Lenders under the Incremental Loan;

### (e)                                      the provisionsrelating to mandatory prepayments and guarantees under and of the IncrementalLoan shall be no more favourable to the Lenders under the Incremental Loancompared to those under the Facilities;

### (f)                                        the Companydelivers to the Facility Agent any legal opinion or other condition precedents(including any information required to comply with “know your customer” orsimilar identification procedures) requested by the Facility Agent (actingreasonably) prior to utilisation of the Incremental Loan;

### (g)                                     if the proposedborrower of the Incremental Loan is not a Borrower it becomes an AdditionalBorrower on and in accordance with the terms of Clause 28.2 (*Additional Borrowers*);

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###  

### (h)                                     the date uponwhich the Incremental Loan is established is no earlier than one Business Dayafter the Closing Date.

## 2.4**                           FinanceParties rights and obligations**

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

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

### (c)                                      A Finance Partymay, except as otherwise stated in the Finance Documents, separately enforceits rights under the Finance Documents.

## 2.5**                           Obligors’Agent**

### (a)                                      Each Obligor(other than the Company) by its execution of this Agreement or an AccessionLetter irrevocably appoints the Company to act on its behalf as its agent inrelation to the Finance Documents and irrevocably authorises:

#### (i)                        the Company on its behalf tosupply all information concerning itself contemplated by this Agreement to theFinance Parties and to give all notices and instructions (including, in thecase of a Borrower, Utilisation Requests), to execute on its behalf anyAccession Letter, to make such agreements and to effect the relevantamendments, supplements and variations capable of being given, made or effectedby any Obligor notwithstanding that they may affect the Obligor, withoutfurther reference to or the consent of that Obligor; and

#### (ii)                     each Finance Party to give anynotice, demand or other communication to that Obligor pursuant to the FinanceDocuments to the Company,

and in each case theObligor shall be bound as though the Obligor itself had given the notices andinstructions (including, without limitation, any Utilisation Requests) orexecuted or made the agreements or effected the amendments, supplements orvariations, or received the relevant notice, demand or other communication.

### (b)                                     Every act,omission, agreement, undertaking, settlement, waiver, amendment, supplement,variation, notice or other communication given or made by the Obligors’ Agentor given to the Obligors’ Agent under any Finance Document on behalf of anotherObligor or in connection with any Finance Document (whether or not known to anyother Obligor and whether occurring before or after such other Obligor becamean Obligor under any Finance Document) shall be binding for all purposes on thatObligor as if that Obligor had

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### expressly made, given or concurred with it.In the event of any conflict between any notices or other communications of theObligors’ Agent and any other Obligor, those of the Obligors’ Agent shallprevail.

### (c)                                      For the purposeof acting as Obligors’ Agent in accordance with this Clause 2.5, each Obligorreleases the Company from the restrictions of Sec 181 of the German Civil Codeand any equivalent restriction under any applicable law.

# 3.**                                 PURPOSE**

## 3.1**                           Purpose**

### (a)                                      Each Borrowershall apply all amounts borrowed by it under Facility A1 and Facility A2towards refinancing all Financial Indebtedness of the Group outstanding underthe Existing Senior Facilities Agreement and the Existing Mezzanine FacilityAgreement as described in the Structure Memorandum, and costs and expensesincurred by the Group in connection with the Facilities made availablehereunder.

### (b)                                     Each Borrowershall apply all amounts borrowed by it under the Revolving Facility, any BankGuarantee or any utilisation of any Ancillary Facility towards the generalcorporate and working capital purposes of the Group including the cost andexpenses described in paragraph (a).  TheBorrowers under the Revolving Facility shall be entitled to apply amountsborrowed under the Revolving Facility towards the financing of acquisitionspermitted under sub-paragraph (b)(ii) of Clause 25.7 (*Acquisitions*).

## 3.2**                           Monitoring**

No Finance Party is boundto monitor or verify the application of any amount borrowed pursuant to thisAgreement.

# 4.**                                 CONDITIONSOF UTILISATION**

## 4.1**                           InitialConditions Precedent**

No Borrower may deliver aUtilisation Request unless the Facility Agent has received all of the documentsand other evidence listed in Part I of Schedule 2 (*Conditions Precedent to Delivery of a Utilisation Request*)in form and substance satisfactory to the Facility Agent.  The Facility Agent shall notify the Companyand the Lenders promptly upon being so satisfied.

## 4.2**                           FurtherConditions Precedent**

The Lenders will only beobliged to comply with Clause 5.4 (*Lenders’participation*) if on the date of the Utilisation Request and on theproposed Utilisation Date:

### (a)                                      the FacilityAgent has received all of the documents and other evidence listed in Part IA ofSchedule 2 (*Conditions Precedent to Drawdown*)in form and substance satisfactory to the Facility Agent;

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###  

### (b)                                     in the case of aRollover Loan, no notice has been delivered under Clause 26.18 (*Acceleration*) relating to the RevolvingCommitments and, in the case of any other Utilisation, no Default is continuingor would result from the proposed Utilisation; and

### (c)                                      in relation toany Utilisation on the Closing Date (subject to Clause 4.3 (*Certain Funds*)), all the representationsand warranties in Clause 22 (*Representations*)or, in relation to any other Utilisation, the Repeating Representations to bemade by each Obligor are true in all material respects.

## 4.3**                           CertainFunds**

The Lenders agree that(without prejudice to Clause 26.19 (*CertainFunds Period*)) in relation to the Utilisation under Facility A1 andFacility A2 requested to be made during the Certain Funds Period, Clause 4.2 (*Further Conditions Precedent*) shall onlyapply if a Certain Funds Default has occurred which is continuing or, inrelation to paragraph (b) of Schedule 12 (*CertainFunds Default*), the relevant parties are in negotiations within themeaning of such paragraph (b).

## 4.4**                           Conditionsrelating to Optional Currencies**

### (a)                                      A currency willconstitute an Optional Currency in relation to a Revolving Utilisation if:

#### (i)                        it is readily available in theamount required and freely convertible into the Base Currency in the RelevantInterbank Market on the Quotation Day and the Utilisation Date for thatUtilisation; and

#### (ii)                     it is Euro, Australian dollars orJapanese Yen or has been approved by the Facility Agent (acting on theinstructions of all the Lenders) on or prior to receipt by the Facility Agentof the relevant Utilisation Request for that Utilisation.

### (b)                                     If the FacilityAgent has received a written request from the Company for a currency to beapproved under sub-paragraph (a)(ii) above, the Facility Agent will confirm tothe Company by the Specified Time:

#### (i)                        whether or not the Lenders havegranted their approval; and

#### (ii)                     if approval has been granted, theminimum amount (and, if required, integral multiples) for any subsequentUtilisation in that currency.

## 4.5**                           Maximumnumber of Utilisations**

### (a)                                      A Borrower maynot deliver a Utilisation Request if as a result of the proposed Utilisation:

#### (i)                        4 or more Term Loans would beoutstanding under Facility A1 and Facility A2; or

#### (ii)                     10 or more Revolving Utilisations(or 10 or more Incremental Facility Loans) would be outstanding.

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### (b)                                     A Borrower may notrequest that a Term Loan be divided if, as a result of the proposed division, 4or more Term Loans would be outstanding under each of Facility A1 and FacilityA2. A Borrower may not request that a Revolving Loan be divided.

### (c)                                      Any Loan made bya single Lender under Clause 8.2 (*Unavailabilityof a currency*) shall not be taken into account in this Clause 4.5.

## 4.6**                           Authorisationre fees, etc.**

Each Borrower irrevocablyauthorises the Facility Agent to deduct from the amount of the firstUtilisation under the Facilities, all fees, costs and expenses then due fromthe Company pursuant to Clause 15 (*Fees*).

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**SECTION3UTILISATION**

# 5.**                                 UTILISATIONOF LOANS**

## 5.1**                           Deliveryof a Utilisation Request**

A Borrower may utilise aFacility by delivery to the Facility Agent of a duly completed UtilisationRequest not later than the Specified Time.

## 5.2**                           Completionof a Utilisation Request**

### (a)                                      Each UtilisationRequest is irrevocable and will not be regarded as having been duly completedunless:

#### (i)                        it identifies the Facility tobe utilised;

#### (ii)                     the proposed Utilisation Date is aBusiness Day within the Availability Period applicable to that Facility;

#### (iii)                  the currency and amount of theUtilisation comply with Clause 5.3 (*Currencyand amount*); and

#### (iv)                 the proposed Interest Period complieswith Clause 13 (*Interest Periods and Terms*).

### (b)                                     Only oneUtilisation may be requested in each Utilisation Request.

## 5.3**                           Currencyand amount**

### (a)                                      The currencyspecified in a Utilisation Request must be the Base Currency or, in case of theRevolving Facility, the Base Currency or an Optional Currency.

### (b)                                     The amount of theproposed Utilisation must be:

#### (i)                        for Facility A1, an amountequal to USD 150,000,000 or, if less, the Available Facility; or

#### (ii)                     for Facility A2, an amount equalto euro 275,000,000 or, if less, the Available Facility; or

#### (iii)                  for the Revolving Facility, a minimumamount of USD 1,000,000 (and thereafter integral multiples ofUSD 500,000) (or if an Optional Currency (subject to paragraph (b) ofClause 4.4 (*Conditions relating to OptionalCurrencies*)) its equivalent) or, if less, the Available Facility.

### (c)                                      For the avoidanceof doubt, none of the requirements in paragraph (b) above shall apply to anyAncillary Facility.

## 5.4**                           Lenders’participation**

### (a)                                      If the conditionsset out in this Agreement for the relevant Facility have been met, each Lendershall make its participation in each Loan available by the Utilisation Datethrough its Facility Office.

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###  

 

### (b)                                     The amount of eachLender’s participation in each Loan will be equal to the proportion borne byits Available Commitment to the Available Facility immediately prior to makingthe Loan.

### (c)                                      The FacilityAgent shall determine the Base Currency Amount of each Revolving Loan which isto be made in an Optional Currency and shall notify each Lender of the amountof each Loan and the amount of its participation in that Loan by the SpecifiedTime.

## 5.5**                           Limitationon Utilisations**

The Revolving Facilityshall not be utilised on the Closing Date unless Facility A1 and Facility A2are drawn in full at the same time.

# 6.**                                 UTILISATIONBY WAY OF BANK GUARANTEES**

## 6.1**                           TheRevolving Facility**

### (a)                                      The RevolvingFacility may be utilised by way of Bank Guarantees.

### (b)                                     Other than Clause5.5 (*Limitations on Utilisations*),Clause 5 (*Utilisation of Loans*)does not apply to utilisation by way of Bank Guarantees.

## 6.2**                           Deliveryof a Utilisation Request for Bank Guarantees**

A Borrower may request aBank Guarantee or the renewal of an existing Bank Guarantee by delivery to theFacility Agent of a duly completed Utilisation Request in the form of Part IBof Schedule 3 (*Utilisation Request BankGuarantees*) not later than the Specified Time.

## 6.3**                           Completionof a Utilisation Request for Bank Guarantees**

Each Utilisation Requestfor a Bank Guarantee is irrevocable and will not be regarded as having beenduly completed unless:

### (a)                                      it specifies thatit is for a Bank Guarantee;

### (b)                                     the proposedUtilisation Date is a Business Day within the Availability Period applicable tothe Revolving Facility;

### (c)                                      the currency andamount of the Bank Guarantee comply with Clause 6.4 (*Currency and amount*);

### (d)                                     the form of BankGuarantee is attached;

### (e)                                      the Expiry Dateof the Bank Guarantee falls on or before the Termination Date in relation tothe Revolving Facility;

### (f)                                        the Term of theBank Guarantee is 12 months or less;

### (g)                                     the deliveryinstructions for the Bank Guarantee are specified; and

### (h)                                     in the case of aUtilisation Request for the renewal of a Bank Guarantee the terms shall be thesame as those of the relevant Bank Guarantee immediately prior to its renewalexcept that:

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#### (i)                        paragraph (d) above shall notapply;

#### (ii)                     its amount may be less than theamount of the Bank Guarantee immediately prior to its renewal; and

#### (iii)                  its Term shall start on the datewhich was the Expiry Date of the Bank Guarantee immediately prior to itsrenewal and shall end on the proposed Expiry Date specified in the renewalUtilisation Request (which for the avoidance of doubt, shall be no longer than12 months after the date of the relevant renewal Utilisation Request).

## 6.4**                           Currencyand amount**

### (a)                                      The currencyspecified in a Utilisation Request must be the Base Currency or an OptionalCurrency.

### (b)                                     The amount of theproposed Bank Guarantee must be an amount whose Base Currency Amount is notmore than the Available Facility and which is if the currency selected is theBase Currency, a minimum of USD 500,000 (or, if an Optional Currency, itsequivalent) or, if less, the Available Facility.

## 6.5**                           Issueof Bank Guarantees**

### (a)                                      If the conditionsset out in this Agreement have been met, the Issuing Bank shall:

#### (i)                        issue the Bank Guarantee on theUtilisation Date; and

#### (ii)                     if so requested amend and reissueany Bank Guarantee on its Expiry Date.

### (b)                                     No Borrower maydeliver a Utilisation Request unless the Facility Agent has made thenotification pursuant to Clause 4.1 (*InitialConditions Precedent*).

### (c)                                      The Issuing Bankwill only be obliged to comply with paragraph (a) above if on the date of theUtilisation Request and on the proposed Utilisation Date:

#### (i)                        in the case of a Bank Guaranteeto be renewed, no notice has been delivered under Clause 26.18 (*Acceleration*) relating to the RevolvingCommitments and, in the case of any other Utilisation, no Default is continuingor would result from the proposed Utilisation; and

#### (ii)                     in relation to any Utilisation onthe Closing Date, all the representations and warranties in Clause 22 (*Representations*) or, in relation to anyother Utilisation, the Repeating Representations to be made by each Obligor aretrue in all material respects.

### (d)                                     The amount of eachLender’s participation in each Bank Guarantee will be equal to the proportionborne by its Available Commitment to the Available Facility (in each case inrelation to the Revolving Facility) immediately prior to the issue of the BankGuarantee.

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### (e)                                      The FacilityAgent shall determine the Base Currency Amount of each Bank Guarantee which isto be issued in an Optional Currency and shall notify the Issuing Bank and eachLender of the details of the requested Bank Guarantee and its participation inthat Bank Guarantee by the Specified Time.

# 7.**                                 BANKGUARANTEES**

## 7.1**                           Immediatelypayable**

If a Bank Guarantee orany amount outstanding under a Bank Guarantee is expressed to be immediatelypayable, the Borrower that requested the issue of that Bank Guarantee shallrepay or prepay that amount immediately.

## 7.2**                           Feespayable in respect of Bank Guarantees**

### (a)                                      The relevantBorrower shall pay to the Issuing Bank a fronting fee at the rate of 0.125 percent. per annum on the outstanding amount which is counter-indemnified by theother Lenders of each Bank Guarantee requested by it for the period from thedate of issue of that Bank Guarantee until its Expiry Date.

### (b)                                     The relevantBorrower shall pay to the Facility Agent (for the account of each Lender) aBank Guarantee fee in the Base Currency computed at the rate equal to theMargin applicable to a Revolving Loan on the outstanding amount of each BankGuarantee requested by it for the period from the issue of that Bank Guaranteeuntil its Expiry Date.  This fee shall bedistributed according to each Lender’s Bank Guarantee Proportion of that BankGuarantee.

### (c)                                      The accrued BankGuarantee fee on a Bank Guarantee shall be payable on the first day of eachsuccessive period of three Months (or such shorter period as shall end on theExpiry Date for that Bank Guarantee) starting on the date of issue of that BankGuarantee and on any date the Revolving Facility is cancelled in full and theBank Guarantee is prepaid or repaid in full.

## 7.3**                           Claimsunder a Bank Guarantee**

### (a)                                      Each Borrowerirrevocably and unconditionally authorises the Issuing Bank to pay any claimmade or purported to be made under a Bank Guarantee requested by it and whichappears on its face to be in order (a “**claim**”).

### (b)                                     Each Borrowershall immediately on demand or, if such payment is being funded by a RevolvingLoan, shall within three Business Days of demand pay to the Facility Agent forthe Issuing Bank an amount equal to the amount of any claim.

### (c)                                      Each Borroweracknowledges that the Issuing Bank:

#### (i)                        is not obliged to carry out anyinvestigation or seek any confirmation from any other person before paying aclaim; and

#### (ii)                     deals in documents only and willnot be concerned with the legality of a claim or any underlying transaction orany available set off, counterclaim or other defence of any person.

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## 7.4**                           Indemnities**

### (a)                                      Each Borrowershall within 3 Business Days of demand indemnify the Issuing Bank against anycost, loss or liability incurred by the Issuing Bank (otherwise than by reasonof the Issuing Bank’s gross negligence or wilful misconduct or material breachof its contractual obligations) in acting as the Issuing Bank under any BankGuarantee requested by (or on behalf of) that Borrower.

### (b)                                     Each Lender shallwithin 3 Business Days of demand indemnify the Issuing Bank against such Lender’sBank Guarantee Proportion of any cost, loss or liability incurred by theIssuing Bank (otherwise than by reason of the Issuing Bank’s gross negligenceor wilful misconduct) in acting as the Issuing Bank under any Bank Guarantee(unless the Issuing Bank has been reimbursed by an Obligor pursuant to aFinance Document).

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

### (d)                                     The Borrower whichrequested (or on behalf of which the Company requested) a Bank Guarantee shallimmediately on demand reimburse any Lender for any payment it makes to theIssuing Bank under this Clause 7.4 in respect of that Bank Guarantee.

### (e)                                      The obligationsof each Lender under this Clause 7.4 are continuing obligations and will extendto the ultimate balance of sums payable by that Lender in respect of any BankGuarantee, regardless of any intermediate payment or discharge in whole or inpart.

### (f)                                        The obligationsof any Lender or Borrower under this Clause 7.4 will not be affected by anyact, omission matter or thing which, but for this Clause 7.4, would reduce,release or prejudice any of its obligations under this Clause (withoutlimitation and whether or not known to it or any other person) including:

#### (i)                        any time, waiver or consentgranted to, or composition with, any Obligor, any beneficiary under a BankGuarantee or other person;

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####  

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

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

#### (iv)                 any incapacity or lack of power,authority or legal personality of or dissolution or change in the members orstatus of an Obligor, any beneficiary under a Bank Guarantee or any otherperson;

#### (v)                    any amendment (however fundamental)or replacement of a Finance Document, any Bank Guarantee or any other documentor security;

#### (vi)                 any unenforceability, illegality orinvalidity of any obligation of any person under any Finance Document, any BankGuarantee or any other document or security; or

#### (vii)              any insolvency or similar proceedings.

## 7.5**                           Rightsof contribution**

No Obligor will beentitled to any right of contribution or indemnity from any Finance Party inrespect of any payment it may make under this Clause 7.

## 7.6**                           SettlementConditional**

Any settlement ordischarge between a Lender and the Issuing Bank shall be conditional upon nosecurity or payment to the Issuing Bank by a Lender or any other person onbehalf of a Lender being avoided or reduced by virtue of any laws relating tobankruptcy, insolvency, liquidation or similar laws of general application and,if any such security or payment is so avoided or reduced, the Issuing Bankshall be entitled to recover the value or amount of such security or paymentfrom such Lender subsequently as if such settlement or discharge had notoccurred.

## 7.7**                           Exerciseof Rights**

The Issuing Bank shallnot be obliged before exercising any of the rights, powers or remediesconferred upon it in respect of any Lender by this Agreement or by law:

### (a)                                      to take any actionor obtain judgment in any court against any Obligor;

### (b)                                     to make or fileany claim or proof in a winding up or dissolution of any Obligor; or

### (c)                                      to enforce orseek to enforce any other security taken in respect of any of the obligationsof any Obligor under this Agreement.

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###  

# 8.**                                 OPTIONALCURRENCIES**

## 8.1**                           Selectionof currency**

A Borrower shall selectthe currency of a Revolving Utilisation in a Utilisation Request.

## 8.2**                           Unavailabilityof a currency**

If before the SpecifiedTime on any Quotation Day:

### (a)                                      a Lender notifiesthe Facility Agent that the Optional Currency requested is not readilyavailable to it in the amount required; or

### (b)                                     a Lender notifiesthe Facility Agent that compliance with its obligation to participate in a Loanin the proposed Optional Currency would contravene a law or regulationapplicable to it,

the Facility Agent willgive notice to the relevant Borrower to that effect by the Specified Time onthat day.  In this event, any Lender thatgives notice pursuant to this Clause 8.2 will be required to participate in theLoan in the Base Currency (in an amount equal to that Lender’s proportion ofthe Base Currency Amount, or in respect of a Rollover Loan, an amount equal tothat Lender’s proportion of the Base Currency Amount of the Rollover Loan thatis due to be paid) and its participation will (other than for the purposes ofcalculating maximum numbers of loans under Clause 4.6) be treated as a separateLoan denominated in the Base Currency during that Interest Period.

## 8.3**                           FacilityAgent’s calculations**

Each Lender’sparticipation in a Loan will be determined in accordance with paragraph (b) ofClause 5.4 (*Lenders’ participation*).

# 9.**                                 ANCILLARYFACILITIES**

## 9.1**                           Type ofFacility**

An Ancillary Facility maybe by way of:

### (a)                                      an overdraftfacility;

### (b)                                     a guarantee,bonding, documentary or stand by letter of credit facility;

### (c)                                      any otherfacility or accommodation required in connection with the business of the Groupand which is agreed to by the Company with an Ancillary Lender.

## 9.2**                           Availability**

### (a)                                      If the Companyand a Lender agree and subject as provided below, the Lender may provide anAncillary Facility on a bilateral basis to a Borrower(s) in place of all orpart of that Lender’s unutilised Revolving Commitment, **providedthat** no more than 5 Ancillary Facilities may be outstanding at anytime.

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###  

### (b)                                     An AncillaryFacility shall not be made available unless the Facility Agent has first beenprovided with the notice and other information contemplated by Clause 9.3 (*Approval process*).

### (c)                                      If the Facility Agentapproves an Ancillary Facility (approval of which shall not be unreasonablywithheld), then:

#### (i)                                     the Lender concerned will become an Ancillary Lender;and

#### (ii)                                  theAncillary Facility will be available,

with effect from the dateagreed by the Company and the Ancillary Lender.

## 9.3**                           Approvalprocess**

Not less than 5 BusinessDays prior to the Commencement Date for an Ancillary Facility the Company shalldeliver to the Facility Agent:

### (a)                                      a noticespecifying:

#### (i)                        the proposed Borrower(s) whichmay use the Ancillary Facility;

#### (ii)                     the proposed Commencement Date andexpiry date of the Ancillary Facility;

#### (iii)                  the proposed type of AncillaryFacility to be provided;

#### (iv)                 the proposed Ancillary Lender;

#### (v)                    the proposed applicable AncillaryCommitment; and

#### (vi)                 the proposed currency in which theAncillary Facility may be drawn;

### (b)                                     a copy of theproposed Ancillary Facility Document; and

### (c)                                      any otherinformation which the Facility Agent may reasonably require in connection withthe Ancillary Facility.

The Facility Agent shallpromptly notify the Company, the Ancillary Lender and the other Lenders of theestablishment of an Ancillary Facility.

## 9.4**                           Termsof Ancillary Facilities**

### (a)                                      Except asprovided below, the terms of any Ancillary Facility will be those agreed by theAncillary Lender and the Company.

### (b)                                     However, thoseterms:

#### (i)                        must be based upon normalcommercial terms at that time (except as varied by this Agreement);

#### (ii)                     may allow only Borrowers to usethe Ancillary Facility;

#### (iii)                  may not allow the AncillaryOutstandings to exceed the Ancillary Commitment;

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####  

#### (iv)                 may not allow the Ancillary Commitmentof a Lender to exceed the Available Commitment with respect to the RevolvingFacility of that Lender; and

#### (v)                    must ensure that the AncillaryCommitment is reduced to nil, and that all Ancillary Outstandings are repaidnot later than the Termination Date for the Revolving Facility.

### (c)                                      If there is anyinconsistency between any term of an Ancillary Facility and any term of thisAgreement, this Agreement shall prevail except for Clause 35.3 (*Day Count Convention*) which shall notprevail for the purposes of calculating fees, interest or commission relatingto an Ancillary Facility other than the fee referred to in paragraph (d) ofClause 9.7 (*Interest, Commitment Commissionand Fees on Ancillary Facilities*).

## 9.5**                           Refinancingof Ancillary Facility**

### (a)                                      No AncillaryLender may demand repayment or prepayment of any amounts under its AncillaryFacility unless:

#### (i)                        the Total Revolving Commitmentshave been cancelled in full, or the Facility Agent has declared all outstandingUtilisations under the Revolving Facility immediately due and payable; or

#### (ii)                     the Ancillary Outstandings underthat Ancillary Facility can be repaid by a Revolving Loan.

### (b)                                     The share of theAncillary Lender in a Revolving Loan being used to refinance that AncillaryLender’s Ancillary Facility will be that amount which will result (so far aspossible) in:

#### (i)                        the proportion which its shareof all outstanding Utilisations under the Revolving Facility bears to theaggregate amount of the outstanding Utilisations under the Revolving Facility

being equal to:

#### (ii)                     the proportion which its AvailableCommitment with respect to the Revolving Facility bears to the aggregate of theAvailable Commitments,

in each case, assumingthe repayment of the relevant Ancillary Facility has taken place.

The share of the otherLenders in any such Revolving Loan will be adjusted accordingly.

## 9.6**                           Information**

Each Borrower and eachAncillary Lender shall, promptly upon request by the Facility Agent, supply theFacility Agent with any information relating to the operation of an AncillaryFacility  (including the AncillaryOutstandings) as the Facility Agent may

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reasonably request fromtime to time.  Each Borrower consents toall such information being released to the Facility Agent and the other FinanceParties.

## 9.7**                           Interest,Commitment Commission and Fees on Ancillary Facilities**

### (a)                                      The rate and timeof payment of interest, commission, fees and any other remuneration in respectof each Ancillary Facility shall be determined by agreement between theAncillary Lender and the Borrower concerned (or the Company on behalf of anyother Borrower(s)) based upon normal market rates and terms.

### (b)                                     A reference inthis Agreement to a Fee Letter shall include the provisions of any documentsetting out the agreement between the Ancillary Lender and the Borrower inrespect of interest, commission, fees and other remuneration.

### (c)                                      Accrued interest,commission, fees and other remuneration in respect of an Ancillary Facilityshall also be payable to the Ancillary Lender on cancellation of the AncillaryCommitment in respect of that Ancillary Facility at the time the cancellationis effective if the Ancillary Commitment is cancelled in full.

### (d)                                     The relevantBorrower shall pay to the relevant Ancillary Lender a fee in the Base Currencycomputed at the rate applicable to the Revolving Facility under paragraph (a)of Clause 15.1 (*Commitment Fee*)on the unused portion of any Ancillary Facility (being the Ancillary Commitmentapplicable to that Ancillary Facility minus the Ancillary Outstandings underthat Ancillary Facility) for the period for which that Ancillary Facility ismade available by that Ancillary Lender.

### (e)                                      The accruedcommitment fee in respect of an Ancillary Facility is payable on the last dayof each successive period of three Months which ends during the period forwhich that Ancillary Facility is available, on the last day of the availabilityperiod for that Ancillary Facility and on the cancelled amount of the AncillaryLender’s Ancillary Commitment for that Ancillary Facility at the time thecancellation is effective.

## 9.8**                           Reductionand Increase of Revolving Commitment**

The Revolving Commitmentof each Ancillary Lender shall be reduced *protanto*by the amount of its Ancillary Commitment but shallautomatically increase upon that Ancillary Facility ceasing to be available tothe relevant Borrower or upon the Ancillary Facility being cancelled.

## 9.9**                           Affiliatesof Lenders as Ancillary Lenders**

### (a)                                      Subject to theterms of this Agreement, an Affiliate of a Lender may become an AncillaryLender.  In such case, the Lender and itsAffiliate shall be treated as a single Lender whose Revolving Commitment is theamount set out opposite the relevant Lender’s name in Schedule 1 (*The Original Lenders*).  For the purposes of calculating the Lender’sAvailable Commitment with

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### respect to the Revolving Facility, the Lender’sCommitment shall be reduced to the extent of the aggregate of the AncillaryCommitments of its Affiliates.

### (b)                                     The Company shallspecify any relevant Affiliate of a Lender in any notice delivered by theCompany to the Facility Agent pursuant to paragraph (a) of Clause 9.3 (*Approval process*).

### (c)                                      If a Lenderassigns all of its rights and benefits or transfers all of its rights andobligations to a New Lender (as defined in Clause 27 (*Changes to the Lenders*), its Affiliateshall cease to have any obligations under this Agreement or any AncillaryDocument.

### (d)                                     Where thisAgreement or any other Finance Document imposes an obligation on an AncillaryLender and the relevant Ancillary Lender is an Affiliate of a Lender which isnot a party to that document, the relevant Lender shall ensure that theobligation is performed by its Affiliate.

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###  

**SECTION4**

**REPAYMENT,PREPAYMENT AND CANCELLATION**

# 10.**                           REPAYMENT**

## 10.1**                     Repayment ofFacility Term Loans**

### (a)                                      The Borrowersunder Facility A1 and Facility A2 shall repay the aggregate Facility A1 Loansand the aggregate Facility A2 Loans in instalments by repaying on each FacilityA1 Repayment Date or each Facility A2 Repayment Date, as the case may be, anamount equal to the relevant percentage of all Facility A1 Loans and allFacility A2 Loans borrowed by the Borrowers as at close of business in Londonon the last day of the Availability Period in relation to Facility A1 orFacility A2 as set out opposite such Facility A1 Repayment Date or Facility A2Repayment Date in the table below:

| Repayment Date                                  | ** ** | **Facility A1  Repayment  Instalment (in USD)** | ** ** | **Facility A2  Repayment  Instalment (in EUR)** |
|-------------------------------------------------|------------|-------------------------------------------------|------------|-------------------------------------------------|
| ** **                                      | ** ** | ** **                                      | ** ** | ** **                                      |
| Date falling 36  months after  the Closing Date |       | 15%                                             |       | 15%                                             |
|                                            |       |                                            |       |                                            |
| Date falling 48  months after  the Closing Date |       | 15%                                             |       | 15%                                             |
|                                            |       |                                            |       |                                            |
| Date falling 60  months after  the Closing Date |       | 70%                                             |       | 70%                                             |

###  

### (b)                                     If, in relation toa Facility A1 Repayment Date or Facility A2 Repayment Date, the aggregateamount of the Facility A1 Loans or Facility A2 Loans, as the case may be, madeto the Borrowers exceeds the Facility A1 Repayment Instalment or the FacilityA2 Repayment Instalment as the case may be to be repaid, the Company may, if itgives the Facility Agent not less than five Business Days’ prior notice, selectwhich of the Facility A1 Loans or Facility A2 Loans will be wholly or partiallyrepaid so that the Facility A1 Repayment Instalment or Facility A2 RepaymentInstalment, as the case may be, is repaid on the relevant Repayment Date infull.  The Company may not make aselection if as a result more than one Facility A1 Loan or Facility A2 Loanwill be partially repaid. As between the Borrowers, all Facility A1 RepaymentInstalments and Facility A2 Repayment Instalments shall be applied at thedirection of the Company.

### (c)                                      If the Companyfails to deliver a notice to the Facility Agent in accordance with paragraph(b) above, the Facility Agent shall select the Facility A1 Loans and FacilityA2 Loans to be wholly or partially repaid.

### (d)                                     No Borrower mayreborrow any part of a Term Facility which is repaid.

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###  

## 10.2**                     Repayment ofRevolving Loans**

### (a)                                      Each Borrowerwhich has drawn a Revolving Loan shall repay that Loan on the last day of itsInterest Period.

### (b)                                     Where, on the sameday on which a Borrower is due to repay a Revolving Loan, such Borrower hasalso requested a Rollover Loan be made to it, the amount to be so repaid andthe amount to be so drawn down shall be netted off against each other so thatthe amount which that Borrower is actually required to repay or is entitled toreceive (as the case may be) shall be the net amount after such netting off.

## 10.3**                     Effect ofPrepayment and Cancellation on Scheduled Repayments and Reductions**

### (a)                                      If the Companycancels the whole or any part of the Facility A1 Commitments or the Facility A2Commitments in accordance with Clause 11.6 (*Rightof repayment and cancellation in relation to a single Lender or Issuing Bank*)or if any of the Facility A1 Commitments or the Facility A2 Commitments of anyLender is reduced under Clause 11.1 (*Illegalityof a Lender*) then the amount of the Facility A1 Repayment Instalmentfor each Facility A1 Repayment Date or Facility A2 Repayment Instalment foreach Facility A2 Repayment Date falling after that cancellation will reduce *pro rata*by the amount cancelled.

### (b)                                     If the Companycancels the whole or any part of the Facility A1 Commitments or the Facility A2Commitments in accordance with Clause 11.3 (*Voluntarycancellation*) or prepays any part of the Facility A1 Loan orFacility A2 Loan in accordance with Clause 11.4 (*Voluntary prepayment of Term Loans*) then the amount socancelled or prepaid (as the case may be) shall be applied over the remainingFacility A1 Repayment Instalments or Facility A2 Repayment Instalments as theCompany may select.

### (c)                                      If any of theFacility A1 Loans or Facility A2 Loans are prepaid in accordance with Clause11.6 (*Right of repayment and cancellation inrelation to a single Lender or Issuing Bank*) or Clause 11.1 (*Illegality of a Lender*) then the amount ofthe Facility A1 Repayment Instalment or Facility A2 Repayment Instalment foreach Facility A1 Repayment Date and each Facility A2 Repayment Date,respectively after that prepayment will reduce *prorata* by the amount of the Facility A1 Loan or Facility A2 Loanprepaid.

# 11.**                           PREPAYMENTAND CANCELLATION**

## 11.1**                     Illegality ofa Lender**

If at any time, itbecomes unlawful in any applicable jurisdiction for a Lender to perform any ofits obligations as contemplated by this Agreement or to make, fund, issue ormaintain its participation in any Utilisation that Lender shall promptly notifythe Facility Agent upon becoming aware of that event and upon the FacilityAgent notifying the Company:

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### (a)                                      that Lender shallnot thereafter be obliged to participate in any Utilisation and the Commitmentsof that Lender shall immediately be reduced to zero and cancelled; and

### (b)                                     the Company shalland shall procure that each other Borrower will, on or before such date as theFacility Agent shall have specified, (allowing the Borrower the full benefit ofany grace period permitted by law), repay that Lender’s participation in theUtilisations made to it or that Borrower together with accrued interest on andall other amounts owing to that Lender under the Finance Documents or replacesuch Lender pursuant to Clause 38.4 (*Replacementof a Lender*).

## 11.2**                     Illegality ofIssuing Bank**

If at any time after thedate of this Agreement it becomes unlawful for the Issuing Bank to issue orleave outstanding any Bank Guarantee, the Revolving Facility shall cease to beavailable for the issue of Bank Guarantees and the Company shall procure thateach other Borrower uses its best endeavours to procure the release of eachBank Guarantee outstanding at such time.

## 11.3**                     Voluntarycancellation**

### (a)                                      Subject toparagraph (b) below the Company may, if it gives the Facility Agent not lessthan 3 Business Days’ (or such shorter period as the Majority Lenders mayagree) prior notice, cancel the whole or any part of an AvailableFacility.  Any cancellation under thisClause 11.3 shall reduce rateably the Commitments of the Lenders under thatFacility.

### (b)                                     The Company shallnot cancel any part of the Facility A1 Available Commitment or the Facility A2Available Commitment unless the aggregate Base Currency Amount of suchcancellations is at least EUR 1,000,000 or the USD equivalent thereof.

## 11.4**                     Voluntaryprepayment of Term Loans**

### (a)                                      Subject toparagraph (b) below, the Borrowers may, if the Company gives the Facility Agentnot less than 3 Business Days’ (or such shorter period as the Majority Lendersmay agree) prior notice, prepay the whole or any part of any Term Loans whichsuch Borrowers may select (but, if in part, being an amount that reduces theBase Currency Amount of the Term Loans by a minimum amount of EUR 1,000,000) orthe USD equivalent thereof.

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

## 11.5**                     Voluntaryprepayment of Revolving Utilisations**

The Borrower to which aRevolving Utilisation has been made may, if it or the Company gives theFacility Agent not less than 3 Business Days’ (or such shorter period as theMajority Lenders may agree) prior notice, prepay the whole or any part of aRevolving Utilisation (but if in part, being an amount that reduces the Base

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Currency Amount of theRevolving Utilisation by a minimum amount of USD 1,000,000).

## 11.6**                     Right ofrepayment and cancellation in relation to a single Lender or Issuing Bank**

### (a)                                      If:

#### (i)                        any sum payable to any Lenderby an Obligor is required to be increased under sub-paragraph (a)(iii) ofClause 16.2 (*Tax gross up*);

#### (ii)                     any Lender or Issuing Bank claimsindemnification from the Company or any other Obligor under Clause 16.3 (*Tax indemnity*) or Clause 17.1 (*Increased costs*); or

#### (iii)                  any Lender notifies the FacilityAgent of its Additional Cost Rate under paragraph 3 of Schedule 4 (*Mandatory Cost Formulae*),

the Company may, whilst(in the case of paragraphs (i) and (iii) above) the circumstance giving rise tothe requirement or indemnification continues or whilst (in the case ofsub-paragraph (iii) above) that Additional Cost Rate is greater than zero, givethe Facility Agent notice of cancellation of the Commitments of that Lender andits intention to procure the repayment of that Lender’s participation in theUtilisations.

### (b)                                     On receipt of anotice referred to in paragraph (a) above, the Commitments of that Lender shallimmediately be reduced to zero.

### (c)                                      On the last dayof each Interest Period which ends after the Company has given notice underparagraph (a) above (or, if earlier, the date specified by the Company in thatnotice), each Borrower to which a Utilisation is outstanding shall repay thatLender’s participation in that Utilisation.

## 11.7**                     Exit**

### (a)                                      For the purposeof this Clause 11.7:

#### (i)                        “**Change ofControl**” means any person or group of persons acting in concert(other than the Initial Investors) gains control of the Company **provided that**, no Change of Control shall be deemed to occurif the board of directors of the Company shall consist of a majority ofcontinuing directors.

#### (ii)                     For the purposes of the definitionof “**Change of Control**” in this Clause 11.7:

##### (A)                “**acting in concert**”means, a group of persons who, pursuant to an agreement or understanding(whether formal or informal), actively co-operate, through the acquisition byany of them, either directly or indirectly, of shares in the Company, to obtainor consolidate control of the Company;

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#####  

##### (B)                  “**control**” means,in relation to the Company, the power (whether by way of ownership of shares,proxy, contract, agency or otherwise) to:

(i)                                     cast,or control the casting of, more than one half of the maximum number of votesthat might be cast at a general meeting of the Company; or

(ii)                                  appointor remove all, or the majority, of the directors or other equivalent officersof the Company; or

(iii)                               givedirections with respect to the operating and financial policies of the Companygenerally which the directors or other equivalent officers of the Company areobliged to comply with;

##### (C)                  “**continuing directors**”means directors of the Company who were immediately prior to the occurrence ofany event or circumstance that would (but for the proviso set out insub-paragraph (a)(i) above) result in a Change of Control, directors, nomineesof such directors or nominees of the Initial Investors.

### (b)                                     Upon theoccurrence of a Change of Control or the sale of the whole or substantially thewhole of the Group’s business and assets, the Facility Agent (acting on theinstructions of the Majority Lenders) may by not less than 90 days notice tothe Company, cancel the Facilities in full and require that the Term Loans,each Revolving Loan and each Bank Guarantee shall be prepaid in full togetherwith interest thereon and all other amounts accrued and owing by each Party(other than a Finance Party) under the Finance Documents.

## 11.8**                     EquityProceeds**

### (a)                                      For the purposeof this Clause 11.8, “**Equity Proceeds**”means the cash proceeds (after deducting any costs reasonably incurred inraising such equity proceeds) in excess of EUR 40,000,000 raised from theprimary issuance by the Company or any other member of the Group of shares orother equity instrument on any recognised stock exchange or other capitalmarket.

### (b)                                     No member of theGroup shall be permitted to raise Equity Proceeds to fund (directly orindirectly) the payment of a dividend or other distribution to any shareholderof the Company.

### (c)                                      Notwithstandingthe terms of paragraph (d) below, any Equity Proceeds specifically raised forthe purpose of prepaying the Facilities shall be applied in payment of theFacilities within 5 Business Days of receipt.

### (d)                                     Subject toparagraph (c) above, the Company shall procure that each member of the Groupshall apply an amount equal to the amount of Equity Proceeds received by it forthe particular purpose for which they were raised **providedthat**such purpose is permitted under this Agreement (a “**Specified Purpose**”)

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###  

### within 12 months of the date of receipt (or shall be committed to beapplied for such purpose within such period and applied within 24 months of thedate of receipt).  If such EquityProceeds are not applied towards a Specified Purpose within the time periodsreferred to above, then the Company shall procure that the Borrowers prepayLoans in an amount equal to 50% of the amount of such Equity Proceeds togetherwith interest thereon and all other amounts accrued and owing by each Party(other than a Finance Party) under the Finance Documents subject to Clause11.12 (*Prepayment elections*).  The prepayments shall be applied under Clause11.10 (*Application of prepayments*).  Equity Proceeds shall not be required to beapplied in prepayment of the Facilities if the Non-Leveraged Criteria has beenmet prior to the last date upon which such prepayment is required to be made.

## 11.9**                     Disposalproceeds**

### (a)                                      For the purposesof this Clause 11.9:

“**Disposal**” means a sale, lease, transfer,loan or other disposal by a person of any asset, undertaking or business(whether voluntary or involuntary and whether as a single transaction or aseries of related transactions).

“**Disposal Proceeds**” means the cashconsideration received by any member of the Group (including any amountreceived in repayment of intercompany debt by a member of the Group from acompany disposed of) for any Disposal made by any member of the Group afterdeducting:

#### (i)                        amounts which are to be appliedin the reinvestment of assets or towards acquisitions permitted under Clause25.7 (*Acquisitions*) within twelvemonths of receipt of such proceeds (or committed for such application withinsuch period and applied within eighteen months of receipt);

#### (ii)                     expenses incurred by any member ofthe Group with respect to that Disposal to person(s) who are not members of theGroup;

#### (iii)                  any Tax incurred and required to bepaid by the seller in connection with that Disposal (as reasonably determinedby the seller, on the basis of existing rates and taking account of anyavailable credit, deduction or allowance);

#### (iv)                 the amount of any reserve maintainedby the relevant member of the Group, acting reasonably, in accordance with theAccounting Principles with respect to purchase price adjustment orindemnification obligations owing pursuant to the documentation pursuant towhich such Disposal is consummated (with any unused portion of such reserve toconstitute Disposal Proceeds on the date upon which the purchase priceadjustment or indemnification obligations terminate or such reserve is reducedother than in connection with a payment to the relevant purchaser);

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####  

#### (v)                    the amount of the Disposal Proceedswhich is immediately upon such Disposal occurring required to be applied inrepaying Financial Indebtedness of the member of the Group making such Disposalwhere such Financial Indebtedness relates to the asset disposed of;

#### (vi)                 EUR 80,000,000 (or its equivalent inany currency) in any one year and an aggregate amount of EUR 200,000,000 duringthe life of the Facilities,

and **provided that** the proceeds of any Disposalwhich are less than EUR 1,000,000 and the proceeds of any PermittedDisposal shall be excluded from all consideration.

### (b)                                     Subject toparagraph (c) below the Company shall ensure that it and the other Borrowersprepay Loans in an amount equal to the Disposal Proceeds promptly upon receiptof those proceeds subject to Clause 11.12 (*Prepaymentelections*). The prepayments will be applied under Clause 11.10 (*Application of prepayments*).

### (c)                                      Notwithstandingparagraph (b) above, no prepayment of Disposal Proceeds shall be required ifthe Non-Leveraged Criteria has been met.

## 11.10**               Application ofmandatory prepayments**

### (a)                                      Subject toparagraph (b) below a prepayment made under Clause 11.8 (*Equity Proceeds*) or 11.9 (*Disposal Proceeds*) shall be applied as theCompany directs unless such prepayment would cause the total aggregate amountof all such prepayments in that financial year to exceed EUR 40,000,000 inwhich case the portion of such prepayment in excess of EUR 40,000,000 and allsubsequent mandatory prepayments during that financial year shall be applied *pro rata* to the remaining scheduledprincipal repayments under the Term Facilities.

### (b)                                     Notwithstandingparagraph (a) above, the Company shall only be obliged to procure theprepayment of Loans from proceeds raised by members of the Group that are notU.S. Companies towards Loans borrowed by U.S. Borrowers and from proceedsraised by members of the Group that are U.S. Companies towards Loansborrowed by non-U.S. Borrowers only to the extent such prepayment would notcause any material adverse tax consequences to the Group. The Company shallensure that all transactions related to the raising of Equity Proceeds and/ordisposals are not structured in such a way so that the limitations onguarantees set out in Clause 21 (*Guaranteeand Indemnity*) or the provisions of this paragraph (b) would operatein a way that would excuse the making of any prepayment otherwise due underthis Clause 11.

## 11.11**               Restrictions**

### (a)                                      Any notice ofcancellation or prepayment given by any Party under this Clause 11 shall beirrevocable and, unless a contrary indication appears in this

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###  

### Agreement, shall specify the date or dates upon which the relevantcancellation or prepayment is to be made and the amount of that cancellation orprepayment.

### (b)                                     Any prepaymentunder this Agreement shall be made together with accrued interest on the amountprepaid and Break Costs without premium or penalty.

### (c)                                      No Borrower mayreborrow any part of a Term Facility which is prepaid.

### (d)                                     Unless a contraryindication appears in this Agreement, any part of the Revolving Facility whichis prepaid (other than under Clause 11.8 (*Equity**Proceeds*) or Clause 11.9 (*Disposal proceeds*) may be reborrowed inaccordance with the terms of this Agreement.

### (e)                                      The Borrowersshall not repay or prepay all or any part of the Utilisations or cancel all orany part of the Commitments except at the times and in the manner expresslyprovided for in this Agreement.

### (f)                                        No amount ofthe Total Commitments cancelled under this Agreement may be subsequentlyreinstated.

### (g)                                     If the FacilityAgent receives a notice under this Clause 11 it shall promptly forward a copyof that notice to the Company and the affected Lenders, as appropriate.

## 11.12**               Prepaymentelections**

### (a)                                      Any prepaymentunder paragraph (b) of Clause 11.7 (*Exit*),Clause 11.8 (*Equity Proceeds*) orClause 11.9 (*Disposal proceeds*)may, if the Company gives the Facility Agent not less than 3 Business Days (orsuch shorter period as the Majority Lenders may agree) prior written notice, beapplied in prepayment of a Loan on the last day of the Interest Period relatingto that Loan.

### (b)                                     If the Companymakes an election under paragraph (a) above of this Clause 11.12 then that Loanwill become due and payable in the required amount on the last day of thatInterest Period.

### (c)                                      No election canbe made by the Company under paragraph (a) above and no election already madeby the Company under that paragraph shall apply (unless the Majority Banksotherwise agreed in writing) if an Event of Default has occurred and iscontinuing.

### (d)                                     The Facility Agentshall notify the Lenders as soon as possible of any prepayment of any FacilityA1 Loan or Facility A2 Loan to be made under Clause 11.4 (*Voluntary prepayment of Term Loans*),paragraph (b) of Clause 11.7 (*Exit*),Clause 11.8 (*Equity Proceeds*) orClause 11.9 (*Disposal, proceeds*).

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###  

## 11.13**               AutomaticCancellation**

### (a)                                      If the ClosingDate does not occur on or prior to the last day of the Availability Period forthe Term Facilities, then all Facilities shall be automatically cancelled infull on that date.

### (b)                                     The RevolvingCommitments shall be cancelled in full and all Revolving Utilisations repaid infull immediately upon the repayment or prepayment in full of the Term Loans orcancellation in full of the Term Facilities.

## 11.14**               Restrictions onupstreaming cash**

### (a)                                      If:

#### (i)                        any amount is required to beapplied in prepayment or repayment of the Facilities from Disposal Proceedsunder Clause 11.9 (*Disposal Proceeds*)but, in order to be so applied, a member of the Group has to make paymentsupstream or otherwise transfer moneys to another a member of the Group toeffect that prepayment or repayment; and

#### (ii)                     those moneys cannot be soupstreamed or transferred without:

##### (A)                breaching legal prohibitions preventingthe recipient of the proceeds from making the relevant prepayment or making thefunds available to a member of the Group that can make such prepayment; or

##### (B)                  a member of the Group incurring amaterial cost or expense (including material Taxes or other liabilities); and

#### (iii)                  The Company (acting reasonably) hasdetermined that such upstreaming or transfer will present a material risk ofliability for the member of the Group concerned or its directors or officers,

there will be noobligation to make that payment or repayment until that impediment no longerapplies.

### (b)                                     Each Obligor willuse all reasonable endeavours:

#### (i)                        to overcome any suchimpediment; and

#### (ii)                     to use cash held by any othermember of the Group to prepay an equivalent amount of the Facilities where suchwould not be materially prejudicial to the liquidity needs of the Group or theavailability thereof to members of the Group requiring cash resources and wouldnot give rise to any of the issues referred to in sub-paragraphs (a)(i) and(ii) above.

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####  

**SECTION5**

**COSTSOF UTILISATION**

# 12.**                           INTEREST**

## 12.1**                     Calculationof interest**

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

### (a)                                      Margin;

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

### (c)                                      Mandatory Cost,if any.

## 12.2**                     Payment ofinterest**

The Borrower to which aLoan has been made shall pay accrued interest on that Loan on the last day ofeach Interest Period (and, if any Interest Period is longer than six Months, onthe dates falling at six Monthly intervals after the first day of that InterestPeriod).

## 12.3**                     MarginRatchet**

### (a)                                      Subject toparagraph (b) below and Clause 12.4 (*DefaultMargin*), if the ratio of Consolidated Total Net Debt to ConsolidatedAdjusted EBITDA in respect of the most recent Relevant Period (as defined inClause 24 (*Financial Covenants*))falls within one of the ranges set out in column 1 of the margin grid table setout below then the Margin in respect of Facility A1, Facility A2 and theRevolving Facility shall be the percentage per annum set opposite the rangeinto which that Relevant Ratio falls.

| Column 1                                          | ** ** | **Column 2**                                                       |
|---------------------------------------------------|------------|--------------------------------------------------------------------|
| ** **                                        | ** ** | ** **                                                         |
| **Relevant  Ratio**                               | ** ** | **Margin % per annum for Facility  A1, A2 and Revolving Facility** |
| ** **                                        | ** ** | ** **                                                         |
| Greater than  3.5:1                               |       | 0.90                                                               |
|                                              |       |                                                               |
| Equal to or less  than 3.5:1 but greater than 3:1 |       | 0.75                                                               |
|                                              |       |                                                               |
| Equal to or less  than 3:1 but greater than 2.5:1 |       | 0.65                                                               |
|                                              |       |                                                               |
| Equal to or less  than 2.5:1 but greater than 2:1 |       | 0.55                                                               |
|                                              |       |                                                               |
| Equal to or less  than 2:1                        |       | 0.45                                                               |

###  

### (b)                                     From the datefalling 12 months after the Closing Date any revised Margin provided for inthis Clause 12.3 in relation to each Loan will become effective

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### on the date on which the relevant ComplianceCertificate is delivered to the Facility Agent.

### (c)                                      If the annualaudited financial statements of the Group and related Compliance Certificatereceived by the Facility Agent show that a Margin or Commitment Fee reductionshould not have occurred during a certain period, the relevant Borrowers shallpromptly pay to the Facility Agent any amounts necessary to put the FacilityAgent and the Lenders in the position they would have been in had the Margin orCommitment Fee reduction not occurred.

### (d)                                     If the annualaudited financial statements of the Group and related Compliance Certificatereceived by the Facility Agent show that a Margin or Commitment Fee reductionshould have occurred during a certain period the Margin or Commitment Fee forfuture Interest Periods, shall be reduced by any amounts necessary to put therelevant Borrower in the position they would have been in had the Margin andCommitment Fee reduction occurred.

## 12.4**                     DefaultMargin**

Notwithstanding the termsof Clause 12.3 (*Margin Ratchet*),no reduction in the Margin shall be effected whilst an Event of Default iscontinuing.  On the occurrence of anEvent of Default, the Margin shall immediately revert to 0.75% per annum.  On the date upon which such Event of Defaultis remedied or waived by the Majority Lenders, the Margin shall be recalculatedby the Facility Agent by reference to the ratio of Consolidated Total Net Debtto Consolidated Adjusted EBITDA set out in the most recent ComplianceCertificate delivered to the Facility Agent.

## 12.5**                     DefaultInterest**

### (a)                                      If an Obligorfails to pay any amount payable by it under a Finance Document on its due date,and if the Facility Agent, acting on the instructions of the Majority Lenders,gives notice that the default interest rate shall apply, such amount shall, subjectto any increased interest rate pursuant to paragraph (b) below, accrue interestor, insofar as it relates to unpaid interest, shall give rise to a claim forlump sum damages from the due date up to the date of actual payment (bothbefore and after judgment) at a rate which is one per cent higher than the ratewhich would have been payable if the overdue amount had, during the period ofnon payment, constituted a Loan in the currency of the overdue amount forsuccessive Interest Periods, each of a duration selected by the Facility Agent(acting reasonably).  Any interestaccruing under this Clause 12.5 shall be immediately payable by the Obligor ondemand by the Facility Agent.

### (b)                                     If any overdueamount consists of all or part of a Loan which became due on a day which wasnot the last day of an Interest Period relating to that Loan:

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

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####  

#### (ii)                     the rate of interest applying tothe overdue amount during that first Interest Period shall be one per cent.higher than the rate which would have applied if the overdue amount had notbecome due.

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

## 12.6**                     Notificationof rates of interest**

The Facility Agent shallpromptly notify the Lenders and the relevant Borrower(s) of the determinationof a rate of interest under this Agreement.

# 13.**                           INTERESTPERIODS AND TERMS**

## 13.1**                     Selection ofInterest Periods and Terms**

### (a)                                      A Borrower or theCompany (on behalf of any other Borrower) may select an Interest Period for aLoan in the Utilisation Request for that Loan or (if the Loan is a Term Loanand has already been borrowed) in a Selection Notice.

### (b)                                     Each SelectionNotice is irrevocable and must be delivered to the Facility Agent by theBorrower (or the Company on behalf of any other Borrower) to which that TermLoan was made not later than the Specified Time.

### (c)                                      If a Borrower (orthe Company on behalf of any other Borrower) fails to deliver a SelectionNotice to the Facility Agent in accordance with paragraph (b) above, therelevant Interest Period will, subject to Clause 13.2 (*Changes to Interest Periods*), be oneMonth.

### (d)                                     Subject to thisClause 13, a Borrower (or the Company on behalf of any other Borrower) mayselect an Interest Period of one, two, three or six Months or any other periodagreed between the Company and the Facility Agent (acting on the instructionsof the Majority Lenders). In addition a Borrower (or the Company on its behalf)may select an Interest Period of (in relation to Facility A) a period of lessthan one month if necessary to ensure that there are Facility A1 Loans andFacility A2 Loans (with an aggregate Base Currency Amount equal to or greaterthan the Facility A1 Repayment Instalment or the Facility A2 RepaymentInstalment) which have an Interest Period ending on a Facility A1 RepaymentDate or a Facility A2 Repayment Date as the case may be for the Borrowers tomake the Facility A1 Repayment Instalment or the Facility A2 RepaymentInstalment due on that date.

### (e)                                      An InterestPeriod for a Loan shall not extend beyond the Termination Date applicable toits Facility.

### (f)                                        Each InterestPeriod for a Term Loan shall start on the Utilisation Date or (if a Loan hasalready been made) on the last day of its preceding Interest Period.

### (g)                                     A Revolving Loanhas one Interest Period only.

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###  

### (h)                                     Prior to theSyndication Date, Interest Periods shall be one month or such other period asthe Facility Agent and the Company may agree and any Interest Period whichwould otherwise end during the month preceding or extend beyond the SyndicationDate shall end on the Syndication Date.

## 13.2**                     Changes toInterest Periods**

### (a)                                      Prior todetermining the interest rate for a Facility A1 Loan or Facility A2 Loan, theFacility Agent may shorten an Interest Period for any Facility A1 Loan orFacility A2 Loan to ensure that there are sufficient Facility A1 Loans orFacility A2 Loans, as the case may be (with an aggregate Base Currency Amountequal to or greater than the Facility A1 Repayment Instalment or the FacilityA2 Repayment Instalment) which have an Interest Period ending on a Facility A1Repayment Date or a Facility A2 Repayment Date, respectively) for the Borrowersto make the Facility A1 Repayment Instalment or the Facility A2 Instalment) dueon that date.

### (b)                                     If the FacilityAgent makes any of the changes to an Interest Period referred to in this Clause13.2, it shall promptly notify the Company and the Lenders.

## 13.3**                     Consolidationof Facility A1 Loans and Facility A2 Loans**

### (a)                                      Subject toparagraph (b) below, if two or more Interest Periods:

#### (i)                        relate to the same Facility;

#### (ii)                     end on the same date; and

#### (iii)                  are made to the same Borrower,

those Loans will, unlessthat Borrower (or the Company on its behalf) specifies to the contrary in theSelection Notice for the next Interest Period, be consolidated into, andtreated as, a single Loan under the same Facility on the last day of the relevant Interest Period.

### (b)                                     Subject to Clause4.5 (*Maximum number of Utilisations*)and Clause 5.3 (*Currency and amount*)if a Borrower (or the Company on its behalf) requests in a Selection Noticethat a Term Loan be divided into two or more Term Loans, that Term Loan will,on the last day of its Interest Period, be so divided with Base CurrencyAmounts specified in that Selection Notice, being an aggregate Base CurrencyAmount equal to the amount of the Term Loan immediately before its division,having taken into account any repayment to be made on that day.

# 14.**                           CHANGESTO THE CALCULATION OF INTEREST**

## 14.1**                     Absence ofquotations**

Subject to Clause 14.2 (*Market disruption*), if EURIBOR or, ifapplicable, LIBOR is to be determined by reference to the Reference Banks but aReference Bank does not supply a quotation by the Specified Time on theQuotation Day, the applicable LIBOR

 

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or EURIBOR shall be determined on the basis of the quotations of theremaining Reference Banks.

## **14.2****                  Marketdisruption**

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

#### (i)                        the Margin;

#### (ii)                     the rate notified to the FacilityAgent by that Lender as soon as practicable and in any event before interest isdue to be paid in respect of that Interest Period, to be that which expressesas a percentage rate per annum the cost to that Lender of funding itsparticipation in that Loan from whatever source it may reasonably select; and

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

### (b)                                     In this Agreement “**Market Disruption Event**” means:

#### (i)                        at or about noon on theQuotation Day for the relevant Interest Period the Screen Rate not beingavailable and none or only one of the Reference Banks supplying a rate to theFacility Agent to determine LIBOR or, if applicable, EURIBOR for the relevantcurrency and Interest Period; or

#### (ii)                     before close of business in Londonon the Quotation Day for the relevant Interest Period, the Facility Agentreceiving notifications from a Lender or Lenders (whose participations in aLoan exceed 50 per cent. of that Loan) that the cost to it of obtainingmatching deposits in the Relevant Interbank Market would be in excess of LIBORor, if applicable, EURIBOR.

## **14.3****                  Alternativebasis of interest or funding**

### (a)                                      If a MarketDisruption Event occurs and the Facility Agent or the Company so requires, theFacility Agent and the Company shall enter into negotiations (for a period ofnot more than thirty days) with a view to agreeing a substitute basis fordetermining the rate of interest.

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

## **14.4****                  Break Costs**

### (a)                                      Subject toparagraph (b) below, each Borrower shall, within three Business Days of demandby a Finance Party, pay to that Finance Party its Break Costs attributable toall or any part of a Loan or Unpaid Sum being paid by that Borrower on a dayother than the last day of an Interest Period for that Loan or Unpaid Sum.

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###  

### (b)                                     Subject toparagraph (a) above, in order to avoid Break Costs arising on mandatoryprepayments, unless an Event of Default is outstanding, the Company shall beentitled to defer each Mandatory Prepayment in respect of Disposal Proceeds andEquity Proceeds until the end of the Interest Periods which are current at thedate upon which the repayment would otherwise become due.

### (c)                                      Each Lendershall, as soon as reasonably practicable after a demand by the Facility Agent,provide a certificate confirming the amount and basis of calculation of itsBreak Costs for any Interest Period in which they accrue.

# 15.**                           FEES**

## 15.1**                     Commitmentfee**

### (a)                                      The Company shallpay to the Facility Agent (for the account of each Lender) a fee in the BaseCurrency computed at the rate of (during the period commencing on (andincluding) the Closing Date and ending on the last day of the relevantAvailability Period) a rate equal to 40 per cent. of the applicable Margin perannum on that Lender’s Available Commitment under the Revolving Facility forthe Availability Period.

### (b)                                     The accruedcommitment fee is payable:

#### (i)                        on the last day of eachsuccessive period of three Months which ends during the relevant AvailabilityPeriod;

#### (ii)                     on the last day of the relevantAvailability Period; and

#### (iii)                  on the cancelled amount of therelevant Lender’s Commitment at the time the cancellation is effective.

## 15.2**                     Upfront fee**

The Company shall pay tothe Mandated Lead Arrangers an upfront fee in the amount and at the timesagreed in a Fee Letter.

## 15.3**                     FacilityAgency fee**

The Company shall pay to(or procure payment to) the Facility Agent (for its own account) a facilityagency fee in the amount and at the times agreed in a Fee Letter.

** **

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**SECTION6ADDITIONAL PAYMENT OBLIGATIONS**

# 16.**                           TAX GROSSUP AND INDEMNITIES**

## 16.1**                     Definitions**

In this Clause 16:

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

“**Qualifying Lender**” means:

(a)                                      aLender which is incorporated or resident or acting out of a Facility Office ina member state of the European Union; or

(b)                                     aTreaty Lender; or

(c)                                      otherwiseentitled to receive interest payments under this Agreement from that Borrowerwithout any Tax Deduction.

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

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

“**Tax Payment**” means either the increase in apayment made by an Obligor to a Finance Party under Clause 16.2 (*Tax gross up*) or a payment under Clause16.3 (*Tax indemnity*).

“**Treaty Lender**” means a Lender which:

(a)                                      istreated as a resident of a Treaty State for the purposes of the Treaty;

(b)                                     doesnot carry on a business in the Federal Republic of Germany through a permanentestablishment with which that Lender’s participation in the Loan is effectivelyconnected.

“**Treaty State**” means a jurisdiction having adouble taxation agreement (a “**Treaty**”)with the Federal Republic of Germany which makes provision for full exemptionfrom tax imposed by the Federal Republic of Germany on interest.

Unless a contraryindication appears, in this Clause 16 a reference to “**determines**” or “**determined**” means a determination made in the absolutediscretion of the person making the determination.

## 16.2**                     Tax gross up**

### (a)                                      Subject toparagraph (b) below:

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###  

#### (i)                        each Obligor shall make allpayments to be made by it without any Tax Deduction, unless a Tax Deduction isrequired by law;

#### (ii)                     the Company shall promptly uponbecoming aware that an Obligor must make a Tax Deduction (or that there is anychange in the rate or the basis of a Tax Deduction) notify the Facility Agentaccordingly.  Similarly, a Lender or theIssuing Bank shall notify the Facility Agent on becoming so aware in respect ofa payment to that Lender or the Issuing Bank. If the Facility Agent receives such notification from a Lender orIssuing Bank it shall notify the Company and that Obligor;

#### (iii)                  if a Tax Deduction is required by lawto be made by an Obligor the amount of the payment due from that Obligor shallbe increased to an amount which (after making any Tax Deduction) leaves anamount equal to the payment which would have been due if no Tax Deduction hadbeen required;

#### (iv)                 an Obligor is not required to make anincreased payment to a Lender under paragraph (iii) above for a Tax Deductionin respect of tax imposed by the relevant tax authorities from a payment ofinterest on a Loan, if on the date on which the payment falls due the paymentcould have been made to the relevant Lender without a Tax Deduction if it was aQualifying Lender, but on that date that Lender is not or has ceased to be aQualifying Lender other than as a result of any change after the date it becamea Lender under this Agreement in (or in the interpretation, administration, orapplication of) any law, or any published practice or concession of anyrelevant taxing authority;

#### (v)                    if an Obligor is required to make aTax Deduction, that Obligor shall make that Tax Deduction and any paymentrequired in connection with that Tax Deduction within the time allowed and inthe minimum amount required by law; and

#### (vi)                 within thirty days of making either aTax Deduction or any payment required in connection with that Tax Deduction,the Obligor making that Tax Deduction shall deliver to the Facility Agent forthe Finance Party entitled to the payment evidence reasonably satisfactory tothat Finance Party that the Tax Deduction has been made or (as applicable) anyappropriate payment paid to the relevant taxing authority.

### (b)                                     No such additionalamounts referred to in paragraph (a) above shall be required to be paid to anyLender with respect to any US withholding taxes that would not have beenimposed but for the failure to comply with paragraph (a) of Clause 16.7 (*Nil Rate Treaty Lender and US Lender*).

## 16.3**                     Tax indemnity**

### (a)                                      The Company shall(within three Business Days of demand by the Facility Agent) pay (or procurepayment) to a Protected Party an amount equal to the

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###  

### loss, liability or cost which that ProtectedParty determines will be or has been (directly or indirectly) suffered for oron account of Tax by that Protected Party in respect of a Finance Document.

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

#### (i)                        with respect to any Taxassessed on a Finance Party:

##### (A)                under the law of the jurisdiction inwhich that Finance Party is incorporated or, if different, the jurisdiction (orjurisdictions) in which that Finance Party is treated as resident for taxpurposes; or

##### (B)                  under the law of the jurisdiction inwhich that Finance Party’s Facility Office is located in respect of amountsreceived or receivable in that jurisdiction,

if that Tax is imposed onor calculated by reference to the net income received or receivable (but notany sum deemed to be received or receivable) by that Finance Party; and

#### (ii)                     to the extent a loss, liability orcost:

##### (A)                is compensated for by an increasedpayment under Clause 16.2 (Tax gross up); or

##### (B)                  would have been compensated for by anincreased payment under Clause 16.2 (*Tax gross up*)but was not so compensated solely because one of the exclusions insub-paragraph (iv) of Clause 16.2(a) (*Tax gross up*)and in Clause 16.2(b) applied.

### (c)                                      A Protected Partymaking, or intending to make a claim pursuant to paragraph (a) above shallpromptly notify the Facility Agent of the event which will give, or has given,rise to the claim, following which the Facility Agent shall notify the Company.

### (d)                                     A Protected Partyshall, on receiving a payment from an Obligor under this Clause 16.3, notifythe Facility Agent.

## 16.4**                     Tax Credit**

If an Obligor makes a TaxPayment other than with respect to United States Taxes and the relevant FinanceParty determines in good faith that:

### (a)                                      a Tax Credit isattributable to that Tax Payment; and

### (b)                                     that Finance Partyhas obtained, utilised and retained that Tax Credit,

the Finance Party shallpay an amount to the Obligor which that Finance Party determines will leave it(after that payment) in the same after Tax position as it would have been inhad the Tax Payment not been made by the Obligor.

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## 16.5**                     Stamp Taxes**

The Company shall payand, within three Business Days of demand, indemnify each Finance Party andeach Mandated Lead Arranger against any cost, loss or liability that FinanceParty or any Mandated Lead Arranger incurs in relation to all stamp duty,registration and other similar Taxes or fees payable in respect of any FinanceDocument.

## 16.6**                     Value AddedTax**

### (a)                                      All considerationexpressed to be payable under a Finance Document by any Party to a FinanceParty shall be deemed to be exclusive of any VAT. If VAT is chargeable on anysupply made by any Finance Party to any Party in connection with a FinanceDocument, that Party shall pay to the Finance Party (in addition to and at thesame time as paying the consideration) an amount equal to the amount of the VATagainst delivery of a invoice which meets the respective criteria for VATrefund.

### (b)                                     Where a FinanceDocument requires any Party to reimburse a Finance Party for any costs orexpenses, that Party shall also at the same time pay and indemnify that FinanceParty against all VAT incurred by the Finance Party in respect of the costs orexpenses to the extent that the Finance Party reasonably determines that it isnot entitled to credit or repayment of the VAT. The respective Finance Party shallreimburse the respective Party any VAT refunded.

## 16.7**                     Nil RateTreaty Lender and US Lender**

### (a)                                      Each Lendermaking a loan to a U.S. Borrower that is not a United States Person (as suchterm is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S.federal income tax purposes (a “**Non US Lender**”)shall deliver to Facility Agent for transmission to U.S. Borrower, on or priorto the Closing Date (in the case of each Lender listed on the signature pageshereof on the Closing Date) or on or prior to the date of the TransferCertificate pursuant to which it becomes a Lender (in the case of each otherLender), and at such other times as may be necessary in the determination ofU.S. Borrower or Facility Agent (each in the reasonable exercise of its discretion),(i) two original copies of Internal Revenue Service Form W 8BEN, W 8ECI and/orW-8IMY (or any successor forms), properly completed and duly executed by suchLender, and such other documentation required under the Internal Revenue Codeor reasonably requested by U.S. Borrower to establish that such Lender is notsubject to deduction or withholding of United States federal income tax withrespect to any payments to such Lender of principal, interest, fees or otheramounts payable under any of the Finance Documents, or (ii) if such Lender isnot a “bank” or other Person described in Section 881(c)(3) of the InternalRevenue Code and cannot deliver Internal Revenue Service Form W 8ECI pursuantto (i) above, a Certificate re Non Bank Status together with two originalcopies of Internal Revenue Service Form W 8BEN and/or W-8IMY (or any successorform), properly completed and duly executed by such Lender, in each casetogether with such other documentation

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### required under the Internal Revenue Code or reasonablyrequested by U.S. Borrower to establish that such Lender is not subject todeduction or withholding of United States federal income tax with respect toany payments to such Lender of interest payable under any of the FinanceDocuments.  If any Lender provides anInternal Revenue Service Form W-8IMY, such Lender must also attach theadditional documentation that must be transmitted with Internal Revenue ServiceForm W-8IMY, including the appropriate forms described in this Clause 16.7.

### (b)                                     Each Lender makinga Loan to U.S. Borrower that is a United States person (as such term is definedin Section 7701(a)(30) of the Internal Revenue Code) and is not a person whosename indicates that it is an “exempt recipient” (as such term is defined inSection 1.6049-4(c)(ii) of the United States Treasury Regulations) shalldeliver to U.S. Borrower and the Facility Agent on or prior to the Closing Date(in the case of each Lender listed on the signature pages hereof on the ClosingDate) or on or prior to the date of the Transfer Certificate pursuant to whichit becomes a Lender (in the case of each other Lender), and at such other timesas may be necessary in the determination of U.S. Borrower and the FacilityAgent (each in the reasonable exercise of its discretion) two original copiesof Internal Revenue Service Form W-9 (or successor forms).

### (c)                                      Each Lenderrequired to deliver any forms, certificates or other evidence with respect toUnited States federal income tax withholding matters pursuant to this Sectionhereby agrees, from time to time after the initial delivery by such Lender ofsuch forms, certificates or other evidence, whenever a lapse in time or changein circumstances renders such forms, certificates or other evidence obsolete orinaccurate in any material respect, that such Lender shall promptly deliver tothe Facility Agent for transmission to U.S. Borrower two new original copies ofInternal Revenue Service Form W-8BEN, W-8ECI, W-8IMY or W-9, or a Certificatere Non Bank Status and two original copies of Internal Revenue Service FormW-8BEN or W-8IMY (or any successor form), as the case may be, properlycompleted and duly executed by such Lender, and such other documentationrequired under the Internal Revenue Code or reasonably requested by U.S. Borrowerto confirm or establish that such Lender is not subject to deduction orwithholding of United States federal income tax with respect to payments tosuch Lender under the Finance Documents, or notify the Facility Agent and U.S.Borrower of its inability to deliver any such forms, certificates or otherevidence.

## 16.8**                     GermanBorrowers**

### (a)                                      The FacilityAgent and each of the Original Lenders undertake to deliver to each GermanBorrower as soon as reasonably practicable after the Facilities have been madeavailable to such German Borrower and subject to compliance by the GermanBorrowers with paragraph (c) below, a complete letter in the form of the sampleback-to-back certificate as published by the

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### German Federal Ministry of Finance (*Bundesfinanzministerium*) on 20 October2005 (IV B7 — S2742a — 43/05) as attached as Schedule 14 (*Form of Certificate*), or in the form ofany successor sample form as may be required by the German tax authorities (the“**Certificate**”).The Facility Agent (acting on behalf of the Lenders) shall send to the relevantGerman Borrower upon request of such German Borrower an updated Certificate assoon as reasonably practicable (1) upon any amendment to the Facilities orchange in the security or guarantees granted in relation to the Facilities, (2)if so required by the relevant German Borrower for tax purposes. If the Germantax authorities will not accept a certificate issued by the Facility Agent,each Lender will issue a certificate individually.

### (b)                                     Each GermanBorrower may disclose the existence and contents of any Certificate to itsprofessional advisers, its affiliated companies (*verbundene Unternehmen*) and to any tax, regulatory orgovernmental authority asserting jurisdiction over it.

### (c)                                      For purposes ofenabling the Facility Agent to issue a Certificate on behalf of the Lender, therespective German Borrower will provide the Facility Agent with a list ofguarantees, disposal restrictions and other relevant information as requiredpursuant to the sample Certificate, together with any written request for theissuance of a Certificate.

### (d)                                     Each Obligor andeach Lender undertakes to inform the Facility Agent without undue delay if itbecomes aware of any incorrectness or incompleteness of a Certificate given orto be given from time to time pursuant to paragraph (a) above.

### (e)                                      It is the commonunderstanding of the Parties that:

#### (i)                        each Certificate is given bythe Facility Agent for the purpose of delivery to the competent tax authoritiesof the German Borrowers to assist the German Borrowers in the administration oftheir tax affairs and not for any other purpose;

#### (ii)                     the Facility Agent and the Lendersare not responsible for examining the German Borrowers’ tax position and thatthe Certificates do not guarantee the achievement or amount of a specificresult or conclusion for tax purposes or the suitability of a Certificate toprovide the counterproof as set out in the relevant German tax decrees;

#### (iii)                  each Certificate will list allguarantees irrespective of whether they can be harmful under section 8a of theKStG and will only be a declaration of fact (*Wissenserklärung*)and there will be no further obligations of the Facility Agent and/or theLenders and no restrictions of their rights under the Finance Documents as aresult of the issuance of any Certificate;

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#### (iv)                 each Certificate is addressed to andis solely for the benefit of the German Borrowers in relation to thisAgreement; and

#### (v)                    no Certificate creates third partyrights of any kind.

### (f)                                        It is thecommon understanding of the Parties that no Party is providing any legal and/ortax advice to any other Party with respect to this Agreement, in particularwith respect to the application of section 8a of the KStG and theinterpretation of the relevant German tax decrees, and that it is theresponsibility of each Party, in particular each German Borrower, to consultits own legal and tax advisers.

### (g)                                     To the extent theGerman tax authorities require a German Borrower to provide, in addition to theCertificates, further evidence or information, the Facility Agent and/or theLenders shall consider in good faith to what extent it is reasonably practicalfor them to support the relevant German Borrower in that regard.

### (h)                                     Reasonable costsand expenses incurred by the Facility Agent or any Lender (unless only theFacility Agent reviews and issues the Certificate without the involvement ofthe Lender) in connection with the provisions of a Certificate will be borne bythe German Borrowers.  Neither theFacility Agent nor any Lender shall be liable as a result of the delivery of aCertificate.  Each German Borrower agreesto indemnify the Facility Agent and each Lender with respect to potentialclaims made against the Facility Agent or any Lender with respect to anyCertificate by any third party (other than claims arising by reason of grossnegligence by the Facility Agent or that Lender).  No Obligor will raise any claims against theFacility Agent or any Lender based on, or in connection with, a (correct/completeor incorrect/incomplete) Certificate, except in cases where the Facility Agentor the Lenders are in breach of their undertaking to deliver the Certificate inaccordance with this Clause 16.8, in which event each Lender or the FacilityAgent, as the case may be, shall only be severally (and not jointly) liable forits own breach (and the Facility Agent shall not be liable for a breach of theundertaking by the Lenders).

### (i)                                         For theavoidance of doubt:

#### (i)                        none of the Facility Agent norany Lender shall be obliged to disclose to any other person any confidentialinformation regarding its business or any other information relating to its taxaffairs or tax computations (including, without limitation, its tax returns orits calculations) as a result of the operation of this clause;

#### (ii)                     none of the Facility Agent nor anyLender shall be obliged to deliver any information or make any statementspursuant to this clause if by doing so it would contravene the terms of anyapplicable law or any notice, direction or requirement of any governmental orregulatory authority (whether or not having the force of law); and

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#### (iii)                  each German Borrower may disclose theexistence and contents of a Certificate to its professional advisers, itsaffiliates, as required by applicable law or regulation and to any tax,regulatory or other governmental authority asserting jurisdiction over it.

### (j)                                         Each Obligoracknowledges that the Facility Agent may only deliver a Certificate if and tothe extent any Obligor has released the Facility Agent from its general obligationto maintain confidentiality and herewith releases the Facility Agent and eachLender from the banking confidentiality (*Bankgeheimnis*)and any other confidentiality obligation for purposes of the issuance anddelivery of the Certificates solely with respect to such information that isrequired to be included in the Certificate, and solely *vis-à-vis* the other Obligors, the taxauthorities and the other Finance Parties. If the Facility Agent has not been released from such bankingconfidentiality and other confidentiality obligations by any person providing aguarantee to secure any liabilities of the relevant German Borrower, theCertificates will only state that further guarantees have been granted.

# 17.**                           INCREASEDCOSTS**

## 17.1**                     Increasedcosts**

### (a)                                      Subject to Clause17.3 (*Exceptions*) the Companyshall, within three Business Days of a demand by the Facility Agent, pay forthe account of a Finance Party the amount of any Increased Costs incurred bythat Finance Party or any of its Affiliates as a result of (i) the introductionof or any change in (or in the interpretation, administration or applicationof) any law or regulation or (ii) compliance with any law or regulation madeafter the date of this Agreement.

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

#### (i)                        a reduction in the rate ofreturn from a Facility or on a Finance Party’s (or its Affiliate’s) overallcapital;

#### (ii)                     an additional or increased cost;or

#### (iii)                  a reduction of any amount due andpayable under any Finance Document,

which is incurred or sufferedby a Finance Party or any of its Affiliates to the extent that it isattributable to that Finance Party having entered into its Commitments or anAncillary Commitment or funding or performing its obligations under any FinanceDocument or Bank Guarantee.

## 17.2**                     Increasedcost claims**

### (a)                                      A Finance Partyintending to make a claim pursuant to Clause 17.1 (*Increased costs*) shall notify the Facility Agent of theevent giving rise to the claim, following which the Facility Agent shallpromptly notify the Company.

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### (b)                                     Each Finance Partyshall, as soon as practicable after a demand by the Facility Agent, provide acertificate confirming the amount of its Increased Costs together withreasonable details of the basis of calculation.

## 17.3**                     Exceptions**

### (a)                                      Clause 17.1 (*Increased costs*) does not apply to theextent any Increased Cost is:

#### (i)                        attributable to a Tax Deductionrequired by law to be made by an Obligor; and

#### (ii)                     compensated for by Clause 16.3 (*Tax indemnity*) (or would have beencompensated for under Clause 16.3 (*Taxindemnity*) but was not so compensated solely because any of theexclusions in paragraph (b) of Clause 16.3 (*Taxindemnity*) applied); or

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

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

### (b)                                     In this Clause17.3, a reference to a “**Tax Deduction**”has the same meaning given to the term in Clause 16.1 (*Definitions*).

# 18.**                           OTHER INDEMNITIES**

## 18.1**                     Currencyindemnity**

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

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

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

that Obligor shall as anindependent obligation, within three Business Days of demand, indemnify eachFinance Party and each Mandated Lead Arranger to whom that Sum is due againstany cost, loss or liability arising out of or as a result of the conversionincluding any discrepancy between (A) the rate of exchange used to convert thatSum from the First Currency into the Second Currency and (B) the rate or ratesof exchange available to that person at the time of its receipt of that Sum.

### (b)                                     Each Obligorwaives any right it may have in any jurisdiction to pay any amount under theFinance Documents in a currency or currency unit other than that in which it isexpressed to be payable.

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## 18.2**                     Otherindemnities**

The Company shall (orshall procure that an Obligor will), within three Business Days of demand,indemnify each Finance Party and each Mandated Lead Arranger against any cost,loss or liability incurred by that Finance Party or Mandated Lead Arranger as aresult of:

### (a)                                      the occurrence ofany Event of Default;

### (b)                                     a failure by anObligor to pay any amount due under a Finance Document on its due date,including without limitation, any cost, loss or liability arising as a resultof Clause 31 (*Sharing among the FinanceParties*);

### (c)                                      funding, ormaking arrangements to fund, its participation in a Utilisation requested by aBorrower in a Utilisation Request but not made by reason of the operation ofany one or more of the provisions of this Agreement (other than by reason ofdefault or negligence by that Finance Party alone);

### (d)                                     issuing or makingarrangements to issue a Bank Guarantee requested by a Borrower in a UtilisationRequest but not issued by reason of the operation of any one or more of theprovisions of this Agreement; or

### (e)                                      a Utilisation (orpart of a Utilisation) not being prepaid in accordance with a notice ofprepayment given by a Borrower.

## 18.3**                     Indemnity tothe Facility Agent**

The Company shall (orshall procure that an Obligor will) promptly indemnify the Facility Agentagainst any cost, loss or liability incurred by the Facility Agent (actingreasonably) as a result of:

### (a)                                      investigating anyevent which it reasonably believes is a Default;

### (b)                                     entering into orperforming any foreign exchange contract for the purposes of paragraph (b) ofClause 32.9 (*Change of Currency*);or

### (c)                                      acting or relyingon any notice, request or instruction which it reasonably believes to begenuine, correct and appropriately authorised.

# 19.**                           MITIGATIONBY THE LENDERS**

## 19.1**                     Mitigation**

### (a)                                      Each FinanceParty shall, in consultation with the Company, take all reasonable steps tomitigate any circumstances which arise and which would result in any amountbecoming payable under or pursuant to, or cancelled pursuant to, any of Clause11.1 (*Illegality of a Lender*),Clause 16 (*Tax Gross up and Indemnities*)or Clause 17 (*Increased Costs*) orparagraph 3 of Schedule 4 (*Mandatory CostFormulae*) including (but not limited to) transferring its rights andobligations under the Finance Documents to another Affiliate or FacilityOffice.

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

## 19.2**                     Limitation ofliability**

### (a)                                      The Company shall(or shall procure that an Obligor will) indemnify each Finance Party for allcosts and expenses reasonably incurred by that Finance Party as a result of stepstaken by it under Clause 19.1 (*Mitigation*).

### (b)                                     A Finance Party isnot obliged to take any steps under Clause 19.1 (*Mitigation*) if, in the opinion of that Finance Party (actingreasonably), to do so might be prejudicial to it.

# 20.**                           COSTSAND EXPENSES**

## 20.1**                     Transactionexpenses**

The Company shall within5 Business Days of demand, but not prior to the Closing Date, pay (or shallprocure that an Obligor will pay) the Facility Agent and the Mandated LeadArrangers the amount of all costs and expenses (including legal fees)reasonably incurred by any of them (but subject to any caps agreed) inconnection with the negotiation, preparation, printing, execution, syndicationand perfection of:

### (a)                                      this Agreementand any other documents referred to in this Agreement; and

### (b)                                     any other FinanceDocuments executed after the date of this Agreement.

## 20.2**                     Amendmentcosts**

If (a) an Obligorrequests an amendment, waiver or consent (for the avoidance of doubt includingany amendment to effect an Incremental Loan) or (b) an amendment is requiredpursuant to Clause 32.9 (*Change of currency*),the Company shall, within five Business Days of demand, reimburse (or procurereimbursement of) each of the Facility Agent for the amount of all costs andexpenses (including legal fees) reasonably incurred by the Facility Agent inresponding to, evaluating, negotiating or complying with that request orrequirement.

## 20.3**                     Enforcementand preservation costs**

The Company shall, withinthree Business Days of demand, pay (or procure payment) to each Finance Partyand each Mandated Lead Arranger the amount of all costs and expenses (includinglegal fees) reasonably incurred by that Finance Party or Mandated Lead Arrangerin connection with the enforcement of or the preservation of any rights, powersand remedies under, any Finance Document.

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**SECTION7GUARANTEE**

# 21.**                           GUARANTEEAND INDEMNITY**

## 21.1**                     Guarantee andindemnity**

Each Guarantorirrevocably and unconditionally jointly and severally:

### (a)                                      guarantees toeach Finance Party punctual performance by each Borrower (other than itself) ofall that Borrower’s obligations under the Finance Documents;

### (b)                                     undertakes witheach Finance Party that whenever a Borrower does not pay any amount when dueunder or in connection with any Finance Document, that Guarantor shallimmediately on demand pay that amount as if it was the principal obligor; and

### (c)                                      indemnifies eachFinance Party immediately on demand against any cost, loss or liabilitysuffered by that Finance Party if any obligation guaranteed by it is or becomesunenforceable, invalid or illegal.  Theamount of the cost, loss or liability shall be equal to the amount which thatFinance Party would otherwise have been entitled to recover,

**providedthat** no U.S. Group Company shall be required to grant aguarantee in respect of any part of the Facilities borrowed by members of theGroup which are not U.S. Group Companies and no Group company incorporatedoutside of the United States of America shall be required to grant a guaranteein respect of any part of the Facilities borrowed by U.S. Group Companies.

## 21.2**                     ContinuingGuarantee**

This guarantee is acontinuing guarantee and will extend to the ultimate balance of sums payable byany Obligor under the Finance Documents, regardless of any intermediate paymentor discharge in whole or in part.

## 21.3**                     Reinstatement**

If any payment by anObligor or any discharge given by a Finance Party (whether in respect of theobligations of any Obligor or any security for those obligations or otherwise)is avoided or reduced as a result of insolvency or any similar event:

### (a)                                      the liability ofeach Obligor shall continue as if the payment, discharge, avoidance orreduction had not occurred; and

### (b)                                     each Finance Partyshall be entitled to recover the value or amount of that security or payment fromthe Obligor, as if the payment, discharge, avoidance or reduction had notoccurred.

## 21.4**                     Waiver ofdefences**

The obligations of eachGuarantor under this Clause 21 will not be affected by any act, omission,matter or thing which, but for this Clause 21, would reduce, release or

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prejudice any of itsobligations under this Clause 21 (without limitation and whether or not knownto it or any Finance Party) including:

### (a)                                      any time, waiveror consent granted to, or composition with, any Obligor or other person;

### (b)                                     the release of anyother Obligor or any other person under the terms of any composition orarrangement with any creditor of any member of the Group;

### (c)                                      the taking,variation, compromise, exchange, renewal or release of, or refusal or neglectto perfect, take up or enforce, any rights against, or security over assets of,any Obligor or other person or any non presentation or non observance of anyformality or other requirement in respect of any instrument or any failure torealise the full value of any security;

### (d)                                     any incapacity orlack of power, authority or legal personality of or dissolution or change inthe members or status of an Obligor or any other person;

### (e)                                      any amendment(however fundamental) or replacement of a Finance Document or any otherdocument or security;

### (f)                                        anyunenforceability, illegality or invalidity of any obligation of any personunder any Finance Document or any other document or security; or

### (g)                                     any insolvency orsimilar proceedings.

## 21.5**                     Immediaterecourse**

Each Guarantor waives anyright it may have of first requiring any Finance Party (or any agent on itsbehalf) to proceed against or enforce any other rights or security or claimpayment from any person before claiming from that Guarantor under this Clause21.  This waiver applies irrespective ofany law or any provision of a Finance Document to the contrary.

## 21.6**                     Appropriations**

Until all amounts whichmay be or become payable by the Obligors under or in connection with theFinance Documents have been irrevocably paid in full, each Finance Party may,to the extent to do so is reasonable in the circumstances:

### (a)                                      refrain fromapplying or enforcing any other monies, security or rights held or received bythat Finance Party (or any trustee or agent on its behalf) in respect of thoseamounts, or apply and enforce the same in such manner and order as it sees fit(whether against those amounts or otherwise) and no Guarantor shall be entitledto the benefit of the same; and

### (b)                                     hold in aninterest bearing suspense account any monies received from any Guarantor or onaccount of any Guarantor’s liability under this Clause 21.

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## 21.7**                     Deferral ofGuarantor’s rights**

Until all amounts whichmay be or become payable by the Obligors under or in connection with theFinance Documents have been irrevocably paid in full and unless the FacilityAgent otherwise directs, no Guarantor will exercise any rights which it mayhave by reason of performance by it of its obligations under the FinanceDocuments:

### (a)                                      to be indemnifiedby an Obligor;

### (b)                                     to claim anycontribution from any other guarantor of any Obligor’s obligations under theFinance Documents; and/or

### (c)                                      to take thebenefit (in whole or in part and whether by way of subrogation or otherwise) ofany rights of the Finance Parties under the Finance Documents or of any otherguarantee or security taken pursuant to, or in connection with, the FinanceDocuments by any Finance Party.

## 21.8**                     Additionalsecurity**

This guarantee is inaddition to and is not in any way prejudiced by any other security now orsubsequently held by any Finance Party.

## 21.9**                     Limitation onPayment Obligations by German Guarantors and limitation regarding LTIBRs**

### (a)                                      The FinanceParties’ agree, other than in accordance with the procedure set out in thisClause 21.9, not to enforce any payment obligation under or in connection withthe Finance Documents (other than a payment obligation of a German Obligor (asdefined below) or of any direct or indirect subsidiary of such German Obligorunder the Term Facilities or the Revolving Facility made available to suchGerman Obligor or such subsidiary) against an Obligor organised as a limitedliability company (*GmbH*) inGermany (a “**German Obligor**”), to the extentthat the enforcement would otherwise lead to the situation that the GermanObligor did not have sufficient net assets (*Nettovermögen*),calculated in accordance with the jurisprudence from time to time of the GermanFederal Supreme Count (*Bundesgerichtshof*)or absent such jurisprudence, the jurisprudence of the Higher Regional Court (*Oberlandesgericht*) or Regional Courts (*Landgericht*) in the district of therelevant German Obligor relating to protection of liable capital under sections30 and 31 of the German Limited Liability Companies Act (*GmbH-Gesetz*)) to maintain its stated sharecapital (*Stammkapital*) orincreased an existing shortage of its stated share capital) **provided that** for the purposes of the calculation of theenforceable amount, if any, the following balance sheet items shall be adjustedas follows:

#### (i)                        the amount of any increase ofstated share capital (*Stammkapital*)of the German Obligor that has been effected after the date hereof shall bededucted from the stated share capital unless such increase is (x) required bylaw or envisaged in the Structure Memorandum, or (y) matched by a correspondingincrease in the net assets of the relevant

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#### Obligor, or (z) made with the consent of the Facility Agent (suchconsent not to be unreasonably withheld). For the avoidance of doubt, increasing the capital reserves (*Rücklagen*) as referred to in Section 266para. 3, items II. and III. of the German Commercial Code (*Handelsgesetzbuch - HGB*) of any GermanGuarantor shall not be restricted (and shall not require any adjustments to thestated share capital) by virtue of this paragraph; and/or

#### (ii)                     any amount of mandatory reserves (*Rücklagen*) resulting from a decrease ofregistered share capital (*Kapitalherabsetzung*)and any amount of public subsidies (*Subventionenund andere öffentliche Beihilfen*) received after the date hereofwhich are subject to an unfulfilled commitment as to their use shall be addedto the registered share capital; and/or

#### (iii)                  loans provided after the date hereofto the German Obligor, insofar such loans qualify as equity under theapplicable accounting principles and which do not have to be shown asliabilities on the German Obligor’s balance sheet, shall be disregarded; and/or

#### (iv)                 to the extent the enforcement of theguarantee would deprive the German Obligor of the ability to fulfil itsobligations to third parties (incurred, whether on a contingent ornon-contingent basis, at the time of enforcement or to continue its business,then, for the determination of net assets, the assets of the German Obligorshall be calculated at the lesser of their book value (*Buchwert*) and their realisation valueassuming a negative prognosis for the business continuance (*Liquidationswert bei negativer Fortführungsprognose*);and/or

#### (v)                    loans and other contractualliabilities incurred by the German Obligor in violation of the provisions ofany of the Finance Documents shall be disregarded to the extent such violationcan be attributed to wilful misconduct of the managing director (*Geschäftsführer*) of the German Obligor.

### (b)                                     The limitationsset out in paragraph (a) of this Clause 21.9 only apply if and to the extentthat:

#### (i)                        within twenty (20) BusinessDays following the demand against a German Obligor by the Facility Agent(acting on behalf of the Finance Parties) (the “**EnvisagedEnforcement Date**”), the managing director(s) on behalf of suchGerman Obligor has confirmed in writing to the Facility Agent (x) to whatextent the payment obligation relates to a primary liability which is anup-stream or cross-stream liability as described in paragraph (a), and (y)which amount of such up-stream and/or cross-stream liability cannot be enforcedas it would exceed the net assets of the German Obligor, and such confirmationis supported by

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#### conclusive evidence satisfactory to the Facility Agent, including inparticular, *pro forma*interimfinancial statements as of the Envisaged Enforcement Date (the “**Management Determination**”), and the Facility Agent has notcontested the Management Determination; or

#### (ii)                     within 40 business days from thedate the Facility Agent (acting on behalf of the Finance Parties) has contestedthe Management Determination, the Facility Agent receives a determination byauditors of international standard and reputation (the “**Auditor’sDetermination**”) appointed by the German Obligor, of the amount ofthe net assets on the envisaged enforcement date.

### (c)                                      If the FacilityAgent disagrees with the Auditor’s Determination, it shall be entitled tofurther pursue their claims and/or rights (if any) under the dispute solutionsagreed upon and, in particular, to contest the Auditor’s Determination incourt, and the German Obligor shall be entitled to prove that this amount isnecessary for maintaining its stated share capital (calculated as of the datethe demand for payment and/or enforcement was made).

### (d)                                     The German Obligorshall use reasonable efforts to realize any and all of its assets that areshown in the balance sheet with a book value (Buchwert) that it issignificantly lower than the market value of the assets, or are not recorded atall in a situation where the German Obligor does not have sufficient Net Assetsto maintain its registered share capital, **provided that**the relevant assets are in the reasonable opinion of the German Obligor notrequired for the business of the German Obligor (*nicht betriebsnotwendiges Vermögen*).

### (e)                                      The FinanceParties’ right to claim and/or enforce a payment obligation (other than apayment obligation of a German Obligor or of any direct or indirect subsidiaryof a German Obligor under the Term Facilities or the Revolving Facility madeavailable to such German Obligor or Subsidiary) shall be excluded at all, orexist only to a limited amount, if the German Obligor delivers within theEnvisaged Enforcement Date a legal opinion issued by a law firm ofinternational standard and reputation with German qualified lawyers (*Rechtsanwälte*) which:

#### (i)                        comes to the conclusion thatthe German Obligor complying with its obligations under any of the FinanceDocuments has exposed and/or would expose (based on legal literature which is(in the view of the lawyer giving the opinion) widely accepted among Germanlawyers, and/or court decisions issued after the date of this agreement inrelation to the relevant issues which present the risk of liability asmaterially greater than the risk of liability as presented by legal literatureand/or court decisions current on the date of this agreement) the managingdirectors of the German Obligor (or its shareholder’s or an affiliated company’smanaging directors, officers or board members), or an

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#### affiliated company (*verbundenesUnternehmen*) to a significant risk of civil or criminal liability;and

#### (ii)                     specifies the maximum amount towhich the payment and/or enforcement of any claims under or in connection withthe Finance Documents shall be limited to prevent the circumstances referred toin the sub-paragraph immediately above from arising.

### (f)                                        If the FacilityAgent (acting on behalf of the Lenders) disagrees with the conclusions of theabovementioned legal opinion, the Facility Agent shall be entitled to furtherpursue its claims and/or rights (if any) under the dispute solutions agreedupon and, in particular, to contest the conclusions of the legal opinion (andtherefore the limitations on the guarantees) in court, and the German Obligorshall be entitled to prove what limitations under the relevant guarantees arenecessary to prevent the managing directors of the German Obligor (or itsshareholder’s or an affiliated company’s managing directors, officers or boardmembers) or an affiliated company to become subject to civil or criminalliability, and the conclusions of such dispute resolution processes shall(subject to any rights of appeal) be effective between the parties (i.e., thelimitations on the relevant guarantees shall be adjusted to reflect theconclusions of such dispute resolution processes).

### (g)                                     In the case of aGuarantor organised in the form of a limited partnership in which the generalpartner is a GmbH (GmbH & Co. KG), the provisions set out above shall apply*mutatis mutandis* to the Guarantor’sgeneral partner (*Komplementär*).

### (h)                                     If and to theextent that:

#### (i)                        a guarantee granted under theFacility Agreement secures any Loans, (i) which are made to a corporation, or(ii) which are deemed to be made to a corporation according to Section 8aparagraph 5 sentence 2 German Corporation Income Tax Act (*Körperschaftsteuergesetz*), and whichcorporation is subject to German corporation income tax, (such Loans beingdefined as a “**German Loans**” and such corporationbeing defined as “**German Borrower**”);and

#### (ii)                     the relevant Guarantor grantingsuch guarantee either (i) qualifies as a major shareholder (*wesentlicher Anteilseigner*) within themeaning of Section 8a of the German Income Corporation Tax Act (*Körperschaftssteuergesetz*) of such GermanBorrower or (ii) as an affiliated party within the meaning of Section 1paragraph 2 of the German Foreign Trade Tax Act (*Aussensteuergesetz*) of such a major shareholder of suchGerman Borrower,

such guarantee (or anyenforceable judgment based thereon) shall not be enforced against assets of therelevant Guarantor which qualify as LTIBR(s) if and to the extent such LTIBR(s)are (i) encumbered in favour of any of the

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Finance Parties pursuantto a lien arising under the general business terms (*AGB-Pfandrecht*) of such Finance Party, (ii) the subject of adisposal restriction (*Verfügungsbeschränkung*)or (iii) subject to enforcement pursuant to a submission to immediateforeclosure in the entire property (*Unterwerfungunter die sofortige Zwangsvollstreckung in das gesamte Vermögen*) ofthe relevant Guarantor;

## 21.10**               Limitation on aGuarantee by United States Borrowers**

Each Guarantor, theFacility Agent and each other Finance Party, hereby confirms that it is theintention of all such Persons that this Guarantee and the Obligations of eachGuarantor hereunder do not constitute a fraudulent transfer or conveyance forpurposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the UniformFraudulent Transfer Act or any similar United States federal or state law tothe extent applicable to this Guarantee and the Obligations of each Guarantorhereunder.  To effectuate the foregoingintention, the Facility Agent, the other Finance Parties and the U.S.Guarantors hereby irrevocably agree that the Obligations of each U.S. Guarantorunder this Guarantee at any time shall be limited to the maximum amount as willresult in the Obligations of such U.S. Guarantor under this Guarantee notconstituting a fraudulent transfer or conveyance under any such laws.  For purposes of this paragraph, “BankruptcyLaw” means Title 11, U.S. Code, or any similar United States federal or statelaw for the relief of debtors.

## 21.11**               Other GuaranteeLimitations**

The obligations of eachGuarantor whose Relevant Jurisdiction is not Germany shall, in accordance withthe Guarantee Principles, be subject to the guarantee limitation (if any)specified in the Accession Letter in relation to that Guarantor.

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**SECTION8REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT**

# 22.**                           REPRESENTATIONS**

The Company (on behalf ofitself and each relevant member of the Group) and each Obligor on behalf ofitself makes the following representations and warranties to each Finance Partyat the times specified in Clause 22.25 (*Timeson which representations are made*):

## 22.1**                     Status**

### (a)                                      It and each ofits Subsidiaries is a corporation or limited liability company or partnership,duly incorporated or organised and validly existing under the law of itsjurisdiction of incorporation or organisation.

### (b)                                     It and each of itsSubsidiaries has the power under its constitutive documents to own its assetsand carry on its business as it is being conducted.

## 22.2**                     Bindingobligations**

Subject to the LegalReservations, the obligations expressed to be assumed by it in each FinanceDocument are legal, valid, binding and enforceable obligations.

## 22.3**                     Non conflictwith other obligations**

The entry into andperformance by it of, and the transactions contemplated by, the FinanceDocuments do not and will not conflict with:

### (a)                                      any law orregulation applicable to it;

### (b)                                     the constitutionaldocuments of any member of the Group; or

### (c)                                      any agreement orinstrument binding upon it or any member of the Group or any of its or anymember of the Group’s assets,

to the extent that suchconflict is likely to have a Material Adverse Effect.

## 22.4**                     Power andauthority**

It has the power to enterinto, perform and deliver, and has taken all necessary corporate action toauthorise its entry into, performance and delivery of, the Finance Documents towhich it is or will be a party and the transactions contemplated by thoseFinance Documents.

## 22.5**                     Validity andadmissibility in evidence**

Subject to the LegalReservations, all Authorisations required:

### (a)                                      to enable itlawfully to enter into, exercise its rights and comply with its obligations inthe Finance Documents to which it is or will be a party; and

### (b)                                     to make theFinance Documents to which it is or will be a party admissible in evidence inits Relevant Jurisdictions,

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have been obtained oreffected and are in full force and effect where failure to do so is likely tohave a Material Adverse Effect.

## 22.6**                     Governing lawand enforcement**

### (a)                                      Subject to theLegal Reservations, the choice of English law as the governing law of theFinance Documents will be recognised and enforced in its Relevant Jurisdiction.

### (b)                                     Subject to theLegal Reservations, any judgment obtained in England in relation to a FinanceDocument will be recognised and enforced in its Relevant Jurisdiction

## 22.7**                     Insolvency**

No:

### (a)                                      corporate action,legal proceeding or other procedure or step described in paragraph (a) ofClause 26.7 (*Insolvency proceedings*);or

### (b)                                     creditors processdescribed in Clause 26.8 (*Creditors’ process*),

has been taken or, to theknowledge of the Company, threatened in relation to any Material Company andnone of the circumstances described in Clause 26.6 (*Insolvency*) applies to any of them.

## 22.8**                     No filing orstamp taxes**

Under the laws of theRelevant Jurisdictions and subject to the Legal Reservations, it is notnecessary that the Finance Documents be filed, recorded or enrolled with anycourt or other authority in that jurisdiction or that any stamp, registration,notarial or similar Taxes or fees be paid on or in relation to the FinanceDocuments or the transactions contemplated by the Finance Documents, except anyfiling, recording or enrolling or any tax or fee payable which is referred toin any legal opinion delivered to the Facility Agent under Clause 4.1 (*Initial Conditions Precedent*) or Clause 28(*Changes to the Obligors*) andwhich will be made or paid promptly after the date of execution of the relevantFinance Document.

## 22.9**                     No default**

### (a)                                      No Event ofDefault is continuing or is likely to result from the making of anyUtilisation.

### (b)                                     No other event orcircumstance is outstanding which constitutes a default under any otheragreement or instrument which is binding on it or any of its Subsidiaries or towhich its (or its Subsidiaries’) assets are subject which could be expected tohave a Material Adverse Effect.

## 22.10**               No misleadinginformation**

### (a)                                      Any factualinformation contained in the Information Memorandum or Business Plan was trueand accurate in all material respects as at the date of the relevant report ordocument containing the information.

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### (b)                                     Any financialprojections or forecasts contained in the Information Memorandum or BusinessPlan have been prepared on the basis of recent historical information and onthe basis of assumptions believed to be reasonable.

### (c)                                      The expressionsof opinion or intention provided by or on behalf of an Obligor for the purposesof the Information Memorandum or Business Plan were arrived at after carefulconsideration and were fair and based on reasonable grounds.

### (d)                                     No event orcircumstance has occurred or arisen and no information has been omitted fromthe Information Memorandum or Business Plan and no information has been givenor withheld that results in the information, opinions, intentions, forecasts orprojections contained in the Information Memorandum or the Business Plan beinguntrue or misleading or other than fair and reasonable in any material respect.

### (e)                                      All other writteninformation which is required to be provided under any of the Finance Documentsby any member of the Group (including its advisers) was true, complete andaccurate in all material respects as at the date it was provided and is notmisleading in any material respect.

The representations andwarranties made by any Obligor in this Clause 22.10 are made only in so far asit is aware after making reasonable enquiries.

## 22.11**               Financialstatements**

### (a)                                      Its OriginalFinancial Statements were (save as disclosed therein) prepared in accordancewith the Accounting Principles consistently applied.

### (b)                                     Its OriginalFinancial Statements give a true and fair view of its financial condition andoperations during the relevant financial year.

### (c)                                      Except to theextent superseded by subsequently delivered financial statements, each set offinancial statements delivered pursuant to Clause 23.1 (*Financial statements*) were prepared inaccordance with the Accounting Principles and gives (in conjunction with thenotes thereto) a true and fair view of (in the case of audited financialstatements or, in the case of any management accounts, are reasonably believedto fairly represent) or fairly represents (in the case of unaudited financialstatements) its financial condition and operations as at the date at whichthose financial statements were drawn up.

### (d)                                     As far as it isaware after making reasonable enquiries, no member of the Group, as at the dateas of which the Original Financial Statements and any financial statementsdelivered hereunder pursuant to Clause 23.1 (*Financialstatements*) were prepared, failed to disclose or reserve against anyliabilities (contingent or otherwise and including in relation to pensions oremployee benefit schemes) nor any unrealised anticipated losses arising from

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### commitments entered into by it which, inaccordance with Accounting Principles, it should have disclosed or reservedagainst and which is likely to have a Material Adverse Effect.

## 22.12**               No proceedingspending or threatened**

No litigation,arbitration or administrative proceedings or investigations of or before anycourt, arbitral body or agency which, if adversely determined, would be likelyto have a Material Adverse Effect have been started or threatened against it orany of its Subsidiaries nor, to the best of its knowledge and belief, are thereany circumstances likely to give rise to any such litigation, arbitration oradministrative proceedings or investigations which would be likely to have aMaterial Adverse Effect.

## 22.13**               Environmental andother laws**

### (a)                                      Each member ofthe Group is in compliance with Clause 25.3 (*Environmentalcompliance*) and, to the best of its knowledge and belief, nocircumstances have occurred which would prevent that performance orobservation.

### (b)                                     No EnvironmentalClaim has been commenced or (to the best of its knowledge and belief) isthreatened against any member of the Group where that claim is likely, ifdetermined against that member of the Group, to have a Material Adverse Effect.

### (c)                                      No member of theGroup is in breach of any other law or regulation in a manner or to an extentwhich is likely to have a Material Adverse Effect.

## 22.14**               Taxation**

### (a)                                      It is not (andnone of its Subsidiaries is):

#### (i)                        materially overdue in thefiling of any Tax returns where such failure would be likely to have a MaterialAdverse Effect; or

#### (ii)                     overdue in the payment of anymaterial amount in respect of Tax save to the extent that (i) payment is beingcontested in good faith, or (ii) it has maintained adequate reserves for thoseTaxes and (iii) either payment can be lawfully withheld or non payment wouldnot have a Material Adverse Effect.

### (b)                                     No claims arebeing or (based on facts at the time of signing this Agreement) are likely tobe asserted against it (or any of its Subsidiaries) with respect to Taxesexcept for assessments in relation to the ordinary course of its business orclaims being contested in good faith and in respect of which adequate provisionhas been made in its accounts and payment can be lawfully withheld or nonpayment would not be likely to have a Material Adverse Effect.

## 22.15**               Security andFinancial Indebtedness**

### (a)                                      No Securityexists over all or any of the present or future assets of any member of theGroup other than any Security permitted under Clause 25.11 (*Negative pledge*).

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### (b)                                     No member of theGroup has any actual or contingent Financial Indebtedness outstanding otherthan as permitted by this Agreement.

## 22.16**               Good Title Assets**

It and each of itSubsidiaries has a good title to, or valid leases or licences of, and allappropriate Authorisations to use, the assets necessary to carry on itsbusiness as presently conducted save where failure to do so would likely have aMaterial Adverse Effect.

## 22.17**               IntellectualProperty**

It is not aware of anyadverse circumstances relating to the validity, subsistence or use of any ofits or its Subsidiaries’ Material Intellectual Property which would likely havea Material Adverse Effect.

## 22.18**               Group structure**

### (a)                                      The StructureMemorandum (containing the group structure chart) to be delivered to theFacility Agent shall be, when so delivered, true, complete and accurate in allmaterial respects.

### (b)                                     All necessaryintra Group loans, transfers, share exchanges and other steps resulting in thefinal Group structure set out in the Structure Memorandum have been or will betaken in compliance with all relevant laws and regulations and all requirementsor relevant regulatory authorities.

## 22.19**               Insurance**

As of the Closing Date,each member of the Group maintains insurance as described in Clause 25.18 (*Insurance*).

## 22.20**               ERISA**

Neither any Obligor norany ERISA Affiliate has established, maintains, contributes or has liabilitywith respect to any employee benefit plan that is covered by Title IV of ERISAwhich would be likely to have a Material Adverse Effect.

## 22.21**               Margin Stock**

### (a)                                      No Borrower isengaged nor will it engage principally, or as one of its important activities,in the business of owning or extending credit for the purpose of “**buying**” or “**carrying**” anyMargin Stock.

### (b)                                     None of theproceeds of any Loan or other extensions of credit under this Agreement will beused, directly or indirectly, for the purpose of buying or carrying any MarginStock, for the purpose of reducing or retiring any indebtedness that wasoriginally incurred to buy or carry any Margin Stock or for any other purposewhich might cause all or any Loans or other extensions of credit under thisAgreement to be considered a “**purpose credit**”within the meaning of Regulation U or Regulation X.

### (c)                                      No Borrower orany agent acting on its behalf has taken or will take any action which wouldcause the Finance Documents to violate any regulation of the Board of Governorsof the Federal Reserve System of the United States.

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## 22.22**               Pensions**

Other than as describedin the Original Financial Statements of the Group, no member of the Group(other than any U.S. Group Company, for which pension matters are addressed inSection 22.20) has any liability in relation to pensions or employee benefitschemes which would be likely to have a Material Adverse Effect.

## 22.23**               InvestmentCompanies**

No Obligor is an “**investment company**” as such term is definedin the Investment Company Act of 1940 of the United States (the “**1940 Act**”) or otherwise subject toregulation under the 1940 Act or subject to regulation under any United Statesfederal or state statute or regulation restricting or limiting its ability toincur indebtedness other than statutes and regulations of general application.

## 22.24**               Anti-Terrorism Laws**

### (a)                                      To the best ofthe Obligors’ knowledge, no Obligor nor any Affiliate thereof: (i) is, or iscontrolled by, a Restricted Party in contravention of an Anti-Terrorism Law;(ii) has received funds or other property from a Restricted Party; or (iii) isin breach of or is the subject of any action or investigation under anyAnti-Terrorism Law.

### (b)                                     Each Obligor hastaken reasonable measures to ensure compliance with the Anti-Terrorism Laws andno Obligor knows of any failure to take reasonable measures to ensurecompliance with an Anti-Terrorism Law by any of its Affiliates.

## 22.25**               Times on whichrepresentations are made**

### (a)                                      All therepresentations and warranties in this Clause 22 are made to each Finance Partyon the date of this Agreement and on the Closing Date except for therepresentations and warranties set out in (i) Clause 22.10 (*No misleading information*) relating to theInformation Memorandum which are to be made by the Company on the date that theInformation Memorandum is approved by it and on the Syndication Date, and (ii)paragraphs (c) and (d) of Clause 22.11 (*Financialstatements*) which are to be made on the date of this Agreement, theClosing Date and the date of delivery of each set of financial statements (inrelation to the financial statements then delivered).

### (b)                                     The RepeatingRepresentations are repeated by the Company and each Obligor to each FinanceParty on the date of each Utilisation Request and on the first day of eachInterest Period **provided that** the Repeated Representationsshall not include those in respect of which the corresponding Events of Defaultare not applicable pursuant to Clause 26.19 (*CertainFunds Period*).

### (c)                                      All the RepeatingRepresentations are made by each Additional Obligor in relation to itself toeach Finance Party on the day on which it becomes an Additional Obligor.

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### (d)                                     Eachrepresentation or warranty to be made after the date of this Agreement shall bemade by reference to the facts and circumstances existing at the date therepresentation or warranty is made unless expressly stated to be made as atanother date in which case the relevant representation and warranty shall bemade by reference to the facts and circumstances existing as at that date.

# 23.**                           INFORMATIONUNDERTAKINGS**

The undertakings in thisClause 23 remain in force from the date of this Agreement for so long as anyamount is outstanding under the Finance Documents or any Commitment is inforce.

In this Clause 23:

“**Annual Financial Statement**” means afinancial statement for a financial year delivered pursuant to paragraph (a) ofClause 23.1 (*Financial statements*).

“**Financial Quarter**” has the meaning given tothat term in Clause 24.1 (*Financialdefinitions*).

## 23.1**                     Financialstatements**

The Company shall supplyto the Facility Agent:

### (a)                                      as soon as theyare available, but in any event within 120 days after the end of each of itsfinancial years (i) the audited consolidated financial statements for the Groupfor that financial year; and (ii) the balance sheet and profit and loss accountreport of each Obligor for that financial year, audited, if that Obligor isrequired by law to prepare or otherwise prepares audited financial statements.

### (b)                                     as soon as theyare available, but in any event within 60 days after the end of each FinancialQuarter, the un-audited consolidated financial statements for the Groupprepared in accordance with the Accounting Principles for that FinancialQuarter (“**Quarterly Financial Statements**”),including in each case profit and loss accounts, balance sheet and cash flowstatements and a management commentary thereon from the Chief FinancialOfficer.

## 23.2**                     ComplianceCertificate**

### (a)                                      The Company shallsupply a Compliance Certificate to the Facility Agent with each set of itsaudited consolidated Annual Financial Statements and each set of its un-auditedconsolidated Semi-Annual Financial Statements.

### (b)                                     Each ComplianceCertificate shall:

#### (i)                        set out (in reasonable detail)computations as to compliance with Clause 24 (*FinancialCovenants*) and the Margin computations set out in the definition “**Margin**” and Clause 12.3 (*MarginRatchet*); and

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#### (ii)                     confirm that no Default hasoccurred and is continuing or, if a Default has occurred, what Default hasoccurred and the steps being taken to remedy that Default.

### (c)                                      Each ComplianceCertificate shall be signed by a director of the Company and, when required tobe delivered with the consolidated Annual Financial Statements of the Company,shall be accompanied by confirmation thereof (together with a customaryengagement letter providing for reliance by the Lenders) from the Company’sauditors in form satisfactory to the Facility Agent (acting reasonably).

## 23.3**                     Requirementsas to financial statements**

### (a)                                      Each set offinancial statements delivered pursuant to Clause 23.1 (*Financial statements*):

#### (i)                        shall be certified by adirector of the relevant company as giving a true and fair view (in the case ofAnnual Financial Statements) or fairly representing (in other cases) its, or asthe case may be, its consolidated financial condition and operations as at thedate as at which those financial statements were drawn up and shall be preparedusing the Accounting Principles, accounting practices and financial referenceperiods consistent with those applied, in the preparation of the Business Plan,unless, in relation to any set of financial statements, the Company notifiesthe Facility Agent that there has been a change in the Accounting Principles,the accounting practices or reference periods and its auditors (or, ifappropriate, the auditors of the Obligor or the Company) deliver to theFacility Agent:

##### (A)                a description of any change necessaryfor those financial statements to reflect the Accounting Principles, accountingpractices and reference periods upon which the Business Plan or, as the casemay be, that Obligor’s Original Financial Statements were prepared; and

##### (B)                  sufficient information, in form andsubstance as may be reasonably required by the Facility Agent, to enable theLenders to determine whether Clause 24 (*Financial covenants*)and Clause 25.23 (*Guarantors*) have been compliedwith, to determine the Margin as set out in the definition of “**Margin**” and Clause 12.3 (*Margin Ratchet*),to determine whether a person is a Material Company as set out in thedefinition of “**Material Company**” and to make anaccurate comparison between the financial position indicated in those financialstatements and the Business Plan (in the case of the Company) or that Obligor’sOriginal Financial Statements (in the case of an Obligor).

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### (b)                                     If the Company notifiesthe Facility Agent of a change in accordance with sub-paragraph (i) above thenthe Company and Facility Agent shall enter into negotiations in good faith witha view to agreeing:

#### (i)                        whether or not the change mightresult in any material alteration in the commercial effect of any of the termsof this Agreement; and

#### (ii)                     if so, any amendments to thisAgreement which may be necessary to ensure that the change does not result inany material alteration in the commercial effect of those terms,

and if any amendments areagreed they shall take effect and be binding on each of the Parties inaccordance with their terms.

If no such agreement isreached within 30 days of that notification of change, the Facility Agent shall(if so requested by the Majority Lenders) instruct the auditors of the Companyor independent accountants (approved by the Company or, in the absence of suchapproval within 5 days of request by the Facility Agent of such approval, afirm with recognised expertise) to determine any amendment to Clause 24.2 (*Financial condition*) the Margincomputations set out in the definition of “**Margin**”and Clause 12.3 (*Margin Ratchet*),and any other terms of this Agreement which those auditors or, as the case maybe, accountants (acting as experts and not arbitrators) consider appropriate toensure the change does not result in any material alteration in the commercialeffect of the terms of this Agreement. Those amendments shall take effect when so determined by those auditors,or as the case may be, accountants.  Thecost and expense of those auditors or accountants shall be for the account ofthe Company.

Any reference in thisAgreement to those financial statements shall be construed as a reference tothose financial statements as adjusted to reflect the basis upon which theBusiness Plan or, as the case may be, the Original Financial Statements wereprepared.

### (c)                                      The Company shallprocure that each set of Annual Financial Statements shall be audited by one ofthe internationally recognised “big four” firm of accountants or such otherauditors with the prior written consent of the Majority Lenders.

### (d)                                     The Company shallprocure that each set of Quarterly Financial Statements shall be in a formreasonably acceptable to the Facility Agent and include a balance sheet, profitand loss account and cashflow statement.

## 23.4**                     GroupCompanies**

The Company shall, at therequest of the Facility Agent, but no more often than once a year unless aDefault is continuing, supply to the Facility Agent a report issued by itsauditors (or, if such report is not customarily issued by its auditors, suchother

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evidence as the FacilityAgent may reasonably require) stating which of the Subsidiaries are MaterialSubsidiaries.

## 23.5**                     Information:miscellaneous**

The Company shall supplyto the Facility Agent (in sufficient copies for all the Lenders, if theFacility Agent so requests):

### (a)                                      all documentsthat are required by law or the articles of association or partnershipagreement to be dispatched by the Company to its shareholders generally (or anyclass of them) or dispatched by the Company or any Material Company to itscreditors generally at the same time as they are dispatched;

### (b)                                     if any Event ofDefault is continuing, such information or projections regarding the financialcondition, business, property, assets, operations, performance or prospects ofany member of the Group as any Finance Party (through the Facility Agent) mayreasonably request; and

### (c)                                      promptly, detailsof any disposal, claim or circumstance which will require a prepayment of Loansunder paragraph (b) of Clause 11.7 (*Exit*),Clause 11.8 (*Equity Proceeds*) andClause 11.9 (*Disposal Proceeds*);

### (d)                                     any otherinformation and documents as may be required under Sections 13, 13(a) and 18 ofthe German Banking Act (*Gesetz über dasKreditwesen*),

**providedthat** the Company shall not be obliged to disclose to theFacility Agent any non-public information about the Group that would result inthe Group being in breach of any legal or regulatory restriction applicable toany member of the Group.

## 23.6**                     Notificationof default**

### (a)                                      Each Obligorshall notify the Facility Agent of any Default (and the steps, if any, beingtaken to remedy it) promptly upon becoming aware of its occurrence (unless thatObligor is aware that a notification has already been provided by anotherObligor).

### (b)                                     Promptly upon arequest by the Facility Agent, the Company shall supply to the Facility Agent acertificate signed by at least one director or senior officer on its behalfcertifying that no Default is continuing (or if a Default is continuing,specifying the Default and the steps, if any, being taken to remedy it).

## 23.7**                     “Know yourcustomer” checks**

### (a)                                      If:

#### (i)                        the introduction of or anychange in (or in the interpretation, administration or application of) any lawor regulation made after the date of this Agreement;

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#### (ii)                     any change in the status of anObligor or the composition of the shareholders of an Obligor after the date ofthis Agreement; or

#### (iii)                  a proposed assignment or transfer bya Lender of any of its rights and/or obligations under this Agreement to aparty that is not a Lender prior to such assignment or transfer,

obliges the FacilityAgent or any Lender (or, in the case of sub-paragraph (iii) above, anyprospective new Lender) to comply with “**knowyour customer**” or similar identification procedures in circumstanceswhere the necessary information is not already available to it, each Obligorshall promptly upon the request of the Facility Agent or any Lender supply, orprocure the supply of, such documentation and other evidence as is reasonablyrequested by the Facility Agent (for itself or on behalf of any Lender) andreasonably obtainable by the relevant Obligor or any Lender (for itself or, inthe case of the event described in sub-paragraph (iii) above, on behalf of anyprospective new Lender) in order for the Facility Agent, such Lender or, in thecase of the event described in sub-paragraph (iii) above, any prospective newLender to carry out and be satisfied (acting reasonably) with the results ofall necessary “**know your customer**”or other similar checks under all applicable laws and regulations pursuant tothe transactions contemplated in the Finance Documents.

### (b)                                     Each Lender shallpromptly upon the request of the Facility Agent supply, or procure the supplyof, such documentation and other evidence as is reasonably requested by theFacility Agent (for itself) in order for the Facility Agent to carry out and besatisfied with the results of all necessary “**know yourcustomer**” or other similar checks under all applicable laws andregulations pursuant to the transactions contemplated in the Finance Documents.

### (c)                                      The Companyshall, by not less than 10 Business Days’ prior written notice to the FacilityAgent, notify the Facility Agent (which shall promptly notify the Lenders) ofits intention to request that one of its Subsidiaries becomes an AdditionalObligor pursuant to Clause 28 (*Changes tothe Obligors*).

### (d)                                     Following thegiving of any notice pursuant to paragraph (c) above, if the accession of suchAdditional Obligor obliges the Facility Agent or any Lender to comply with “**know your customer**” or similar identification procedures incircumstances where the necessary information is not already available to it,the Company shall promptly upon the request of the Facility Agent or any Lendersupply, or procure the supply of, such documentation and other evidence as isreasonably requested by the Facility Agent (for itself or on behalf of anyLender) or any Lender (for itself or on behalf of any prospective new Lender)and reasonably obtainable by the relevant Obligor in order for the FacilityAgent or such Lender or any prospective new Lender to carry out and besatisfied (acting reasonably) with the results of all necessary “**know your customer**” or other similar checks under allapplicable laws and

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### regulations pursuant to the accession of such Subsidiary to thisAgreement as an Additional Obligor.

# 24.**                           FINANCIALCOVENANTS**

## 24.1**                     Financialdefinitions**

In this Clause 24:

“**Borrowings**” means, at any time, theoutstanding principal, capital or nominal amount and any fixed or minimumpremium payable on prepayment or redemption of any indebtedness for or inrespect of:

(a)                                      moneysborrowed and debit balances with financial institutions;

(b)                                     anyamount raised by acceptance under any acceptance credit facility;

(c)                                      anyamount raised pursuant to any note purchase facility or the issue of bonds,notes, debentures, loan stock or any similar instrument  including but not limited to, the PattersonNote if issued by a member of the Group;

(d)                                     theamount of any liability in respect of any lease or hire purchase contract whichwould, in accordance with the Accounting Principles, be treated as a finance orcapital lease;

(e)                                      receivablessold or discounted other than to members of the Group (other than anyreceivables to the extent they are sold on a non recourse basis);

(f)                                        anycounter indemnity obligation in respect of a guarantee, indemnity, bond,standby or documentary letter of credit or any other instrument issued by abank or financial institution (excluding the amount of any trade credit inrespect of the supply of assets or services unless payment is due more than 180days from the date on which the goods were delivered or services wereperformed);

(g)                                     anyamount raised by the issue of redeemable shares which are redeemable on orbefore the last Termination Date;

(h)                                     anyamount of any liability under an advance or deferred purchase agreement if oneof the primary reasons behind the entry into the agreement is to raise financeother than any liability arising under the U.S. Exclusivity Agreement;

(i)                                         anyamount raised under any other transaction (including any forward sale orpurchase agreement) having the commercial effect of a borrowing; and

(j)                                         (withoutdouble counting) the amount of any liability in respect of any guarantee orindemnity for any of the items referred to in paragraphs (a) to (i) (inclusive)above,

**providedthat**, for the avoidance of doubt, the Financial Indebtednessreferred to in sub-paragraph (b)(vii) of Clause 25.17 (*Financial Indebtedness*) shall not becounted as “**Borrowings**”.

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“**Cash Interest Costs**” means for any RelevantPeriod the aggregate amount of the accrued interest payments in respect ofBorrowings which are paid or payable in cash in respect of that RelevantPeriod.

“**Consolidated Adjusted EBITDA**” means for anyRelevant Period the consolidated income before taxes of the Group from ordinaryactivities for such Relevant Period:

(a)                                      **before deducting**any Consolidated NetFinance Charges;

(b)                                     **before taking into account**any itemstreated as exceptional or extraordinary items, including costs incurred inconnection with an acquisition permitted pursuant to sub-paragraph (b)(ii) ofClause 25.7 (*Acquisitions*);

(c)                                      **before taking into account**any realised orunrealised gains or losses with respect to Utilisations due to movements inexchange rates occurring during such period to the extent the same has notresulted in a cash receipt or payment by the Group;

(d)                                     **before deducting**any Refinancing Costs andany Acquisition Costs;

(e)                                      **after deducting**the amount of any profit(and adding the loss) of any member of the Group which is attributable tominority interests;

(f)                                        **after deducting**the amount of any profit ofany investment or entity (which is not itself a member of the Group) in whichany member of the Group has an ownership interest to the extent that the amountof such profit included in the financial statements of the Group exceeds theamount (net of applicable withholding tax) received in cash by members of theGroup through distributions by such investment or entity;

(g)                                     **before deducting**any amount attributable tothe amortisation of Refinancing Costs or costs of intangible assets or thedepreciation of tangible assets and current assets or write off of research anddevelopment currently in progress incurred in connection with purchase priceaccounting (fair market value adjustments/step-up);

(h)                                     **before taking into account**pension interestcost;

(i)                                         **before deducting**option or similar non-cashexpenses; and

(j)                                         **before deducting**any non-recurring costsand expenses incurred in order to ensure compliance with Sarbanes-Oxley Act of2002 and US Regulation 404,

in each case, to theextent added, deducted or taken into account, as the case may be, for thepurposes of determining income/(loss) before taxation of the Group fromordinary activities.

“**Consolidated Net Finance Charges**” means,for any Relevant Period, the aggregate amount of the accrued interest,commission, fees, discounts, prepayment penalties or

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premiums and otherfinance payments in respect of Borrowings whether paid, payable or capitalisedby any member of the Group in respect of that Relevant Period:

(a)                                      **excluding** any such obligations owed to anyother member of the Group;

(b)                                     **including**the interest element of leasingand hire purchase payments;

(c)                                      **including**any accrued commission, fees,discounts and other finance payments payable by any member of the Group underany interest rate hedging arrangement;

(d)                                     **deducting**any accrued commission, fees,discounts and other finance payments owing to any member of the Group under anyinterest rate hedging instrument;

(e)                                      **deducting**any accrued interest owing to anymember of the Group on any deposit or bank account;

(f)                                        **excluding**any Refinancing Costs; and

together with the amountof any cash dividends or distributions paid or made by the Original Borrower inrespect of that Relevant Period.

“**Consolidated Total Net Debt**” means, at anytime, the aggregate amount of all obligations of the Group for or in respect ofBorrowings but:

(a)                                      **excluding**any such obligations to any othermember of the Group;

(b)                                     **including**, in the case of finance leases,only the capitalised value therefore; and

(c)                                      **deducting**the aggregate amount of freelyavailable Cash and Cash Equivalent Investments held by any member of the Groupat such time which can be applied in prepayment or prepayment of theFacilities, whether as a result of dividend payments, loans or other paymentsmade to the relevant member of the Group.

and so that no amountshall be included or excluded more than once.

“**Financial Half-Year**” means the period ofsix months commencing on the day after each Half-Year Date.

“**Half-Year Date**” means each of 31 March and30 September.

“**Refinancing Costs**” means cost and expensesincurred by the Group in connection with the refinancing of the Existing SeniorFacilities Agreement and the Existing Mezzanine Facilities Agreement pursuantto the Facilities as set out in the Funds Flow Statement.

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“**Relevant Period**” means each period oftwelve months ending on the last day of the Parent’s financial year and eachperiod of twelve months ending on the last day of each Financial Half Year ofthe Parent.

“**Semi-Annual Financial Statements**” means theQuarterly Financial Statements in respect of the financial quarters ending oneach Half Year Date delivered to the Facility Agent pursuant to paragraph (b)of Clause 23.1 (*Financial Statements*).

## 24.2**                     Financialcondition**

The Company shall ensurethat:

### (a)                                      *Debt Cover*: The ratio of ConsolidatedTotal Net Debt to Consolidated Adjusted EBITDA in respect of any RelevantPeriod specified in Column 1 below shall not be greater than the ratio set outin Column 2 below opposite that Relevant Period.

| Column 1  Relevant Period expiring | ** ** | **Column 2  Ratio** |
|------------------------------------|------------|---------------------|
| ** **                         | ** ** | ** **          |
| 31 March 2007                      |       | 4.00:1              |
|                               |       |                |
| 30 September 2007                  |       | 3.75:1              |
|                               |       |                |
| 31 March 2008                      |       | 3.50:1              |
|                               |       |                |
| 30 September 2008                  |       | 3.00:1              |
|                               |       |                |
| 31 March 2009                      |       | 2.75:1              |
|                               |       |                |
| Thereafter                         |       | 2.50:1              |

###  

### (b)                                     *Cash Interest Cover*: The ratio ofConsolidated Adjusted EBITDA to Cash Interest Costs in respect of any RelevantPeriod (commencing with the Relevant Period expiry 31 March 2007) shall not beless than 4.00:1.

## 24.3**                     Financialtesting**

The financial covenantsset out in Clause 24.2 (*Financial condition*)shall be tested by reference to each of the financial statements and/or eachCompliance Certificate delivered pursuant to Clause 23.2 (*Compliance Certificate*).

## 24.4**                     Adjustments**

For the purpose ofcalculating the ratios under Clause 24.2 (*FinancialCondition*) in relation to any Relevant Period, each of the relevantfigures will be calculated on a pro forma basis including each acquisitionpermitted under sub-paragraph (b)(ii) or (b)(v) of Clause 25.7 (*Acquisitions*) and each disposal of assetsof the Group as if that acquisition or disposal had occurred on the first dayof the Relevant Period.

## 24.5**                     First Period**

In relation to anyRelevant Period before January 2008, for the purpose of calculating:

### (a)                                      Cash InterestCost and Consolidated Net Finance Charges, the relevant figure for the periodfrom 1 January 2007 to the relevant calculation date shall be annualised bydividing the relevant figure by the number of months in the

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### period from 1 January 2007 to the relevantcalculation date and multiplying the result by 12.

### (b)                                     ConsolidatedAdjusted EBITDA, the pro forma Consolidated Adjusted EBITDA of the componentparts of the Group shall be calculated for the Relevant Period.

# 25.**                           GENERALUNDERTAKINGS**

The undertakings in thisClause 25 remain in force from the date of this Agreement for so long as anyamount is outstanding under the Finance Documents or any Commitment is inforce.

## 25.1**                     Authorisations**

Each Party (other than aFinance Party) shall promptly:

### (a)                                      obtain, complywith and do all that is necessary to maintain in full force and effect; and

### (b)                                     supply, uponrequest of the Facility Agent, certified copies to the Facility Agent of,

any Authorisationrequired under any law or regulation of a Relevant Jurisdiction to:

#### (i)                        enable it to perform itsobligations under the Finance Documents; and

#### (ii)                     ensure the legality, validity,enforceability or admissibility in evidence of any Finance Document,

where failure to do so islikely to have a Material Adverse Effect.

## 25.2**                     Compliancewith laws**

Each Obligor shall (andthe Company shall ensure that each member of the Group shall) comply in allrespects with all laws to which it is subject, if failure so to comply islikely to have a Material Adverse Effect.

## 25.3**                     Environmentalcompliance**

Each Obligor shall (andthe Company shall ensure that each member of the Group shall):

### (a)                                      comply in allmaterial respects with all Environmental Law;

### (b)                                     obtain andmaintain and ensure compliance with any Environmental Permits; and

### (c)                                      take allreasonable steps in anticipation of known or expected future changes to orobligations under Environmental Law or Environmental Permits,

where failure to do so islikely to have a Material Adverse Effect.

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## 25.4**                     Taxation**

Each Obligor shall (andthe Company shall ensure that each member of the Group shall) duly andpunctually pay and discharge all Taxes imposed upon it or its assets within thetime period allowed without incurring penalties unless and only to the extentthat:

### (a)                                      such payment isbeing contested in good faith;

### (b)                                     appropriatereserves are being maintained for those Taxes; and

### (c)                                      either suchpayment can be lawfully withheld or non payment would not have a MaterialAdverse Effect.

## 25.5**                     Merger**

No Obligor shall (and theCompany shall ensure that no other member of the Group will) enter into anyamalgamation, demerger, merger or corporate reconstruction (“**merger**”) except solvent mergers betweenmembers of the Group where if one is an Obligor the surviving entity is orbecomes an Obligor or with the prior consent of the Majority Lenders, suchconsent not to be unreasonably withheld where required to optimise the taxstructure of the Group, **provided that**theLenders’ position is not adversely affected. Notwithstanding the above, this Clause 25.5 shall not apply to aPermitted Reorganisation.

## 25.6**                     Change ofbusiness**

The Company and eachObligor shall procure that no substantial change is made to the general natureof the business of the Group from that carried on at the date of thisAgreement.

## 25.7**                     Acquisitions**

### (a)                                      Unless the Non-LeveragedCriteria has been met, no Obligor shall (and the Company shall ensure that noother member of the Group will) incorporate or acquire a company or acquire (oracquire an interest in) shares or securities or a business or undertaking.

### (b)                                     Paragraph (a)above shall not apply to an incorporation or acquisition:

#### (i)                        by a member of the Grouppermitted pursuant to paragraph (b) of Clause 25.8 (*Joint ventures*);

#### (ii)                     of a company or corporation orshares or securities or a business or undertaking (the “**target**”)by a member of the Group **provided that**:

##### (A)                the target carries out a similar,related or a complimentary line of business to the Group;

##### (B)                  on a *pro forma*basis following consolidation of the target, there will be no breach of thefinancial covenants set out in Clause 24 (*Financial covenants*)(tested on a *pro forma*basis at the end of themost recently ended Relevant Period and tested on a prospective

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*proforma*basis over the two following semi-annual testingperiods) as a result of the acquisition.

 

#### (iii)                  of Cash Equivalent Investments; or

#### (iv)                 the company incorporated or acquiredis a limited liability shelf company purchased or incorporated for the purposeof affecting a Permitted Reorganisation; or

#### (v)                    of a company or corporation orshares or securities or a business or undertaking by a member of the Group **provided that** the total consideration payable in relation toall such acquisitions under this sub-paragraph 25.7(b)(v) shall not exceed,when aggregated with the aggregate amount of all other Invested Funds at thetime of any such acquisition, the General Investments Threshold;

#### (vi)                 where such incorporation oracquisition is a Permitted Reorganisation,

**providedthat**in each case no Event of Default is outstanding or noDefault would result from the proposed acquisition.

For the purpose of thisClause:

“**consideration**” means all considerationpayable in relation to the relevant acquisition, both cash and non cash,calculated on a debt free cash free basis and including  all earn-out amounts, post closingadjustments and the amount of any deferred purchase price and any costs andexpenses incurred;

“**earn-out amounts**” means, in relation to therelevant acquisition, the maximum earn-out amounts for which the relevantmember of the Group may be or become liable at any time save to the extent thatthe liability to pay such earn-out amount has unconditionally and finallyterminated.

## 25.8**                     Jointventures**

### (a)                                      Unless theNon-Leveraged Criteria has been met, no Obligor shall (and the Company shallensure that no member of the Group will):

#### (i)                        acquire (or agree to acquire)any shares, stocks, securities or other interest in any Joint Venture; or

#### (ii)                     transfer any assets or lend to orguarantee or indemnify or give Security for the obligations of a Joint Venture(or agree to transfer, lend, guarantee, indemnify or give Security for theobligations of a Joint Venture).

### (b)                                     Paragraph (a) doesnot apply to the acquisition or agreement to acquire any shares, stocks,securities or other interest in any Joint Venture or the transfer of any assetor the making of any loan to a Joint Venture if the aggregate amount payablefor such acquisition, the higher of book value and market value of such assettransferred and the principal amount of such loan does not,

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### when aggregated with the aggregate amount ofall other Invested Funds at the time of such acquisition, transfer or loan,exceed the General Investments Threshold, **provided that**no Event of Default is outstanding at the timeof such acquisition, agreement, transfer or loan or would arise as a resultthereof.

## 25.9**                     Preservationof assets**

Each Obligor shall (andthe Company shall ensure that each member of the Group shall) maintain andpreserve, in good working order and condition (ordinary wear and tear excepted)all of its assets necessary in the conduct of the business of the Group as awhole, as conducted at the date of this Agreement, where failure to do so wouldlikely have a Material Adverse Effect.

## 25.10**               Pari passu ranking**

Each Obligor shall (andthe Company shall ensure that each member of the Group will) ensure that at alltimes any unsecured and unsubordinated claims of a Finance Party held againstit under the Finance Documents rank at least pari passu with the claims of allits other unsecured and unsubordinated creditors except those creditors whoseclaims are mandatorily preferred by laws of general application to companies.

## 25.11**               Negative pledge**

In this Clause 25.11, “**Quasi Security**” means a transactiondescribed in paragraph (b) below.

Except as permitted underparagraph (c) below:

### (a)                                      No Obligor shall(and the Company shall ensure that no other member of the Group will) create orpermit to subsist any Security over any of its assets.

### (b)                                     No Obligor shall(and the Company shall ensure that no other member of the Group will):

#### (i)                        enter into any arrangementunder which money or the benefit of a bank or other account may be applied, setoff or made subject to a combination of accounts; or

#### (ii)                     enter into any other preferentialarrangement having a similar effect,

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

### (c)                                      Paragraphs (a)and (b) above do not apply to:

#### (i)                        any netting or set offarrangement (or Security over a credit balance in a bank account which isentered into to effect such arrangement) entered into by any member of theGroup in the ordinary course of its banking arrangements for the purpose ofnetting debit and credit balances of members of the Group;

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#### (ii)                     any lien or other Security arisingby operation of law in the ordinary course of trading and not (unless such lienor other Security is removed within 75 days of its creation) by reason ofdefault;

#### (iii)                  Security existing on the Closing Dateas listed in Schedule 13 (*Overview Loans andSecurities Subsidiaries*);

#### (iv)                 any Security or Quasi-Security over oraffecting any asset acquired by a member of the Group after the Closing Date orassets of companies which become members of the Group after the Closing Date;

##### (A)                up to an amount of EUR 30,000,000;or

##### (B)                  if the Security or Quasi-Security isremoved or discharged within 6 months of the acquisition of such asset or suchcompany becoming a member of the Group **provided that**theSecurity or Quasi-Security was not created or the principal amount secured hasnot increased in contemplation of the acquisition of the relevant asset;

#### (v)                    any retention of title, hirepurchase or conditional sale arrangement or arrangements having similar effectin respect of goods supplied to a member of the Group in the ordinary course ofbusiness and on the suppliers standard or usual terms;

#### (vi)                 any Security in favour of an AncillaryLender over goods or documents of title to goods arising in the ordinary courseof letter of credit transactions entered into in the ordinary course ofbusiness;

#### (vii)              any Security securing the Existing SeniorFacility Agreement and/or the Existing Mezzanine Facility Agreement **provided that** such Security is released upon the first Utilisationunder the Facilities;

#### (viii)           cash cover relating to a Bank Guarantee; or

#### (ix)                   any Security arising pursuant to anorder of attachment or injunction restraining disposal of assets or similarlegal process arising in connection with court proceedings being contested bythe relevant member of the Group in good faith with a reasonable prospect ofsuccess where the amount of any claims being contested does not exceed inaggregate in respect of all members of the Group EUR 15,000,000 (or itsequivalent in any other currency or currencies);

#### (x)                      any Security constituted by afinance lease, hire purchase or conditional sale agreement, where the FinancialIndebtedness arising under such arrangement is permitted pursuant to paragraph(b) of Clause 25.17 (*Financial Indebtedness*);

#### (xi)                   any Security arising under condition14 of the general business conditions of German banks or similar provisions ofother banks with

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#### whom any member of the Group maintains a banking relationship in theordinary course of business;

#### (xii)                any Security created to secure loans byany member of the Group to another member of the Group as provided insub-paragraphs (b)(i), (b)(iii) and (b) (iv) of Clause 25.14 (*Loan and Credit*);

#### (xiii)             Security in favour of a bank over goodsand documents of title arising in the ordinary course of documentary credittransactions entered into by a member of the Group in the ordinary course ofbusiness up to an aggregate amount not exceeding EUR 15,000,000;

#### (xiv)            any Security arising by operation of law infavour of any governmental, state or local tax authority in respect of Taxes(1) that are not yet due or (2) for which adequate reserves are beingmaintained, the payment of which is contested in good faith and can be lawfullywithheld;

#### (xv)               Quasi Security which may have arisen asa result of the Permitted Bensheim Disposal; and

#### (xvi)            any Security in addition to that withinsub-paragraphs (i) to (xv) above and securing indebtedness in aggregate notexceeding at any one time EUR 30,000,000 or its equivalent; or if theNon-Leveraged Criteria are satisfied EUR 60,000,000 or its equivalent.

## 25.12**               TreasuryTransactions**

No Obligor shall (and theCompany will procure that no member of the Group will) enter into TreasuryTransaction, other than:

### (a)                                      spot and forwarddelivery foreign exchange contracts entered into in the ordinary course ofbusiness of a member of the Group and not for speculative purposes;

### (b)                                     any TreasuryTransaction entered into for the hedging of actual or projected real exposuresarising in the ordinary course of trading activities of a member of the Group(and not for speculative purposes).

## 25.13**               Arm’s length basis**

### (a)                                      Except aspermitted by paragraph (b) below, no Obligor shall (and the Company shallensure no member of the Group will) enter into any transaction with any personexcept on arm’s length terms or better (from the Group’s perspective).

### (b)                                     The followingtransactions shall not be a breach of this Clause 25.12:

#### (i)                        payment of reasonable fees andcosts for non executive directors of any member of the Group who are nomineesof the Investors;

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#### (ii)                     amounts paid to Sirona HoldingsLuxco SCA under  sub-paragraph (b)(iii)of Clause 25.16 (*Dividends, share capitalredemptions and payments on subordinated debt*);

#### (iii)                  the amount envisaged to be paid tothe Investors pursuant to Clause 25.16 (*Dividends,share capital  redemptions and paymentson subordinated debt*);

#### (iv)                 intra Group loans permitted underClause 25.14 (*Loans and Credit*);

#### (v)                    any payment of Refinancing Costs asenvisaged in the Funds Flow Memorandum;

#### (vi)                 fees, costs and expenses payable underthe Finance Documents in the amounts set out in the Finance Documents deliveredto the Facility Agent under Clause 4.1 (*InitialConditions Precedent*); and

#### (vii)              any amounts agreed by the Facility Agent(acting on the instructions of the Majority Lenders).

## 25.14**               Loans and credit**

### (a)                                      Unless theNon-Leveraged Criteria has been met, except as permitted under paragraph (b)below no Obligor shall (and the Company shall procure that no member of the Groupwill) make any loans or grant any credit or make any other financialarrangement having a similar effect.

### (b)                                     Paragraph (a)above does not apply to:

#### (i)                        a loan by an Obligor to anObligor;

#### (ii)                     a loan by a member of the Groupwhich is not an Obligor to a member of the Group;

#### (iii)                  a loan by an Obligor which is amember of the Group to a member of the Group which is not an Obligor so long asthe aggregate of the Financial Indebtedness outstanding under all such loansdoes not exceed EUR 25,000,000 (or the equivalent thereof in any other currencyor currencies) at any time;

#### (iv)                 a trade credit granted in the ordinarycourse of trading, on arm’s length terms and upon terms usual for such trade,which do not exceed payment terms of 180 days;

#### (v)                    a loan made by a member of theGroup to another member of the Group listed in Schedule 13 (*Overview Loans and Securities Subsidiaries*)up to the amount listed in such Schedule;

#### (vi)                 a loan by a member of the Group to theCompany or a Holding Company of the Company in order to enable the Company orsuch Holding Company to redeem the share capital in the Company or such 

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#### Holding Company held by Senior Management **provided that** the aggregate amount of such loan shall notexceed, when aggregated with the amount of all dividends declared and/or paidunder paragraph (c) of Clause 25.16 (*Dividends,share capital redemptions and payments on subordinated debt*), EUR20,000,000 in any year (or the equivalent thereof in any other currency orcurrencies),

#### **providedthat** no Default is continuing when, or would occurimmediately after, any such payment is made;

#### (vii)              a loan (in addition to the loans referredto in sub-paragraphs (i) to (vi) above) made by a member of the Group to anyother person **provided that** the aggregate amountof all such loans, when aggregated with the aggregate amount of all otherInvested Funds at the time of such loan, does not exceed the GeneralInvestments Threshold, **provided further that**noEvent of Default is outstanding at such time or would arise as a resultthereof.

## 25.15**               No Guarantees orindemnities**

In this Clause 25.15 “**guarantee**” means a guarantee, indemnity,counter indemnity or other financial arrangement having a similar effect forthe benefit of any person or any other assurance against loss.

### (a)                                      Except aspermitted under paragraph (b) below no Obligor shall (and the Company shallprocure that no member of the Group will) give any guarantee in respect of anyobligation of any person.

### (b)                                     Paragraph (a) doesnot apply to a guarantee which is:

#### (i)                        any guarantee to be given or toremain outstanding after the Non-Leveraged Criteria has been met;

#### (ii)                     given in connection with creditgranted to a member of the Group under any deferred purchase agreement enteredinto in the ordinary course of trade and upon terms usual for such trade andis:

##### (A)                a guarantee given by a member of theGroup for the obligations of member of the Group under that deferred purchaseagreement; or

##### (B)                  a guarantee given by a member of theGroup in respect of a guarantee, indemnity, bond, standby or documentary letterof credit or other instrument issued by a bank or financial institution (onnormal commercial terms) to support the obligations of a member of the Groupunder that deferred purchase agreement;

#### (iii)                  given by a member of the Group inrespect of the obligations of another member of the Group and would, if it werea loan by that member of the Group to the other member of the Group, bepermitted under sub-paragraph (b)(ii) to (iii) of Clause 25.14 (*Loans and Credit*);

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#### (iv)                 a counter-indemnity given in favourLandesbank Hessen-Thüringen (Helaba) in relation to a guarantee issued byLandesbank Hessen-Thüringen (Helaba) on account of contingent liabilities ofmembers of the Group relating to old age part-time work (*Altersteilzeit*) provided the aggregateamount (actual and contingent) of such counter-indemnity does not at any timeexceed EUR 3,000,000 (or the equivalent thereof in any other currency orcurrencies);

#### (v)                    a guarantee (other than a guaranteereferred to in sub-paragraphs (i) to (iv) above) granted by a member of theGroup in favour of any other person **provided that**theaggregate amount of all such guarantees, when aggregated with the aggregateamount of all other Invested Funds at the time of such guarantee, does not exceedthe General Investments Threshold, **provided further that**noEvent of Default is outstanding at such time or would arise as a resultthereof.

## 25.16**               Dividends, sharecapital redemptions and payments on subordinated debt**

### (a)                                      Unless theNon-Leveraged Criteria has been met, the Company shall not:

#### (i)                        declare, make or pay anydividend, charge, fee or other distribution on or in respect of its sharecapital (or any class of its share capital);

#### (ii)                     repay or distribute any dividendor share premium reserve;

#### (iii)                  make any redemption, repurchase,retirement, disposal, return, repayment or reduction by a company of its sharecapital and any redemption or reduction by a company of its capital redemptionor other reserve

#### (iv)                 pay or allow any member of the Groupto pay any management, advisory or other fee to or to the order of any of itsshareholders.

### (b)                                     Paragraph (a) doesnot apply to:

#### (i)                        payment of dividends up to atotal aggregate amount equal to 50% of the Group’s distributable profits ineach of its financial years **provided that**theratio of Consolidated Total Net Debt to Consolidated Adjusted EBITDA is lessthan 3.00:1 on a pro forma basis and no Event of Default has occurred and iscontinuing at the time of such payment or as a result thereof;

#### (ii)                     payments from the Company to anymember of the Group for the financing of their and any holding company of anymember of the Group’s reasonable ongoing administrative costs (includingtaxes);

#### (iii)                  payment to Sirona Holdings Luxco SCAof an advisory and/or management fee not exceeding in aggregate EUR 500,000 (orthe equivalent thereof in any other currency or currencies) per annum;

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#### (iv)                 payments to any of the Investors ofany reasonable fees in connection with any advice relating to future mergersand acquisitions;

#### (v)                    payment of amounts permitted undersub-paragraph (b)(i) of Clause 25.13 (*Arm’slength basis*) and all other reasonable out-of pockets expensesproperly incurred by the board members in relation to the Group or theFacilities,

which, in the case of paymentsunder paragraphs (ii) through to (v), shall be permitted **provided that**on the occurrence of an Eventof Default which is continuing, the aggregate amount of all payments undersub-paragraphs (ii), (iii) and (iv) above shall not in aggregate exceed EUR1,000,000 per annum (or the equivalent thereof in any other currency orcurrencies), (ii) no Event of Default is continuing or would occur immediatelyafter that payment is made **provided further**thatany such payments which are not permitted to be made while an Event of Defaultis continuing shall continue to accrue and the accrued amount of such paymentmay subsequently be paid at any time while no Default  is continuing.

### (c)                                      Paragraph (a)above shall not apply to any payment paid by the Company or any member of theGroup in order to enable the redemption of share capital in the Company or anymember of the Group held by Senior Management **providedthat** the aggregate amount of such dividend shall not exceed, whenaggregated with the amount of all loans made under sub-paragraph (b)(vi) ofClause 25.14 (*Loans and Credit*),EUR20,000,000 (or the equivalent thereof in any other currency or currencies)and **provided further**no Default iscontinuing when or would occur immediately after any such payment is made.

## 25.17**               FinancialIndebtedness**

### (a)                                      Except aspermitted under paragraph (b) below, no Obligor shall (and the Company shallensure that no member of the Group will) incur or allow to remain outstandingany Financial Indebtedness.

### (b)                                     Paragraph (a)above does not apply to Financial Indebtedness which is:

#### (i)                        monies borrowed or guaranteesor indemnities or counter-indemnities given under the Finance Documents orFinancial Indebtedness under the Ancillary Documents;

#### (ii)                     monies borrowed or guarantees orindemnities or counter indemnities given under the Existing Senior FacilityAgreement and/or Existing Mezzanine Facility Agreement **providedthat** all amounts outstanding under such agreements shall be repaidin full on the Closing Date;

#### (iii)                  any Financial Indebtedness under thelease agreement related to the Permitted Bensheim Disposal;

#### (iv)                 any Financial Indebtedness disclosedin Schedule 13 (*Overview Loans andSecurities Subsidiaries*) or approved by the Majority Lenders;

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#### (v)                    monies borrowed under a loan fromanother member of the Group which is permitted under Clause 25.14 (*Loans and Credit*), a guarantee in respectof Financial Indebtedness of another member of the Group which is permittedunder sub-paragraph (b)(iii) of Clause 25.15 (*NoGuarantees or indemnities*) or any other guarantee, indemnity orcounter indemnity by a member of the Group which is permitted under Clause25.15 (*No Guarantees or indemnities*);

#### (vi)                 indebtedness covered by a BankGuarantee or by a letter of credit, guarantee or indemnity issued under anAncillary Facility;

#### (vii)              Financial Indebtedness owed by any memberof the Group incorporated or operating in Japan and/or China pursuant to arevolving credit facility agreement provided such Financial Indebtedness existsas at the date hereof and does not and shall not at any time exceedEUR3,000,000 (or the equivalent thereof in any other currency or currencies);

#### (viii)           Financial Indebtedness in respect of anyderivative transaction permitted under Clause 25.12 (*Treasury Transactions*);

#### (ix)                   the issue of the Patterson Notewhere such issue takes place after 30 September 2007; and

#### (x)                      indebtedness additional to thatreferred to in sub-paragraphs (i) to (ix) of this Clause 25.17 and which doesnot exceed EUR 150,000,000 (or, if the Non-Leveraged Criteria has been met,EUR 200,000,000. Upon the utilisation of any Incremental Loan under theIncremental Facility the basket referred to in this paragraph (x) shall bereduced by the amount of such Incremental Loan (or its equivalent in any othercurrency or currencies) in an aggregate principal amount for the Group taken asa whole.  For the purposes of determiningwhether the monetary limit in this paragraph (x) has been exceeded anyguarantee, indemnity or counter indemnity obligation in respect of other formsof Financial Indebtedness falling within this paragraph (x) shall not be doublecounted.

## 25.18**               Insurance**

The Company shall ensurethat the Group maintains insurances which are at least at the levels andprovide for coverages consistent with recent historical practices as at theClosing Date.

## 25.19**               Pensions**

### (a)                                      The Company shallensure that adequate contributions are made to pension schemes operated by ormaintained for the benefit of members of the Group and/or any of its employeesand such pension schemes are fully funded (where required by law) based onreasonable actuarial assumptions and recommendations and are operated ormaintained as required by law in each case where failure to do so would likelyhave a Material Adverse Effect.

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### (b)                                     The Company shalldeliver to the Facility Agent upon its reasonable request during thecontinuance of a Default, and in any event at such time as those reports areprepared in order to comply with the then current statutory or auditingrequirements, actuarial reports in relation to those pension schemes.

## 25.20**               Access**

Each Obligor shall (andthe Company shall ensure that each member of the Group shall) permit theFacility Agent and/or their accountants or other professional advisers andcontractors free access at all reasonable times when an Event of Default iscontinuing and when the Facility Agent believes that an Event of Default may becontinuing on reasonable grounds, on reasonable notice and during normalbusiness hours to (a) inspect and (subject to the reasonable requirements ofclient confidentiality and business secrecy) take copies and extracts from thebooks, accounts and records of each member of the Group, (b) meet and discussmatters with Senior Management. The costs of investigation pursuant to thisclause are to be borne by the Lenders if the investigation shows that no Eventof Default had occurred but otherwise the costs shall be borne by the Company.

## 25.21**               Intellectualproperty**

The Company shall procurethat the Group shall, save where failure to do so is not likely to have aMaterial Adverse Effect:

### (a)                                      preserve andmaintain the subsistence and validity of the Intellectual Property and usereasonable endeavours to maintain and preserve all other Intellectual Propertywith the care of an orderly acting merchant (*Sorgfalteines ordentlichen Kaufmannes*) carrying on a similar business to theGroup would use;

### (b)                                     use reasonableendeavours to prevent any infringement in any material respect of thatIntellectual Property;

### (c)                                      makeregistrations and pay all registration fees and taxes necessary to maintainthat Intellectual Property in full force and effect and record its interest inthat Intellectual Property;

### (d)                                     not use or permitthat Intellectual Property to be used in a way or take any step or omit to takeany step in respect of that Intellectual Property which may materially andadversely affect the existence or value of that Intellectual Property orimperil the right of any member of the Group to use such property; and

### (e)                                      not discontinuethe use of that Intellectual Property.

## 25.22**               Amendments**

No Obligor shall (and theCompany shall ensure that no member of the Group will) amend, vary, novate,supplement, supersede, waive or terminate any document delivered to theFacility Agent pursuant to Clause 4.1 (*InitialConditions Precedent*)

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unless such amendment,variation, novation, supplement, superseding, waiver or termination is notmaterially prejudicial to the Lenders.

## 25.23**               Guarantors**

### (a)                                      Subject to theGuarantee Principles, the Company shall ensure that the test set out inparagraph (b) below will be complied with on the date falling 30 days followingthe Closing Date and thereafter on each (latest permitted) date for delivery ofthe Semi-Annual Financial Statements.

### (b)                                     Subject to theGuarantee Principles, the Company shall ensure that as at the end datesdescribed in paragraph (a):

#### (i)                        the aggregate of the earnings(calculated on the same basis as Consolidated Adjusted EBITDA) of each of theGuarantors shall account for at least 80% of the Group’s Consolidated AdjustedEBITDA on the Closing Date; and

#### (ii)                     the aggregate Gross Assets of theGuarantors shall account for at least 80% of the value of the Group’sconsolidated Gross Assets,

each as determined byreference to the most recent Compliance Certificate supplied by the Companyand/or the latest audited annual and unaudited half yearly financial statementsof that Subsidiary and of the Group.

## 25.24**               Accountingreference date and auditors**

### (a)                                      The Company shallprocure that it retains 30 September as its accounting reference date and shallnot change its accounting reference date without the consent of the MajorityLenders.

### (b)                                     Neither theCompany nor any Obligor shall (and the Company shall procure that no member ofthe Group will) change its auditors other than to one of the internationallyrecognized “**big four**” firm of accountants orwith the prior written consent of the Majority Lenders.

## 25.25**               ERISA**

No Obligor shallestablish, become party to or incur any liability under or permit any of itsERISA Affiliates to establish, become party to or incur any liability under anyemployee benefit plan of the type referred to in Clause 22.20 (*ERISA*) where to do so would likely have aMaterial Adverse Effect.

## 25.26**               Limitation onLenders’ Control over German Obligors**

### (a)                                      NotwithstandingClause 25 (*General Undertakings*)above, the provisions of Clauses 25.5 (*Merger*),Clause 25.6 (*Change of Business*),25.13 (*Arm’s Length Basis*) and25.24 (*Accounting Reference Date andAuditors*), (the “**Relevant RestrictiveCovenants**”) shall not apply to any member of the Group whoseRelevant Jurisdiction is Germany (together the “**German Group**”).

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### (b)                                     The Company shallgive the Facility Agent no less than ten Business Days’ prior written notice ofthe intention of it or any other member of the German Group to carry out any ofthe acts or take any of the steps referred to in the Relevant RestrictiveCovenants.

### (c)                                      The FacilityAgent shall be entitled, within ten Business Days of receipt of the Companynotice under paragraph (b) above, to request the relevant member of the GermanGroup to supply to the Facility Agent in sufficient copies for the Lenders anyrelevant information in connection with the proposed action or steps referredto in such notice.

### (d)                                     The Facility Agentshall notify the Company, within ten Business Days of receipt of the Companynotice under paragraph (b) above or if additional information has beenrequested by the Facility Agent within the prescribed time, within ten BusinessDays of receipt of such information, whether the proposed action or steps underparagraph (a) above is or is, in the reasonable opinion of the Facility Agent,acting on the instruction of the Majority Lenders, a Material Adverse Effect.

### (e)                                      If the proposedaction or step under paragraph (a) above is so considered by the Facility Agentto have a Material Adverse Effect and the relevant member of the German Groupnevertheless takes such action or steps under paragraph (a) above, the FacilityAgent shall be entitled to make (and, if so instructed by the Majority Lendersshall make) the declaration, request and/or instruction set out in Clause 26.18(*Acceleration*) after the expiryof any notice or grace periods which would be applicable to such action but forthis Clause 25.26.

## 25.27**               Compliance withU.S. Exclusivity Agreement**

### (a)                                      No Obligor shalltake any action or omit to take any action which would give rise to atermination of the U.S. Exclusivity Agreement or which would result inliquidated damages becoming payable under such agreement at any time on orbefore 30 September 2007 if such event would reasonably likely to have aMaterial Adverse Effect.

### (b)                                     In the event thatliquidated damages becomes payable, then to the extent Sirona Dental SystemsGmbH is entitled, it shall satisfy its liability by procuring that SironaHoldings Luxco SCA or a member of the Group issue preferred equity certificatesor junior subordinated promissory notes as contemplated by Section IX(A) of theU.S. Exclusivity Agreement or in the event that liquidated damages are payablein circumstances contemplated by Section IX(D) of the U.S. ExclusivityAgreement, the Patterson Note **provided that**if such preferred equity certificates or junior subordinated promissory notesor the Patterson Note are issued by a member of the Group, the Company and theFacility Agent on behalf of the Lenders shall enter into good faithnegotiations to find terms acceptable to the Company, the Majority Lenders andPatterson Companies, Inc. (“**Patterson**”) forsubordination of

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### Patterson’s claims under the U.S. ExclusivityAgreement to those of the Finance Parties under the Finance Documents.

## 25.28**               Federal ReserveRegulations**

Each U.S. Borrower willuse the Facilities without violating Regulations T, U and X.

## 25.29               **Compliancewith U.S. Regulations**

No Obligor shall (and theCompany shall ensure that no other member of the Group will) become an “investmentcompany” as such term is defined in the 1940 Act or otherwise subject toregulation under the 1940 Act.  Neitherthe making of any Loan, or the application of the proceeds or repayment of anyLoan by any Obligor nor the consummation of the other transactions contemplatedby this agreement will violate any provision of such act or any rule,regulation or order of the SEC under the 1940 Act.

## 25.30**               Anti-MoneyLaundering**

Each Obligor will usecommercially reasonable efforts to ensure that no funds used to pay theobligations under the Finance Documents are derived from any unlawful activity.

## 25.31**               Pooling agreements**

The Company shall procurethat:

### (a)                                      the PoolingAgreements provide for the right of its cancellation by the Company;

### (b)                                     the PoolingAgreements shall remain in place and be maintained in full force and effectuntil the Termination Date, unless otherwise agreed by the Facility Agent; and

### (c)                                      Original Borrowerterminates the Pooling Agreements upon the request of the Facility Agentwithout undue delay provided that an Event of Default has occurred.

# 26.**                           EVENTSOF DEFAULT**

Each of the events orcircumstances set out in this Clause 26 is an Event of Default.

## 26.1**                     Non payment**

An Obligor or any otherparty to a Finance Document (other than a Finance Party) does not pay on thedue date any amount payable pursuant to a Finance Document at the place at andin the currency in which it is expressed to be payable unless:

### (a)                                      its failure topay is caused by administrative or technical error; and

### (b)                                     payment is madewithin five Business Days of its due date.

## 26.2**                     FinancialCovenants**

Any requirement of Clause24 (*Financial Covenants*) is notsatisfied.

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## 26.3**                     Otherobligations**

### (a)                                      An Obligor or anyother party to a Finance Document (other than a Finance Party) does not complywith any provision of the Finance Documents (other than those referred to inClause 26.1 (*Non payment*)) andClause 26.2 (*Financial covenants*).

### (b)                                     No Event of Default(resulting from a requirement under Clause 25.22 (*Guarantors*) not being satisfied) under paragraph (a) abovewill occur if the failure to satisfy such requirement is capable of remedy andis remedied within 5 Business Days of the earlier of the Facility Agent givingnotice to the Company or the Company or an Obligor becoming aware of thefailure to comply.

### (c)                                      No Event ofDefault under paragraph (a) above (other than any Event of Default referred toin paragraph (b) above) will occur if the failure to comply is capable ofremedy and is remedied within 20 Business Days of the earlier of the FacilityAgent giving notice to the Company or the Company or an Obligor becoming awareof the failure to comply.

## 26.4**                     Misrepresentation**

Any representation orstatement made or repeated by an Obligor or any other party to a FinanceDocument (other than a Finance Party) in the Finance Documents or in any otherdocument delivered by or on behalf of it under or in connection with anyFinance Document is or proves to have been incorrect or misleading in anymaterial respect when made or repeated and the circumstances causing suchmisrepresentation are not remedied (if capable of being remedied) within 20Business Days of the earlier of the Company or any Obligor becoming awarethereof or notice thereof to the Company by the Facility Agent.

## 26.5**                     Cross default**

### (a)                                      Any FinancialIndebtedness of any member of the Group is not paid when due nor within anyoriginally applicable grace period.

### (b)                                     Any FinancialIndebtedness of any member of the Group is declared to be or otherwise becomesdue and payable prior to its specified maturity as a result of an event ofdefault (however described).

### (c)                                      Any commitmentfor any Financial Indebtedness of any member of the Group is cancelled or suspendedby a creditor of any member of the Group as a result of an event of default(however described).

### (d)                                     Any creditor ofany member of the Group becomes entitled to declare any Financial Indebtednessof any member of the Group due and payable prior to its specified maturity as aresult of an event of default (however described).

### (e)                                      No Event ofDefault will occur under this Clause 26.5 if the aggregate amount of FinancialIndebtedness or commitment for Financial Indebtedness falling

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### within paragraphs (a) to (d) above is lessthan EUR 25,000,000 (or its equivalent in any other currency or currencies).

## 26.6**                     Insolvency**

### (a)                                      Any MaterialCompany or any Borrower is unable or admits inability to pay its debts as theyfall due or is deemed or declared under applicable law to be unable to pay itsdebts, suspends making payments on its debts generally or, by reason of actualor anticipated financial difficulties, commences negotiations with one or moreof its creditors with a view to rescheduling any of its indebtedness.

### (b)                                     The value of theassets of any Material Company or any Borrower is less than its liabilities(taking into account contingent and prospective liabilities “*Fortführungsprognose*”) where the RelevantJurisdiction of the company is Germany or any other jurisdiction where thiswould be a ground for the filing for insolvency proceedings.

### (c)                                      A moratorium isdeclared in respect of any indebtedness of any Material Company or anyBorrower.

### (d)                                     For the purposesof this Clause 26.6, “**Material Company**”shall be deemed not to include any person referred to in paragraph (a) of thedefinition of “**Material Company**” (other than anyBorrower) and the figure 5% in paragraphs (b)(i) and (b)(ii) of the definitionof Material Company shall be adjusted to read 7.5%.

### (e)                                      Any Obligor shallin any U.S. jurisdiction:

(i)                        apply for,or consent to, the appointment of, or the taking of possession by, a receiver,custodian, trustee, examiner or liquidator of itself or of all or a substantialpart of its property;

(ii)                     make a generalassignment for the benefit of its creditors;

(iii)                  commence avoluntary case under Title 11 of the United States of America Code entitledBankruptcy (or any successor thereof), as amended;

(iv)                 file a petitionwith respect to itself seeking to take advantage of any other law relating tobankruptcy, insolvency, reorganisation, liquidation, dissolution, arrangementor winding up, or composition or readjustment of debts; or

(v)                    take anycorporate action for the purpose of effecting any of the foregoing with respectto itself.

## 26.7**                     Insolvencyproceedings**

### (a)                                      Any corporateaction, legal proceedings or other procedure or step is taken in relation to:

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#### (i)                        the suspension of payments, amoratorium of any indebtedness, winding up, dissolution, administration orreorganisation (by way of voluntary arrangement, scheme of arrangement orotherwise) of any Borrower or any Material Company;

#### (ii)                     a composition, assignment orarrangement with any creditor of any Borrower or any Material Company; or

#### (iii)                  the appointment of a liquidator,receiver, administrator, administrative receiver, compulsory manager or othersimilar officer in respect of any Borrower or any Material Company,

or any analogousprocedure or step is taken in any jurisdiction.

### (b)                                     Paragraph (a)above shall not apply to any proceedings which are (i) being contested in goodfaith or dismissed within 20 Business Days of commencement or (ii) the amountof the debt that is the subject of such proceedings is less thanEUR 25,000,000 (or its equivalent in any other currency or currencies).

### (c)                                      For the purposesof this Clause 26.7, “**Material Company**”shall be deemed not to include any person referred to in paragraph (a) of  the definition of “**MaterialCompany**” (other than any Borrower) and the figure 5% in paragraphs(b)(i) and (b)(ii) of the definition of Material Company shall be adjusted toread 7.5%.

### (d)                                     In respect of anyObligor, a proceeding or case shall be commenced, without the application orconsent of such Obligor, in any US court of competent jurisdiction, seeking:

#### (i)                        its reorganisation,liquidation, dissolution, arrangement or winding-up or the composition orreadjustment of its debts;

#### (ii)                     the appointment of a receiver,custodian, trustee, examiner, liquidator or the like of the Obligor or of all orany substantial part of its property; or

#### (iii)                  similar relief in respect of anyObligor under any law relating to the bankruptcy insolvency, reorganisation,winding-up or composition or adjustment of debts,

and any such proceedingor case referred to in sub-paragraphs (i)-(iii) above shall not be contested ingood faith within 20 Business Days of commencement or shall continueundismissed, or an order, judgment or decree approving or ordering any of theforegoing shall be entered and continue unstayed and in effect, for a period of60 or more days, or an order for relief against such Obligor shall be enteredin an involuntary case under Title 11 of the United States of America Codeentitled Bankruptcy (or any successor thereto) as amended.

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## 26.8**                     Creditors’process**

### (a)                                      Any enforcementof Security or any expropriation, attachment, sequestration, distress orexecution or any analogous process in any jurisdiction affects any asset orassets of a Material Company with an aggregate value in excess ofEUR 25,000,000 and is not discharged within 20 Business Days, providedsuch proceedings are contested in good faith.

### (b)                                     For the purpose ofthis Clause 26.8 “**Material Company**”shall be deemed not to include any person referred to in paragraph (a) of thedefinition of “**Material Company**” (other than anyBorrower) and the figure 5% in paragraphs (b)(i) and (b)(ii) of the definitionof Material Company shall be adjusted to read 7.5%

## 26.9**                     Unlawfulnessand invalidity**

### (a)                                      It is or becomesunlawful for an Obligor or any other party to a Finance Document (other than aFinance Party) to perform any of its material obligations under the FinanceDocuments.

### (b)                                     Any obligation orobligations of any Obligor or any other party to a Finance Document (other thana Finance Party) under any Finance Documents are not or cease to be legal,valid, binding or enforceable and the cessation individually or cumulativelymaterially and adversely effects the interests of the Lenders under the FinanceDocuments.

### (c)                                      Any FinanceDocument ceases to be in full force and effect.

## 26.10**               SubordinationAgreement**

### (a)                                      Any party to theSubordination Agreement (other than a Finance Party or a member of the Group)fails to comply with any material provision of, or does not perform anymaterial obligation under, the Subordination Agreement; or

### (b)                                     a representationor warranty given by that party in the Subordination Agreement is incorrect inany material respect,

and, if the noncompliance or circumstances giving rise to the misrepresentation are capable ofremedy, it is not remedied within 20 Business Days of the earlier of theFacility Agent giving notice to that party or that party becoming aware of thenon compliance or misrepresentation.

## 26.11**               Repudiation**

An Obligor (or any otherrelevant party other than a Finance Party) repudiates Finance Document orevidences an intention to repudiate a Finance Document.

## 26.12**               Cessation ofbusiness**

The Group ceases to carryon the business of the Group as a whole.

## 26.13**               Audit qualification**

The auditors of the Groupqualify the audited annual consolidated financial statements of the Companyand:

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### (a)                                      the qualificationis made because those auditors did not have access to information; and

### (b)                                     the qualificationis materially adverse to the Finance Parties’ interests in the context of theFinance Documents and the transactions contemplated in those documents.

## 26.14**               Expropriation**

The authority or abilityof any Obligor or other Material Company to conduct its business is limited orwholly or substantially curtailed by any seizure, expropriation,nationalisation, intervention, restriction or other action by or on behalf ofany governmental, regulatory or other authority or other person in relation toit or any of its assets where such curtailment would likely have a MaterialAdverse Effect.

## 26.15               **Litigation**

Any litigation,arbitration, administrative, governmental, regulatory or other investigations,proceedings or disputes are commenced or threatened against any member of theGroup or its assets which are likely to be adversely determined and, ifadversely determined, would be likely to have a Material Adverse Effect.

## 26.16**               Payment ofliquidated damages under U.S. Exclusivity Agreement**

Any liquidated damagesbecomes payable by Sirona Dental Systems GmbH to Patterson Companies, Inc. underthe U.S. Exclusivity Agreement at any time on or before 30 September 2007 ifsuch event would have a Material Adverse Effect.

## 26.17**               Material adversechange**

Any event or series ofevents or circumstance which has a Material Adverse Effect (within the meaningof paragraph (a) or (b) of the definition of “**MaterialAdverse Effect**”) occurs after the date hereof.

## 26.18               **Acceleration**

On and at any time afterthe occurrence of an Event of Default which is continuing the Facility Agentmay, and shall if so directed by the Majority Lenders, by notice to theCompany:

### (a)                                      cancel the TotalCommitments and/or Ancillary Commitments whereupon they shall immediately becancelled and any fees payable under the Finance Documents in connection withthose Commitments or Ancillary Commitments shall be immediately due andpayable;

### (b)                                     declare that allor part of the Utilisations, together with accrued interest, and all otheramounts accrued under the Finance Documents be immediately due and payable,whereupon they shall become immediately due and payable;

### (c)                                      declare that allor part of the Utilisations be payable on demand, whereupon they shallimmediately become payable on demand by the Facility Agent on the instructionsof the Majority Lenders;

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### (d)                                     declare all or anypart of the amounts outstanding under the Ancillary Facilities to beimmediately due and payable (whereupon the same shall become so payabletogether with accrued interest, commissions, fees or like charges on suchfacilities and any other sums then owed by the Obligors under the AncillaryDocuments or this Agreement);

### (e)                                      declare that fullcash cover in respect of each Bank Guarantee is immediately due and payablewhereupon it shall become immediately due and payable;

### (f)                                        declare thatall or any part of the amounts outstanding under the Ancillary Facilities bepayable on demand, whereupon they shall immediately become payable on demand bythe Facility Agent on the instructions of the Majority Lenders; and/or

### (g)                                     exercise any orall of its rights, remedies, powers or discretions under the Finance Documents;

**provided,however, that**if an Event of Default under Clause 26.6 (*Insolvency*) or Clause 26.7 (*Insolvency Proceedings*) shall occur inrespect of any Obligor, then without notice to such Obligor or any other act bythe Facility Agent or any other person, the Loans to such Obligor, interestthereon and all other amounts owed by such Obligor under the Finance Documentsshall become immediately due and payable without presentment, demand, protestor notice of any kind, all of which are expressly waived.

## 26.19**               Certain FundsPeriod**

During the Certain FundsPeriod unless a Certain Funds Default (which is also an Event of Default) hasoccurred and is continuing, none of the Finance Parties shall be entitled to:

### (a)                                      cancel any of itsCommitments under Facility A1 and/or Facility A2;

### (b)                                     rescind, terminateor cancel this Agreement or Facility A1 and/or Facility A2;

### (c)                                      require repaymentof any Facility A1 Loan and/or Facility A2 Loan;

### (d)                                     refuse toparticipate in the making of any Utilisation under Facility A1 and/or FacilityA2;

### (e)                                      exercise anyright of set off or counterclaim in respect of any Utilisation under FacilityA1 and/or Facility A2,

**providedthat** immediately upon the expiry of the Certain Funds Periodall such rights, remedies and entitlements shall be available to the FinanceParties notwithstanding that they may not have been used or been available foruse during the Certain Funds Period.

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**SECTION9CHANGES TO PARTIES**

# 27.**                           CHANGESTO THE LENDERS**

## 27.1**                     Assignments andtransfers by the Lenders**

Subject to this Clause27, a Lender (the “**Existing Lender**”)may:

### (a)                                      assign any of itsrights; or

### (b)                                     transfer bynovation any of its rights and obligations,

under any FinanceDocument to another bank or financial institution or to a trust, fund or otherentity which is regularly engaged in or established for the purpose of making,purchasing or investing in loans, securities or other financial assets (a “**New Lender**”) provided that such assignmentor transfer shall be in a minimum aggregate amount of EUR 5,000,000 or USDequivalent thereof.

## 27.2**                     Conditions ofassignment, transfer**

### (a)                                      Notwithstandingany other provision of this Agreement, the consent of the Issuing Bank isrequired for any assignment, transfer of any Lender’s rights and/or obligationsunder the Revolving Facility.

### (b)                                     An assignment willonly be effective on:

#### (i)                        consent to such assignment bythe Company (such consent not to be unreasonably withheld and deemed to begiven if not expressly refused within 8 Business Days);

#### (ii)                     receipt by the Facility Agent andwritten confirmation from the New Lender (in form and substance satisfactory tothe Facility Agent) that the New Lender will assume the same obligations to theother Finance Parties and the other Finance Parties as it would have been underif it was an Original Lender;

#### (iii)                  the performance by the Facility Agentof all “**know your customer**” or other checksrelating to any person that it is required to carry out in relation to suchassignment to a New Lender.

### (c)                                      A transfer willonly be effective:

#### (i)                        on consent to such transfer bythe Company (such consent not to be unreasonably withheld and deemed to begiven if not expressly refused within 8 Business Days);

#### (ii)                     if the procedure set out in Clause27.5 (*Procedure for transfer*) iscomplied with.

### (d)                                     Sub-paragraphs(b)(i) and (c)(i) above shall not apply where a transfer is to another Lender,an Affiliate of a Lender, where the Lender is a fund, to a Related Fund or whenan Event of Default is continuing.

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### (e)                                      If:

#### (i)                        a Lender assigns or transfersany of its rights or obligations under the Finance Documents or changes itsFacility Office; and

#### (ii)                     as a result of circumstancesexisting at the date the assignment, transfer or change occurs, an Obligorwould be obliged to make a payment to the New Lender or Lender acting throughits new Facility Office under Clause 16 (*Taxgross up and indemnities*) or Clause 17 (*Increased costs*),

then the New Lender orLender acting through its new Facility Office is only entitled to receivepayment under those Clauses to the same extent as the Existing Lender or Lenderacting through its previous Facility Office would have been if the assignment,transfer or change had not occurred.

## 27.3**                     Assignment ortransfer fee**

The New Lender shall, onthe date upon which an assignment or transfer takes effect, pay to the FacilityAgent (for its own account) a fee of EUR 1,500 except no such fee shall bepayable in connection with an assignment or transfer to a New Lender uponprimary syndication of the Facilities or upon the assignment or transfer to anAffiliate of a Lender or a Related Fund.

## 27.4**                     Limitation ofresponsibility of Existing Lenders**

### (a)                                      Unless expresslyagreed to the contrary, an Existing Lender makes no representation or warrantyand assumes no responsibility to a New Lender for:

#### (i)                        the legality, validity,effectiveness, adequacy or enforceability of the Finance Documents or any otherdocuments;

#### (ii)                     the financial condition of anyObligor;

#### (iii)                  the performance and observance by anyObligor or any other party (other than a Finance Party) of its obligationsunder the Finance Documents or any other documents; or

#### (iv)                 the accuracy of any statements(whether written or oral) made in or in connection with any Finance Document orany other document,

and any representationsor warranties implied by law are excluded.

### (b)                                     Each New Lenderconfirms to the Existing Lender and the other Finance Parties that it:

#### (i)                        has made (and shall continue tomake) its own independent investigation and assessment of the financialcondition and affairs of each Obligor and its related entities in connectionwith its participation in this Agreement and has not relied exclusively on anyinformation provided to it by the

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#### Existing Lender or any other Finance Party in connection with anyFinance Document; and

#### (ii)                     will continue to make its ownindependent appraisal of the creditworthiness of each Obligor and its relatedentities whilst any amount is or may be outstanding under the Finance Documentsor any Commitment is in force.

### (c)                                      Nothing in anyFinance Document obliges an Existing Lender to:

#### (i)                        accept a re transfer from a NewLender of any of the rights and obligations assigned or transferred under thisClause 27; or

#### (ii)                     support any losses directly orindirectly incurred by the New Lender by reason of the non performance by anyObligor of its obligations under the Finance Documents or otherwise.

## 27.5**                     Procedure fortransfer**

### (a)                                      Subject to theconditions set out in Clause 27.2 (*Conditionsof assignment or transfer*) a transfer is effected in accordance withparagraph (c) below when the Facility Agent executes an otherwise dulycompleted Transfer Certificate delivered to it by the Existing Lender and theNew Lender and the Facility Agent makes a corresponding entry in the Registerpursuant to Clause 27.8 (*The Register*).  The Facility Agent shall, as soon asreasonably practicable after receipt by it of a duly completed TransferCertificate appearing on its face to comply with the terms of this Agreementand delivered in accordance with the terms of this Agreement, execute thatTransfer Certificate and make such corresponding entry in the Register.

### (b)                                     The Facility Agentshall only be obliged to execute a Transfer Certificate delivered to it by theExisting Lender and the New Lender and make such corresponding entry in theRegister once it is satisfied it has complied with all necessary “**know your customer**” or similar other checks under allapplicable laws and regulations in relation to the transfer to such New Lender.

### (c)                                      On the TransferDate:

#### (i)                        to the extent that in theTransfer Certificate the Existing Lender seeks to transfer its rights andobligations by novation under the Finance Documents each of the Obligors andany other party to a Finance Document (other than a Finance Party) and theExisting Lender shall be released from further obligations towards one anotherunder the Finance Documents and their respective rights against one anotherunder the Finance Documents shall be cancelled (being the “**DischargedRights and Obligations**”);

#### (ii)                     each of the Obligors and any otherparty to a Finance Document (other than a Finance Party) and the New Lendershall assume obligations towards one another and/or acquire rights against oneanother which

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#### differ from the Discharged Rights and Obligations only insofar as thatObligor or other member of the Group and the New Lender have assumed and/oracquired the same in place of that Obligor and the Existing Lender;

#### (iii)                  the Facility Agent, the Mandated LeadArrangers, the New Lender, the other Lenders, the Issuing Bank and any relevantAncillary Lender shall acquire the same rights and assume the same obligationsbetween themselves and in respect of the Finance Documents as they would haveacquired and assumed had the New Lender been an Original Lender with therights, and/or obligations acquired or assumed by it as a result of thetransfer and to that extent the Facility Agent, the Mandated Lead Arrangers,the Issuing Bank and any relevant Ancillary Lender and the Existing Lendershall each be released from further obligations to each other under thisAgreement; and

#### (iv)                 the New Lender shall become a Party asa “**Lender**”.

## 27.6**                     Disclosure ofinformation**

### (a)                                      Any Lender maydisclose to any of its Affiliates and any other person:

#### (i)                        to (or through) whom thatLender assigns or transfers (or may potentially assign or transfer) all or anyof its rights and obligations under the Finance Documents and who has executeda confidentiality agreement;

#### (ii)                     with (or through) whom that Lenderenters into (or may potentially enter into) any sub participation in relationto, or any other transaction under which payments are to be made by referenceto, the Finance Documents or any Obligor and who has executed a confidentialityagreement; or

#### (iii)                  to whom, and to the extent that,information is required to be disclosed by any applicable law or regulation;and

### (b)                                     any Finance Partymay disclose to a rating agency on a confidential basis,

any information about anyObligor, the Group and the Finance Documents as that Lender shall considerappropriate.

## 27.7                     **Assignmentto Federal Reserve Bank**

Any Lender may at anytime pledge or assign a security interest in all or any portion of its rightsunder this Agreement, without notice to or consent of any Party, to any U.S. FederalReserve Bank **provided that**(i) noLender shall be relieved of any of its obligations under this Agreement as aresult of any such assignment and pledge and (ii) in no event shall such U.S.Federal Reserve Bank be considered to be a “Lender” or be entitled to requirethe assigning Lender to take or omit to take any action under this Agreement.

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## 27.8**                     The Register**

The Facility Agent,acting solely for this purpose as an agent of the Obligors, shall maintain atone of its offices a copy of each Transfer Certificate delivered to it and aregister (the “**Register**”) for therecordation of the names and addresses of each Lender and the Commitments ofand obligations owing to each Lender. Without limitation of any other provision of this Clause 27 (*Changes to the Lenders*), no transfer orassignment shall be effective until recorded in the Register.  The entries in the Register shall beconclusive absent manifest error and each Obligor, the Agent and each Lendermay treat each person whose name is recorded in the Register as a Lendernotwithstanding any notice to the contrary. The Register shall be available for inspection by each Obligor at anyreasonable time and from time to time upon reasonable prior notice.

# 28.**                           CHANGESTO THE OBLIGORS**

## 28.1**                     Assignmentand Transfers by Obligors**

No Obligor may assign anyof its rights or transfer any of its rights or obligations under the FinanceDocuments.

## 28.2**                     AdditionalBorrowers**

### (a)                                      Subject tocompliance with the provisions of paragraphs (c) and (d) of Clause 23.7 (*“Know your customer” checks*), the Companymay request that any of its wholly owned Subsidiaries becomes an AdditionalBorrower.  That Subsidiary shall becomean Additional Borrower if:

#### (i)                        that Subsidiary is incorporatedin the same jurisdiction as another approved or existing Borrower; or

#### (ii)                     the Majority Lenders consent tothat Subsidiary becoming a Borrower (such consent not to be unreasonablywithheld) **provided that**no Lender shall berequired to make any Loan to a Borrower if the making of such Loan is prohibitedby law or regulation applicable to the relevant Lender; and

#### (iii)                  the Company delivers to the FacilityAgent a duly completed and executed Accession Letter;

#### (iv)                 the Company confirms that no Defaultis continuing or would occur as a result of that Subsidiary becoming anAdditional Borrower; and

#### (v)                    the Facility Agent has received allof the documents and other evidence listed in Part II of Schedule 2 (*Conditions Precedent Required to be Delivered by anAdditional Obligor*) in relation to that Additional Borrower, each inform and substance satisfactory to the Facility Agent (acting reasonably).

### (b)                                     The Facility Agentshall notify the Company and the Lenders promptly upon having received (in formand substance satisfactory to it (acting reasonably))

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###  

### all the documents and other evidence listedin Part II of Schedule 2 (*ConditionsPrecedent Required to be Delivered by an Additional Obligor*).

## 28.3**                     Resignationof an Obligor**

### (a)                                      In this Clause28.3, “**Third Party Disposal**” meansthe disposal of an Obligor to a person which is not a member of the Group.

### (b)                                     Borrowers (otherthan Schick Technologies, Inc. and Sirona Dental Systems GmbH) may resign asBorrowers if no amounts borrowed by such Borrower is outstanding and bydelivering a Resignation Letter to the Facility Agent.

### (c)                                      Guarantors (otherthan the Company, Schick Technologies, Inc., Sirona Dental Systems GmbH andSirona Holding GmbH) may resign by delivering a Resignation Letter to theFacility Agent and if the Guarantor coverage test in Clause 25.24 (*Accounting reference date and auditors*)will continue to be met following such resignation.

### (d)                                     The Facility Agentshall accept a Resignation Letter and notify the Company and the Lenders of itsacceptance if:

#### (i)                        the Company has confirmed thatno Default is continuing or would result from the acceptance of the ResignationLetter; and

#### (ii)                     where the Obligor is:

##### (A)                a Borrower, it is under no actual orcontingent obligations as a Borrower under any Finance Documents; or

##### (B)                  a Guarantor, no payment is due from aGuarantor under Clause 21.1 (*Guarantee and Indemnity*);or

#### (iii)                  where such Obligor is both a Borrowerand a Guarantor the Company has confirmed that either:

##### (A)                such Obligor is subject to a ThirdParty Disposal and its obligations in its capacity as Guarantor continue to belegal, valid, binding and enforceable and in full force and effect and theamount guaranteed by it as a Guarantor is not decreased; or

##### (B)                  each of the conditions set out insub-paragraph (d)(ii) applies; and

### (e)                                      Upon notificationby the Facility Agent to the Company of its acceptance of the resignation of aBorrower or a Guarantor, that company shall cease to be a Borrower or aGuarantor and shall have no further rights or obligations under the FinanceDocuments as a Borrower or a Guarantor.

### (f)                                        The resignationof an Obligor which is the subject of a Third Party Disposal shall not beeffective until the date of that disposal whereupon that company shall cease tobe an Obligor and shall have no further rights or obligations under the FinanceDocuments as an Obligor.

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## 28.4**                     Guarantors**

### (a)                                      Subject tocompliance with the provisions of paragraphs (c) and (d) of Clause 23.7 (*“Know your customer” checks*), the Companymay request that any of its wholly owned Subsidiaries become a Guarantor.

### (b)                                     The Company shallensure that each member of the Group identified in Clause 25.23 (*Guarantors*) as a Guarantor shall become aGuarantor.

### (c)                                      A member of theGroup shall become a Guarantor if:

#### (i)                        the Company delivers to theFacility Agent a duly completed and executed Accession Letter; and

#### (ii)                     the Facility Agent has receivedall of the documents and other evidence listed in Part II of Schedule 2 (*Conditions Precedent Required to be Delivered by anAdditional Obligor*) in relation to that Guarantor, each in form andsubstance satisfactory to the Facility Agent (acting reasonably).

### (d)                                     The Facility Agentshall notify the Company and the Lenders promptly upon having received (in formand substance satisfactory to it (acting reasonably)) all the documents andother evidence listed in Part II of Schedule 2 (*Conditions Precedent Required to be Delivered by an Additional Obligor*).

### (e)                                      The FacilityAgent may (but shall not be obliged to) agree a limit on the amount of theliability of the potential Guarantor or other changes to the Finance Documentswhich in the opinion of the Facility Agent, based on the advice of its legalcounsel, are necessary or advisable to overcome a prohibition referred to inthe Guarantee Principles or a risk that a guarantee by the potential Guarantorwill not be legal, valid, binding, enforceable and effective.  The cost of the advice of legal counselobtained pursuant to this paragraph (e) shall be for the account of theCompany.

## 28.5**                     Repetition ofRepresentations**

When delivering anAccession Letter the relevant Subsidiary shall confirm that the RepeatingRepresentations are true and correct in relation to it as at the date ofdelivery as if made by reference to the facts in all material respects andcircumstances then existing.

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**SECTION10THE FINANCE PARTIES**

# 29.**                           ROLE****OF THE FACILITY AGENT, THE MANDATED LEAD ARRANGERS,THE ISSUING BANK AND OTHERS**

## 29.1**                     Appointmentof the Facility Agent**

### (a)                                      Each of theMandated Lead Arrangers, the Lenders and the Issuing Bank appoints the FacilityAgent to act as its agent under and in connection with the Finance Documents.

### (b)                                     Each of theMandated Lead Arrangers, the Lenders and the Issuing Bank authorises theFacility Agent to:

#### (i)                        exercise the rights, powers,authorities and discretions specifically given to the Facility Agent under orin connection with the Finance Documents together with any other incidentalrights, powers, authorities and discretions; and

#### (ii)                     execute each Finance Document andany Bank Guarantee expressed to be executed by the Facility Agent on itsbehalf.

### (c)                                      The FacilityAgent shall be released from the restrictions of Sec 181 of the German CivilCode.

### (d)                                     At the request ofthe Facility Agent, the Finance Parties shall grant special powers of attorneyto the Facility Agent.

## 29.2**                     Duties of theFacility Agent**

### (a)                                      The FacilityAgent shall promptly forward to a Party the original or a copy of any documentwhich is delivered to the Facility Agent for that Party by any other Party.

### (b)                                     Except where aFinance Document specifically provides otherwise, the Facility Agent is notobliged to review or check the adequacy, accuracy or completeness of anydocument it forwards to another Party.

### (c)                                      If the FacilityAgent receives notice from a Party referring to this Agreement, describing aDefault and stating that the circumstance described is a Default, it shallpromptly notify the other Finance Parties.

### (d)                                     If the FacilityAgent is aware of the non payment of any principal, interest, commitment fee orother fee payable to a Finance Party (other than the Facility Agent, theMandated Lead Arrangers under this Agreement it shall promptly notify the otherFinance Parties.

### (e)                                      The FacilityAgent’s duties under the Finance Documents are solely mechanical andadministrative in nature.

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## 29.3**                     Role of theMandated Lead Arrangers**

Except as specificallyprovided in the Finance Documents, each Mandated Lead Arranger has noobligations of any kind to any other Party under or in connection with anyFinance Document.

## 29.4**                     No fiduciaryduties**

### (a)                                      Nothing in thisAgreement constitutes the Facility Agent, any Mandated Lead Arranger and/or theIssuing Bank as a trustee or fiduciary of any other person.

### (b)                                     The Facility Agentshall not be bound to account to any Lender for any sum or the profit elementof any sum received by it for its own account.

## 29.5                     **Businesswith the Group**

The Facility Agent mayaccept deposits from, lend money to and generally engage in any kind of bankingor other business with any member of the Group.

## 29.6**                     Rights anddiscretions**

### (a)                                      The FacilityAgent, the Issuing Bank and each Ancillary Lender may rely on:

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

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

### (b)                                     The Facility Agentmay assume (unless it has received notice to the contrary in its capacity asagent for the Lenders) that:

#### (i)                        no Default has occurred (unlessit has actual knowledge of a Default arising under Clause 26.1 (*Non payment*));

#### (ii)                     any right, power, authority ordiscretion vested in any Party, the Majority Lenders, the Super MajorityLenders or the Lenders has not been exercised; and

#### (iii)                  any notice or request made by theCompany is made on behalf of and with the consent and knowledge of all theObligors.

### (c)                                      The FacilityAgent, the Issuing Bank and each Ancillary Lender may engage, pay for and relyon the advice or services of any lawyers, accountants, surveyors or otherexperts.

### (d)                                     The FacilityAgent, the Issuing Bank and each Ancillary Lender may act in relation to theFinance Documents through its personnel and agents.  The Facility Agent shall not be liable forthe negligence or misconduct of such agents.

 

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### (e)                                      The FacilityAgent may disclose to any other Party any information it reasonably believes ithas received as agent under this Agreement.

### (f)                                        Notwithstandingany other provision of any Finance Document to the contrary, none of theFacility Agent, any Mandated Lead Arranger or the Issuing Bank is obliged to door omit to do anything if it would or might in its reasonable opinionconstitute a breach of any law or regulation or a breach of a fiduciary duty orduty of confidentiality.

### (g)                                     Where any FinanceDocument specifies a minimum period of notice to be given to the FacilityAgent, the Facility Agent may, at its discretion, accept a shorter period ofnotice.

## 29.7**                     MajorityLenders’ instructions**

### (a)                                      Unlessa contrary indication appears in a Finance Document, the Facility Agent shall(a) act in accordance with any instructions given to it by the Majority Lenders(or, if so instructed by the Majority Lenders, refrain from acting orexercising any right, power, authority or discretion vested in it as FacilityAgent) and (b) not be liable for any act (or omission) if it acts (or refrainsfrom taking any action) in accordance with such an instruction of the MajorityLenders.

### (b)                                     Unlessa contrary indication appears in a Finance Document, any instructions given bythe Majority Lenders will be binding on all the Finance Parties.

### (c)                                      TheFacility Agent may refrain from acting in accordance with the instructions ofthe Majority Lenders (or, if appropriate, the Super Majority Lenders or theLenders) until it has received such security as it may require for any cost,loss or liability (together with any associated VAT) which it may incur incomplying with the instructions.

### (d)                                     Inthe absence of instructions from the Majority Lenders, (or, if appropriate, theSuper Majority Lenders or the Lenders) the Facility Agent may act (or refrainfrom taking action) as it considers to be in the best interest of the Lenders.

### (e)                                      TheFacility Agent is not authorised to act on behalf of a Lender (without firstobtaining that Lender’s consent) in any legal or arbitration proceedingsrelating to any Finance Document.  Thisparagraph (e) shall not apply to any legal or arbitration proceeding relatingto the perfection, preservation or protection of rights under the FinanceDocuments.

## 29.8**                     Responsibilityfor documentation**

None of theFacility Agent, any Mandated Lead Arranger, the Issuing Bank, or any AncillaryLender:

### (a)                                      isresponsible for the adequacy, accuracy and/or completeness of any information(whether oral or written) supplied by the Facility Agent, a Mandated LeadArranger, the Issuing Bank, an Ancillary Lender, an Obligor

 

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### or any other person given in or in connectionwith any Finance Document or the Information Memorandum or the transactionscontemplated in the Finance Documents; or

### (b)                                     isresponsible for the legality, validity, effectiveness, adequacy orenforceability of any Finance Document or any other agreement, arrangement ordocument entered into, made or executed in anticipation of or in connectionwith any Finance Document.

## 29.9**                     Exclusion ofliability**

### (a)                                      Withoutlimiting paragraph (b) below, none of the Facility Agent, the Issuing Bank orany Ancillary Lender will be liable for any action taken by it under or inconnection with any Finance Document , unless directly caused by its grossnegligence or wilful misconduct.

### (b)                                     NoParty (other than the Facility Agent, the Issuing Bank or an Ancillary Lender(as applicable)) may take any proceedings against any officer, employee oragent of the Facility Agent, the Issuing Bank or any Ancillary Lender, inrespect of any claim it might have against the Facility Agent, the Issuing Bankor an Ancillary Lender or in respect of any act or omission of any kind by thatofficer, employee or agent in relation to any Finance Document and any officer,employee or agent of the Facility Agent, the Issuing Bank or any AncillaryLender may rely on this Clause.

### (c)                                      TheFacility Agent will not be liable for any delay (or any related consequences)in crediting an account with an amount required under the Finance Documents tobe paid by the Facility Agent if the Facility Agent has taken all necessarysteps as soon as reasonably practicable to comply with the regulations oroperating procedures of any recognised clearing or settlement system used bythe Facility Agent for that purpose.

## 29.10**               Lenders’ indemnityto the Facility Agent**

Each Lender shall(in proportion to its share of the Total Commitments or, if the TotalCommitments are then zero, to its share of the Total Commitments immediatelyprior to their reduction to zero) indemnify the Facility Agent, within threeBusiness Days of demand, against any cost, loss or liability incurred by theFacility Agent (otherwise than by reason of the Facility Agent’s grossnegligence or wilful misconduct) in acting as Facility Agent under the FinanceDocuments (unless the Facility Agent has been reimbursed by an Obligor pursuantto a Finance Document).

## 29.11**               Resignation of theFacility Agent**

### (a)                                      TheFacility Agent may resign and appoint one of its Affiliates as successor bygiving notice to the Lenders and the Company.

### (b)                                     Alternatively,the Facility Agent may resign by giving notice to the Lenders and the Company,in which case the Majority Lenders (after consultation with the Company) mayappoint a successor Facility Agent.

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### (c)                                      Ifthe Majority Lenders have not appointed a successor Facility Agent in accordancewith paragraph (b) above within 30 days after notice of resignation was given,the Facility Agent (after consultation with the Company) may appoint asuccessor Facility Agent.

### (d)                                     Theretiring Facility Agent shall, at its own cost, make available to the successorFacility Agent such documents and records and provide such assistance as thesuccessor Facility Agent may reasonably request for the purposes of performingits functions as Facility Agent under the Finance Documents.

### (e)                                      TheFacility Agent’s resignation notice shall only take effect upon the appointmentof a successor.

### (f)                                        Uponthe appointment of a successor, the retiring Facility Agent shall be dischargedfrom any further obligation in respect of the Finance Documents but shallremain entitled to the benefit of this Clause 29.11.  Its successor and each of the other Partiesshall have the same rights and obligations amongst themselves as they wouldhave had if such successor had been an original Party.

### (g)                                     Afterconsultation with the Company, the Majority Lenders may, by notice to theFacility Agent, require it to resign in accordance with paragraph (b)above.  In this event, the Facility Agentshall resign in accordance with paragraph (b) above.

## 29.12**               Confidentiality**

### (a)                                      Inacting as agent for the Finance Parties the Facility Agent shall be regarded asacting through its agency division which shall be treated as a separate entityfrom any other of its divisions or departments.

### (b)                                     Ifinformation is received by another division or department of the FacilityAgent, it may be treated as confidential to that division or department and theFacility Agent shall not be deemed to have notice of it.

### (c)                                      Notwithstandingany other provision of any Finance Document to the contrary, none of theFacility Agent and Mandated Lead Arrangers are obliged to disclose to any otherperson (i) any confidential information or (ii) any other information if thedisclosure would or might in its reasonable opinion constitute a breach of anylaw or a breach of a fiduciary duty.

## 29.13               **Relationship with the Lenders**

### (a)                                      TheFacility Agent may treat each Lender as a Lender, entitled to payments underthis Agreement and acting through its Facility Office unless it has receivednot less than five Business Days prior notice from that Lender to the contraryin accordance with the terms of this Agreement.

 

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### (b)                                     EachLender shall supply the Facility Agent with any information required by theFacility Agent in order to calculate the Mandatory Cost in accordance withSchedule 4 (*Mandatory Cost Formulae*).

## 29.14**               Credit appraisal bythe Finance Parties**

Without affectingthe responsibility of any Obligor for information supplied by it or on itsbehalf in connection with any Finance Document, each Finance Party confirms tothe Facility Agent, the Mandated Lead Arrangers, the Issuing Bank and eachAncillary Lender that it has been, and will continue to be, solely responsiblefor making its own independent appraisal and investigation of all risks arisingunder or in connection with any Finance Document including but not limited to:

### (a)                                      thefinancial condition, status and nature of each member of the Group;

### (b)                                     thelegality, validity, effectiveness, adequacy or enforceability of any FinanceDocument and any other agreement, arrangement or document entered into, made orexecuted in anticipation of, under or in connection with any Finance Document;

### (c)                                      whetherthat Finance Party has recourse, and the nature and extent of that recourse,against any Party or any of its respective assets under or in connection withany Finance Document the transactions contemplated by the Finance Documents orany other agreement, arrangement or document entered into, made or executed inanticipation of, under or in connection with any Finance Document;

### (d)                                     theadequacy, accuracy and/or completeness of the Information Memorandum, and anyother information provided by the Facility Agent, any other Party or by anyother person under or in connection with any Finance Document, the transactionscontemplated by the Finance Documents or any other agreement, arrangement ordocument entered into, made or executed in anticipation of, under or inconnection with any Finance Document.

## 29.15**               Reference Banks**

If a ReferenceBank (or, if a Reference Bank is not a Lender, the Lender of which it is anAffiliate) ceases to be a Lender, the Facility Agent shall (in consultationwith the Company) appoint another Lender or an Affiliate of a Lender (who wouldsatisfy the definition of “**Reference Bank**”)to replace that Reference Bank.

## 29.16**               Deduction fromamounts payable by the Agent**

If any Party owesan amount to the Facility Agent under the Finance Documents the Facility Agentmay, after giving notice to that Party, deduct an amount not exceeding thatamount from any payment to that Party which the Facility Agent would otherwisebe obliged to make under the Finance Documents and apply the amount deducted inor towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regardedas having received any amount so deducted.

 

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30.                           **CONDUCT OF BUSINESS BY THE FINANCE PARTIES**

No provision ofthis Agreement will:

(a)                                  interferewith the right of any Finance Party to arrange its affairs (tax or otherwise)in whatever manner it thinks fit (subject to its obligations under Clause 19 (*Mitigation by the Lenders*));

(b)                                 obligeany Finance Party to investigate or claim any credit, relief, remission orrepayment available to it or the extent, order and manner of any claim; or

(c)                                  obligeany Finance Party to disclose any information relating to its affairs (tax orotherwise) or any computations in respect of Tax.

# 31.**                           SHARINGAMONG THE FINANCE PARTIES**

## 31.1**                     Payments toFinance Parties**

If a Finance Party(a “**Recovering Finance Party**”)receives or recovers any amount from an Obligor other than in accordance withClause 32 (*Payment mechanics*) andapplies that amount to a payment due under the Finance Documents then:

### (a)                                      theRecovering Finance Party shall, within three Business Days, notify details ofthe receipt or recovery to the Facility Agent;

### (b)                                     theFacility Agent shall determine whether the receipt or recovery is in excess ofthe amount the Recovering Finance Party would have been paid had the receipt orrecovery been received or made by the Facility Agent and distributed in accordancewith Clause 32 (*Payment mechanics*),without taking account of any Tax which would be imposed on the Facility Agentin relation to the receipt, recovery or distribution; and

### (c)                                      theRecovering Finance Party shall, within three Business Days of demand by theFacility Agent, pay to the Facility Agent an amount (the “**SharingPayment**”) equal to such receipt or recovery less any amount whichthe Facility Agent determines may be retained by the Recovering Finance Partyas its share of any payment to be made, in accordance with Clause 32.5 (*Partial payments*).

## 31.2                     **Redistribution of payments**

The Facility Agentshall treat the Sharing Payment as if it had been paid by the relevant Obligorand distribute it between the Finance Parties (other than the RecoveringFinance Party) in accordance with Clause 32.5 (*Partialpayments*).

## 31.3**                     RecoveringFinance Party’s rights**

### (a)                                      Ona distribution by the Facility Agent under Clause 31 (*Sharing among the Financial Parties*), eachFinance Party which has shared in the redistribution shall assign to theRecovering Finance Party an amount equal to its share of the Sharing Payment.

 

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### (b)                                     Ifand to the extent that the Recovering Finance Party is not able to rely on itsrights under paragraph (a) above, the relevant Obligor shall be liable to theRecovering Finance Party for a debt equal to the Sharing Payment which isimmediately due and payable.

## 31.4                     **Reversal of redistribution**

If any part of theSharing Payment received or recovered by a Recovering Finance Party becomesrepayable and is repaid by that Recovering Finance Party, then:

### (a)                                      eachFinance Party which has received a share of the relevant Sharing Paymentpursuant to Clause 31.2 (*Redistribution ofpayments*) shall, upon request of the Facility Agent, pay to theFacility Agent for account of that Recovering Finance Party an amount equal toits share of the Sharing Payment (together with an amount as is necessary toreimburse that Recovering Finance Party for its proportion of any interest onthe Sharing Payment which that Recovering Finance Party is required to pay);and

### (b)                                     thatRecovering Finance Party’s rights of subrogation in respect of anyreimbursement shall be cancelled and the relevant Obligor will be liable to thereimbursing Finance Party for the amount so reimbursed.

## 31.5**                     Exceptions**

### (a)                                      ThisClause 31 shall not apply to the extent that the Recovering Finance Party wouldnot, after making any payment pursuant to this Clause 31.5, have a valid andenforceable claim against the relevant Obligor.

### (b)                                     ARecovering Finance Party is not obliged to share with any other Finance Partyany amount which the Recovering Finance Party has received or recovered as aresult of taking legal or arbitration proceedings, if:

#### (i)                        itnotified the other Finance Party of the legal or arbitration proceedings; and

#### (ii)                     the otherFinance Party had an opportunity to participate in those legal or arbitrationproceedings but did not do so as soon as reasonably practicable having receivednotice or did not take separate legal or arbitration proceedings.

## 31.6**                     CommitmentExchange following acceleration**

### (a)                                      Forthe purposes of this Clause 31.6 :

“**Commitment Exchange**” means the exchange ofthe Lenders’ interests in the Commitments as provided for in paragraph (b)below.

“**Dollar****Equivalent**”shall mean, at any time:

(a)                     with respectto any amount denominated in dollars, such amount; and

(b)                    with respectany amounts denominated in any currency other than dollars, the equivalentamount thereof in dollars as calculated by the

 

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Facility Agent at the Agent’s Spot Rate of Exchangefor the purchase of dollars with such currency.

“**Exchange Date**” shall mean the first dateafter the Closing Date on which there occurs:

(a)                                  anyevent or circumstance set out in Clauses 26.6 (*Insolvency*),26.7 (*Insolvency**proceedings*) or 26.8 (*Creditors’**process*); or

(b)                                 anyaction taken by the Facility Agent, or the Facility is automaticallyaccelerated  pursuant to  Clause 26.18 (*Acceleration*).

“**Commitment Adjustment Percentage**” shallmean, in relation to each Lender, a fraction, expressed as a decimal, of which:

(a)                                  thenumerator shall be the aggregate Dollar Equivalent of the Commitments of suchLender  immediately prior to the ExchangeDate; and

(b)                                 thedenominator shall be the Dollar Equivalent of the Total Commitments immediatelyprior to the Exchange Date.

(b)                                 Onthe Exchange Date, (i) the Lenders shall automatically and without further actbe deemed to have exchanged interests in the Facilities such that, in lieu ofthe interests of each Lender in each Facility in which it participates as ofsuch date, each Lender shall own an interest equal to such Lender’s CommitmentAdjustment Percentage in each of Facility A1, Facility A2 and the RevolvingFacility. Each of the Lenders agrees from time to time to execute and deliverto the  Facility Agent all TransferCertificates and documents as the Facility Agent shall reasonably request toevidence and confirm the respective interests and obligations of the Lendersafter giving effect to the Commitment Exchange, provided that the failure of anyLender to deliver any such transfer certificate or document shall not affectthe validity or effectiveness of the Commitment Exchange.

 

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**SECTION11ADMINISTRATION**

** **

**32.**                                 PAYMENT MECHANICS

**32.1**                           Payments to the FacilityAgent

(a)                                  Oneach date on which an Obligor or a Lender is required to make a payment under aFinance Document, that Obligor or Lender shall make the same available to theFacility Agent (unless a contrary indication appears in a Finance Document) forvalue on the due date at the time and in such funds specified by the FacilityAgent as being customary at the time for settlement of transactions in therelevant currency in the place of payment.

(b)                                 Paymentshall be made to such account in the principal financial centre of the countryof that currency (or, in relation to euro, in a principal financial centre in aParticipating Member State or London) with such bank as the Facility Agentspecifies.

**32.2**                           Distributions by theFacility Agent

Each payment received by the Facility Agent under theFinance Documents for another Party shall, subject to Clauses 32.3 (*Distributions to an Obligor*) and 32.4 (*Clawback*) below, be made available by theFacility Agent as soon as practicable after receipt to the Party entitled toreceive payment in accordance with this Agreement (in the case of a Lender, forthe account of its Facility Office), to such account as that Party may notifyto the Facility Agent by not less than five Business Days’ notice with a bankin the principal financial centre of the country of that currency (or, inrelation to euro, in the principal financial centre of a Participating MemberState or London).

**32.3**                           Distributions to an Obligor

The Facility Agent may (with the consent of theCompany or in accordance with Clause 33 (*SetOff*)) apply any amount received by it for that Obligor in or towardspayment (on the date and in the currency and funds of receipt) of any amountdue from that Obligor under the Finance Documents or in or towards purchase ofany amount of any currency to be so applied.

**32.4**                           Clawback

(a)                                  Wherea sum is to be paid to the Facility Agent under the Finance Documents foranother Party, the Facility Agent is not obliged to pay that sum to that otherParty (or to enter into or perform any related exchange contract) until it hasbeen able to establish to its satisfaction that it has actually received thatsum.

(b)                                 Ifthe Facility Agent pays an amount to another Party and it proves to be the casethat the Facility Agent had not actually received that amount, then the Partyto whom that amount (or the proceeds of any related exchange contract) was paidby the Facility Agent shall on demand refund the same to the Facility Agenttogether with interest on that amount from the date of payment

 

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to the date of receipt by the Facility Agent,calculated by the Facility Agent to reflect its cost of funds.

**32.5**                           Partial payments

(a)                                  Ifthe Facility Agent receives a payment that is insufficient to discharge all theamounts then due and payable by an Obligor under the Finance Documents, theFacility Agent shall apply that payment towards the obligations of that Obligorunder the Finance Documents in the following order:

(i)                                     **first**, in or towards payment *pro rata*of any unpaid fees, costs andexpenses of the Facility Agent, the Issuing Bank, the Mandated Lead Arrangersunder the Finance Documents;

(ii)                                  **second**, in or towards payment *pro rata*of any accrued interest, fee orcommission due but unpaid under this Agreement and the Ancillary Documents;

(iii)                               **third**, in or towards payment *pro rata*of any principal outstandings duebut unpaid under this Agreement and the Ancillary Documents and any amount duebut unpaid under Clause 7.3 (*Claims under aBank Guarantee*) and Clause 7.4 (*Indemnities*);and

(iv)                              **fourth**, in or towards payment *pro rata* of any other sum due but unpaidunder the Finance Documents.

(b)                                 TheFacility Agent shall, if so directed by the Majority Lenders, vary the orderset out in sub-paragraphs (a)(ii) to (iv) above.

(c)                                  Paragraphs(a) and (b) above will override any appropriation made by an Obligor.

**32.6**                           No set off by Obligors

All payments to be made by an Obligor under theFinance Documents shall be calculated and be made without (and free and clearof any deduction for) set off or counterclaim, except in respect of claims ofan Obligor which are either undisputed between the relevant Finance Parties andthat Obligor or which have become subject to a final court judgement.

**32.7**                           Business Days

(a)                                  Anypayment or reduction which is due to be made, or an Interest Period which wouldotherwise end, on a day that is not a Business Day shall be made or will end,as the case may be, on the next Business Day in the same calendar month (ifthere is one) or the preceding Business Day (if there is not).

(b)                                 Duringany extension of the due date for payment of any principal or an Unpaid Sumunder this Agreement interest is payable on the principal at the rate payableon the original due date.

 

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## 32.8**                     Currency ofaccount**

### (a)                                      Subjectto paragraphs (b) to (f) below, the Base Currency is the currency of account andpayment for any sum due from an Obligor under any Finance Document.

### (b)                                     Arepayment of a Utilisation or Unpaid Sum or a part of a Utilisation or UnpaidSum shall be made in the currency in which that Utilisation or Unpaid Sum isdenominated on its due date.

### (c)                                      Eachpayment in respect of a Bank Guarantee (including any cash cover in respect ofa Bank Guarantee) shall be made in the currency in which that Bank Guarantee isdenominated.

### (d)                                     Eachpayment of interest shall be made in the currency in which the sum in respectof which the interest is payable was denominated when that interest accrued.

### (e)                                      Eachpayment in respect of costs, expenses or Taxes shall be made in the currency inwhich the costs, expenses or Taxes are incurred.

### (f)                                        Anyamount expressed to be payable in a currency other than the Base Currency shallbe paid in that other currency.

## 32.9                     **Change of currency**

### (a)                                      Unlessotherwise prohibited by law, if more than one currency or currency unit are atthe same time recognised by the central bank of any country as the lawfulcurrency of that country, then:

#### (i)                        anyreference in the Finance Documents to, and any obligations arising under theFinance Documents in, the currency of that country shall be translated into, orpaid in, the currency or currency unit of that country designated by theFacility Agent (after consultation with the Company); and

#### (ii)                     anytranslation from one currency or currency unit to another shall be at theofficial rate of exchange recognised by the central bank for the conversion ofthat currency or currency unit into the other, rounded up or down by theFacility Agent (acting reasonably).

### (b)                                     Ifa change in any currency of a country occurs, this Agreement will, to theextent the Facility Agent (acting reasonably and after consultation with theCompany) specifies to be necessary, be amended to comply with any generallyaccepted conventions and market practice in the Relevant Interbank Market andotherwise to reflect the change in currency.

# 33.**                           SETOFF**

After theoccurrence of an Event of Default, a Finance Party may set off any maturedobligation due from an Obligor under the Finance Documents against anyobligation

 

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owed by thatFinance Party to that Obligor, regardless of the place of payment, bookingbranch or currency of either obligation. If the obligations are in different currencies, the Finance Party mayconvert either obligation at a market rate of exchange in its usual course ofbusiness for the purpose of the set off. That Finance Party shall promptly notify that Obligor of such set-off orconversion.

# 34.**                           NOTICES**

## 34.1**                     Communicationsin writing**

Any communicationto be made under or in connection with the Finance Documents shall be made inwriting and, unless otherwise stated, may be made by fax or letter.

## 34.2                     **Addresses**

The address andfax number (and the department or officer, if any, for whose attention thecommunication is to be made) of each Party for any communication or document tobe made or delivered under or in connection with the Finance Documents is:

### (a)                                      inthe case of an Original Obligor, that identified with its name below;

### (b)                                     inthe case of each Lender, the Issuing Bank , each Ancillary Lender or any otherObligor, that notified in writing to the Facility Agent on or prior to the dateon which it becomes a Party; and

### (c)                                      inthe case of the Facility Agent, that identified with its name below,

or any substituteaddress, fax number or department or officer as the Party may notify to theFacility Agent (or the Facility Agent may notify to the other Parties, if achange is made by the Facility Agent) by not less than five Business Days’notice.

## 34.3**                     Delivery**

### (a)                                      Anycommunication or document made or delivered by one person to another under orin connection with the Finance Documents will only be effective:

#### (i)                        if by wayof fax, when received in legible form; or

#### (ii)                     if by way ofletter, when it has been left at the relevant address or five Business Daysafter being deposited in the post postage prepaid in an envelope addressed toit at that address,

and, if a particulardepartment or officer is specified as part of its address details providedunder Clause 34.2 (*Addresses*), ifaddressed to that department or officer.

### (b)                                     Anycommunication or document to be made or delivered to the Facility Agent will beeffective only when actually received by the Facility Agent and then only if itis expressly marked for the attention of the department or officer identifiedwith the Facility Agent’s signature below (or any substitute department orofficer as the Facility Agent shall specify for this purpose).

 

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### (c)                                      Allnotices from or to an Obligor shall be sent through the Facility Agent.  The Company may make and/or deliver as agentof each Obligor notices and/or requests on behalf of each Obligor.

### (d)                                     Anycommunication or document made or delivered to the Company in accordance withthis Clause 34.3 will be deemed to have been made or delivered to each of theObligors.

## 34.4                     **Notification of address and fax number**

Promptly uponreceipt of notification of an address and fax number or change of address orfax number pursuant to Clause 34.2 (*Addresses*)or changing its own address or fax number, the Facility Agent shall notify theother Parties.

## 34.5**                     Electroniccommunication**

### (a)                                      Anycommunication to be made between the Facility Agent and a Lender under or inconnection with the Finance Documents may be made by electronic mail or otherelectronic means, if the Facility Agent and the relevant Lender:

#### (i)                        agreethat, unless and until notified to the contrary, this is to be an accepted formof communication;

#### (ii)                     notify eachother in writing of their electronic mail address and/or any other informationrequired to enable the sending and receipt of information by that means; and

#### (iii)                  notify eachother of any change to their address or any other such information supplied bythem.

### (b)                                     Anyelectronic communication made between the Facility Agent and a Lender will beeffective only when actually received in readable form and in the case of anyelectronic communication made by a Lender to the Facility Agent only if it isaddressed in such a manner as the Facility Agent shall specify for thispurpose.

## 34.6**                     Englishlanguage**

### (a)                                      Anynotice given under or in connection with any Finance Document must be inEnglish.

### (b)                                     Allother documents required to be provided under or in connection with any FinanceDocument must be:

#### (i)                        inEnglish; or

#### (ii)                     if not inEnglish, and if so required by the Facility Agent, accompanied by a certifiedEnglish translation and, in this case, the English translation will prevail unlessthe document is a constitutional, statutory or other official document.

 

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## 34.7**                     Use ofWebsites**

### (a)                                      AParty (other than a Finance Party) may satisfy its obligation under thisAgreement to deliver any information in relation to those Lenders (the “**Website Lenders**”) who accept this method of communication byposting this information onto an electronic website designated by the Companyand the Facility Agent (the “**Designated Website**”)if:

#### (i)                        theFacility Agent expressly agrees (after consultation with each of the Lenders)that it will accept communication of the information by this method;

#### (ii)                     both theCompany and the Facility Agent are aware of the address of and any relevantpassword specifications for the Designated Website; and

#### (iii)                  the informationis in a format previously agreed between the Company and the Facility Agent.

If any Lender (a “**Paper Form Lender**”) does not agree to thedelivery of information electronically then the Facility Agent shall notify theCompany accordingly and the Company shall supply the information to theFacility Agent (in sufficient copies for each Paper Form Lender) in paperform.  In any event the Company shallsupply the Facility Agent with at least one copy in paper form of any informationrequired to be provided by it.

### (b)                                     TheFacility Agent shall supply each Website Lender with the address of and anyrelevant password specifications for the Designated Website followingdesignation of that website by the Company and the Facility Agent.

### (c)                                      TheCompany shall promptly upon becoming aware of its occurrence notify theFacility Agent if:

#### (i)                        theDesignated Website cannot be accessed due to technical failure;

#### (ii)                     the passwordspecifications for the Designated Website change;

#### (iii)                  any newinformation which is required to be provided under this Agreement is postedonto the Designated Website;

#### (iv)                 any existinginformation which has been provided under this Agreement and posted onto theDesignated Website is amended; or

#### (v)                    the Companybecomes aware that the Designated Website or any information posted onto theDesignated Website is or has been infected by any electronic virus or similarsoftware.

If the Companynotifies the Facility Agent under sub-paragraphs (c)(i) or (c)(v) above, allinformation to be provided by the Company under this Agreement after the dateof that notice shall be supplied in paper form unless

 

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and until theFacility Agent and each Website Lender is satisfied that the circumstancesgiving rise to the notification are no longer continuing.

### (d)                                     AnyWebsite Lender may request, through the Facility Agent, one paper copy of anyinformation required to be provided under this Agreement which is posted ontothe Designated Website. The Company shall comply with any such request withinten Business Days.

# 35.**                           CALCULATIONSAND CERTIFICATES**

## 35.1**                     Accounts**

In any litigationor arbitration proceedings arising out of or in connection with a FinanceDocument, the entries made in the accounts maintained by a Finance Party areprima facie evidence of the matters to which they relate.

## 35.2**                     Certificatesand Determinations**

Any certificationor determination by a Finance Party of a rate or amount under any FinanceDocument and by a Issuing Bank as to the amount paid out by that Issuing Bankin respect of any Bank Guarantee is, in the absence of manifest error,conclusive evidence of the matters to which it relates.

## 35.3                     **Day count convention**

Any interest,commission or fee accruing under a Finance Document will accrue from day to dayand is calculated on the basis of the actual number of days elapsed and a yearof 360 days or, in any case where the practice in the Relevant Interbank Marketdiffers, in accordance with that market practice.

# 36.**                           PARTIALINVALIDITY**

If, at any time,any provision of the Finance Documents is or becomes illegal, invalid orunenforceable in any respect under any law of any jurisdiction, neither thelegality, validity or enforceability of the remaining provisions nor thelegality, validity or enforceability of such provision under the law of anyother jurisdiction will in any way be affected or impaired.  The illegal, invalid or unenforceableprovision shall be deemed replaced by such provision reflecting the samecommercial intent of the parties which provision shall be legal, valid andenforceable in the relevant jurisdiction.

# 37.**                           REMEDIESAND WAIVERS**

No failure toexercise, nor any delay in exercising, on the part of any Finance Party orFinance Party, any right or remedy under the Finance Documents shall operate asa waiver, nor shall any single or partial exercise of any right or remedyprevent any further or other exercise or the exercise of any other right orremedy.  The rights and remedies providedin this Agreement are cumulative and not exclusive of any rights or remediesprovided by law.

 

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# 38.**                           AMENDMENTSAND WAIVERS**

## 38.1**                     Requiredconsents**

### (a)                                      Subjectto Clause 38.2 (*Exceptions*) anyterm of the Finance Documents may be amended or waived only with the consent ofthe Majority Lenders (save that amendments in any Finance Document which aresolely required to give effect to an act or circumstance which is permitted bythe Finance Documents may be made by the Facility Agent without reference tothe Majority Lenders) and the Company and any such amendment or waiver will bebinding on all Parties.

### (b)                                     TheFacility Agent may effect, on behalf of any Finance Party, any amendment orwaiver permitted by this Clause 38.

### (c)                                      TheCompany may effect, as agent of each member of the Group, any amendment orwaiver permitted by this Clause 38.  Forthis purpose, the Company is released from the restrictions of Section 181 ofthe German Civil Code.

## 38.2                     **Exceptions**

### (a)                                      Anamendment or waiver that has the effect of changing or which relates to:

#### (i)                        the mannerin which the proceeds of enforcement of a guarantee are distributed to theLenders;

#### (ii)                     any provisionwhich expressly requires the consent of the Super-Majority Lenders;

#### (iii)                  a change to theGuarantors other than in accordance with Clause 28 (*Changes to the Obligors*);

#### (iv)                 a change to theBorrowers other than in accordance with Clause 28 (*Changes to the Obligors*);

shall not be madewithout the prior consent of the Super Majority Lenders.

### (b)                                     Anamendment or waiver that has the effect of changing or which relates to:

#### (i)                        anyextension to the date of payment of any amount under the Finance Documents dueto a Lender (other than in respect of prepayments of disposal proceeds underClause 11.9 (*Disposal Proceeds*)which shall require only the consent of the Majority Lenders;

#### (ii)                     any increasein, or an extension of, any Commitment of a Lender;

#### (iii)                  any addition ofany Commitment from a new Lender;

#### (iv)                 a reduction inthe Margin or a reduction in the amount of any payment of principal, interest,fees or commission payable to a Lender;

 

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#### (v)                    a change incurrency of payment of any amount under the Finance Documents,

shall not be madewithout the prior consent of the Majority Lender including all of the directlyaffected Lenders.

### (c)                                      Anamendment or waiver that has the effect of changing or which relates to:

#### (i)                        thedefinition of “**Majority Lenders**” or “**Super Majority Lenders**” in Clause 1.1 (*Definitions*);

#### (ii)                     Clause 2.4 (*Finance Parties Rights and Obligations*),Clause 27 (*Changes to the Lenders*)or this Clause 38; or

#### (iii)                  any provisionwhich expressly requires the consent of all the Lenders,

shall not be madewithout the prior consent of all the Lenders.

### (d)                                     Anamendment or waiver that has the effect of changing or which relates to theredenomination into another currency of any Commitment of a Lender shall not bemade without the prior consent of such Lender.

### (e)                                      Anyincrease in the Commitments by way of a person who is not a Lender as at thedate immediately prior to such increase agreeing to become a Lender shallrequire the consent of the Majority Lenders only.

### (f)                                        Anamendment or waiver which relates to the rights or obligations of the FacilityAgent, the Mandated Lead Arrangers, the Issuing Bank, or any Ancillary Lendermay not be effected without the consent of the Facility Agent, the MandatedLead Arrangers, the Issuing Bank or the Ancillary Lenders at such time.

## 38.3**                     DeemedResponse**

If a Lender doesnot respond to a request from the Company for an amendment or waiver to consentwithin 10 Business Days (or, upon the Facility Agent requesting, due to thecomplexity or materiality of the matters concerned, 15 Business Days or suchlonger period agreed by the Facility Agent and the Company) such Lender shallbe deemed to have voted in favour of the relevant request.

## 38.4**                     Replacementof Lender**

### (a)                                      Ifat any time:

#### (i)                        any Lenderbecomes a Non-Consenting Lender (as defined in paragraph (c) below); or

#### (ii)                     an Obligorbecomes obliged to repay any amount in accordance with Clause 11.1 (*Illegality of a Lender*) or to payadditional amounts pursuant to Clause 16.2 (*Taxgross-up*) or Clause 17 (*IncreasedCosts*) to any Lender in excess of amounts payable to the otherLenders generally,

 

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then the Companymay, on 5 Business Days prior written notice to the Facility Agent and suchLender, replace such Lender by requiring such Lender to (and such Lender shall)transfer pursuant to Clause 27 (*Changes tothe Lenders*) all (and not part only) of its rights and obligationsunder this Agreement to a Lender or other bank or financial institution (a “**Replacement Lender**”) selected by theCompany, and which is acceptable to the Facility Agent (acting reasonably) and(in the case of any transfer of a Revolving Commitment) the Issuing Bank, whichconfirms its willingness to assume and does assume all the obligations of thetransferring Lender (including the assumption of the transferring Lender’sparticipations on the same basis as the transferring Lender) for a purchaseprice in cash payable at the time of transfer equal to the outstandingprincipal amount of such Lender’s participation in the outstanding Loans and/orBank Guarantees and all accrued interest (and any breakage costs) and fees andother amounts payable thereunder.

### (b)                                     Thereplacement of a Lender pursuant to this Clause shall be subject to thefollowing conditions:

#### (i)                        theCompany shall have no right to replace the Facility Agent in its role as such;

#### (ii)                     neither theFacility Agent nor the Lender to be replaced under this Clause shall have anyobligation to the Company to find a Replacement Lender;

#### (iii)                  in the event ofa replacement of a Non-Consenting Lender such replacement must take place nolater than 90 days after the date the Non-Consenting Lender notified theCompany and the Facility Agent of its failure or refusal to agree to anyconsent, waiver or amendment to the Finance Documents requested by the Company;and

#### (iv)                 in no event shallthe Lender to be replaced under this Clause be required to pay or surrender tosuch Replacement Lender any of the fees received by such Lender pursuant to theFinance Documents.

### (c)                                      If:

#### (i)                        theCompany or the Facility Agent (at the request of the Company) has requested theLenders to consent to a waiver or amendment of any provisions of the FinanceDocuments;

#### (ii)                     the waiver oramendment in question requires the consent of all the Lenders or all theLenders in a particular Facility or the Super Majority Lenders; and

#### (iii)                  the MajorityLenders (or the Majority Lenders on the basis only of the particular Facilityconcerned) have consented to such waiver or amendment,

 

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then any Lenderwho does not and continues not to agree to such waiver or amendment shall bedeemed to be a “**Non-Consenting Lender**”.

# 39.**                           COUNTERPARTS**

Each FinanceDocument may be executed in any number of counterparts, and this has the sameeffect as if the signatures on the counterparts were on a single copy of theFinance Document.

# 40.**                           USAPATRIOT ACT**

Each Lender herebynotifies each Obligor that pursuant to the requirements of the USA Patriot Act,such Lender is required to obtain, verify and record information thatidentifies such Obligor, which information includes the name and address ofsuch Obligor and other information that will allow such Lender to identify suchObligor in accordance with the USA Patriot Act.

 

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**SECTION 12GOVERNING LAW AND ENFORCEMENT**

# 41.**                           GOVERNINGLAW**

This Agreement isgoverned by English law.

# 42.**                           ENFORCEMENT**

## 42.1**                     Jurisdictionof English Courts**

### (a)                                      Thecourts of England have exclusive jurisdiction to settle any dispute arising outof or in connection with this Agreement (including a dispute regarding theexistence, validity or termination of this Agreement) (a “**Dispute**”).

### (b)                                     TheParties agree that the courts of England are the most appropriate andconvenient courts to settle Disputes and accordingly no Party will argue to thecontrary.

### (c)                                      ThisClause 42.1 is for the benefit of the Finance Parties and Finance Partiesonly.  As a result, no Finance Party orFinance Party shall be prevented from taking proceedings relating to a Disputein any other courts with jurisdiction. To the extent allowed by law, the Finance Parties and Finance Partiesmay take concurrent proceedings in any number of jurisdictions.

## 42.2**                     Service ofprocess**

Without prejudiceto any other mode of service allowed under any relevant law, each Obligor(other than an Obligor incorporated in England):

### (a)                                      irrevocablyappoints Law Debenture Corporate Services Ltd. or such other person as suchObligor may notify to the Facility Agent as its agent for service of process inrelation to any proceedings before the English courts in connection with anyFinance Document; and

### (b)                                     agreesthat failure by a process agent to notify the relevant Obligor of the processwill not invalidate the proceedings concerned.

# 43.**                           WAIVEROF JURY TRIAL**

**EACHOF THE PARTIES TO THIS AGREEMENT AGREES TO WAIVE IRREVOCABLY ITS RIGHTS TO AJURY TRIAL OF ANY CLAIM BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OFTHE DOCUMENTS REFERRED TO IN THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED INTHIS AGREEMENT**.  Thiswaiver is intended to apply to all Disputes. Each party acknowledges that (a) this waiver is a material inducement toenter into this Agreement, (b) it has already relied on this waiver in enteringinto this Agreement and (c) it will continue to rely on this waiver in futuredealings.  Each party represents that ithas reviewed this waiver with its legal advisers and that it knowingly andvoluntarily waives its jury trial rights after consultation with its legaladvisers.  In the event of litigation,this Agreement may be filed as a written consent to a trial by the court.

 

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This Agreement hasbeen entered into on the date stated at the beginning of this Agreement.

 

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**SCHEDULE 1The Original Lender**

| Original Lender       | ** ** | **Facility A1  Commitment** | ** ** | **Facility A2  Commitment** | ** ** | **Revolving  Commitment** | ** ** |
|----------------------------|------------|----------------------------------|------------|----------------------------------|------------|---------------------------|------------|
| ** **                 | ** ** | ** **                       | ** ** | ** **                       | ** ** | ** **                | ** ** |
| ** **                 | ** ** | **USD**                          | ** ** | **Euro**                         | ** ** | **USD**                   | ** ** |
| ** **                 | ** ** | ** **                       | ** ** | ** **                       | ** ** | ** **                | ** ** |
| JPMorgan Chase  Bank, N.A. |       | 75,000,000                       |       | 137,500,000                      |       | 75,000,000                |       |
|                       |       |                             |       |                             |       |                      |       |
| UBS Limited                |       | 75,000,000                       |       | 137,500,000                      |       | 75,000,000                |       |
|                       |       |                             |       |                             |       |                      |       |
| **TOTAL**                  | ** ** | **150,000,000**                  | ** ** | **275,000,000**                  | ** ** | **150,000,000**           | ** ** |

 

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**SCHEDULE 2CONDITIONS PRECEDENT**

**Part IConditions Precedent to Delivery of a Utilisation Request**

1.                                 **Obligors**

(a)                                      Acopy of the constitutional documents of each party (other than a Finance Party)to a Finance Document, including for any company whose Relevant Jurisdiction isGermany officially certified, recent and up-to-date commercial registerextracts (*beglaubigter Handelsregisterauszug*)and articles of association or, in the case of partnerships, uncertified,recent and up-to-date partnership agreements.

(b)                                     Acopy of a resolution of the board of directors and/or shareholders resolutionof each party to a Finance Document (other than a Finance Party):

(i)                        approvingthe terms of, and the transactions contemplated by, the Finance Documents towhich it is a party and resolving that it execute the Finance Documents towhich it is a party;

(i)                        authorisinga specified person or persons to execute the Finance Documents to which it is aparty on its behalf; and

(ii)                     authorisinga specified person or persons, on its behalf, to sign and/or despatch alldocuments and notices (including, if relevant, any Utilisation Request andSelection Notice) to be signed and/or despatched by it under or in connectionwith the Finance Documents to which it is a party.

(c)                                      Aspecimen of the signature of each person authorised by the resolution referredto in paragraph (b) above in relation to the Finance Documents.

(d)                                     Acertificate of an authorised signatory of the relevant party certifying thateach copy document relating to it specified in this Part I of Schedule 2 iscorrect, complete and in full force and effect as at a date no earlier than thedate of this Agreement.

(e)                                      Acopy of a good standing certificate (including to the extent availableverification of franchise or similar tax status) with respect to each U.S.Obligor, issued as of a recent date by the Secretary of State or otherappropriate official of each U.S. Obligor’s jurisdiction of incorporation ororganisation.

2.                                 **Finance Documents**

(a)                                      ThisAgreement executed by the members of the Group party to this Agreement.

 

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(b)                                     TheFee Letters executed by the Company.

(c)                                      Acopy of the Funds Flow Statement.

3.                                 **Other Documents and Evidence**

(a)                                      Evidenceof compliance with all of the Facility Agent’s customary “know your customer”or similar checks under all applicable laws and regulations.

(b)                                     Acceptanceof service of process in relation to any proceedings before the English courtsin connection with any Finance Document.

(c)                                      TheStructure Memorandum in a form agreed by the Company and the Facility Agent(acting reasonably) and the reliance letter related thereto detailing theproposed movement of funds on and before the Closing Date.

(d)                                     TheBusiness Plan.

(e)                                      Acertificate of the Chief Financial Officer of each U.S. Obligor stating thatthe respective company is Solvent after giving effect to the initial Loans, theapplication of the proceeds of the Loans in accordance with Clause 3 and thepayment of all estimated legal, accounting and other fees related to thisAgreement and the consummation of the other transactions contemplated by thisAgreement.  For purposes of thiscertificate, “Solvent” means with respect to such U.S. Obligor on any date ofdetermination that (a) the fair value of the property of such person is greaterthan the total amount of liabilities (including contingent and unliquidatedliabilities) of such person; (b) the present fair saleable value of the assetsof such person is not less than the amount which will be required to pay theprobable liability of such person on its debts as they become absolute andmature; (c) such person does not intend to, and does not believe that it will,incur debts or liabilities beyond such person’s ability to pay as such debtsand liabilities mature; and (d) such person is not engaged in a business ortransaction, and is not about to engage in a business or transaction, for whichsuch person’s property would constitute unreasonably small capital.  In computing the amount of contingent orunliquidated liabilities at any time, such liabilities will be computed at theamount which, in light of all the facts and circumstances existing at suchtime, represents the amount that can reasonably be expected to become an actualand matured liability.

 

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**Part IA Conditions Precedent to Drawdown**

 

1.                                 **Finance Documents**

An executed copy of the Subordination Agreement.

2.                                 **Legal Opinions**

The followinglegal opinions, each addressed to the Facility Agent and the Lenders.

(a)                                      Alegal opinion of Clifford Chance LLP, legal advisers to the Mandated LeadArranger and the Facility Agent as to English law.

(b)                                     Alegal opinion of Clifford Chance Partnerschaftgesellschaft, legal advisers tothe Mandated Lead Arranger and the Facility Agent as to German law.

(c)                                      Alegal opinion of Kirkland and Ellis legal advisors to the Company as to US law.

3.                                 **Other Documents and Evidence**

(a)                                      Aletter addressed to the Company from the facility agents under the ExistingSenior Facility Agreement and the Existing Mezzanine Facility Agreementconfirming that any Financial Indebtedness outstanding under the ExistingSenior Facility Agreement and/or the Existing Mezzanine Facility Agreement willbe discharged in full immediately upon the Closing Date, it being understoodthat the signed version of such letter will be available on the date of thefirst Utilisation and immediately prior thereto, but will be held in escrowuntil the Closing Date has occurred.

(b)                                     Evidenceof payment of fees, costs and expenses (to be deducted from drawdown, subjectto delivery and agreement being reach in relation to invoices for costs andexpenses).

(c)                                      Deliveryof a Utilisation Request.

 

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**Part IIConditions Precedent required to be delivered by an Additional Obligor**

1.                                 AnAccession Letter executed by the Additional Obligor and the Company.

2.                                 Acopy of the constitutional documents of the Additional Obligor.

4.                                 Acopy of a good standing certificate (including to the extent availableverification of franchise or similar tax status) with respect to eachAdditional Obligor whose jurisdiction of organization is a state of the U.S. orthe District of Columbia, issued as of a recent date by the Secretary of Stateor other appropriate official of such Additional Obligor’s jurisdiction ofincorporation or organisation.

3.                                 Acopy of a resolution of the board of directors and/or shareholders of theAdditional Obligor:

(a)                                      approvingthe terms of, and the transactions contemplated by, the Accession Letter andthe Finance Documents and resolving that it execute the Accession Letter andany other Finance Document to which it is a party;

(b)                                     authorisinga specified person or persons to execute the Accession Letter and other FinanceDocuments on its behalf; and

(c)                                      authorisinga specified person or persons, on its behalf, to sign and/or despatch all otherdocuments and notices (including, in relation to an Additional Borrower, anyUtilisation Request or Selection Notice) to be signed and/or despatched by itunder or in connection with the Finance Documents to which it is a party; and

(d)                                     authorisingthe Company to act as its agent in connection with the Finance Documents.

5.                                 Aspecimen of the signature of each person authorised by the resolution referredto in paragraph 3 above.

6.                                 Withrespect to any Additional Obligor whose Relevant Jurisdiction is not Germany, acertificate of the Additional Obligor (signed by a director or other authorisedsignatory) confirming that borrowing or guaranteeing or securing, asappropriate, the Total Commitments would not cause any borrowing, guarantee,security or similar limit binding on it to be exceeded.

7.                                 Acertificate of an authorised signatory of the Additional Obligor certifyingthat each copy document listed in this Part II of Schedule 2 is correct,complete and in full force and effect as at a date no earlier than the date ofthe Accession Letter.

8.                                 Thelatest financial statements of the Additional Obligor, audited, if available.

9.                                 Thefollowing legal opinions on the Accession Letter, each addressed to theFacility Agent and the Lenders:

 

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(a)                                      Alegal opinion of the legal advisers to the Facility Agent in England, as toEnglish law in the form distributed to the Facility Agent prior to signing theAccession Letter.

(b)                                     Ifthe Additional Obligor is incorporated in a jurisdiction other than England orexecuting a Finance Document which is governed by a law other than English law,a legal opinion of the legal advisers to the Facility Agent in the jurisdictionof incorporation of that Additional Obligor or, as the case may be, thejurisdiction of the governing law of that Finance Document (the “**Relevant Jurisdiction**”) as to the law ofthe Relevant Jurisdiction and in the form distributed to the Facility Agentprior to signing the Accession Letter.

(c)                                      Alegal opinion of [•], legal advisers to the Additional Obligor on matters ofU.S. law, substantially in the form distributed to the Lenders prior to signingthe Accession Letter.

10.                           If theproposed Additional Obligor is incorporated in a jurisdiction other thanEngland, evidence that the process agent specified in Clause 42.2 (*Service of process*), if not the Company,has accepted its appointment in relation to the proposed Additional Obligor.

11.                           Anaccession memorandum to the Subordination Agreement executed by the AdditionalObligor.

12.

(a)                                      Ifthe Additional Obligor is incorporated in England and Wales or Scotland:

(i)                        Eithera letter from the Company to the Facility Agent (attaching supporting evidencefrom the Company’s English Solicitors) confirming that the Additional Obligoris not prohibited by Section 151 of the Companies Act 1985 from entering intothe Finance Documents; and/or

(ii)                     evidencethat the Additional Obligor has done all that is necessary (including, withoutlimitation, by re registering as a private company) to follow the proceduresset out in Sections 151 to 158 of the Companies Act 1985 in order to enablethat Additional Obligor to enter into the Finance Documents and perform itsobligations under the Finance Documents. The following documentary evidence shall be supplied: a copy of thestatutory declarations and annexed auditors reports, board resolutions,shareholders resolutions (if applicable), a certificate of that AdditionalObligor listing all directors at the time the statutory declarations are madeand a non statutory comfort letter from its auditors regarding its net assetposition.  The copy documents shall becertified by an authorised signatory of the Additional Obligor as correct,complete and in full force and effect at a date no earlier than the date of theAccession Letter.

(b)                                     Ifthe Additional Obligor is not incorporated in any country other England andWales, such documentary evidence as legal counsel to the Facility Agent may

 

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require, that suchAdditional Obligor has complied with any law in its jurisdiction relating tofinancial assistance or analogous process.

13.                           A copyof any other Authorisation or other document, opinion or assurance which theFacility Agent considers to be necessary in connection with the entry into andperformance of the transactions contemplated by the Accession Letter and eachFinance Document to which the Additional Obligor is a party or for the validityand enforceability of any Finance Document created or intended to be created bythe Additional Obligor.

14.                           Acertificate of the Chief Financial Officer of each Additional Obligor whosejurisdiction of organisation is a state of the U.S. or the District of Columbiastating that the respective company is Solvent after giving effect to theinitial Loans, the application of the proceeds of the Loans in accordance withClause 3 and the payment of all estimated legal, accounting and other feesrelated to this Agreement and the consummation of the other transactionscontemplated by this Agreement.  Forpurposes of this certificate, “**Solvent**”means with respect to such Additional Obligor on any date of determination that(a) the fair value of the property of such person is greater than the totalamount of liabilities (including contingent and unliquidated liabilities) ofsuch person; (b) the present fair saleable value of the assets of such personis not less than the amount which will be required to pay the probablyliability of such person on its debts as they become absolute and mature; (c)such person does not intend to, and does not believe that it will, incur debtsor liabilities beyond such person’s ability to pay as such debts and liabilitiesmature; and (d) such person is not engaged in a business or transaction, and isnot about to engage in a business or transaction, for which such person’sproperty would constitute unreasonably small capital.  In computing the amount of contingent or unliquidatedliabilities at any time, such liabilities will be computed at the amount which,in light of all the facts and circumstances existing at such time, representsthe amount that can reasonably be expected to become an actual and maturedliability.

 

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**SCHEDULE 3REQUESTS**

**Part IAUtilisation RequestLoans**

From:      [*Borrower*]

To:          [*FacilityAgent*]

Dated:

Dear Sirs

**[Company] — [•] Senior FacilitiesAgreementdated [•] (the “Facilities Agreement”)**

1.                                 [Wewish a Loan to be made on the following terms:
|   | (a)    | Borrower:                  | [•]                                                             |
|--------|--------|----------------------------|----------------------------------------------------------------------|
|   |   |                       |                                                                 |
|   | (b)    | Proposed Utilisation Date: | [•] (or, if that is not a Business Day, the next  Business Day) |
|   |   |                       |                                                                 |
|   | (c)    | Facility to be utilised:   | [Facility A1]/[Facility A2] [Revolving Facility]]                    |
|   |   |                       |                                                                 |
|   | (d)    | Currency of Loan:          | [•]                                                             |
|   |   |                       |                                                                 |
|   | (e)    | Amount:                    | [•] or, if less, the Available Facility:                        |
|   |   |                       |                                                                 |
|   | (f)    | Interest Period:           | [•]                                                             |

 

2.                                 Weconfirm on behalf of each Obligor and the Company that each condition specifiedin Clause 4.2 (*Further Conditions Precedent*)[in conjunction with Clause 4.3 (*CertainFunds*)] * is satisfied on the date of this Utilisation Request.

3.                                 [Theproceeds of this Loan should be credited to [account]].

4.                                 ThisUtilisation Request is irrevocable.

5.                                 Termsused in this Request which are not defined in this Request but are defined inthe Facilities Agreement shall have the meaning given to those terms in theFacilities Agreement.

Yours faithfully

.......................................

[*insert name ofBorrower*]

*              To be used for first Utilisation

 

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**Part IBUtilisation RequestBank Guarantees**

From:      [*Borrower*]

To:          [*FacilityAgent*]

Dated:

Dear Sirs

**[Company]   [•] Senior Facilities Agreement**

**dated [•] (the “FacilitiesAgreement”)**

1.                                 Wewish to arrange for a Bank Guarantee to be [issued]/[renewed] by the IssuingBank on the following terms:
|   | (a)    | Borrower:                   | [•]                                                                             |
|--------|--------|-----------------------------|--------------------------------------------------------------------------------------|
|   |   |                        |                                                                                 |
|   | (b)    | Proposed Utilisation Date:  | [•] (or, if that is not a Business Day, the next  Business Day)                 |
|   |   |                        |                                                                                 |
|   | (c)    | Facility to be utilised:    | Revolving Facility                                                                   |
|   |   |                        |                                                                                 |
|   | (d)    | Currency of Bank Guarantee: | [•]                                                                             |
|   |   |                        |                                                                                 |
|   | (e)    | Amount:                     | [•] or, if less, the Available Facility in relation  to the Revolving Facility: |
|   |   |                        |                                                                                 |
|   | (f)    | Expiry Date                 | [•]                                                                             |
|   |   |                        |                                                                                 |
|   | (g)    | Term:                       | [•]                                                                             |

 

2.                                 Weconfirm that each condition specified in paragraph (c) of Clause 6.5 (*Issue of Bank Guarantees*) is satisfied onthe date of this Utilisation Request.

3.                                 Weattach a copy of the proposed Bank Guarantee.

4.                                 ThisUtilisation Request is irrevocable.

5.                                 Termsused in this Request which are not defined in this Request but are defined inthe Facilities Agreement shall have the meaning given to those terms in theFacilities Agreement.

....................................

authorised signatory for

[*insert name ofRelevant Borrower*]

 

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**Part IISelection NoticeApplicable to a Term Loan**

From:      [*Borrower*]

To:          [*FacilityAgent*]

Dated:

Dear Sirs

**[Company]   [•] Senior Facilities Agreement**

**dated [•] (the “FacilitiesAgreement”)**

1.                                 Werefer to the following Facility [A1]/[A2] Loan[s] with an Interest Periodending on [         ].

2.                                 [Werequest that the above Facility A1 Loan[s] be divided into [•] Facility A1Loans with the following Base Currency Amounts and Interest Periods:]

*or*

[We request thatthe above Facility A2 Loan[s] be divided into [•] Facility A2 Loans with thefollowing Base Currency Amounts and Interest Periods:]

*or*

[We request thatthe next Interest Period for the above Facility [A1]/[A2] Loan[s] is[       ]].

3.                                 ThisSelection Notice is irrevocable.

4.                                 Termsused in this Selection Notice which are not defined in this Selection Noticebut are defined in the Facilities Agreement shall have the meaning given to thoseterms in the Facilities Agreement.

Yours faithfully

.....................................

authorised signatory for

[*insert name of Relevant Borrower*]

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**SCHEDULE4MANDATORY COST FORMULAE**

1.                                 TheMandatory Cost is an addition to the interest rate to compensate Lenders forthe cost of compliance with (a) the requirements of the Bank of England and/orthe Financial Services Authority (or, in either case, any other authority whichreplaces all or any of its functions) or (b) the requirements of the EuropeanCentral Bank.

2.                                 Onthe first day of each Interest Period (or as soon as possible thereafter) theFacility Agent shall calculate, as a percentage rate, a rate (the “**Additional Cost Rate**”) for each Lender, inaccordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Facility Agent as aweighted average of the Lenders’ Additional Cost Rates (weighted in proportionto the percentage participation of each Lender in the relevant Loan) and willbe expressed as a percentage rate per annum.

3.                                 TheAdditional Cost Rate for any Lender lending from a Facility Office in aParticipating Member State will be the percentage notified by that Lender tothe Facility Agent.  This percentage willbe certified by that Lender in its notice to the Facility Agent to be itsreasonable determination of the cost (expressed as a percentage of that Lender’sparticipation in all Loans made from that Facility Office) of complying withthe minimum reserve requirements of the European Central Bank in respect ofloans made from that Facility Office.

4.                                 TheAdditional Cost Rate for any Lender lending from a Facility Office in theUnited Kingdom will be calculated by the Facility Agent as follows:

(a)                                      inrelation to a sterling Loan:

| AB + C(B-D) + E*** ́  *0.01 |  per cent. per annum |
|--------------------------------------|---------------------------|
| 100-(A +  C)                         |

 

(b)                                     inrelation to a Loan in any currency other than sterling:

| E*** ́  *0.01 |  per cent. per annum |
|------------------------|---------------------------|
| 300                    |

 

Where:

A                               isthe percentage of Eligible Liabilities (assuming these to be in excess of anystated minimum) which that Lender is from time to time required to maintain asan interest free cash ratio deposit with the Bank of England to comply withcash ratio requirements.

B                                 isthe percentage rate of interest (excluding the Margin and the Mandatory Costand, if the Loan is an Unpaid Sum, the additional rate of interest specified inClause 12.4 (*Default interest*))payable for the relevant Interest Period on the Loan.

 

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C                                 isthe percentage (if any) of Eligible Liabilities which that Lender is requiredfrom time to time to maintain as interest bearing Special Deposits with theBank of England.

D                                isthe percentage rate per annum payable by the Bank of England to the FacilityAgent on interest bearing Special Deposits.

E                                  isdesigned to compensate Lenders for amounts payable under the Fees Rules and iscalculated by the Facility Agent as being the average of the most recent ratesof charge supplied by the Reference Banks to the Facility Agent pursuant toparagraph 7 below and expressed in pounds per £1,000,000.

5.                                 Forthe purposes of this Schedule:

(a)                                      “**Eligible Liabilities**” and “**Special Deposits**” have the meanings givento them from time to time under or pursuant to the Bank of England Act 1998 or(as may be appropriate) by the Bank of England;

(b)                                     “**Fees Rules**” means the rules on periodicfees contained in the FSA Supervision Manual or such other law or regulation asmay be in force from time to time in respect of the payment of fees for theacceptance of deposits;

(c)                                      “**Fee Tariffs**” means the fee tariffsspecified in the Fees Rules under the activity group A.1 Deposit acceptors(ignoring any minimum fee or zero rated fee required pursuant to the Fees Rulesbut taking into account any applicable discount rate); and

(d)                                     “**Tariff Base**” has the meaning given to itin, and will be calculated in accordance with, the Fees Rules.

6.                                 Inapplication of the above formulae, A, B, C and D will be included in theformulae as percentages (i.e. 5 per cent. will be included in the formula as 5and not as 0.05).  A negative resultobtained by subtracting D from B shall be taken as zero.  The resulting figures shall be rounded tofour decimal places.

7.                                 Ifrequested by the Facility Agent, each Reference Bank shall, as soon aspracticable after publication by the Financial Services Authority, supply tothe Facility Agent, the rate of charge payable by that Reference Bank to theFinancial Services Authority pursuant to the Fees Rules in respect of therelevant financial year of the Financial Services Authority (calculated forthis purpose by that Reference Bank as being the average of the Fee Tariffsapplicable to that Reference Bank for that financial year) and expressed inpounds per £1,000,000 of the Tariff Base of that Reference Bank.

8.                                 EachLender shall supply any information required by the Facility Agent for thepurpose of calculating its Additional Cost Rate.  In particular, but without limitation, eachLender shall supply the following information on or prior to the date on whichit becomes a Lender:

(a)                                      thejurisdiction of its Facility Office; and

 

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(b)                                     anyother information that the Facility Agent may reasonably require for suchpurpose.

Each Lender shallpromptly notify the Facility Agent of any change to the information provided byit pursuant to this paragraph.

9.                                 Thepercentages of each Lender for the purpose of A and C above and the rates ofcharge of each Reference Bank for the purpose of E above shall be determined bythe Facility Agent based upon the information supplied to it pursuant toparagraphs 7 and 8 above and on the assumption that, unless a Lender notifiesthe Facility Agent to the contrary, each Lender’s obligations in relation tocash ratio deposits and Special Deposits are the same as those of a typicalbank from its jurisdiction of incorporation with a Facility Office in the samejurisdiction as its Facility Office.

10.                           TheFacility Agent shall have no liability to any person if such determinationresults in an Additional Cost Rate which over or under compensates any Lenderand shall be entitled to assume that the information provided by any Lender orReference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct inall respects.

11.                           TheFacility Agent shall distribute the additional amounts received as a result ofthe Mandatory Cost to the Lenders on the basis of the Additional Cost Rate foreach Lender based on the information provided by each Lender and each ReferenceBank pursuant to paragraphs 3, 7 and 8 above.

12.                           Anydetermination by the Facility Agent pursuant to this Schedule in relation to aformula, the Mandatory Cost, an Additional Cost Rate or any amount payable to aLender shall, in the absence of manifest error, be conclusive and binding onall Parties.

13.                           TheFacility Agent may from time to time, after consultation with the Company andthe Lenders, determine and notify to all Parties any amendments which are requiredto be made to this Schedule in order to comply with any change in law,regulation or any requirements from time to time imposed by the Bank ofEngland, the Financial Services Authority or the European Central Bank (or, inany case, any other authority which replaces all or any of its functions) andany such determination shall, in the absence of manifest error, be conclusiveand binding on all Parties.

 

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**SCHEDULE5FORM OF TRANSFER CERTIFICATE**

To:        [•] as Facility Agent

From:            [The Existing Lender] (the “**Existing Lender**”) and [The New Lender] (the“**New Lender**”)

Dated:

**[Company]— [•] Senior Facilities Agreementdated [•] (the “Facilities Agreement”)**

1.                                 Werefer to Clause 27.5 (*Procedure for transfer*):

(a)                                      TheExisting Lender and the New Lender agree to the Existing Lender transferring tothe New Lender by assignment and transfer by novation all or part of theExisting Lender’s Commitment, rights and obligations referred to in theSchedule in accordance with Clause 27.5 (*Procedurefor transfer*).

(b)                                     Theproposed Transfer Date is[           ].

(c)                                      TheFacility Office and address, fax number and attention details for notices ofthe New Lender for the purposes of Clause 34.2 (*Addresses*) are set out in the Schedule.

2.                                 TheNew Lender expressly acknowledges the limitations on the Existing Lender’sobligations set out in paragraph (c) of Clause 27.4 (*Limitation of responsibility of Existing Lenders*).

3.                                 ThisTransfer Certificate is governed by English law.

4.                                 Termswhich are used in this Transfer Certificate which are not defined in thisTransfer Certificate but are defined in the Facilities Agreement shall have themeaning given to those terms in the Facilities Agreement.

 

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**THESCHEDULE**

**Commitment/rightsand obligations to be transferred**

[*insert relevant details*]

[*Facility Office address, fax number and attentiondetails for notices and account details for payments,*]
| [Existing Lender] | [New Lender] |
|-------------------|--------------|
|              |         |
| By:               | By:          |

 

This Transfer Certificateis accepted by the Facility Agent and the Transfer Date is confirmed as[           ].

[Facility Agent]

By:

 

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**SCHEDULE6FORM OF ACCESSION LETTER**

To:        [•]as Facility Agent

From:    [*Subsidiary*]and [*the Company*]

Dated:

Dear Sirs

**[Company]— [•] Senior Facilities Agreementdated [•] (the “Facilities Agreement”)**

1.                                 [*Subsidiary*] agrees to become an Additional[Borrower]/[Guarantor] and to be bound by the terms of the FacilitiesAgreement, the Subordination Agreement and the other Finance Documents as anAdditional [Borrower]/[Guarantor] pursuant to Clause [28.2 (*Additional Borrowers*)]/[Clause 28.4 (*Guarantors*)] of the Facility Agreement[and as an [Obligor] pursuant to clause [•] of the Subordination Agreement]. [*Subsidiary*] is a company duly incorporatedunder the laws of [*name of relevantjurisdiction*] and is a limited liability company and registerednumber [•].

2.                                 [*Subsidiary’s*] administrative details areas follows:

Address:

Fax No.:

Attention:

3.                                 [TheCompany confirms that no Default is continuing or would occur as a result of a[Subsidiary] becoming an additional Borrower.]*

4.                                 [Subsidiaryconfirms that the representations and warranties referred to in Clause 22 (*Representations*) are true and correct.]**

5.                                 Thisletter is governed by English law.

6.                                 Termswhich are used in this Accession Letter which are not defined in this AccessionLetter but are defined in the Facilities Agreement shall have the meaning givento those terms in the Facilities Agreement.

[Company]        [Subsidiary]

NOTES:

*            Insert if Accession Letter is for an Additional Borrower.

**         Insert if Accession Letter is from a Guarantor.

 

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**SCHEDULE 7FORM OF RESIGNATION LETTER**

To:        [•] as Facility Agent

From:    [*resigningObligor*] and [Company]

Dated:

Dear Sirs

**[Company]   [•] Senior Facilities Agreementdated [•] (the “Facilities Agreement”)**

1.                                 Pursuantto [Clause 28.3 (*Resignation of an Obligor*)],we request that [resigning Obligor] be released from its obligations as a[Borrower]/[Guarantor] under the Facilities Agreement, the SubordinationAgreement and the Finance Documents.

2.                                 Weconfirm that:

(a)                                      noDefault is continuing or would result from the acceptance of this request; and

(b)                                     [thisrequest is given in relation to a disposal of [*resigningObligor*];]

(c)                                      [theDisposal Proceeds have been or will be applied in accordance with Clause 11.9 (*Disposal proceeds*);]

(d)                                     [•]

3.                                 Thisletter is governed by English law.

4.                                 Termswhich are used in this resignation letter which are not defined in this letterbut are defined in the Facilities Agreement shall have the meaning given tothose terms in the Facilities Agreement.

5.                                 TheCompany agrees to indemnify the Finance Parties for any costs, expenses, orliabilities which would have been payable by [*resigningObligor*] in connection with the Finance Documents but for therelease set out in paragraph 1 above.

| [Company] | *[resigning Obligor]* |
|-----------|-----------------------|
|      | * *              |
| By:       | By:                   |

 

NOTES:

*                                   Amendas appropriate, e.g. to reflect agreed procedure for payment of proceeds into aspecified account.

**         Insert any other conditions required by the FacilitiesAgreement.

 

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**SCHEDULE8FORM OF COMPLIANCE CERTIFICATE**

To:        [•] as Facility Agent

From:    [Company]

Dated:

Dear Sirs

**[Company]   [•] Senior Facilities Agreementdated [•] (the “Facilities Agreement”)**

1.                                 Werefer to the Facilities Agreement.  Thisis a Compliance Certificate.

2.                                 Weconfirm that:

(a)                                      inrespect of the Relevant Period ending on [•] Consolidated Total Net Debt forsuch Relevant Period was [•] and Consolidated Adjusted EBITDA for such RelevantPeriod on [•].  Therefore ConsolidatedTotal Net Debt for such Relevant Period was [•] times Consolidated AdjustedEBITDA for such Relevant Period and the covenant contained in paragraph (a) ofClause 24.2 (*Financial condition*)[has/has not] been complied with;

(b)                                     Onthe last day of the Relevant Period ending on [•] Cash Interest Costs was [•]and Consolidated Adjusted EBITDA for such Relevant Period was [•]. ThereforeCash Interest Costs at such time [did/did not] exceed [•] times ConsolidatedAdjusted EBITDA for such Relevant Period and the covenant contained inparagraph (b) of Clause 24.2 (*FinancialCondition*) [has/has not] been complied with;

(c)                                      Onthe last day of the Relevant Period ending on [•] Consolidated Total Net Debtwas [•] and Consolidated Adjusted EBITDA for such Relevant Period was [•].  Therefore Consolidated Total Net Debt at thattime was [greater than or equal to [•] times Consolidated Adjusted EBITDA forsuch Relevant Period]/[less than [•] times Consolidated Adjusted EBITDA forsuch Relevant Period but greater than or equal to [•] times ConsolidatedAdjusted EBITDA for such Relevant Period]/[less than [•] times ConsolidatedAdjusted EBITDA for such Relevant Period]

and accordinglythe Margin will be:

Facility A1Margin:                          [•] %p.a.

Facility A2Margin:                          [•] %p.a.

Revolving FacilityMargin:             [•] % p.a.

3.                                 [Weconfirm that no Default is continuing.]*

 

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4.                                 [Weconfirm that the following companies constitute Material Subsidiaries for thepurposes of the Facility Agreement: [•].]

[We confirm that the[aggregate of the earnings before interest, tax, depreciation and amortisation(calculated on the same basis as Consolidated Adjusted EBITDA) of theGuarantors,]/[the aggregate Gross Assets (including (by reference to the Group’sreporting requirements under the Facilities Agreement), restricted short terminvestments, accounts receivable, net inventories, prepaid expenses and othernon-current assets (but not intangible assets))] of the Guarantors (in eachcase calculated on an unconsolidated basis and excluding all intra group items)represents not less than [•] per cent of [Consolidated AdjustedEBITDA,]/[consolidated Gross Assets of the Group].

| Signed | . . . . . . . . . . . . . . . . . . . . . . . |  . . . . . . . . . . . . . . . . . . . . . . . . . . |
|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                        |                                                                                                                                                                                   |
|   | Director                                                                                                                                                    | Director                                                                                                                                                                               |
|   |                                                                                                                                                        |                                                                                                                                                                                   |
|   | of                                                                                                                                                          | of                                                                                                                                                                                     |
|   |                                                                                                                                                        |                                                                                                                                                                                   |
|   | [Company]                                                                                                                                                   | [Company]                                                                                                                                                                              |

 

NOTES:

----

*                    Ifthis statement cannot be made, the certificate should identify any Default thatis continuing and the steps, if any, being taken to remedy it.

 

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**SCHEDULE9TIMETABLES**

**Part ILoans**
| ** **                                                                                                                                                                        | ** ** | **Loans in euro** | ** ** | **Loans in dollars** | ** ** | **Loans in other  currencies** |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-------------------|------------|----------------------|------------|--------------------------------|
|                                                                                                                                                                              |       |              |       |                 |       |                           |
| Facility Agent notifies the Company if a currency is  approved as an Optional Currency in accordance with Clause 4.4 (Conditions relating to Optional Currencies)                 |       |              |       |                 |       | U 4                            |
|                                                                                                                                                                              |       |              |       |                 |       |                           |
| Delivery of a duly completed Utilisation Request  (Clause 5.1 (Delivery of a  Utilisation Request)) or a Selection Notice (Clause 13.1 (Selection of Interest Periods and Terms)) |       | U 3  9.30am       |       | U 3  9.30am          |       | U 3  9.30am                    |
|                                                                                                                                                                              |       |              |       |                 |       |                           |
| Facility Agent determines (in relation to a  Utilisation) the Base Currency Amount of the Loan, if required under Clause  5.4 (Lenders’ participation)                       |       | U 3  Noon         |       | U 3  noon            |       | U 3  noon                      |
|                                                                                                                                                                              |       |              |       |                 |       |                           |
| Facility Agent notifies the Lenders of the Loan in  accordance with Clause 5.4 (Lenders’  participation)                                                                     |       | U 3  3.00pm       |       | U 3  3.00pm          |       | U 3  3.00pm                    |
|                                                                                                                                                                              |       |              |       |                 |       |                           |
| Facility Agent receives a notification from a Lender  under Clause 8.2 (Unavailability of  a currency)                                                                            |       | U 3  5.00pm       |       | U 3  5.00pm          |       | U 3  5.00pm                    |
|                                                                                                                                                                              |       |              |       |                 |       |                           |
| Facility Agent gives notice in accordance with  Clause 8.2 (Unavailability of a  currency)                                                                                        |       | U 2  9.30am       |       | U 2  9.30am          |       | U 2  9.30am                    |
|                                                                                                                                                                              |       |              |       |                 |       |                           |

 

 

 

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| ** **                                                                                                             | ** ** | **Loans in euro**                                              | ** ** | **Loans in dollars**           | ** ** | **Loans in other  currencies** |
|------------------------------------------------------------------------------------------------------------------------|------------|----------------------------------------------------------------|------------|--------------------------------|------------|--------------------------------|
|                                                                                                                   |       |                                                           |       |                           |       |                           |
| Facility Agent determines amount of the Loan in  Optional Currency in accordance with Clause 32.9 (Change of currency) |       | U 3  11.00am                                                   |       | U 3  11.00am                   |       | U 3  11.00am                   |
|                                                                                                                   |       |                                                           |       |                           |       |                           |
| LIBOR or EURIBOR is fixed                                                                                              |       | Quotation Day as of 11:00 Brussels time in respect  of EURIBOR |       | Quotation Day as of 11:00 a.m. |       | Quotation Day as of 11:00 a.m. |

 

“**U**”       =            date of utilisation

“**U   X**” =            XBusiness Days prior to date of utilisation

 

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**Part IIBank Guarantees**
| ** **                                                                                                                                                                                                                                                                                                                      | ** ** | **Bank  Guarantees** |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|----------------------|
| Delivery of a duly completed Utilisation Request  (Clause 6.2 (Delivery of a  Utilisation Request for Bank Guarantees)                                                                                                                                                                                                          |       | U 3 9.30am           |
| Facility Agent determines (in relation to a Utilisation)  the Base Currency Amount of the Bank Guarantee if required under paragraph  (e) of Clause 6.5 (Issue of Bank  Guarantees) and notifies the Issuing Bank and Lenders of the Bank  Guarantee in accordance with paragraph (e) of Clause 6.5 (Issue of Bank Guarantees). |       | U 1 noon             |

 

“**U**”       =            date of utilisation

“**U X**”   =            Business Days prior to date ofutilisation

 

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**SCHEDULE10FORM OF LETTER OF CREDIT**

To:        [*Beneficiary*](the“**Beneficiary**”)

Date

**IrrevocableStandby Letter of Credit no. [•]**

At the request of [•], [*Issuing Bank*] (the “**Issuing Bank**”) issues this irrevocablestandby Letter of Credit (“**Letter of Credit**”)in your favour on the following terms and conditions:

1.                                 **Definitions**

In this Letter of Credit:

“**Business Day**” means a day (other than aSaturday or a Sunday) on which banks are open for general business in[London].*

“**Demand**” means a demand for a payment underthis Letter of Credit in the form of the schedule to this Letter of Credit.

“**Expiry Date**” means [•].

“**Total Letter of Credit Amount**” means [•].

2.                                 **Issuing Bank’s agreement**

(a)                                      TheBeneficiary may request a drawing or drawings under this Letter of Credit bygiving to the Issuing Bank a duly completed Demand.  A Demand must be received by the Issuing Bankby [•] p.m. ([London] time) on the Expiry Date.

(b)                                     Subjectto the terms of this Letter of Credit, the Issuing Bank unconditionally andirrevocably undertakes to the Beneficiary that, within [ten] Business Days ofreceipt by it of a Demand, it must pay to the Beneficiary the amount demandedin that Demand.

(c)                                      TheIssuing Bank will not be obliged to make a payment under this Letter of Creditif as a result the aggregate of all payments made by it under this Letter ofCredit would exceed the Total Letter of Credit Amount.

3.                                 **Expiry**

(a)                                      TheIssuing Bank will be released from its obligations under this Letter of Crediton the date (if any) notified by the Beneficiary to the Issuing Bank as thedate upon which the obligations of the Issuing Bank under this Letter of Creditare released.

(b)                                     Unlesspreviously released under paragraph (a) above, on [•] p.m.([London] time) onthe Expiry Date the obligations of the Issuing Bank under this Letter

 

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of Credit will cease withno further liability on the part of the Issuing Bank except for any Demandvalidly presented under the Letter of Credit that remains unpaid.

(c)                                      Whenthe Issuing Bank is no longer under any further obligations under this Letterof Credit, the Beneficiary must return the original of this Letter of Credit tothe Issuing Bank.

4.                                 **Payments**

All payments under thisLetter of Credit shall be made in [•] and for value on the due date to theaccount of the Beneficiary specified in the Demand.

5.                                 **Delivery of Demand**

Each Demand shall be inwriting, and, unless otherwise stated, may be made by letter, fax or telex andmust be received in legible form by the Issuing Bank at its address and by theparticular department or office (if any) as follows:

[
                                                   ]

6.                                 **Assignment**

The Beneficiary’s rightsunder this Letter of Credit may not be assigned or transferred.

7.                                 **Governing Law**

This Letter of Credit isgoverned by English law.

8.                                 **Jurisdiction**

The courts of Englandhave exclusive jurisdiction to settle any dispute arising out of or inconnection with this Letter of Credit.

Yours faithfully

[*Issuing Bank*]

By:

NOTES:

*                    Thismay need to be amended depending on the currency of payment under the Letter ofCredit.

 

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**SCHEDULEForm of Demand**

To:        [ISSUING BANK]

[Date]

Dear Sirs

**StandbyLetter of Credit no. [•] issued in favour of [BENEFICIARY] (the “Letter ofCredit”)**

We refer to the Letter ofCredit.  Terms defined in the Letter ofCredit have the same meaning when used in this Demand.

1.                                 Wecertify that the sum of [•] is due [and has remained unpaid for at least [•]Business Days] [under [set out underlying contract or agreement]].  We therefore demand payment of the sum of[•].

2.                                 Paymentshould be made to the following account:

Name:

Account Number:

Bank:

3.                                 Thedate of this Demand is not later than the Expiry Date.

Yours faithfully
| (Authorised Signatory) | (Authorised Signatory) |
|------------------------|------------------------|

 

For

[BENEFICIARY]

 

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**SCHEDULE11GUARANTEE PRINCIPLES**

1.                                 **AGREED GUARANTEE PRINCIPLES**

The guarantees to beprovided under the Finance Documents will be given in accordance with certainagreed Guarantee Principles (the “**AgreedGuarantee Principles**”). This Schedule addresses the manner in whichthe Agreed Guarantee Principles will impact on the guarantees to be taken inrelation to this transaction.

The Finance Parties andthe Obligors have agreed and acknowledged that their rights and obligationsunder the Finance Documents in respect of (i) the giving or taking ofguarantees; (ii) all the rights and obligations associated with such giving ortaking of guarantees shall be subject to and limited by the Agreed GuaranteePrinciples. The Agreed Guarantee Principles embody the recognition by allparties that there may be certain legal and practical difficulties in obtainingeffective guarantees from all members of the Group in every jurisdiction inwhich members of the Group are located. In particular:

(a)                                      generalstatutory limitations, financial assistance, capital maintenance, corporatebenefit, fraudulent preference, thin capitalisation, retention of title claimsand similar principles may limit the ability of a member of the Group toprovide a guarantee or may require that the guarantee be limited by an amountor otherwise. If any such limit applies, the guarantees provided will belimited to the maximum amount which the relevant member of the Group mayprovide having regard to applicable law (including any jurisprudence) andsubject to fiduciary duties of management;

(b)                                     inparticular, German capital maintenance rules will require that upstream /cross-stream guarantees given by any German company incorporated as a GmbH orGmbH &Co. KG be limited, in order to avoid any liability of the managementor the shareholders which may arise from such an upstream or cross-streamguarantee (other than, in relation to the shareholders only, any recourseclaims);

(c)                                      thegiving of a guarantee, will not be required to the extent that it would incurany legal fees, registration fees, stamp duty, taxes and any other fees orcosts directly associated with such guarantee which are disproportionate to thebenefit obtained by the Finance Parties;

(d)                                     incertain jurisdictions it may be either impossible or impractical to grantguarantees in which event such guarantees will not be granted;

(e)                                      membersof the Group will not be required to give guarantees if it is not within thelegal capacity of the relevant members of the Group or if, in the reasonableopinion of the directors of the relevant members of the Group, the same wouldconflict with the fiduciary duties of those directors or contravene any legal prohibitionor result in personal or criminal liability on the part of

 

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any officer or result inany significant risk of legal liability for the directors of any Group company;

(f)                                        noperfection action will be required in jurisdictions where a Guarantor is notlocated;

(g)                                     theterms of the guarantee should not be such that, in the reasonable opinion ofmanagement of the relevant member of the Group, they materially restrict therunning of the business of or materially adversely affect the tax arrangementsof the relevant member of the Group in the ordinary course as otherwisepermitted by the Finance Documents.

2.                                 **GUARANTORS**

Save as provided in “**Guarantors**” (see page 3), each guaranteewill be an upstream, cross-stream and downstream guarantee for all liabilitiesof the Borrowers under the Finance Documents in accordance with, and subjectto, the requirements of the Agreed Guarantee Principles in each relevantjurisdiction.

3.                                 **GERMAN GUARANTEE LIMITATIONS**

(a)                                      Ifand to the extent that:

(i)                        aguarantee granted under the Facility Agreement secures any Loans, (i) which aremade to a corporation, or (ii) which are deemed to be made to a corporationaccording to Section 8a paragraph 5 sentence 2 German Corporation Income TaxAct (*Körperschaftsteuergesetz*),and which corporation is subject to German corporation income tax, (such Loansbeing defined as a “**German Loans**”and such corporation being defined as “**GermanBorrower**”); and

(ii)                     the relevantGuarantor granting such guarantee either (i) qualifies as a major shareholder (*wesentlicher Anteilseigner*) within themeaning of Section 8a of the German Income Corporation Tax Act (*Körperschaftssteuergesetz*) of such GermanBorrower or (ii) as an affiliated party within the meaning of Section 1paragraph 2 of the German Foreign Trade Tax Act (*Aussensteuergesetz*) of such a major shareholder of suchGerman Borrower,

such guarantee (or anyenforceable judgment based thereon) shall not be enforced against assets of therelevant Guarantor which qualify as LTIBR(s) if and to the extent such LTIBR(s)are (i) encumbered in favour of any of the Finance Parties pursuant to a lienarising under the general business terms (*AGB-Pfandrecht*)of such Finance Party, (ii) the subject of a disposal restriction (*Verfügungsbeschränkung*) or (iii) subjectto enforcement pursuant to a submission to immediate foreclosure in the entireproperty (*Unterwerfung unter die sofortigeZwangsvollstreckung in das gesamte Vermögen*) of the relevantGuarantor;

 

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“**LTIBR**” means any long term interest-bearingreceivables as set out in the decrees of the German Federal Ministry of Finance(*Bundesfinanzministerium*) of 15July 2004 (IV A2-S 2742a-20/04), paragraphs 20 and 37, and of 22 July 2005(IV-B7-S2742a-31/05), or as set out in any future law, administrative decree, guidelineor other pronouncement which overrules the aforementioned decrees,

(b)                                     TheFacility Agent and each of the Lenders individually undertake to deliver toeach German Borrower as soon as reasonably practicable after the Facilitieshave been made available to such German Borrower a complete letter in the formof the sample back-to-back certificate as published by the German FederalMinistry of Finance (*Bundesfinanzministerium*)on 20 October 2005 (IV B7 — S2742a — 43/05), or in the form of any successorsample form as may be required by the German tax authorities (the “**Certificate**”).  The Facility Agent (acting on behalf of theLenders) shall send to the relevant German Borrower an updated Certificate assoon as reasonably practicable (1) upon any amendment to the Facilities orchange in the Securities Interests granted in relation to the Facilities, (2)if so required by the relevant German Borrower for tax purposes. If the Germantax authorities will not accept a certificate issued by the Facility Agent eachLender will issue a certificate individually. Reasonable costs of obtaining thecertificates will be reimbursed by the German Borrower.

4.                                 **LIMITATION ON PAYMENT OBLIGATIONS OF A GERMAN OBLIGOR**

(a)                                      TheLenders’ right to claim and/or enforce any payment obligation under or inconnection with the Finance Documents (other than a payment obligation of theGerman Obligor (as defined below) or of any direct or indirect subsidiary ofthe German Obligor under the Term Facilities or the Revolving Facility made availableto the German Obligor or such subsidiary) against an obligor organised as acompany with limited liability (GmbH) (the “**GermanObligor**”) shall at all times be limited to the extent that theenforcement would otherwise lead to the situation that the German Obligor didnot have sufficient net assets (*Reinvermögen*)(calculated in accordance with the jurisprudence from time to time of theGerman Federal Supreme Count (*Bundesgerichtshof*)or absent such jurisprudence, the jurisprudence of the Higher Regional Court (*Oberlandesgericht*) or Regional Courts (*Landgericht*) in the district of therelevant German Obligor, relating to protection of liable capital undersections 30 and 31 of the German Limited Liability Companies Act (*GmbH-Gesetz*)) to maintain its stated sharecapital (*Stammkapital*) orincrease an existing shortage of the stated share capital, **provided that** for the purposes of thecalculation of the enforceable amount (if any) the following balance sheetitems shall be adjusted as follows:

(i)                        The amountof any increase of stated share capital (*Stammkapital*)of the German Obligor that has been effected after the date hereof shall bededucted from the stated share capital unless such increase is required

 

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by law or envisaged in the Structure Memorandum, or(y) matched by a corresponding increase in the net assets of the relevantObligor, or (z) *made with the consentof the Facility Agent (such consent not to be unreasonably withheld)*.For the avoidance of doubt, increasing the capital reserves (*Rücklagen*) as referred to in Section 266para. 3, items II. and III. of the German Commercial Code (*Handelsgesetzbuch — HGB*) of any GermanGuarantor shall not be restricted (and shall not require any adjustments to thestated share capital) by virtue of this paragraph;

(iii)                  Any amount ofmandatory reserves (*Rücklagen*)resulting from a decrease of registered share capital (*Kapitalherabsetzung*) and any amount ofpublic subsidies (*Subventionen und andereöffentliche Beihilfen*) received after the date hereof which aresubject to an unfulfilled commitment as to their use shall be added to theregistered share capital;

(iv)                 Loans providedafter the date hereof to the German Obligor, insofar such loans qualify asequity under the applicable accounting principles and which do not have to beshown as liabilities on the German Obligor’s balance sheet, shall bedisregarded;

(v)                    To the extentthe enforcement of the guarantee would deprive the German Obligor of theability to fulfil its obligations to third parties (incurred, whether on acontingent or non-contingent basis, at the time of enforcement or to continueits business, then, for the determination of net assets, the assets of theGerman Obligor shall be calculated at the lesser of their book value (*Buchwert*) and their realisation valueassuming a negative prognosis for the business continuance (*Liquidationswert bei negativer Fortführungsprognose*);

(vi)                 Loans and othercontractual liabilities incurred by the German Obligor in violation of theprovisions of any of the Finance Documents shall be disregarded to the extentsuch violation can be attributed to wilful misconduct of the managing director(*Geschäftsführer*) of the GermanObligor.

(b)                                     thelimitations set out in paragraph (a) above only apply if and to the extent that:

(i)                        within 20business days following the receipt of the notice of the Facility Agent (actingon behalf of the Lenders) of its intention to claim and/or enforce any paymentobligation against any German Obligor (the “**EnvisagedEnforcement Date**”), the managing directors on behalf of the GermanObligor have confirmed in writing to the Facility Agent (i) to what extent thepayment obligation relates to primary liability which is an up-stream orcross-stream liability as described in paragraph (a)

 

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and (ii) which amount ofsuch up-stream and/or cross-stream liability cannot be enforced as it wouldexceed the Net Assets of the German Obligor and such confirmation is supportedby conclusive evidence satisfactory to the Facility Agent, including inparticular, pro forma interim financial statements as of the EnvisagedEnforcement Date (the “**ManagementDetermination**”) and the Facility Agent has not contested theManagement Determination; or

 

(ii)                     within 40business days from the date the facility agent (acting on behalf of the financeparties) has contested the management determination the facility agent receivesa determination by auditors of international standard and reputation (the “**Auditor’s Determination**”) appointed by theGerman obligor of the amount of the net assets on the envisaged enforcementdate;

(c)                                      ifthe Facility Agent disagrees with the Auditor’s Determination, it shall beentitled to further pursue their claims and/or rights (if any) under thedispute solutions agreed upon and, in particular, to contest the Auditor’sDetermination in court and the German Obligor shall be entitled to prove thatthis amount is necessary for maintaining its stated share capital (calculatedas of the date the demand for payment and/or enforcement was made);

(d)                                     theGerman Obligor shall use reasonable efforts to realize any and all of itsassets that are shown in the balance sheet with a book value (*Buchwert*) that is significantly lower thanthe market value of the assets, or are not recorded at all in a situation wherethe German Obligor does not have sufficient Net Assets to maintain itsregistered share capital, **provided that**the relevant assets are in the reasonable opinion of the German Obligor notrequired for the business of the German Obligor (*nicht betriebsnotwendiges Vermögen*);

(e)                                      theLenders’ right to claim and/or enforce this Guarantee shall be excluded at all,or exist only to a limited amount, if the German Obligor delivers within theEnvisaged Enforcement Date a legal opinion issued by a law firm of internationalstandard and reputation with German qualified lawyers (*Rechtsanwälte*) which:

(i)                        comes tothe conclusion that the German Obligor complying with its obligations under anyof the finance documents has exposed and/or would expose (based on legal literaturewhich is (in the view of the lawyer giving the opinion) widely accepted amongGerman lawyers and/or court decisions issued after the date of thisagreement  in relation to the relevantissues which present the risk of liability as materially greater than the riskof liability as presented by legal literature and/or court decisions current onthe date of this agreement) the managing directors of the German obligor (orits shareholder’s or an affiliated company’s managing directors, officers orboard members) or an

 

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affiliated company (*verbundenesunternehmen*) to a significant risk of civil or criminal liability;and

(ii)                     specifies themaximum amount to which the payment and/or enforcement of any claims under orin connection with the finance documents shall be limited to prevent thecircumstances referred to in the sub-paragraph immediately above from arising;

(f)                                        ifthe Facility Agent (acting on behalf of the Lenders) disagrees with theconclusions of the abovementioned legal opinion, the Facility Agent shall beentitled to further pursue its claims and/or rights (if any) under the disputesolutions agreed upon and, in particular, to contest the conclusions of thelegal opinion (and therefore the limitations on the guarantees) in court, andthe German Obligor shall be entitled to prove what limitations under therelevant guarantees are necessary to prevent the managing directors of theGerman Obligor (or its shareholder’s or an affiliated company’s managingdirectors, officers or board members) or an affiliated company to becomesubject to civil or criminal liability and the conclusions of such disputeresolution processes shall (subject to any rights of appeal) be effectivebetween the parties (i.e., the limitations on the relevant guarantees shall beadjusted to reflect the conclusions of such dispute resolution processes.

(g)                                     Thelimitations set out in paragraphs (a) to (f) above shall apply mutatis mutandisto an Obligor organised under German law as a limited partnership (*Kommanditgesellschaft*) in respect to itsgeneral partner if such general partner is organised as a GmbH.

5.                                 **GUARANTEES GOVERNED BY ANY LAW OTHER THAN GERMAN LAW**

The aforesaid provisionsapply to all security irrespective of their governing law. However, where underany applicable law other than German law the aforesaid provisions areinappropriate, the provisions shall be replaced by such appropriate provisionunder any applicable law which comes as close as possible to the inappropriateprovision.

 

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**SCHEDULE12CERTAIN FUNDS DEFAULTS**

(a)                            Failureby an Obligor to deliver each of the documents set out in Schedule 2 Part I (*Conditions Precedent to Delivery of a UtilisationRequest*) or Part IA (*ConditionsPrecedent to Drawdown*) to be provided by it.

(b)                           AnyEvent of Default under Clause 26.9 (*Unlawfulnessand invalidity*) as a result of any event or circumstance arisingafter the date hereof (including change of law), **provided that** in such circumstances the relevant parties shalldo all things and execute all documents required to enter into legally validagreements achieving substantially the same or commercially and legallyequivalent results as reflects the position immediately before such event orcircumstance which caused such Event of Default and a Certain Funds Defaultshall only occur if after 20 Business Days after such event or circumstancefirst arising the Lenders, acting reasonably and having made all reasonablecommercial efforts, have not been able to execute documents which achieve suchsubstantially the same or commercially and legally equivalent results.

(c)                            AnyEvent of Default under Clause 25.11 (*Negativepledge*) or Clause 25.17 (*FinancialIndebtedness*) or Clause 25.7 (*Acquisitions*).

(d)                           Anymaterial breach of the representations and warranties in Clause 22.1 (*Status*) and Clause 22.4 (*Power and authority*) in relation to aBorrower.

(e)                            AnyDefault under Clause 26.1 (*Non-Payment*).

(f)                              AnyEvent of Default described in Clause 26.6 (*Insolvency*)or 26.7 (*Insolvency Proceedings*)in relation to a Borrower.

 

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**SCHEDULE13OVERVIEW LOANS AND SECURITIES SUBSIDIARIES**
| **Sirona Dental Systems, Inc.** | ** ** | **Balance Actual 30.09.06** | ** ** | **Balance Estimate 24.11.06** | ** ** |
|------------------------------------------------|------------|----------------------------------|------------|-------------------------------|------------|
|                                           |       |                             |       |                          |       |   |   |   |   |
| Sirona Dental Systems LLC, USA                 |       | USD                              |       | 4,686,596.70                  |       | USD |   | 4,686,596.70 |   |
|                                           |       |                             |       |                          |       |   |   |   |   |
|                                           |       | **EUR**                          | ** ** | **13.699.263,31**             | ** ** | **EUR** | ** ** | **23.699.263,31** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Subtotal amount**                            |       | **EUR**                          | ** ** | **13.699.263,31**             | ** ** | **EUR** | ** ** | **13.699.263,31** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Sirona  Holding GmbH**                       | ** ** | ** **                       | ** ** | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| Sirona  Dental Systems Ltd., UK                | ** ** | **EUR**                          | ** ** | **792,187.81**                | ** ** | **EUR** | ** ** | **792,187.81** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Subtotal amount**                            |       | **EUR**                          | ** ** | **792,187.81**                | ** ** | **EUR** | ** ** | **792,187.81** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Sirona Dental  Systems GmbH**                | ** ** | ** **                       | ** ** | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| ATR  Advanced Technology Research, Italien     |       | **EUR**                          | ** ** | **335,261.06**                | ** ** | **EUR** | ** ** | **435,261.06** | ** ** |
|                                           |       |                             |       | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| Sirona  Dental Systems SAS, Frankreich         |       | **EUR**                          | ** ** | **926,299.86**                | ** ** | **EUR** | ** ** | **2926,299.86****2** |   |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| Nitram  Dental a/s, Dänemark              |       | **EUR**                          | ** ** | **691,154.51**                | ** ** | **EUR** | ** ** | **691,154.51** | ** ** |
|                                           |       |                             |       | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| Sirona  Dental Systems KK, Japan               |       | **EUR**                          | ** ** | **24,768,508.72**             | ** ** | **EUR** | ** ** | **24,768,508.72** |   |
|                                           |       |                             |       | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| Sirona  Equipos Dentales Iberica S.A., Spanien |       | **EUR**                          | ** ** | **24,438,888.82**             | ** ** | **EUR** | ** ** | **24,438,888.82** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| Sirona  Dental Systems Foshan, China           |       | **EUR**                          | ** ** | **20.00**                     | ** ** | **EUR** | ** ** | **20.00** | ** ** |
|                                           |       |                             |       | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| Sirona  Dental Systems Shanghai, China         |       | **EUR**                          | ** ** | **0.00**                      | ** ** | **EUR** | ** ** | **0.00** | ** ** |
|                                           |       |                             |       | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| Sirona  Immobilien GmbH                        |       | **EUR**                          | ** ** | **1,222,462.87**              | ** ** | **EUR** | ** ** | **1,400,000** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| SiCat                                          | ** ** | **EUR**                          | ** ** | **1,324,235.46**              | ** ** | **EUR** | ** ** | **1,534,235.46** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Subtotal amount**                            |       | **EUR**                          | ** ** | **13,706,831.30**             | ** ** | **EUR** | ** ** | **14,194,368.** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Sirona  International Holding GmbH**         | ** ** | ** **                       | ** ** | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| Sirona, Australien                             |       | **EUR**                          | ** ** | **21,660,620.20**             | ** ** | **EUR** | ** ** | **21,660,620.20** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Subtotal amount**                            |       | **EUR**                          | ** ** | **1,660,620.20**              | ** ** | **EUR** | ** ** | **1,660,620.20** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Securities**                                 | ** ** | ** **                       |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| Overdraft/Leasing  Japan (JPY 140,000,000.00)  |       | **EUR**                          | ** ** | **1,000,000.00**              | ** ** | **EUR** | ** ** | **1,000,000.00** | ** ** |
| Leasing  France                                |       | **EUR**                          | ** ** | **150,000.00**                | ** ** | **EUR** | ** ** | **150,000.00** | ** ** |
| Overdraft  China (USD 900,000.00)              |       | **EUR**                          | ** ** | **750,000.00**                | ** ** | **EUR** | ** ** | **750,000.00** | ** ** |
| Overdraft  Australia (AUD 1,000,000.00)        |       | **EUR**                          | ** ** | **650,000.00**                | ** ** | **EUR** | ** ** | **650,000.00** | ** ** |
| Spain  guarantee                               |       | **EUR**                          | ** ** | **180,000.00**                | ** ** | **EUR** | ** ** | **180,000.00** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Subtotal amount**                            |       | **EUR**                          | ** ** | **2,730,000.00**              | ** ** | **EUR** | ** ** | **2,730,000.00** | ** ** |
| ** **                                     |       |                             |       |                          | ** ** | ** ** | ** ** | ** ** | ** ** |
| **Total amount  relevant for § [ ]**      | ** ** | **EUR**                          | ** ** | **18,889,619.31**             | ** ** | **EUR** | ** ** | **19,377,176.44** | ** ** |
| ** **                                     |       |                             |       |                          |       |   |   |   |   |
| 541149  Sirona Immobilien GmbH                 |       | **EUR**                          | ** ** | **15,628,446.77**             | ** ** | **EUR** | ** ** | **15,628,446.77** | ** ** |
| ** **                                     |       |                             |       | ** **                    | ** ** | ** ** | ** ** | ** ** | ** ** |
| ** **                                     |       | **EUR**                          | ** ** | **34,518,066.08**             | ** ** | **EUR** | ** ** | **35,005,623.21** |   |
| ** **                                     |       |                             |       |                          |       |   |   |   |   |

----

2            Valuated at exchange-rate of30.09.06 (1 Euro = 1,2669 USD)

3                   Does not include securities

 

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**SCHEDULE 14FORM OF CERTIFICATE**
| [To be sent by                                                                                                                                                                          |                                                                | [Von]                                                                                                                                                                                                        |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| [Facility Agent]                                                                                                                                                                        |                                                                | [Facility Agent]                                                                                                                                                                                             |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| [on behalf of  each of]                                                                                                                                                                 |                                                                | [jeweils namens und in Vollmacht der]                                                                                                                                                                        |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| [Lenders]                                                                                                                                                                               |                                                                | [•] (“**Darlehensgeber**”)                                                                                                                                                                    |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| to                                                                                                                                                                                      |                                                                | an                                                                                                                                                                                                           |
| [German  Borrower]                                                                                                                                                                      |                                                                | [jeweiligen Darlehensnehmer]                                                                                                                                                                                 |
|                                                                                                                                                                                    |                                                                | (“**Darlehensnehmer**”)                                                                                                                                                                            |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| **Certification  for presentation to the Tax Office for the purposes of Section 8a of  Germany’s Corporation Tax Law**                                                             |                                                                | **Bescheinigung zur Vorlage beim   Finanzamt für Zwecke des § 8a KStG**                                                                                                                            |
| ** **                                                                                                                                                                              |                                                                |                                                                                                                                                                                                         |
| You have asked  the [relevant Lender] (“**Lenders**”)  to issue a Certification for presentation to the Tax Office for the purposes  of the Corporation Tax Law.              |                                                                | Sie hatten [den jeweiligen Darlehensgeber] gebeten,  zur Vorlage beim Finanzamt für Zwecke des § 8a KStG eine Bescheinigung  auszustellen.                                                         |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| We hereby  declare that regarding the [Senior Facilities Agreement] of [•] in the amount  of EUR [•] (“**Loan**”) to [German  Borrower] (“**Borrower**”), |                                                                | Wir, die Darlehensgeber, haben an Sie, den  Darlehensnehmer, gemäß dem Vertrag vom [•] (“**Vertrag**”) ein Darlehen (Betrag Euro [•]) gewährt (“**Darlehen**”). |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| The following  securities have been granted by persons other than the Borrower:                                                                                                         |                                                                | Hierzu erklären wir, dass uns bezüglich des  Darlehens die nachfolgend aufgeführten Sicherheiten von anderen Personen als  dem Darlehensnehmer gewährt wurden:                           |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| 1.                                                                                                                                                                                      | **Security  in rem**                                                |                                                                                                                                                                                                         | 1. | Dingliche Sicherheiten |
| ** **                                                                                                                                                                              |                                                                |                                                                                                                                                                                                         |
| Pledges / Liens  (e.g. of deposits)                                                                                                                                                     |                                                                | Pfandrechte (z.B. an Einlagen)                                                                                                                                                                               |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| Assignments  (e.g. assignments of receivables)                                                                                                                                          |                                                                | Sicherungsabtretungen (z. B. Einzelabtretung von  Forderungen)                                                                                                                                               |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| 2.                                                                                                                                                                                      | **Personal  security (e.g. surety, guarantee, assumption of debt)** |                                                                                                                                                                                                         | 2. | **Personalsicherheiten (z.B. Bürgschaft, Garantie,  Schuldmitübernahme)** |
|                                                                                                                                                                                    | ** **                                                          |                                                                                                                                                                                                         |   |
| **linked  with the following:**                                                                                                                                                         |                                                                | **verbunden mit folgenden/r:**                                                                                                                                                                               |
|                                                                                                                                                                                    |                                                                |                                                                                                                                                                                                         |
| securities in  rem (e.g. on deposits)                                                                                                                                                   |                                                                | dinglichen Sicherheiten (z.B. an Einlagen)                                                                                                                                                                   |
|                                                                                                                                                                                         |                                                                     |                                                                                                                                                                                                              |  |  |  |

176

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|                                                                                                                                                                                                                                                                                                                                          |                                                                        |                                                                                                                                                                                                                                                                                                  |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| Assignments  (e.g. assignments of receivables; global assignments)                                                                                                                                                                                                                                                                            |                                                                        | Sicherungsabtretungen (z.B. Einzelabtretung von  Forderungen; Global-/ Mantelabtretung von Forderungen)                                                                                                                                                                                               |
|                                                                                                                                                                                                                                                                                                                                          |                                                                        |                                                                                                                                                                                                                                                                                                  |
| Submission to  immediate foreclosure in respect of all assets or certain assets                                                                                                                                                                                                                                                               |                                                                        | Unterwerfung unter die sofortige Zwangsvollstreckung  mit dem gesamten Vermögen oder hinsichtlich einzelner` Vermögensgegenstände                                                                                                                                                      |
|                                                                                                                                                                                                                                                                                                                                          |                                                                        |                                                                                                                                                                                                                                                                                                  |
| Agreed  restraints on disposal                                                                                                                                                                                                                                                                                                                |                                                                        | vereinbarten Verfügungsbeschränkungen                                                                                                                                                                                                                                                       |
|                                                                                                                                                                                                                                                                                                                                          |                                                                        |                                                                                                                                                                                                                                                                                                  |
| Other  agreeements (e.g. pledges/liens under the General Standard Terms and  Conditions), all security provided for the Loan/credit (e.g. land charge,  mortgage, letter of comfort) and trust arrangements)                                                                                                                                  |                                                                        | sonstigen Vereinbarungen (z. B. Pfandrechte nach den  Allgemeinen Geschäftsbedingungen, sämtliche für das Darlehen/ den Kredit  bestellte Sicherheiten (z.B. Grundschuld, Hypothek, Patronatserklärung) und  Treuhandverhältnisse)                                           |
|                                                                                                                                                                                                                                                                                                                                          |                                                                        |                                                                                                                                                                                                                                                                                                  |
| 3.                                                                                                                                                                                                                                                                                                                                            | Securities as  mentioned above that have waived during the term of the Loan |                                                                                                                                                                                                                                                                                                  | 3. | Sicherheiten der o. g. Art, auf die während des  bestehenden Darlehensverhältnisses verzichtet wurde |
|                                                                                                                                                                                                                                                                                                                                          |                                                                        |                                                                                                                                                                                                                                                                                                  |
| Other comments  (did any person (other than the Borrower) grant security without releasing  the Lender from banking secrecy?)                                                                                                                                                                                                                 |                                                                        | sonstige Anmerkungen (haben Personen (mit Ausnahme  des Darlehensnehmers) Sicherheiten gewährt, diese aber den Darlehensgeber  nicht vom Bankgeheimnis befreit?)                                                                                                                                 |
|                                                                                                                                                                                                                                                                                                                                          |                                                                        |                                                                                                                                                                                                                                                                                                  |
| This  Certification is based solely on information that is known to the employees  of the Lender[s] who have worked on the Loan.                                                                                                                                                                                                              |                                                                        | Die Bescheinigung enthält nur solche Angaben, die  dem bei den Darlehensgebern mit der vorgenannten Finanzierung vertrauten  Personenkreis bekannt sind.                                                                                                                                         |
|                                                                                                                                                                                                                                                                                                                                          |                                                                        |                                                                                                                                                                                                                                                                                                  |
| In providing  this Certification, the Lender[s] — in the first place for legal reasons —  [are] not offering any consultancy services on tax matters. In particular,  the Lender[s] will not be responsible or liable for the Borrowers’ success in  obtaining any tax benefits which are the objective of this Certification. |                                                                        | Die Darlehensgeber übernehmen mit dieser Erklärung —  bereits aus rechtlichen Gründen — keine Beratung in steuerlichen  Angelegenheiten. Insbesondere stehen die Darlehensgeber nicht für einen  steuerlichen Erfolg ein, der mit dieser Bescheinigung angestrebt wird. |
|                                                                                                                                                                                                                                                                                                                                               |                                                                             |                                                                                                                                                                                                                                                                                                       |  |  |

177

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|                          |   |                              |
|-------------------------------|--------|-----------------------------------|
| Yours sincerely,              |   | Mit freundlichen Grüßen |
|                          |   |                              |
| [on behalf of  the] Lender[s] |   | [im Namen der] Darlehensgeber     |

 

178

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**SIGNATURES**
| **THE MANDATED LEAD ARRANGERS** |
|---------------------------------|
|                            |
| **J.P. MORGAN PLC**             |
| ** **                      |
| By:                             | ** ** | **/s/ PAUL HARRIS** |
|                            | ** ** | ** ** |
| Address:                        |   | 10 Aldermanbury, London EC2V 7RF |
|                            |   |   |
| Fax:                            |   | +44 (0) 20 7777 4548 |
|                            |   |   |
| Attention:                      |   | Eline Laodalaise / Clinton Ray |
|                            |   |   |
|                            |   |   |
| **UBS LIMITED**                 |
|                            |
| By:                             |   | **/s/ LUKE JAGGAR** |   | **/s/ CHRISTIAN ROTHHARDT** |
| ** **                      |   |   |
| Address:                        |   | 2 Finsbury Avenue, London EC2M 2PP |
| ** **                      |   |   |
| Fax:                            |   | +44 (0) 20 7568 4664 |
| ** **                      |   |   |
| Attention:                      |   | Judith Campbell / Alan Greenhow |
|                            |
|                            |
| **THE ORIGINAL LENDERS**        |
|                            |
| **JPMORGAN CHASE BANK, N.A.**   |
| ** **                      |   |   |
| By:                             |   | **/s/ PAUL HARRIS** |
| ** **                      |   |   |
| Address:                        |   | 10 Aldermanbury, London EC2V 7RF |
| ** **                      |   |   |
| Fax:                            |   | +44 (0) 20 7777 4548 |
| ** **                      |   |   |
| Attention:                      |   | Eline Laodalaise / Clinton Ray |
| ** **                      |   |   |
| ** **                      |   |   |
| **UBS LIMITED**                 |
|                            |
| By:                             |   | **/s/ LUKE JAGGAR** |   | **/s/ CHRISTIAN ROTHHARDT** |
| ** **                      |   |   |
| Address:                        |   | 2 Finsbury Avenue, London EC2M 2PP |
| ** **                      |   |   |
| Fax:                            |   | +44 (0) 20 7568 4664 |
| ** **                      |   |   |
| Attention:                      |   | Judith Campbell / Alan Greenhow |
|                                 |  |  |  |  |  |  |  |

 

179

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| **THE BOOKRUNNERS**            |
|--------------------------------|
|                           |
| **J.P. MORGAN PLC**            |
| ** **                     |
| By:                            | ** ** | **/s/ PAUL HARRIS** |
|                           | ** ** | ** ** |
| Address:                       |   | 10 Aldermanbury, London EC2V 7RF |
|                           |   |   |
| Fax:                           |   | +44 (0) 20 7777 4548 |
|                           |   |   |
| Attention:                     |   | Eline Laodalaise / Clinton Ray |
|                           |   |   |
|                           |   |   |
| **UBS  LIMITED**               |   |   |
|                           |   |   |
| By:                            |   | **/s/ LUKE JAGGAR** |   | **/s/ CHRISTIAN ROTHHARDT** |
|                           |   |   |
| Address:                       |   | 2 Finsbury Avenue, London EC2M 2PP |
|                           |   |   |
| Fax:                           |   | +44 (0) 20 7568 4664 |
|                           |   |   |
| Attention:                     |   | Judith Campbell / Alan Greenhow |
|                           |   |   |
|                           |   |   |
| **THE FACILITY AGENT**         |
|                           |   |   |
| **J.P. MORGAN EUROPE LIMITED** |
|                           |   |   |
| By:                            |   | **/s/ PAUL HARRIS** |
|                           |   |   |
| Address:                       |   | 10 Aldermanbury, London EC2V 7RF |
|                           |   |   |
| Fax:                           |   | +44 (0) 20 7777 4548 |
|                           |   |   |
| Attention:                     |   | Eline Laodalaise / Clinton Ray |
|                           |   |   |
|                           |   |   |
| **THE COMPANY**                |
|                           |   |   |
| **SIRONA DENTAL SYSTEMS, INC** |
|                           |   |   |
| By:                            |   | **/s/ JOST FISCHER** |   | **/s/ SIMONE BLANK** |
|                           |   |   |
| Address:                       |   | 30-00 47th Avenue, Long Island City, New York, NY  11101, USA |
|                           |   |   |
| Fax:                           |   | +1 718 482 2514 |
|                           |   |   |
| Attention:                     |   | Gregory Leahy / Simone Blank |
|                           |   |   |

 

180

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| **THE ORIGINAL BORROWERS**      |
|---------------------------------|
|                            |
| **SCHICK TECHNOLOGIES, INC**    |
| ** **                      |
| By:                             | ** ** | **/s/ JOST FISCHER** | ** ** | **/s/ SIMONE BLANK** |
|                            | ** ** | ** ** |
| Address:                        |   | 30-00 47th Avenue, Long Island City, New York, NY  11101, USA |
|                            |   |   |
| Fax:                            |   | +1 718 482 2514 |
|                            |   |   |
| Attention:                      |   | Gregory Leahy |
|                            |   |   |
|                            |   |   |
| **SIRONA DENTAL SYSTEMS GMBH**  |
|                            |
| By:                             |   | **/s/ JOST FISCHER** |   | **/s/ SIMONE BLANK** |
|                            |   |   |
| Address:                        |   | Fabrikstraße 31, 64625 Bensheim, Germany |
|                            |   |   |
| Fax:                            |   | +49 6251 16 24 44 |
|                            |   |   |
| Attention:                      |   | Tom Redlich / Simone Blank |
|                            |   |   |
|                            |   |   |
| **SIRONA DENTAL SERVICES GMBH** |
|                            |   |   |
| By:                             |   | **/s/ JOST FISCHER** |   | **/s/ SIMONE BLANK** |
|                            |   |   |
| Address:                        |   | Fabrikstraße 31, 64625 Bensheim, Germany |
|                            |   |   |
| Fax:                            |   | +49 6251 16 24 44 |
|                            |   |   |
| Attention:                      |   | Tom Redlich / Simone Blank |
|                            |
|                            |
| **THE ORIGINAL GUARANTORS**     |
|                            |
| **SIRONA DENTAL SYSTEMS, INC.** |
|                            |
| By:                             |   | **/s/ JOST FISCHER** |   | **/s/ SIMONE BLANK** |
|                            |   |   |
| Address:                        |   | 30-00 47th Avenue, Long Island City, New York, NY  11101, USA |
|                            |   |   |
| Fax:                            |   | +1 718 482 2514 |
|                            |   |   |
| Attention:                      |   | Gregory Leahy / Simone Blank |
|                            |   |   |
|                                 |  |  |  |  |  |  |  |  |

 

181

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| **SCHICK TECHNOLOGIES, INC**   |
|--------------------------------|
|                           |
| By:                            | ** ** | **/s/ JOST FISCHER** | ** ** | **/s/ SIMONE BLANK** |
|                           | ** ** | ** ** |
| Address:                       |   | 30-00 47th Avenue, Long Island City, New York, NY  11101, USA |
|                           |   |   |
| Fax:                           |   | +1 718 482 2514 |
|                           |   |   |
| Attention:                     |   | Gregory Leahy |
|                           |   |   |
|                           |   |   |
| **SIRONA DENTAL SYSTEMS GMBH** |
|                           |
| By:                            |   | **/s/ JOST FISCHER** |   | **/s/ SIMONE BLANK** |
|                           |   |   |
| Address:                       |   | Fabrikstraße 31, 64625 Bensheim, Germany |
|                           |   |   |
| Fax:                           |   | +49 6251 16 24 44 |
|                           |   |   |
| Attention:                     |   | Tom Redlich / Simone Blank |
|                           |   |   |
| **SIRONA DENTAL SYSTEMS, LLC** |
|                           |
| By:                            |   | **/s/ JOST FISCHER** |   | **/s/ SIMONE BLANK** |
|                           |
| Address:                       |   | 4835 Sirona Drive, Charlotte, NC 28273, PO Box  410100, USA |
|                           |   |   |
| Fax:                           |   | +1 704 587 9394 |
|                           |   |   |
| Attention:                     |   | Simone Blank |
|                           |   |   |
| **SIRONA HOLDING GMBH**        |
|                           |
| By:                            |   | **/s/ JOST FISCHER** |   | **/s/ SIMONE BLANK** |
|                           |
| Address:                       |   | Fabrikstraße 31, 64625 Bensheim, Germany |
|                           |   |   |
| Fax:                           |   | +49 6251 16 24 44 |
|                           |   |   |
| Attention:                     |   | Tom Redlich / Simone Blank |
|                                |  |  |  |  |  |  |  |  |  |

 

182

----

** **
| **SIRONA HOLDING GMBH**    |
|----------------------------|
|                       |
| By:                        | ** ** | **/s/ JOST FISCHER** | ** ** | **/s/ SIMONE BLANK** |
|                       | ** ** | ** ** |
| Address:                   |   | Fabrikstraße 31, 64625 Bensheim, Germany |
|                       |   |   |
| Fax:                       |   | +49 6251 16 24 44 |
|                       |   |   |
| Attention:                 |   | Tom Redlich / Simone Blank |
|                       |   |   |
| **SIRONA IMMOBILIEN GMBH** |
|                       |
| By:                        |   | **/s/ JOST FISCHER** |   | **/s/ SIMONE BLANK** |
|                       |   |   |
| Address:                   |   | Fabrikstraße 31, 64625 Bensheim, Germany |
|                       |   |   |
| Fax:                       |   | +49 6251 16 24 44 |
|                       |   |   |
| Attention:                 |   | Tom Redlich / Simone Blank |
|                       |   |   |
|                            |  |  |  |  |  |  |  |

 

183

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