TO ANY OTHER OBLIGOR AND WHETHER OCCURRING BEFORE OR AFTER SUCH
OTHER OBLIGOR BECAME AN OBLIGOR UNDER ANY FINANCE DOCUMENT) SHALL BE BINDING FOR
ALL PURPOSES ON THAT OBLIGOR AS IF THAT OBLIGOR HAD EXPRESSLY MADE, GIVEN OR
CONCURRED WITH IT. IN THE EVENT OF ANY CONFLICT BETWEEN ANY NOTICES OR OTHER
COMMUNICATIONS OF THE OBLIGORS' AGENT AND ANY OTHER OBLIGOR, THOSE OF THE
OBLIGORS' AGENT SHALL PREVAIL.
(C)
FOR THE PURPOSE OF ACTING AS OBLIGORS' AGENT IN ACCORDANCE WITH
THIS CLAUSE 2.5, EACH OBLIGOR RELEASES THE COMPANY FROM THE RESTRICTIONS OF SEC
181 OF THE GERMAN CIVIL CODE AND ANY EQUIVALENT RESTRICTION UNDER ANY APPLICABLE
LAW.
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3.
PURPOSE
3.1
PURPOSE
(A)
EACH BORROWER SHALL APPLY ALL AMOUNTS BORROWED BY IT UNDER
FACILITY A1 AND FACILITY A2 TOWARDS REFINANCING ALL FINANCIAL INDEBTEDNESS OF
THE GROUP OUTSTANDING UNDER THE EXISTING SENIOR FACILITIES AGREEMENT AND THE
EXISTING MEZZANINE FACILITY AGREEMENT AS DESCRIBED IN THE STRUCTURE MEMORANDUM,
AND COSTS AND EXPENSES INCURRED BY THE GROUP IN CONNECTION WITH THE FACILITIES
MADE AVAILABLE HEREUNDER.
(B)
EACH BORROWER SHALL APPLY ALL AMOUNTS BORROWED BY IT UNDER THE
REVOLVING FACILITY, ANY BANK GUARANTEE OR ANY UTILISATION OF ANY ANCILLARY
FACILITY TOWARDS THE GENERAL CORPORATE AND WORKING CAPITAL PURPOSES OF THE GROUP
INCLUDING THE COST AND EXPENSES DESCRIBED IN PARAGRAPH (A).
THE BORROWERS UNDER
THE REVOLVING FACILITY SHALL BE ENTITLED TO APPLY AMOUNTS BORROWED UNDER THE
REVOLVING FACILITY TOWARDS THE FINANCING OF ACQUISITIONS PERMITTED UNDER
SUB-PARAGRAPH (B)(II) OF CLAUSE 25.7 (ACQUISITIONS).
3.2
MONITORING
No Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
4.
CONDITIONS OF UTILISATION
4.1
INITIAL CONDITIONS PRECEDENT
No Borrower may deliver a Utilisation Request unless the Facility Agent has
received all of the documents and 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 Company and the Lenders promptly upon being so satisfied.
4.2
FURTHER CONDITIONS PRECEDENT
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the proposed
Utilisation Date:
(A)
THE FACILITY AGENT HAS RECEIVED ALL OF THE DOCUMENTS AND OTHER
EVIDENCE LISTED IN PART IA OF SCHEDULE 2 (CONDITIONS PRECEDENT TO DRAWDOWN) IN
FORM AND SUBSTANCE SATISFACTORY TO THE FACILITY AGENT;
(B)
IN THE CASE OF A ROLLOVER LOAN, NO NOTICE HAS BEEN DELIVERED
UNDER CLAUSE 26.18 (ACCELERATION) RELATING TO THE REVOLVING COMMITMENTS AND, IN
THE CASE OF ANY OTHER UTILISATION, NO DEFAULT IS CONTINUING OR WOULD RESULT FROM
THE PROPOSED UTILISATION; AND
(C)
IN RELATION TO ANY UTILISATION ON THE CLOSING DATE (SUBJECT TO
CLAUSE 4.3 (CERTAIN FUNDS)), ALL THE REPRESENTATIONS AND WARRANTIES IN CLAUSE 22
(REPRESENTATIONS) OR, IN RELATION TO ANY OTHER UTILISATION, THE REPEATING
REPRESENTATIONS TO BE MADE BY EACH OBLIGOR ARE TRUE IN ALL MATERIAL RESPECTS.
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4.3
CERTAIN FUNDS
The Lenders agree that (without prejudice to Clause