EXECUTION COPY
DATED 1 September 1999
DYCKERHOFF AKTIENGESELLSCHAFT
as Original Borrower and Guarantor
LEVEL ACQUISITION CORP.
as Additional Borrower
DEUTSCHE BANK XX
XXXXXXXX BANK AG
as Joint Arrangers
DEUTSCHE BANK LUXEMBOURG X.X.
XXXXXXXX BANK AG
as Underwriters
DRESDNER BANK LUXEMBOURG S.A.
as Agent
____________________________________________
USD 1,300,000,000
TERM LOAN
FACILITIES AGREEMENT
____________________________________________
CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION...................................... 1
2. THE FACILITIES...................................................... 17
3. UTILISATION OF THE TRANCHE A FACILITY............................... 18
4. UTILISATION OF THE TRANCHE B FACILITY............................... 19
5. UTILISATION OF THE TRANCHE C FACILITY............................... 20
6. INTEREST PERIODS.................................................... 21
7. PAYMENT AND CALCULATION OF INTEREST................................. 22
8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES.................... 22
9. NOTIFICATION........................................................ 23
10. REPAYMENT OF THE TRANCHE A FACILITY................................. 24
11. REPAYMENT OF THE TRANCHE B FACILITY................................. 24
12. REPAYMENT OF THE TRANCHE C FACILITY................................. 24
13. CANCELLATION AND PREPAYMENT......................................... 24
14. TAXES............................................................... 26
15. TAX RECEIPTS........................................................ 27
16. INCREASED COSTS..................................................... 28
17. ILLEGALITY.......................................................... 29
18. MITIGATION.......................................................... 30
19. REPRESENTATIONS..................................................... 30
20. FINANCIAL INFORMATION............................................... 35
21. FINANCIAL CONDITION................................................. 37
22. COVENANTS........................................................... 39
23. EVENTS OF DEFAULT................................................... 43
24. GUARANTEE........................................................... 46
25. COMMITMENT COMMISSION AND FEES...................................... 48
26. COSTS AND EXPENSES.................................................. 49
27. DEFAULT INTEREST AND BREAK COSTS.................................... 49
28. GUARANTOR'S INDEMNITIES............................................. 51
29. CURRENCY OF ACCOUNT................................................. 52
30. PAYMENTS............................................................ 52
31. SET-OFF............................................................. 54
32. SHARING............................................................. 54
33. THE AGENT, THE ARRANGERS AND THE BANKS.............................. 55
34. ASSIGNMENTS AND TRANSFERS........................................... 60
35. CALCULATIONS AND EVIDENCE OF DEBT................................... 62
36. REMEDIES AND WAIVERS, PARTIAL INVALIDITY............................ 63
37. NOTICES............................................................. 64
38. COUNTERPARTS........................................................ 65
39. AMENDMENTS, MISCELLANEOUS........................................... 65
40. GOVERNING LAW....................................................... 66
41. JURISDICTION........................................................ 66
THE FIRST SCHEDULE THE BANKS............................................. 67
THE SECOND SCHEDULE FORM OF TRANSFER CERTIFICATE......................... 68
THE THIRD SCHEDULE CONDITIONS PRECEDENT.................................. 71
THE FOURTH SCHEDULE NOTICE OF DRAWDOWN................................... 73
THE FIFTH SCHEDULE EXISTING ENCUMBRANCES................................. 74
THE SIXTH SCHEDULE FORM OF COMPLIANCE CERTIFICATE........................ 75
THE SEVENTH SCHEDULE MANDATORY COSTS RATE................................ 76
THIS AGREEMENT is made on 1 September 1999
BETWEEN
(1) DYCKERHOFF AKTIENGESELLSCHAFT (the "Original Borrower" and the
"Guarantor");
(2) LEVEL ACQUISITION CORP. (the "Additional Borrower");
(3) DEUTSCHE BANK AG and DRESDNER BANK AG in Wiesbaden as joint arrangers of
the Facilities (the "Arrangers");
(4) DEUTSCHE BANK LUXEMBOURG S.A. and DRESDNER BANK AG in Wiesbaden as
underwriters of the Facilities (the "Underwriters");
(5) DRESDNER BANK LUXEMBOURG S.A. as agent for the Banks (the "Agent"); and
(6) THE BANKS (as defined below).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Acquisition" means the proposed acquisition through public takeover by the
Original Borrower through the Purchaser of at least 50 per cent, plus one
share of the issued shares of Lone Star and the subsequent merger of the
Purchaser with Lone Star.
"Acquisition Costs" means the purchase price for 100 per cent, of the
shares, warrants and options of Lone Star and compensation payments to the
remaining shareholders of Lone Star in connection with the merger of Lone
Star with the Purchaser and other transaction costs in connection with the
Acquisition in an aggregate amount not to exceed USD 1,300,000,000.
"Acquisition Documents" means any sale and purchase agreement, the merger
agreement and/or tender offer document entered into by the Purchaser in
connection with the Acquisition.
"Additional Borrower" means LEVEL Acquisition Corp.
"Advance" means an advance made or to be made by the Banks hereunder.
"Agent's Spot Rate of Exchange" means the spot rate of exchange quoted by
the Agent at or about 11.00 a.m. on the third Business Day preceding the
first day of the relevant Interest Period for the purchase of United States
Dollars with Deutsche Xxxx.
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"Authorised Signatory" means, in relation to an Obligor, any person who is
duly authorised (in such manner as may be reasonably acceptable to the
Agent) and in respect of whom the Agent has received a certificate signed
by a director or another Authorised Signatory of such Obligor setting out
the name and signature of such person and confirming such person's
authority to act.
"Availability Period" means the period from and including the date hereof
to and including the earlier of (a) 31 January 2000 or (b) the first
Business Day on which the Available Commitments of each of the Banks is
zero.
"Available Commitment" means the aggregate of the Tranche A Commitment, the
Tranche B Commitment and the Tranche C Commitment.
"Available Facilities" means the aggregate of the Available Tranche A
Facility, the Available Tranche B Facility and the Available Tranche C
Facility.
"Available Tranche A Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, its Tranche A Commitment at such
time less the aggregate of its share of the Tranche A Advances which are
then outstanding provided that such amount shall not be less than zero.
"Available Tranche B Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, its Tranche B Commitment at such
time less the aggregate of its share of the Tranche B Advances which are
then outstanding provided that such amount shall not be less than zero.
"Available Tranche C Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, its Tranche C Commitment at such
time less the aggregate of its share of the Tranche C Advances which are
then outstanding provided that such amount shall not be less than zero.
"Available Tranche A Facility" means, at any time, the aggregate amount of
the Available Tranche A Commitments adjusted, in the case of any proposed
drawdown, so as to take into account:
(a) any reduction in the Tranche A Commitment of a Bank pursuant to the
terms hereof; and
(b) the amount of any Tranche A Advance which, pursuant to any other
drawdown is to be made,
on or before the proposed drawdown date.
"Available Tranche B Facility" means, at any time, the aggregate amount of
the Available Tranche B Commitments adjusted, in the case of any proposed
drawdown, so as to take into account:
(a) any reduction in the Tranche B Commitment of a Bank pursuant to the
terms hereof; and
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(b) the amount of any Tranche B Advance which, pursuant to any other
drawdown is to be made,
on or before the proposed drawdown date.
"Available Tranche C Facility" means, at any time, the aggregate amount of
the Available Tranche C Commitments adjusted, in the case of any proposed
drawdown, so as to take into account:
(a) any reduction in the Tranche C Commitment of a Bank pursuant to the
terms hereof; and
(b) the amount of any Tranche C Advance which, pursuant to any other
drawdown is to be made,
on or before the proposed drawdown date.
"Bank" means any financial institution named in:
(a) the First Schedule (The Banks); or
(b) which has become a party hereto in accordance with Clause 34.5
(Assignments by Banks) or Clause 34.6 (Transfers by Banks),
and which has not ceased to be a party hereto in accordance with the terms
hereof.
"Borrowers" means the Original Borrower and the Additional Borrower.
"Business Day" means a day (other than a Saturday or Sunday) on which banks
generally are open for business as required in connection with the relevant
transaction in Frankfurt, London and Luxembourg and, in relation to a date
for the payment or purchase of any sum denominated in United States
Dollars, a day on which banks generally are open for business in New York.
"Code" means the United States Internal Revenue Code 1986 (as amended) and
the regulations promulgated and rulings issued thereunder as in effect from
time to time.
"Commitment" means the aggregate of a Bank's Tranche A Commitment, Tranche
B Commitment and Tranche C Commitment.
"Compliance Certificate" means a certificate substantially in the form set
out in the Sixth Schedule (Form of Compliance Certificate).
"Computer System" means any computer hardware or software or any equipment
operated by electronic means.
"Due Diligence Reports" means:
(i) any legal, financial, commercial, tax, market and environmental due
diligence report prepared in connection with the Acquisition; and
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(ii) a legal opinion describing the contemplated merger prepared by the
Borrowers' U.S. legal counsel,
each in form and substance satisfactory to the Arrangers and addressed to
or with reliance letters in favour of the Arrangers and the Agent on behalf
of themselves and the Banks from time to time.
"EBIT" means, in respect of any Relevant Period, the consolidated net
income of the Group members before:
(a) any income or expense on account of taxation;
(b) any interest, commission, discounts or other fees incurred or payable,
received or receivable by any Group member in respect of Financial
Indebtedness; and
(c) any items treated as exceptional or extraordinary items.
"Employee Plan" means an "employee benefit plan" as defined in Section 3(3)
of ERISA, other than a Multiemployer Plan, which is maintained for, or
under which contributions are made on behalf of, employees of any Obligor
or an ERISA Affiliate.
"Encumbrance" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or claims to, or the benefit of, a bank or other account
may be applied, set off or made subject to a combination of accounts so as
to effect discharge of any sum owed or payable to any person or (c) any
other type of preferential arrangement (including any title transfer and
retention arrangement) having a similar effect.
"Environmental Claim" means any claim, proceedings or investigation by any
person pursuant to any Environmental Law.
"Environmental Law" means any applicable law in any jurisdiction in which
any member of the Group conducts business which relates to the pollution or
protection of the environment or harm to or the protection of human health
or the health of animals or plants.
"Environmental Permits" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties
owned or used by the relevant member of the Group.
"ERISA" shall mean, at any date, the US Employee Retirement Income Security
Act of 1974 (as amended) and the regulations promulgated and rulings issued
thereunder, all as the same shall be in effect at such date.
"ERISA Affiliate" shall mean any person that for purposes of Title I and
Title IV of ERISA and Section 412 of the Code who is a member of the Group,
or under common control with any Obligor, within the meaning of Section
414(b) or (c) of the Code.
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"ERISA Event" shall mean:
(h) (1) any reportable event, as defined in Section 4043 of ERISA, with
respect to an Employee Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified
within thirty days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the
Code or Section 302 of ERISA shall be a reportable event for the
purposes of this paragraph (1) regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code) or (2) the
requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) or any waiver under subsection (4) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of an Employee Plan and an event
described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such
Employee Plan within the following 30 days;
(i) the filing under Section 4041(c) of ERISA of a notice of intent to
terminate any Employee Plan or the termination of any Employee Plan
under Section 4041(c) of ERISA;
(j) the institution of proceedings under Section 4042 of ERISA by the PBGC
for the termination of, or the appointment of a trustee to administer,
any Employee Plan;
(k) the failure to make a required contribution to any Employee Plan that
would result in the imposition of an Encumbrance under Section 412 of
the Code or Section 302 of ERISA; and
an engagement in a non-exempt prohibited transaction within the meaning of
Section 4795 of the Code or Section 406 of ERISA which could be reasonably
likely to have a Material Adverse Effect.
"Escrow Account" means the interest bearing account held in Luxembourg with
the Agent and identified in a letter between the Original Borrower and the
Agent as the Escrow Account which is pledged to the Agent and the Banks to
secure amounts due under the Finance Documents and from which no
withdrawals may be made by any Group member without the written consent of
the Agent.
"Event of Default" means any circumstance described as such in Clause 23
(Events of Default).
"Facilities" means the term loan facilities granted to the Borrowers under
this Agreement.
"Facility Office" means, in relation to the Agent or any Bank, the office
identified with its signature below (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as Transferee)
or such other office as it may reasonably select by notice from time to
time.
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"Finance Documents" means this Agreement and the fee letter referred to in
Clauses 25.2 (Arrangement Fee) and 25.3 (Agency Fee).
"Finance Parties" means the Agent, the Arrangers, the Underwriters and the
Banks.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) any indebtedness for monies borrowed or debit balances at banks;
(b) any indebtedness (actual or contingent) under a guarantee, bond,
security indemnity or other commitment designed to assure any creditor
against any loss in respect of any financial indebtedness of any third
party;
(c) any indebtedness under any acceptance credit;
(d) any indebtedness under any debenture, note, xxxx, xxxx of exchange or
commercial paper instrument;
(e) any indebtedness for monies owing in respect of any interest rate swap
or cross-currency swap or forward sale or purchase contract or other
form of interest or currency hedging transaction (and the amount of
the Financial Indebtedness in relation to any such transaction shall
be calculated by reference to the xxxx to market valuation of such
transaction at the relevant time);
(f) receivables sold or discounted (other than on a non-recourse basis);
(g) any other payment obligation under any lease entered into for the
purpose of obtaining or raising finance; and
(h) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing.
"Financial Projections" means the management forecasts for each financial
year and the following four years prepared on a consolidated basis for the
Group and comprising income statement, balance sheet and cash flow
forecasts in a form satisfactory to the Agent.
"Group" means the Original Borrower and its subsidiaries from time to time.
"Holding Account" means the interest bearing account held in Luxembourg
with the Agent and identified in a letter between the Original Borrower and
the Agent as the Holding Account which is pledged to the Agent and the
Banks to secure amounts due under the Finance Documents and from which no
withdrawals may be made by any Group member without the written consent of
the Agent.
"Information Memorandum" means the document concerning the Group, which at
its request and on its behalf, will be prepared in relation to this
transaction and will be distributed by the Arrangers to selected banks
wishing to become a Bank during Syndication.
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"Initial Financial Projections" means the management forecasts provided
pursuant to The Third Schedule (Conditions Precedent) for the financial
years 1999-2003 prepared on a consolidated basis for the Group and for Lone
Star and comprising income statement, balance sheet and cash flow forecasts
in a form satisfactory to the Arrangers.
"International Accounting Standards" means the international accounting
standards as from time to time promulgated by the International Accounting
Standards Committee.
"Interest Period" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 6.1 (Interest Periods); and
(b) in relation to an Unpaid Sum, any of those periods mentioned in Clause
27.1 (Default Interest Periods).
"LIBOR" means the London Interbank Offered Rate and will be determined by
reference to the Telerate pages 3740 or 3750, as appropriate, or if not
available, the arithmetic mean (rounded upwards, if not already such a
multiple, to the nearest 4 decimal places) of the rates (as notified to the
Agent) at which each of the Reference Banks was offering to prime banks in
the London interbank market deposits in United States Dollars for the
specified period at or about 11.00 a.m., London time, on the Quotation
Date.
"Loan" means the Tranche A Loan, the Tranche B Loan and the Tranche C Loan.
"Lone Star" means Lone Star Industries, Inc., Stamford, Connecticut, U.S.A.
"Majority Banks" means:
(a) whilst no Advances are outstanding, a Bank or Banks whose Commitments
amount (or, if each Bank's Commitment has been reduced to zero, did
immediately before such reduction to zero, amount) in aggregate to at
least sixty-six and two thirds per cent. of the Total Commitments; and
(b) whilst at least one Advance is outstanding, a Bank or Banks to whom in
aggregate at least sixty-six and two thirds per cent. of the Loan is
(or immediately prior to its repayment was then) owed.
"Mandatory Cost Rate" means in relation to any Advance the percentage rate
per annum determined by the Agent as the weighted average of:
(a) the percentage rate per annum determined by the Agent in accordance
with the Seventh Schedule (Mandatory Costs) in relation to that part
of the Advance which is being or is to be provided by any Bank with a
Facility Office in the United Kingdom; and
(b) (in relation to the remaining part of the Advance) the percentage rate
per annum notified to the Agent by any Bank which is required to
comply with the
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regulations of the European Central Bank or the European System of
Central Banks as being the cost, expressed as a percentage rate per
annum, incurred by such Bank in making, maintaining or funding its
respective share of the Advance as a result of compliance with any
applicable reserve cost-requirements imposed by the European Central
Bank or the European System of Central Banks (as currently set out in
ECB Regulations EC/2818/98 and EC/2819/98) provided that if a Bank
(which does not fall under (a) above) does not notify such percentage
rate to the Agent until close of business on the Business Day prior to
the Quotation Date such cost to such Bank shall be deemed to be zero.
"Margin" means:
(a) 0.65 per cent. per annum; or
(b) if the total amount of the Loan and Available Commitments is less than
or equal to USD 1,000,000,000 but greater than USD 750,000,000, 0.5
per cent. per annum;
(c) if the total amount of the Loan and Available Commitments is less than
or equal to USD 750,000,000 but greater than USD 500,000,000, 0.45 per
cent. per annum;
(d) if the total amount of the Loan and Available Commitments is less than
or equal to USD 500,000,000 but greater than USD 300,000,000, 0.40 per
cent. per annum; or
(e) if the total amount of the Loan and Available Commitments is less than
or equal to USD 300,000,000, 0.375 per cent. per annum.
with any reduction in the Margin becoming effective immediately upon the
relevant reduction in the total amount of the Loan and Available
Commitment.
"Material Adverse Effect" means a material adverse effect on (a) the
ability of any Obligor to fulfil or perform its obligations under the
Finance Documents; or (b) the validity or enforceability of the Finance
Documents or the rights or remedies of any Finance Party hereunder.
"Notice of Drawdown" means a notice substantially in the form set out in
the Fourth Schedule (Notice of Drawdown).
"Obligors" means the Borrowers and the Guarantor.
"Original USD Amount" means, in relation to an Advance, the amount thereof
requested in the Notice of Drawdown relating thereto.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to all or any of its functions under ERISA.
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"Participating Member State" means any member state which has adopted the
Euro as its lawful currency at the relevant time.
"Permitted Disposals" means:
(a) disposals of assets by a Group member which do not represent a
substantial part of the Original Borrower's consolidated assets
provided such disposals are on arm's length terms and at fair market
value;
(b) disposals by a Group member in the ordinary course of business on
arm's length terms and at fair market value;
(c) disposals (irrespective whether against cash or in kind contribution
or against any other consideration) between members of the Group
provided that such disposal is on arm's length terms and at fair
market value.
(d) any disposal made with the prior consent of the Agent acting on the
instruction of the Majority Banks; and
(e) any disposal of shares in Lone Star or in another entity holding,
directly or indirectly, Lone Star shares provided that such disposal
is on arms length terms and at fair market value.
"Permitted Encumbrance" means:
(a) any Encumbrance which has been disclosed as specified in the Fifth
Schedule (Existing Encumbrances) prior to the date of signing of this
Agreement and which secures only indebtedness outstanding at the date
hereof;
(b) any Encumbrance arising solely by operation of law in the ordinary
course of business and not due to a default;
(c) any Encumbrance existing at the time of an asset's acquisition not
created in contemplation of such acquisition and not exceeding the
fair market value of the acquired asset provided that within six (6)
months after its creation such Encumbrance ceases to exist or is
released and the amount secured does not exceed DEM 75,000,000;
(d) any Encumbrance arising in connection with a title transfer or
retention of title arrangement entered into in the normal course of
its trading activities and on customary terms;
(e) any Encumbrance created in relation to the netting of bank account
balances in the normal course of banking arrangements, including
general banking conditions, and under hedging arrangements; and
(f) any other Encumbrance securing Financial Indebtedness which in
aggregate does not exceed DEM 75,000,000.
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"Potential Event of Default" means any event which would constitute (with
the passage of time, the giving of notice, the making of any determination
hereunder or any combination thereof (all as provided for herein)) an
Event of Default.
"Principal Group Member" means each of the Obligors and any subsidiary of
the Original Borrower, from time to time which has:
(a) net revenues representing 1 per cent, or more of the total
consolidated net revenues of the Group; or
(b) total assets representing 1 per cent, or more of the total
consolidated assets of the Group; or
(c) EBIT representing 1 per cent, or more of the EBIT of the Group.
Compliance with the conditions set out in paragraphs (a) or (b) shall be
determined by reference to the latest audited financial statements of such
subsidiary (consolidated in the case of a subsidiary which itself has
subsidiaries) and the latest audited consolidated financial statements of
the Group provided that:
(i) if a subsidiary has been acquired since the date as at which the
latest audited consolidated financial statements of the Group were
prepared, such financial statements shall be adjusted in order to
take into account the acquisition of such subsidiary as soon as
practicable after the date of such acquisition (after the elapse of
the next quarter) (such adjustment being certified by the Group's
auditors as representing an accurate reflection of the revised net
sales and total assets and EBIT at the next date consolidated annual
accounts are prepared);
(ii) if, in the case of any subsidiary which itself has subsidiaries, no
consolidated financial statements are prepared and audited, its net
sales and total assets shall be determined on the basis of pro forma
consolidated financial statements of the relevant subsidiary and its
subsidiaries, prepared for this purpose by the auditors of the
Borrower or the auditors for the time being of the relevant
subsidiary as soon as practicable after the date of the preparation
of the unconsolidated accounts of such subsidiary; and
(iii) if any intra-group transfer or re-organisation takes place, the
audited financial statements of the Group and of all relevant
subsidiaries shall be adjusted by the Group's auditors in order to
take into account such intra-group transfer or reorganisation.
A report by the auditors of the Borrower that a subsidiary is or is not a
Principal Subsidiary shall, in the absence of manifest error, be conclusive
and binding on all parties hereto.
"Proportion" means, in relation to a Bank:
(a) whilst no Advances are outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are
then zero, by its
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Commitment to the Total Commitments immediately prior to their
reduction to zero); or
(b) whilst at least one Advance is outstanding, the proportion borne by
its share of the Loan owed.
"Purchaser" means the Additional Borrower.
"Quotation Date" means, in relation to any period for which an interest
rate is to be determined hereunder, the Business Day which is two Business
Days before the first day of such period or such other day on which
quotations would ordinarily be given by prime banks in the relevant
interbank market for deposits in the relevant currency, provided that if,
for any such period, quotations would ordinarily be given on more than one
date or another day, the Quotation Date for that period shall be the last
of those dates.
"Reference Banks" means, prior to the Syndication Date, Deutsche Bank
Luxembourg S.A. and Dresdner Bank Luxembourg S.A. and after the Syndication
Date, Dresdner Bank Luxembourg S.A., Deutsche Bank Luxembourg S.A. and any
two other banks as may be appointed as such by the Agent after due
consultation with the Guarantor.
"Reference Financial Statements" means the financial statements delivered
by the Original Borrower for the financial year of the Group ending 31
December 1998.
"Relevant Period" means each period of twelve (12) months ending on the
last day of each financial quarter of the Borrower's financial year.
"Repayment Date" means the Tranche A Termination Date, Tranche B
Termination Date or a Tranche C Repayment Date.
"Repeated Representations" means each of the representations set out in
Clause 19.1 (Status) to Clause 19.24 (Acquisition).
"Rolling Basis" means the calculation of a ratio or an amount made at the
end of a financial quarter in respect of that financial quarter and each of
the preceding three (3) financial quarters falling on or after 31 March
2000.
"Shareholder Loans" means any loan made by the Original Borrower or any
member of the Group to the Additional Borrower.
"Subsequent Participant" means a Participating Member State that adopts the
Euro as its lawful currency after 1 January 1999.
"Syndication" means the process of the Arrangers inviting banks and other
persons to participate in the Facilities at such times and places as the
Arrangers may reasonably select such process to be completed as of the
Syndication Date.
"Syndication Date" means the day specified by the Arrangers as the day on
which Syndication is to be completed.
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"Total Commitments" means, at any time, the aggregate of the Banks'
Commitments.
"Tranche A Advance" means an Advance made or to be made by the Banks under
the Tranche A Facility.
"Tranche A Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set out opposite its name under the
heading "Tranche A Commitment" in the First Schedule (The Banks).
"Tranche A Loan" means, at any time, the aggregate principal amount of the
Tranche A Advances outstanding at such time.
"Tranche A Termination Date" means 22 August 2000 and, if such day is not a
Business Day, the immediately preceding Business Day.
"Tranche B Advance" means an Advance made or to be made by the Banks under
the Tranche B Facility.
"Tranche B Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set out opposite its name under the
heading "Tranche B Commitment" in the First Schedule (The Banks).
"Tranche B Loan" means, at any time, the aggregate principal amount of the
Tranche B Advances outstanding at such time.
"Tranche B Termination Date" means 28 February 2001 and, if such day is not
a Business Day, the immediately preceding Business Day.
"Tranche C Advance" means an Advance made or to be made by the Banks under
the Tranche C Facility.
"Tranche C Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set out opposite its name under the
heading "Tranche C Commitment" in the First Schedule (The Banks).
"Tranche C Loan" means, at any time, the aggregate principal amount of the
Tranche C Advances outstanding at such time.
"Tranche C Repayment Date" has the meaning given to it in Clause 12
(Repayment of the Tranche C Facility).
"Tranche C Termination Date" means 31 August 2004 and, if such day is not a
Business Day, the immediately preceding Business Day.
"Transfer Certificate" means a certificate substantially in the form set
out in the Second Schedule (Form of Transfer Certificate) or the standard
form from time to time of the Loan Market Association ("LMA") signed by a
Bank and a Transferee under which:
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(a) such Bank seeks to procure the transfer to such Transferee of all or
a part of such Bank's rights, benefits and obligations hereunder upon
and subject to the terms and conditions set out in Clause 34.2
(Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will assume
as a result of delivery of such certificate to the Agent as
contemplated in Clause 0 (Transfers by Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer Certificate.
"Transferee" means a person to which a Bank seeks to transfer by transfer
and assumption all or part of such Bank's rights, benefits and obligations
hereunder.
"Unpaid Sum" means the unpaid balance of any of the sums referred to in
Clause 27.1 (Default Interest Periods).
"Year 2000 Compliant" means, in relation to any Computer System, that any
reference to or use of data before, on or after 31 December 1999 in the
operation of that Computer System will not have an adverse effect on the
use of that Computer System.
1.2 Interpretation
Any reference in this Agreement to:
the "Agent", the "Arrangers" or any "Bank" shall be construed so as to
include its and any subsequent successors and permitted transferees in
accordance with their respective interests;
"continuing", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance
with the terms hereof and, in relation to a Potential Event of Default, one
which has not been remedied within the relevant grace period or waived in
accordance with the terms hereof;
"control" of a body corporate means:
(i) the power to:
(a) cast or control the casting of more than one-half of the maximum
number of votes that might be cast at a general meeting of the
body corporate; or
(b) appoint or remove all, or the majority, of the directors of the
body corporate (and the relevant person or persons shall be
deemed to have power to make such an appointment if;
(1) an individual cannot be appointed as a director of the body
corporate without the exercise by the relevant person or
persons of such power in the individual's favour; or
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(2) an individual's appointment as a director of the body
corporate follows necessarily from the individual being a
director or other officer of any of the relevant person or
persons); or
(c) to give directions with respect to the operating and financial
policies of the body corporate which the directors of the body
corporate are obliged to comply with; or
(ii) the holding of more than one-half of the issued share capital of the
body corporate (excluding any part of that issued share capital that
carries no right to participate beyond a specified amount in a
distribution of either profits or capital);
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent (including contingent
obligations by reason of any guarantee or other assumption of liability for
obligations of third parties);
a "law" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgment, treaty, regulation, directive,
bye-law, order or any other legislative measure of any government,
supranational, local government, statutory or regulatory body or court;
a "member state" shall be construed as a reference to a member state of the
European Union;
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business Day, such
period shall end on the immediately succeeding Business Day to occur
in that next succeeding calendar month or, if none, on the immediately
preceding Business Day; and
(b) if there is no numerically corresponding day in that next succeeding
calendar month, that period shall end on the last Business Day in that
next succeeding calendar month
(and references to "months" shall be construed accordingly);
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
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the "relevant interbank market" is a reference to the London
interbank market.
the "relevant interbank rate" is a reference to LIBOR.
"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "prepay" (or, as the case may be, the
corresponding derivative form thereof);
a "subsidiary" of a company or corporation or partnership shall be
construed as a reference to any company or corporation or partnership:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation;
a "successor" shall be construed so as to include an assignee (other than
an assignment pursuant to Clause 0 (Assignments and Transfers by Banks) or
successor in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"tax" shall be construed so as to include any tax which shall include
corporation tax and advance corporation tax) levy, impost, duty or other
charge of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time;
a "wholly-owned subsidiary" of a company or corporation shall be construed
as a reference to any company or corporation which has no other members
except that other company or corporation and that other company's or
corporation's wholly-owned subsidiaries or persons acting on behalf of that
other company or corporation or its wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company or
corporation or partnership shall be construed so as to include any
equivalent or analogous proceedings under the laws of the jurisdiction in
which such company or corporation or partnership is incorporated or any
jurisdiction in which such company or corporation or partnership carries on
business including the seeking of liquidation, winding-up, reorganisation,
dissolution, administration, arrangement, adjustment, protection or relief
of debtors,
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provided that the following shall not be construed as a "winding-up",
"dissolution" or "administration" for the purposes of this Agreement:
(i) a consolidation, amalgamation, merger or reconstruction, the terms of
which have previously been approved by the Agent acting on the
instructions of the Majority Banks; or
(ii) a voluntary solvent winding-up or dissolution in connection with the
transfer of all or the major part of the assets or shares of a member
of the Group to another member of the Group.
1.3 Currency Symbol
"United States Dollars" and "USD" denotes the lawful currency of the United
States of America.
1.4 Agreements and Statutes
Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be construed
as a reference to this Agreement, or as the case may be, such other
agreement or document as the same may have been, or may from time to
time be, amended, varied, novated or supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to time
be, amended or, in the case of a statute, re-enacted.
1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 Time
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to Frankfurt time.
2. THE FACILITIES
2.1 Grant of the Facilities
The Xxxxx xxxxx to the Borrowers, upon the terms and subject to the
conditions hereof:
2.1.1 a term loan facility (the "Tranche A Facility") in an aggregate
amount of USD 800,000,000 (United States Dollar eight hundred
million);
2.1.2 a term loan facility (the "Tranche B Facility") in an aggregate
amount of USD 200,000,000 (United States Dollar two hundred million);
and
2.1.3 a term loan facility (the "Tranche C Facility") in an aggregate
amount of USD 300,000,000 (United States Dollar three hundred
million).
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2.2 Purpose and Application
The Facilities will be used to finance the Acquisition and to pay the
Acquisition Costs as well as to finance directly and/or indirectly capital
increases in the Purchaser for the purposes of accomplishing the
Acquisition.
2.3 Lower Acquisition Price
In the event that the Acquisition Costs are less than USD 1,300,000,000
(United States Dollar one billion three hundred million) then the Total
Commitments shall be reduced rateably to the actual amount of the
Acquisition Costs and each Bank's Commitment shall be reduced by a pro rata
amount of such reduction.
2.4 Not All Money Applied to Acquisition
In the event that any relevant Borrower fails to apply any portion of any
Advance toward payment of the Acquisition Costs, it shall credit
immediately the portion of such Advance not so applied to the Escrow
Account. Any amount so deposited may be withdrawn only with the written
consent of the Agent and shall be used only for prepayment of the Loan
pursuant to Clause 0 (Mandatory Prepayment) or for payment of the
Acquisition Costs.
2.5 Conditions Precedent
Save as the Banks may otherwise agree, the relevant Borrower may not
deliver any Notice of Drawdown unless the Agent has confirmed to such
Borrower and the Banks that it has received all of the documents and other
evidence listed in the Third Schedule (Conditions Precedent) as appropriate
and that each is, in form and substance, satisfactory to the Agent.
2.6 Original Borrower's Approval
The Arrangers are aware of the fact that the Original Borrower needs the
approval of its supervisory board (Aufsichsrat) to enter into this
Agreement.
2.7 Banks' Obligations Several
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be liable
for the failure by such Bank to perform its obligations hereunder.
2.8 Banks' Rights Several
The rights of each Bank are several and any debt arising hereunder at any
time from an Obligor to any of the other parties hereto shall be a separate
and independent debt. Each such party shall be entitled to protect and
enforce its individual rights arising out of this Agreement independently
of any other party (so that it shall not be necessary for any party hereto
to be joined as an additional party in any proceedings for this purpose).
2.9 Additional Borrower's Agent
The Additional Borrower appoints the Original Borrower as its agent for all
purposes of or connected with the Facility Documents. The Finance Parties
may rely in good
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faith upon any document signed by or on behalf of the Original Borrower as
if it had been signed by the Additional Borrower.
3. UTILISATION OF THE TRANCHE A FACILITY
3.1 Drawdown Conditions for Tranche A Advances
A Tranche A Advance will be made by the Banks to the Additional Borrower
if:
3.1.1 not less than three (3) Business Days before the proposed date for
the making of such Tranche A Advance, the Agent has received a
completed Notice of Drawdown;
3.1.2 the proposed date for the making of such Tranche A Advance is a
Business Day within the Availability Period;
3.1.3 the proposed date for the making of such Tranche A Advance is not
less than five (5) Business Days after the date upon which the
previous Tranche A Advance (if any) was made;
3.1.4 the proposed Original USD Amount of such Tranche A Advance is (a)
(if less than the Available Tranche A Facility) in an amount not less
than USD 15,000,000 and in integral multiples of USD 5,000,000 or (b)
equal to the amount of the Available Tranche A Facility;
3.1.5 there would not, immediately after the making of such Tranche A
Advance, be more than ten (10) Tranche A Advances outstanding;
3.1.6 the interest rate applicable to such Tranche A Advance during its
first Interest Period would not fall to be determined pursuant to
Clause 8.1 (Market Disruption);
3.1.7 pro rata amounts of the Tranche B Facility and the Tranche C
Facility will also be drawn on the same day by any Borrower; and
3.1.8 on and as of the proposed date for the making of such Tranche A
Advance (a) no Event of Default or Potential Event of Default is
continuing and (b) the Repeated Representations are true in all
material respects.
3.2 Each Bank's Participation in Tranche A Advances
Each Bank will participate through its Facility Office in each Tranche A
Advance made pursuant to Clause 3.1 (Drawdown Conditions for Tranche A
Advances) in the proportion borne by its Available Tranche A Commitment to
the Available Tranche A Facility immediately prior to the making of that
Tranche A Advance.
3.3 Reduction of Available Tranche A Commitment
If a Bank's Available Tranche A Commitment is reduced in accordance with
the terms hereof after the Agent has received the Notice of Drawdown for a
Tranche A Advance and such reduction was not taken into account in the
Available Tranche A Facility, then
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both the Original USD Amount and the amount of that Tranche A Advance shall
be reduced accordingly.
4. UTILISATION OF THE TRANCHE B FACILITY
4.1 Drawdown Conditions for Tranche B Advances
A Tranche B Advance will be made by the Banks to the Original Borrower if:
4.1.1 not less than three (3) Business Days before the proposed date for
the making of such Tranche B Advance, the Agent has received a
completed Notice of Drawdown;
4.1.2 the proposed date for the making of such Tranche B Advance is a
Business Day within the Availability Period;
4.1.3 the proposed date for the making of such Tranche B Advance is not
less than five (5) Business Days after the date upon which the
previous Tranche B Advance (if any) was made;
4.1.4 the proposed Original USD Amount of such Tranche B Advance is (a)
(if less than the Available Tranche B Facility) in an amount not less
than USD 15,000,000 and in integral multiples of USD 5,000,000 or (b)
equal to the amount of the Available Tranche B Facility;
4.1.5 there would not, immediately after the making of such Tranche B
Advance, be more than ten (10) Tranche B Advances outstanding;
4.1.6 the interest rate applicable to such Tranche B Advance during its
first Interest Period would not fall to be determined pursuant to
Clause 8.1 (Market Disruption);
4.1.7 pro rata amounts of the Tranche A Facility and the Tranche C
Facility will also be drawn on the same day by any Borrower; and
4.1.8 on and as of the proposed date for the making of such Tranche B
Advance (a) no Event of Default or Potential Event of Default is
continuing and (b) the Repeated Representations are true in all
material respects.
4.2 Each Bank's Participation in Tranche B Advances
Each Bank will participate through its Facility Office in each Tranche B
Advance made pursuant to Clause 4.1 (Drawdown Conditions for Tranche B
Advances) in the proportion borne by its Available Tranche B Commitment to
the Available Tranche B Facility immediately prior to the making of that
Tranche B Advance.
4.3 Reduction of Available Tranche B Commitment
If a Bank's Available Tranche B Commitment is reduced in accordance with
the terms hereof after the Agent has received the Notice of Drawdown for a
Tranche B Advance and such reduction was not taken into account in the
Available Tranche B Facility, then
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both the Original USD Amount and the amount of that Tranche B Advance shall
be reduced accordingly.
5. UTILISATION OF THE TRANCHE C FACILITY
5.1 Drawdown Conditions for Tranche C Advances
A Tranche C Advance will be made by the Banks to a Borrower if:
5.1.1 not less than three (3) Business Days before the proposed date for
the making of such Tranche C Advance, the Agent has received a
completed Notice of Drawdown;
5.1.2 the proposed date for the making of such Tranche C Advance is a
Business Day within the Availability Period;
5.1.3 the proposed date for the making of such Tranche C Advance is not
less than five (5) Business Days after the date upon which the
previous Tranche C Advance (if any) was made;
5.1.4 the proposed Original USD Amount of such Tranche C Advance is (a)
(if less than the Available Tranche C Facility) in an amount not less
than USD 15,000,000 and in integral multiples of USD 5,000,000 or (b)
equal to the amount of the Available Tranche C Facility provided that
the Additional Borrower shall at no time have ever drawn more than
62.5% of the Tranche C Facility and the Original Borrower shall at no
time have ever drawn more than 37.5% of the Tranche C Facility;
5.1.5 there would not, immediately after the making of such Tranche C
Advance, be more than ten (10) Tranche C Advances outstanding;
5.1.6 the interest rate applicable to such Tranche C Advance during its
first Interest Period would not fall to be determined pursuant to
Clause 8.1 (Market Disruption);
5.1.7 pro rata amounts of the Tranche A Facility and the Tranche B
Facility will also be drawn on the same day by any Borrower; and
5.1.8 on and as of the proposed date for the making of such Tranche C
Advance (a) no Event of Default or Potential Event of Default is
continuing and (b) the Repeated Representations are true in all
material respects.
5.2 Each Bank's Participation in Tranche C Advances
Each Bank will participate through its Facility Office in each Tranche C
Advance made pursuant to Clause 5.1 (Drawdown Conditions for Tranche C
Advances) in the proportion borne by its Available Tranche C Commitment to
the Available Tranche C Facility immediately prior to the making of that
Tranche C Advance.
5.3 Reduction of Available Tranche C Commitment
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If a Bank's Available Tranche C Commitment is reduced in accordance with
the terms hereof after the Agent has received the Notice of Drawdown for a
Tranche C Advance and such reduction was not taken into account in the
Available Tranche C Facility, then both the Original USD Amount and the
amount of that Tranche C Advance shall be reduced accordingly.
6. INTEREST PERIODS
6.1 Interest Periods
The period for which an Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall begin
on the day such Advance is made) shall start on the last day of the
preceding such period.
6.2 Duration
The duration of each Interest Period shall, save as otherwise provided
herein, be one, two, three or six months (or such other customary period of
not more than twelve months which the relevant Borrower and the Agent shall
agree), in each case as the relevant Borrower may not later than 11:00 a.m.
three (3) Business Days' beforehand select provided that:
6.2.1 if the relevant Borrower fails to give such notice of its selection
in relation to an Interest Period, the duration of that Interest
Period shall, subject to sub-clauses 6.2.2 and 6.2.3, be one month;
6.2.2 any Interest Period which begins during or at the same time as any
other Interest Period and relates to an Advance from the same tranche
shall end at the same time as that other Interest Period;
6.2.3 any Interest Period which would otherwise end during the month
preceding, or extend beyond, a Repayment Date shall be of such
duration that it shall end on that Repayment Date; and
6.2.4 prior to the Syndication Date, the duration of any Interest Period
shall be not more than one month.
6.3 Consolidation of Advances
The Agent may, at its discretion, direct that at the end of the
Availability Period, any two or more Advances from the same tranche be
consolidated into a single Advance so that at no time after the
Availability Period shall there be more than three (3) Advances from the
same tranche outstanding at any one time.
6.4 Division of Advances
The relevant Borrower may, by delivery of notice to the Agent not later
than 11:00 a.m. three (3) Business Days' beforehand, direct that any
Advance shall, at the beginning of any Interest Period relating thereto, be
divided into (and thereafter, save as otherwise provided herein, treated in
all respects as) two or more Advances from the same tranche having such
Original USD Amounts (in aggregate, equalling the amount of the Advance
being so divided) as shall be specified by a Borrower in such notice
provided
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that at no time shall there be not more than three (3) Advances from the
same tranche outstanding at any one time.
7. PAYMENT AND CALCULATION OF INTEREST
7.1 Payment of Interest
On the last day of each Interest Period the relevant Borrower shall pay
accrued interest on the Advance to which such Interest Period relates, and,
in the case of an Interest Period of more than six months, the date six
months after the first day of such Interest Period.
7.2 Calculation of Interest
The rate of interest applicable to an Advance from time to time during an
Interest Period relating thereto shall be the rate per annum which is the
sum of:
7.2.1 the Margin;
7.2.2 the Mandatory Cost Rate if applicable; and
7.2.3 the relevant interbank rate.
8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
8.1 Market Disruption
If, in relation to any Advance or Unpaid Sum:
8.1.1 The Agent determines that at or about 11.00 a.m. on the Quotation
Date for the relevant Interest Period in respect of such Advance or
Unpaid Sum it is unable to access the relevant page or an interest
rate for deposits of United States Dollars in the relevant interbank
market does not appear on the relevant page (as appropriate, or such
other page as may replace such page) and none or only one of the
Reference Banks was offering to prime banks in the relevant interbank
market deposits for the proposed duration of such Interest Period in
the currency in which such Advance or Unpaid Sum is to be
denominated; or
8.1.2 before the close of business in the relevant interbank market on the
Quotation Date for such Advance or Unpaid Sum the Agent has been
notified by a Bank or each of a group of Banks to whom in aggregate
thirty-five per cent. or more of such Advance if made would be owed
(or such Unpaid Sum is owed) that the relevant interbank rate does
not accurately reflect the cost of funding its participation in such
Advance or Unpaid Sum,
then the Agent shall notify the other parties hereto of such event and,
notwithstanding anything to the contrary in this Agreement, Clause 8.2
(Substitute Interest and Interest Rate) shall apply to such Advance or
Unpaid Sum. If sub-clauses 8.1.1 or 8.1.2 apply to a proposed Advance, such
Advance shall not be made.
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8.2 Substitute Interest Period and Interest Rate
If either sub-clause 8.11 or 8.12 of Clause 8.1 (Market Disruption)
applies to an Advance or an Unpaid Sum the rate of interest applicable to
such Advance or Unpaid Sum during the relevant Interest Period or Term
shall (subject to any agreement reached pursuant to Clause 8.3 (Alternative
Rate)) be the rate per annum which is the sum of:
8.2.1 the Margin; and
8.2.2 the rate per annum determined by the Agent to be the weighted
average (rounded to four decimal places) of the rates notified by
each Bank to the Agent before the last day of such Interest Period
to be that which expresses as a percentage rate per annum the cost
to each Bank of funding from whatever reasonable sources it may
select its portion of such Advance or Unpaid Sum during such
Interest Period.
8.3 Alternative Rate
If (a) either of those events mentioned in sub-clauses 0 and 0 of Clause
8.1 (Market Disruption) occurs in relation to an Advance or Unpaid Sum or
(b) by reason of circumstances affecting the relevant interbank market
during any period of three consecutive Business Days the relevant interbank
rate is not available for United States Dollars to prime banks in the
relevant interbank market, then if the Agent or the relevant Borrower so
requires, the Agent and the relevant Borrower shall enter into negotiations
with a view to agreeing a substitute basis (i) for determining the rates of
interest from time to time applicable to the Advances and Unpaid Sums
and/or (ii) upon which the Advances and Unpaid Sums may be maintained
thereafter and any such substitute basis that is agreed shall take effect
in accordance with its terms and be binding on each party hereto, provided
that the Agent may not agree any such substitute basis without the prior
consent of each Bank.
9. NOTIFICATION
9.1 Advances and Interest Periods
Not later than 11:00 a.m. three (3) Business Days before an Advance is to
be made the Agent shall notify each Bank of the proposed amount of the
relevant Advance, its proposed Interest Period and the aggregate principal
amount of the relevant Advance allocated to such Bank pursuant to Clause
3.2 (Each Bank's Participation in Tranche A Advances), Clause 4.2 (Each
Bank's Participation in Tranche B Advances) or Clause 5.2 (Each Bank's
Participation in Tranche C Advances).
9.2 Interest Rate Determination
The Agent shall promptly notify the relevant Borrower and the Banks of each
determination of the relevant interbank rate applicable to an Advance.
9.3 Changes to interbank rate, Interest Periods, or Interest Rates
The Agent shall promptly notify the relevant Borrower and the Banks of (a)
any change to the relevant interbank rate or (b) the proposed length of an
Interest Period or an interest rate occasioned by the operation of Clause
8.1 (Market Disruption).
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10. REPAYMENT OF THE TRANCHE A FACILITY
The relevant Borrower shall repay each Tranche A Advance made to it in full
on the Tranche A Termination Date.
11. REPAYMENT OF THE TRANCHE B FACILITY
The relevant Borrower shall repay each Tranche B Advance made to it in full
on the Tranche B Termination Date.
12. REPAYMENT OF THE TRANCHE C FACILITY
Each date on which an instalment of the Tranche C Loan is to be repaid is
herein referred to as "Tranche C Repayment Date". The relevant Borrower
shall repay the Tranche C Loan in instalments in the amount representing
the percentage of the Tranche C Loan as at the expiry of the Availability
Period and on the Tranche C Repayment Dates set out in the table below:
Tranche C Repayment Date Percentage of Tranche C Loan
31 August 2001 10.0%
28 February 2002 12.5%
30 August 2002 12.5%
28 February 2003 15.0%
29 August 2003 15.0%
27 February 2004 17.5%
31 August 2004 17.5%
-----
100.0%
13. CANCELLATION AND PREPAYMENT
13.1 Cancellation of the Loan
13.1.1 Voluntary Cancellation
The Original Borrower may, by giving to the Agent not less than ten (10)
Business Days' prior notice to that effect, cancel the whole or any part
(being an amount no less than USD 25,000,000 or equivalent and in integral
multiples of USD 5,000,000) of the Available Facility without premium or
penalty. Any such cancellation shall reduce the Available Commitment and
the Commitment of each Bank rateably pro rata across the tranches.
13.1.2 Automatic Cancellation
The Available Facilities shall be automatically cancelled at 5:00 p.m. on
the last day of the Availability Period.
13.2 Cancellation of a Bank's Commitment
If:
13.2.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 0 (Tax Gross-up); or
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13.2.2 any Bank claims indemnification from the relevant Borrower under
Clause 14.2 (Tax Indemnity) or Clause 16.1 (Increased Costs),
the relevant Borrower may, whilst such circumstance continues, by not less
than 30 Business Days' prior notice to the Agent (which notice shall be
irrevocable), cancel such Bank's Commitment whereupon such Bank shall cease
to be obliged to participate in Advances and its Commitment shall be
reduced to zero.
13.3 Voluntary Prepayment
Any Borrower with the consent of the Guarantor may without premium or
penalty, if the Guarantor has given to the Agent not less than ten (10)
Business Days' prior notice to that effect, prepay the whole of any Advance
or any part of any Advance (being an amount such that the amount of such
Advance will be reduced by an amount not less than USD 25,000,000 and in an
integral multiple of USD 5,000,000). Any prepayment so made may give rise
to amounts becoming due to the Banks from the relevant Borrower pursuant to
Clause 27.4 (Break Costs) and shall satisfy pro tanto such Borrower's
obligations under Clause 10 (Repayment of the Tranche A Facility), Clause
11 (Repayment of the Tranche B Facility) and Clause 12 (Repayment of the
Tranche C Facility).
13.4 Mandatory Prepayment
In the event that any member of the Group:
13.4.1 disposes of any material asset of any Principal Group Member (in
any single transaction or any series of transactions which the
Agent reasonably determines to be the equivalent of a single
transaction) unless the net proceeds (after tax) of such disposal
are less than DEM 300,000,000 and such member of the Group
reinvests the proceeds of such disposal in an equivalent asset
within six (6) months of such disposal;
13.4.2 receives purchase price reimbursement, proceeds from breach of
warranty or other claims under the Acquisition Documents;
13.4.3 sells the whole or substantially the whole business or assets of
the Group;
13.4.4 receives proceeds from any securities issued by any member of the
Group into the capital or credit markets provided that the Tranche
A Loan and Tranche B Loan have not been repaid in full; or
13.4.5 has any amount standing to the credit of the Escrow Account after
the end of the Availability Period:
an amount corresponding to any net proceeds received in respect thereof
must be deposited into the Holding Account and then must be applied to
repayment of amounts outstanding under the Loan on the last day(s) of the
then current Interest Period(s). In the case of any change of control of
the Original Borrower, the Original Borrower shall immediately deposit into
the Holding Account for prepayment the entire amount of the Loan
outstanding. Any prepayment so made shall be applied to satisfying pro
tanto
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such Borrower's obligations first under Clause 10 (Repayment of the Tranche
A Facility), then under Clause 11 (Repayment of the Tranche B Facility) and
then under Clause 12 (Repayment of the Tranche C Facility.
13.5 Application of Funds
Amounts prepaid pursuant to Clause 13.3 (Voluntary Prepayment) and Clause
13.4 (Mandatory Prepayment) shall be applied:
13.5.1 first, in or toward repayment of the Tranche A Loan;
13.5.2 secondly in or toward repayment of the Tranche B Loan; and
13.5.3 thirdly, in or toward payment of the Tranche C Loan (beginning with
the last Tranche C Repayment Date and moving forward to the first
Tranche C Repayment Date).
Any prepayment shall be applied pro rata against amounts outstanding in
Deutsche Xxxx and United States Dollars as the relevant Borrower shall
specify in its notice of prepayment.
13.6 Notice of Cancellation or Prepayment
Any notice of cancellation or prepayment given by the relevant Borrower
pursuant to Clause 13.1 (Cancellation of the Loan), Clause 13.3 (Voluntary
Prepayment) or Clause 13.4 (Mandatory Prepayment) shall be irrevocable,
shall preclude the amounts cancelled or prepaid from being re-drawn and
shall specify the date upon which such cancellation or prepayment is to be
made and the amount of such cancellation or prepayment.
14. TAXES
14.1 Tax Gross-up
All payments to be made by an Obligor to any Finance Party hereunder shall
be made free and clear of and without deduction for or on account of tax
unless such Obligor is required to make such a payment subject to the
deduction or withholding of tax, in which case the sum payable by such
Obligor (in respect of which such deduction or withholding is required to
be made) shall be increased to the extent necessary to ensure that such
Finance Party receives a sum net of any deduction or withholding equal to
the sum which it would have received if no such deduction or withholding
had been made or required to be made.
If any payments under this Agreement are or become subject to VAT, the VAT
shall be borne by the relevant Obligor.
14.2 Tax Indemnity
Without prejudice to Clause 14.1 (Tax Gross-up), if any Finance Party is
required to make any payment of or on account of tax on or in relation to
any sum received or receivable hereunder or if any liability in respect of
any such payment is asserted, imposed, levied or assessed against any
Finance Party, the relevant Obligor shall, upon demand of the Agent,
promptly indemnify the Finance Party which suffers a loss or liability as a
result
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against such payment or liability, together with any interest, penalties,
costs and expenses payable or incurred in connection therewith, provided
that this Clause 14.2 shall not apply to:
14.2.1 any tax imposed on and calculated by reference to the overall net
income of such Finance Party by the jurisdiction in which such
Finance Party is incorporated; or
14.2.2 any tax imposed on and calculated by reference to the net income of
the Facility Office of such Finance Party by the jurisdiction in
which its Facility Office is located.
14.3 Claims by Banks
A Bank intending to make a claim pursuant to Clause 14.2 (Tax Indemnity)
shall notify the Agent of the event giving rise to the claim, whereupon the
Agent shall notify the relevant Borrower and the Guarantor thereof.
15. TAX RECEIPTS
15.1 Notification of Requirement to Deduct Tax
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there
is any change in the rates at which or the manner in which such deductions
or withholdings are calculated), such Obligor shall promptly notify the
Agent.
15.2 Evidence of Payment of Tax
If an Obligor makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full amount
required to be deducted or withheld to the relevant taxation or other
authority within the time allowed for such payment under applicable law and
shall deliver to the Agent for each Bank, within thirty days after it has
made such payment to the applicable authority, an original receipt (or a
certified copy thereof) issued by such authority evidencing the payment to
such authority of all amounts so required to be deducted or withheld in
respect of that Bank's share of such payment.
15.3 Tax Credit Payment
If an additional payment is made under Clause 14 (Taxes) by an Obligor for
the benefit of any Finance Party and such Finance Party, in its sole
discretion, determines that it has obtained (and has derived full use and
benefit from) a credit against, a relief or remission for, or repayment of,
any tax, then, if and to the extent that such Finance Party, in its sole
opinion, determines that:
15.3.1 such credit, relief, remission or repayment is in respect of or
calculated with reference to the additional payment made pursuant
to Clause 14 (Taxes); and
15.3.2 its tax affairs for its tax year in respect of which such credit,
relief, remission or repayment was obtained have been finally
settled,
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such Finance Party shall, to the extent that it can do so without prejudice
to the retention of the amount of such credit, relief, remission or
repayment, pay to such Obligor such amount as such Finance Party shall, in
its sole opinion, determine to be the amount which will leave such Finance
Party (after such payment) in no worse after-tax position than it would
have been in if the additional payment in question had not been required to
be made by such Obligor.
15.4 Tax Credit Clawback
If any Finance Party makes any payment to an Obligor pursuant to Clause
15.3 (Tax Credit Payment) and such Finance Party subsequently determines,
in its reasonable opinion, that the credit, relief, remission or repayment
in respect of which such payment was made was not available or has been
withdrawn or that it was unable to use such credit, relief, remission or
repayment in full, such Obligor shall reimburse such Finance Party such
amount as such Finance Party determines, in its reasonable opinion, is
necessary to place it in the same after-tax position as it would have been
in if such credit, relief, remission or repayment had been obtained and
fully used and retained by such Finance Party.
15.5 Tax and Other Affairs
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner it
thinks fit, oblige any Finance Party to claim any credit, relief, remission
or repayment in respect of any payment under Clause 14.1 (Tax Gross-up) in
priority to any other credit, relief, remission or repayment available to
it or oblige any Finance Party to disclose any information relating to its
tax or other affairs or any computations in respect thereof.
16. INCREASED COSTS
16.1 Increased Costs
If, by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority:
16.1.1 a Bank or any holding company of such Bank is unable to obtain the
rate of return on its capital which it would have been able to
obtain but for such Bank's entering into or assuming or maintaining
a commitment or performing its obligations under this Agreement;
16.1.2 a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or maintaining a
commitment or performing its obligations under this Agreement; or
16.1.3 there is any increase in the cost to a Bank or any holding company
of such Bank of funding or maintaining such Bank's share of the
Advances or any Unpaid Sum,
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including any such circumstance which results from the introduction of, the
changeover to or the operation of the Euro in any Participating Member
State or Subsequent Participant, then the relevant Borrower shall, from
time to time on demand of the Agent, promptly pay to the Agent for the
account of that Bank amounts sufficient to indemnify that Bank or to enable
that Bank to indemnify its holding company from and against, as the case
may be, (i) such reduction in the rate of return of capital, (ii) such cost
or (iii) such increased cost.
16.2 Increased Costs Claims
A Bank intending to make a claim pursuant this Clause 16.1 (Increased
Costs) shall notify the Agent of the event giving rise to such claim,
whereupon the Agent shall notify without undue delay the relevant Borrower
thereof setting forth such costs in reasonable detail.
16.3 Exclusions
Notwithstanding the foregoing provisions of this Clause 16, no Bank shall
be entitled to make any claim under this Clause 16 in respect of any cost,
increased cost or liability compensated by Clause 14 (Taxes).
17. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund or
allow to remain outstanding all or part of its share of the Advances, then
that Bank shall, promptly after becoming aware of the same, deliver to the
relevant Borrower through the Agent a notice to that effect and:
17.1.1 such Bank shall not thereafter be obliged to participate in the
making of any Advances and the amount of its Commitment shall be
immediately reduced to zero; and
17.1.2 if the Agent on behalf of such Bank so requires, the relevant
Borrower shall and the Original Borrower shall procure that such
Borrower shall on such date as the Agent shall have specified repay
such Bank's share of any outstanding Advances together with accrued
interest thereon and all other amounts owing to such Bank
hereunder.
18. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
18.1.1 an increase in any sum payable to it or for its account pursuant to
Clause 14.1 (Tax Gross-up);
18.1.2 a claim for indemnification pursuant to Clause 14.2 (Tax Indemnity)
or Clause 16.1 (Increased Costs); or
18.1.3 the reduction of its Available Commitment to zero or any repayment
to be made by any Borrower pursuant to Clause 17 (Illegality)
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then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to in sub-clauses 0, 0 and 0, such Bank shall promptly
upon becoming aware of such circumstances notify the Agent thereof and, in
consultation with the Agent and the relevant Borrower and to the extent
that it can do so lawfully and without prejudice to its own position, take
reasonable steps (including a change of location of its Facility Office or
the transfer of its rights, benefits and obligations hereunder to another
financial institution acceptable to the relevant Borrower and willing to
participate in the Facility) to mitigate the effects of such circumstances,
provided that such Bank shall be under no obligation to take any such
action if, in the opinion of such Bank, to do so might have any adverse
effect upon its business, operations or financial condition (other than any
minor costs and expenses of an administrative nature).
19. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
19.1 (Status) to Clause 19.25 (Information Memorandum) on its own behalf
and the Guarantor makes the representations and warranties on behalf of the
members of the Group and acknowledges that the Finance Parties have entered
into this Agreement in reliance on those representations and warranties
provided that the representation set out in Clause 19.25 (Information
Memorandum) shall be made by the Guarantor on the Syndication Date only.
19.1 Status
Each Obligor is a corporation duly organised under the laws of its
jurisdiction of incorporation.
19.2 Governing Law and Judgments
In any proceedings taken in its jurisdiction of incorporation in relation
to any Finance Document, the choice of German law as the governing law of
the Finance Documents and any judgment obtained in Germany will be
recognised and enforced.
19.3 Binding Obligations
The obligations expressed to be assumed by any of the Obligors in the
Finance Documents are legal and valid obligations binding on it and
enforceable against it in accordance with the terms thereof.
19.4 Execution of the Finance Documents
The Obligors' execution of the Finance Documents and the Acquisition
Documents to which they are a party and the exercise of their rights and
their performance of their obligations thereunder (including, without
limitation, borrowing thereunder and giving the guarantees contemplated
hereunder) do not and will not:
19.4.1 conflict with any agreement, mortgage, bond or other instrument to
which any Obligor (with the exception of change of ownership
clauses in existing documentation of Indebtedness) is a party or
which is binding upon any Obligor or any of its assets;
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19.4.2 conflict with its constitutive documents; or
19.4.3 conflict with any applicable law.
Each Obligor has the power to enter into and perform its obligations under
the Finance Documents and the Acquisition Documents to which it is a party
and all corporate and other action required to authorise the execution and
performance of the Finance Documents to which it is a party and the
performance of its obligations thereunder has been duly taken subject to
Clause 2.6 (Original Borrower's Approval).
19.5 No Winding-up
No member of the Group has taken any corporate action nor have any other
steps been taken or legal proceedings been started or (to the best of its
knowledge and belief) threatened against any Obligor for its winding-up,
dissolution or administration or for the enforcement of an Encumbrance over
any of its revenues or assets or the appointment of a receiver,
administrator, administrative receiver, conservator, custodian, trustee or
similar officer of it or of any or all of its assets or revenues.
19.6 Insolvency in Germany
No German member of the Group is unable to pay its debts as they fall due
(Zahlungsunfahigkeit), commences negotiations with any one or more of its
creditors with a view to a general readjustment or rescheduling of its
indebtedness of or, for any of the reasons set out in sections 17 - 19 of
the German Insolvency Code (Insolvenzordnung), the Original borrower or any
other German Principal Group Member files for insolvency (Antrag auf
Eroffnung eines Insolvenzverfahrens) or the board of directors of the
Original Borrower or any other German Principal Group Members is required
by law to file for insolvency or the competent court takes any of the
actions set out in section 21 of the Insolvenzordnung or the competent
court institutes insolvency proceedings against the Original Borrower or
any other German Principal Group Member (Eroffnung des
Insolvenzverfahrens).
19.7 No Material Defaults
No member of the Group is in breach of or in default under any agreement to
which it is a party or which is binding on it or any of its assets to an
extent or in a manner which could have a Material Adverse Effect.
19.8 No Event of Default
No Event of Default or Potential Event of Default has occurred and is
continuing.
19.9 No Material Proceedings
No action or administrative proceeding of or before any court, arbitrator
or agency (including, but not limited to, investigative proceedings) which
could have a Material Adverse Effect is pending or has been started or
threatened against any Obligor or its assets.
19.10 Audited Financial Statements
The Reference Financial Statements and the most recent audited
consolidated, partially consolidated and unconsolidated financial
statements of each Obligor:
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19.10.1 were prepared in accordance with accounting principles generally
accepted in the Federal Republic of Germany (Grundsatze
ordnungsgemaer Buchfuhrung) or in its respective jurisdiction of
incorporation (as the case may be) and consistently applied and are
consistent with accounting principles applied in the preparation of
the Original Borrower's financial statements for the previous three
financial years;
19.10.2 disclose all liabilities (contingent or otherwise) and all
unrealised or anticipated losses required to be disclosed by the
accounting principles generally accepted in the relevant
jurisdiction of incorporation;
19.10.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of such Obligor or, as the case
may be, the Group during the relevant financial year; and
19.10.4 are the basis upon which the Initial Financial Projections were
prepared.
19.11 No Material Adverse Change
Since the date as at which the Reference Financial Statements were
prepared, there has been no event or occurrence which could have a
Material Adverse Effect on the Group taken as a whole.
19.12 Due Diligence Reports
The Due Diligence Reports have been prepared after due and careful
consideration and the Original Borrower having made all reasonable
enquiries is not aware of any inaccuracy or omission as to any factual
matter contained therein which could have a Material Adverse Effect.
19.13 ERISA
No member of the Group nor any of its ERISA Affiliates are making or
accruing an obligation to make contributions or has within any of the five
calendar years immediately preceding the date of this Agreement made or
accrued an obligation to make contributions to any Multiemployer Plan the
withdrawal from which could have a Material Adverse Effect on Lone Star;
each Employee Plan is in compliance in all material respects in form and
operation with ERISA and the Code and all other applicable laws and
regulations; each Employee Plan which is intended to be qualified under
Section 401(a) of the Code has been determined by the IRS to be so
qualified, and, to the knowledge of each member of the Group and its ERISA
Affiliates, nothing has occurred since the date of such determination that
would adversely affect such determination; the fair market value of the
assets of each Employee Plan subject to Title IV of ERISA is at any
determination date sufficient that the plan may be terminated in a
standard termination under Section 4041(b) of ERISA; there are no material
actions, suits or claims pending against an Employee Plan (other than
routine claims for benefits) or to the knowledge of any member of the
Group or any ERISA Affiliate, which could reasonably be expected to be
asserted successfully against any Employee Plan; each member of the Group
and its ERISA Affiliates has made all material contributions to or under
each such Employee Plan required by law within the
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applicable time limits prescribed thereby, the terms of such Employee
Plan, or any contract or agreement requiring contributions to an Employee
Plan; no member of the Group nor any ERISA Affiliate has ceased operations
at a facility so as to become subject to the provisions of Section 4068(a)
of ERISA, withdrawn as a substantial employer so as to become subject to
the provisions of Section 4063 of ERISA or ceased making contributions to
any Employee Plan subject to Section 4064(a) of ERISA to which it made
contributions; and no member of the Group nor any of the ERISA Affiliates
has incurred or reasonably expects to incur any material liability to
PBGC.
19.14 Validity and Admissibility in Evidence
All acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable any Obligor lawfully to enter into,
exercise its rights under and perform and comply with the obligations
expressed to be assumed by it in the Finance Documents, (b) to ensure that
the obligations expressed to be assumed by it in the Finance Documents are
legal, valid, binding and enforceable and (c) to make the Finance
Documents admissible in evidence in its jurisdiction of incorporation have
been done, fulfilled and performed.
19.15 Claims Pari Passu
Under the laws of any Obligor's jurisdiction of incorporation in force at
the date hereof, the claims of the Finance Parties against it under the
Finance Documents will rank at least pari passu with the claims of all its
other unsecured and unsubordinated creditors save those whose claims are
preferred solely by any bankruptcy, insolvency, liquidation or other
similar laws of general application.
19.16 No Filing or Stamp Taxes
Under the laws of any Obligor's jurisdiction of incorporation in force at
the date hereof, it is not necessary that the Finance Documents be filed,
recorded or enrolled with any court or other authority in such
jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents.
19.17 Encumbrances
Save for Permitted Encumbrances, no Encumbrance exists over all or any of
the present or future revenues or assets of any member of the Group. The
execution of the Finance Documents and the exercise by any Obligor of its
rights thereunder will not result in the existence or imposition of nor
will oblige any Group member to create any Encumbrance (save for Permitted
Encumbrances) in favour of any person over any of the present or future
revenues and assets of any member of the Group.
19.18 No Deduction or Withholding
Under the laws of any Obligor's jurisdiction of incorporation in force at
the date hereof other than disclosed, it will not be required to make any
deduction or withholding from any payment it may make hereunder.
19.19 Environmental Compliance
To the best of its knowledge and belief, each member of the Group has duly
performed and observed in all material respects all Environmental Laws,
Environmental Permits
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and all other material covenants, conditions, restrictions or agreements
directly or indirectly concerned with any contamination, pollution or
waste or the release or discharge of any toxic or hazardous substance in
connection with any real property which is or was at any time owned,
leased or occupied by any member of the Group or on which any member of
the Group has conducted any activity where failure to do so could have a
Material Adverse Effect.
19.20 Environmental Claims
No Environmental Claim has been commenced or (to the best of the Original
Borrowers' knowledge and belief) is threatened against any member of the
Group where such claim may, if determined against such member of the
Group, have a Material Adverse Effect.
19.21 Ownership of the Additional Borrower
The Original Borrower will maintain during the lifetime of the Facilities
a majority stake within the meaning of Section 16 of the German Stock
Corporation Act (Aktiengesetz - "AktG") in the Additional Borrower, unless
it is to be disposed of in compliance with Clause 0 (No Disposals).
19.22 Year 2000 Compliant
All material Computer Systems used by the Original Borrower, and the
Original Borrower represents that all material Computer Systems used by
any member of the Group, are Year 2000 Compliant or that reasonable steps
have been taken to make them Year 2000 Compliant.
19.23 No Tax Claims
Each member of the Group has duly and punctually paid and discharged all
material taxes, assessments and governmental charges imposed upon it or
its assets within the time period allowed therefor without imposing tax
penalties or creating any Encumbrance with priority to the Banks which
could have a Material Adverse Effect (save to the extent payment thereof
is being contested in good faith by the relevant member of the Group and
where payment thereof can be lawfully withheld and would not result in an
Encumbrance).
19.24 Acquisition
The Purchaser or relevant member of the Group has obtained, or shall have
obtained when necessary, any consent, licenses and other approval or
authorisation (including but not being limited to approval from all
applicable cartel regulating authorities) and complied with any regulation
reasonably necessary (including but not being limited to disclosure and
filing requirements of the Securities and Exchange Commission in the
United States) for the Acquisition and the execution of the Finance
Documents and material for the conduct of the business of the Group as
carried on at the date hereof, the terms and conditions of any such
consent, license or other approval or authorisation have been complied
with in all material respects and they have not been and, so far as it is
aware, will not be revoked or otherwise terminated.
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19.25 Information Memorandum
The factual information contained in the Information Memorandum is true,
complete and accurate in all material respects as at the date of the
Information Memorandum, the financial projections contained therein have
been prepared on the basis of recent historical information and on the
basis of reasonable assumptions and, so far as the Original Borrower is
aware (or should have been aware), nothing has occurred or been omitted
that renders the information contained in the Information Memorandum
untrue or misleading in any material respect. In the case of any
projections or forecasts and assumptions on which such projections or
forecasts are based (or will have been based), such projections or
forecasts were arrived at by careful consideration and the Obligors are
not aware of any material facts or circumstances that have not been
disclosed to the Arrangers and which if disclosed would, or would
reasonably be expected to, adversely affect the decision of a person
considering whether or not to provide finance to the Borrowers.
19.26 Repetition of Representations
The Repeated Representations shall be deemed to be repeated by the
relevant Borrower and the Guarantor by reference to the facts and
circumstances then existing on each date of drawdown and on the first day
of each Interest Period.
20. FINANCIAL INFORMATION
20.1 Annual Statements
Beginning with statements for the year ending on 31 December 1999, each
Obligor shall as soon as the same become available, but in any event
within one hundred and fifty (150) days after the end of each of its
financial years, deliver to the Agent in sufficient copies for the Banks
its financial statements (or, in the case of the Original Borrower, its
financial statements and the consolidated financial statements of the
Group) for such financial year, audited by the Original Borrower's
existing auditors or another internationally recognised firm of
independent auditors reasonably acceptable to the Agent.
20.2 Quarterly Statements
Beginning with statements for the quarter ending on 31 March 2000, the
Original Borrower shall as soon as the same become available, but in any
event within ninety (90) days after the end of each of its financial
quarters, deliver to the Agent in sufficient copies for the Banks its
unaudited consolidated financial statements.
20.3 Requirements as to Financial Statements
Each Obligor shall ensure that each set of financial statements delivered
by it pursuant to this Clause 20 is certified by an Authorised Signatory
of such Obligor as giving a true and fair view of its financial condition
(or, in the case of the consolidated financial statements of the Group,
the financial condition of the Group as at the end of the period to which
those financial statements relate and of the results of its (or, as the
case may be, the Group's) operations during such period.
20.4 Auditor's Opinion
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Each Obligor shall ensure that each set of annual financial statements
delivered by it pursuant to this Clause 20 is accompanied by an
unqualified opinion of the relevant auditor.
20.5 Accounting Policies
Each Obligor shall ensure that each set of financial statements delivered
pursuant to this Clause 20 is prepared using accounting policies,
practices, procedures and reference periods consistent with those applied
in the preparation of the Reference Financial Statements unless, in
relation to any such set of financial statements, the relevant Obligor,
notifies the Agent that there have been one or more changes in any such
accounting policies, practices, procedures or reference period and the
auditors of such Obligor provide sufficient information, in such detail
and format as may be reasonably required by the Agent, to enable the
Banks to make an accurate comparison between the financial position
indicated by those financial statements and the Reference Financial
Statements, and any reference in this Agreement to those financial
statements shall be construed as a reference to those financial
statements as adjusted to reflect the basis upon which the Reference
Financial Statements were prepared.
20.6 Shareholder Information
The Obligors shall, as soon as reasonably practicable, after the same are
supplied and made available, furnish the Agent with such general
information as is required by law to be supplied or made available to all
shareholders (in their capacity as such) of the relevant Obligor
generally or any class thereof.
20.7 Financial Projections
The Original Borrower shall thirty (30) days after the beginning of the
financial year furnish the Agent Financial Projections of such year and
the following four years.
20.8 Compliance Certificates
The Original Borrower shall ensure that each set of financial statements
delivered by it pursuant to Clause 20.1 (Annual Statements) and each set
of financial statements delivered by it pursuant Clause 20.2 (Quarterly
Statements) is accompanied by a Compliance Certificate signed by its
auditors (in the case of a Compliance Certificate delivered with its
annual financial statements) or by any Authorised Signatory of the
Original Borrower (in the case of an Compliance Certificate delivered
with its quarterly financial statements).
20.9 Other Information
The Original Borrower shall provide any other information about the Group
which the Agent or the Banks may reasonably require, including providing
the Agent with any information or documents which may be required under
Sections 13, 13(a) and 18 of the German Banking Act (Gesetz uber das
Kreditwesen - "KWG") including information on environmental matters
included in updated Due Diligence Reports.
21. FINANCIAL CONDITION
The Original Borrower shall ensure that the financial condition of the
Group shall be such that:
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21.1 Group's Net Debt/EBITDA-Ratio
The Group's Net Debt/EBITDA ratio shall not be higher than:
(a) 3.8:1 for any Relevant Period ending in the year 2000;
(b) 3.5:1 for any Relevant Period ending in the year 2001; and
(c) 3.0:1 for any Relevant Period ending thereafter
provided that the Margin will increase for the last quarter of any
Relevant Period by 0.1 per cent. if the Group's Net Debt/EBITDA ratio
exceeds:
(a) 3.5:1 for any Relevant Period ending in the year 2000;
(b) 3.0:1 for any Relevant Period ending in the year 2001; and
(c) 2.5:1 for any Relevant Period ending thereafter.
provided further that no such increase will be incurred if the Margin has
already been increased in accordance with Clause 21.2 (Group's Interest
Cover).
"Group's Net Debt" means at any time the aggregate amount of all
obligations of the Group for or in respect of Financial Indebtedness but
excluding any such obligation to any other member of the Group, adjusted
to take account of the aggregate amount of freely available cash and cash
equivalents held by any member of the Group (and so that no amount shall
be included or excluded more than once).
"EBITDA" means, for any Relevant Period, EBIT before any amount
attributable to the amortisation of intangible assets and depreciation of
tangible assets.
21.2 Group's Interest Cover
The Group's EBITA/Consolidated Net Finance Charges ratio shall not be
lower than:
(a) 2.2:1 for any Relevant Period ending in the year 2000;
(b) 2.2:1 for any Relevant Period ending in the year 2001; and
(c) 2.5:1 for any Relevant Period ending thereafter
provided that the Margin will increase for the last quarter of any
Relevant Period by 0.1 per cent. if the Group's EBITA/Consolidated Net
Finance Charges ratio falls below:
(a) 2.75:1 for any Relevant Period ending in the year 2000;
(b) 3.0:1 for any Relevant Period ending in the year 2001; and
(c) 3.5:1 for any Relevant Period ending thereafter.
"Consolidated Net Finance Charges" means, in respect of any Relevant
Period, the aggregate amount of the interest (including the interest
element of leasing and hire
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purchase payments and capitalised interest), commission, fees, discounts
and other finance payments payable by any member of the Group (including
any commission, fees, discounts and other finance payments payable by any
member of the Group under any interest rate hedging arrangement but
deducting any commission, fees, discounts and other finance payments
receivable by any member of the Group under any interest rate hedging
instrument) but deducting any other interest receivable by any member of
the Group on any deposit or bank account.
"EBITA" means, for any Relevant Period, EBIT before any amount
attributable to the amortisation of intangible assets.
21.3 Consolidated Net Worth
Consolidated Net Worth shall not at any time be lower than:
(a) DEM 1,400,000,000 from the date hereof up to and including 29 June
2001; and
(b) DEM 1,700,000,000 thereafter.
Consolidated Net Worth" means at any time the aggregate of the amounts
paid up or credited as paid up on the issued share capital of the
Original Borrower (other than any redeemable shares) and the aggregate
amount of the reserves of the Group including:
(a) any amount credited to the share premium account;
(b) any capital redemption reserve fund; and
(c) any balance standing to the credit of the consolidated profit and
loss account of the Group,
but deducting:
(i) any debit balance on the consolidated profit and loss account of
the Group;
(ii) (to the extent included) any amount set aside for taxation,
deferred taxation or bad debts;
(iii) (to the extent included) any amounts arising from an upward
revaluation of assets made at any time after 31 December 1999; and
(iv) any dividend or distribution declared, recommended or made by any
member of the Group to the extent payable to a person who is not a
member of the Group and such distribution is not provided for in
the most recent financial statements,
and so that no amount shall be included or excluded more than once.
21.4 Financial Testing
The financial covenants set out in this Clause 21 shall be tested as of
the last day of the relevant Relevant Period on a Rolling Basis by
reference to each of the financial
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statements and/or each Compliance Certificate delivered pursuant to
Clause 20 (Financial Information), and the covenant contained in Clause
21.3 (Consolidated Net Worth) shall be complied with at all times
provided that up to and including the third quarter of 2000 the financial
covenants set out in this Clause 21 shall be calculated on a pro forma
basis as if Lone Star had been a member of the Group.
21.5 Accounting Terms
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with International Accounting Standards.
22. COVENANTS
22.1 Positive Covenants
Each Obligor on its own behalf shall and the Original Borrower shall
procure that each other member of the Group which is not an Obligor
shall:
22.1.1 Maintenance of Legal Validity
Do all such things as are necessary to maintain its existence as a legal
person and comply with the terms of and do all that is necessary to
maintain in full force and effect all authorisations, approvals, licences
and consents required in or by the laws of its jurisdiction of
incorporation to enable it lawfully to enter into and perform its
obligations under the Finance Documents and to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction
of incorporation of the Finance Documents and, on request of the Agent,
supply copies (certified by any Director of the relevant Obligor member
as true, complete and up to date) of any such authorisations, approvals,
licences, consents and exemptions.
22.1.2 Insurance
Maintain insurances on and in relation to its business and assets against
such risks and to such extent as is usual for companies carrying on a
business such as that carried on by it.
22.1.3 Environmental Compliance
Comply in all material respects with all Environmental Laws and obtain
and maintain any Environmental Permits and take all reasonable steps in
anticipation of known or expected future changes to or obligations under
the same, breach of which (or failure to obtain, maintain or take which)
could have a Material Adverse Effect.
22.1.4 Environmental Claims
Inform the Agent in writing as soon as reasonably practicable upon
becoming aware of the same if any Environmental Claim has been commenced
or (to the best of the relevant Obligor's knowledge and belief) is
threatened against any member of the Group in any case where such claim
could have a Material Adverse Effect.
22.1.5 Notification of Events of Default
Promptly upon becoming aware of the same, inform the Agent of the
occurrence of any Event of Default or Potential Event of Default and,
upon receipt of a written request to that effect from the Agent, confirm
to the Agent that, save as previously notified to the
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Agent or as notified in such confirmation, no Event of Default or
Potential Event of Default has occurred.
22.1.6 Claims Pari Passu
Ensure that at all times the claims of the Finance Parties against it
under the Finance Documents rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors save those whose
claims are preferred by any bankruptcy, insolvency, liquidation or other
similar laws of general application.
22.1.7 Shareholder Loans Subordination
Ensure that at all times claims for indebtedness of amounts of any
Shareholder Loans (if any) are subordinated to the claims of the Finance
Parties under the Finance Documents.
22.1.8 Consents and Approvals
Comply with all applicable laws, rules, regulations and orders and obtain
and maintain all governmental and regulatory consents and approvals the
failure to comply with which could have a Material Adverse Effect.
22.1.9 Litigation
Advise the Agent promptly of the details of each litigation, arbitration
or administrative proceeding pending or threatened after the date hereof
against any member of the Group which could have a Material Adverse
Effect.
22.1.10 Year 2000
Procure that all Computer Systems used by any member of the Group are or
will be Year 2000 Compliant prior to the earliest date on which any such
non-compliance could have a Material Adverse Effect on the business or
operation of any member of the Group.
22.1.11 ERISA
(a) as soon as practicable after the filing thereof with the
Internal Revenue Service of the United States, deliver to the
Agent copies of each Schedule B (Actuarial Information) to the
Annual Report (IRS Form 5500 Series) with respect to each
applicable Employee Plan;
(b) promptly and in any event within ten days after it or any ERISA
Affiliate becomes aware that any ERISA Event (a) has occurred or
(b) will occur in the case of any ERISA Event which requires
advance notice under Section 4043(b)(3) of ERISA (without regard
to Section 4043(b)(2) or waiver under Section 4043(b)(4),
deliver to the Agent a statement of its chief financial officer
or that of the ERISA Affiliate describing such ERISA Event and
the action, if any, which it or such ERISA Affiliate proposes to
take with respect thereto; provided, however, that no such
notice shall be required unless the unfunded liability in
connection with the ERISA Event would exceed USD 50,000 (or its
equivalent);
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(c) promptly and in any event within five business days after
receipt thereof by it or any ERISA Affiliate or any
administrator of an Employee Plan, deliver to the Agent copies
of each notice from PBGC stating its intention to terminate any
Employee Plan or to have a trustee appointed to administer any
Employee Plan;
(d) ensure that, during the term of this Agreement, neither it nor
any ERISA Affiliate shall agree to contribute, or assume any
obligation to contribute, to any Multiemployer Plan the
withdrawal from which could have a Material Adverse Effect on
Lone Star;
(e) pay and discharge when due any material liability imposed by it
pursuant to Title IV of ERISA other than premium payments to the
PBGC;
(f) promptly upon becoming aware of any event or condition which
would in all reasonable likelihood constitute grounds for the
termination of (or the appointment of a trustee to administer)
any Employee Plan, an explanation of such event or condition is
given by its chief financial officer or the chief financial
officer of the ERISA Affiliate affected by such event or
condition;
(g) ensure that neither it nor any ERISA Affiliate shall adopt an
amendment to an Employee Plan requiring the provision of
security under Section 307 of ERISA or Section 401(a)(29) of the
Code;
(h) ensure that no Employee Plan is terminated under Section 4041 of
ERISA unless such termination would not be reasonably likely to
have a Material Adverse Effect; and
(i) use the proceeds of, or made available by virtue of, the
Facilities without violating Regulations G, U, T and X.
22.1.12 Insurance Proceeds
Apply any proceeds received from any insurance claim made by any
Principal Group Member toward repair of the asset which is the subject of
the insurance claim or toward the acquisition of an equivalent asset, or
if such asset is obsolete, the acquisition of any other asset relevant to
and to be used in connection with the business of the Group at the date
hereof.
22.1.13 Acquisition
Complete the Acquisition to include obtaining any consent, license or
other approval or authorisation necessary for the Acquisition and
complying with the terms and conditions of any such consent licence or
other approval or authorisation.
22.1.14 Syndication
Provide reasonable assistance to the Arrangers in the Syndication of the
Facilities (including without limitation, by making senior management
available for the purpose of making
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presentations to, or meeting potential lending institutions) and will
comply with all reasonable requests for information from potential
syndicate members.
22.2 Negative Covenants
None of the Obligors shall and the Original Borrower shall procure that:
22.2.1 Negative Pledge
No member of the Group shall create or permit to subsist any Encumbrance
over all or any of its present or future revenues or assets other than a
Permitted Encumbrance; provided, however, that this provision shall not
apply to the shares of Lone Star held by any member of the Group until
such shares cease to be margin stock as defined in Regulation U of the
United States Federal Reserve Board;
22.2.2 Loans and Guarantees
No member of the Group shall make or permit to subsist any loans, grant
or permit to subsist any credit or financial accommodation or give or
permit to subsist or have outstanding any guarantee or indemnity (except
as required by the Finance Documents) to or for the benefit of any person
or otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person except trade
credit or indemnities granted in the ordinary course of business, intra-
group financing and financing not to exceed in aggregate DEM 50,000,000
(or its equivalent);
22.2.3 No Disposals
No member of the Group shall, except for Permitted Disposals, sell,
lease, transfer or otherwise dispose of, by one or more transactions or a
series of transactions (whether related or not), the whole or any part of
its revenues or its assets or its business or undertaking;
22.2.4 Change of Business
No member of the Group shall make any material changes to the general
nature of the business of the Group as carried on as of the date hereof.
23. EVENTS OF DEFAULT
Each of Clause (Failure to Pay) to Clause 0 (Litigation) describes
circumstances which constitute an Event of Default for the purposes of
this Agreement.
23.1 Failure to Pay
An Obligor fails to pay (i) any principal or interest due from it
hereunder at the time, in the currency and in the manner specified herein
unless such failure to pay is caused by technical or administrative
failure and payment is made within three (3) Business Days of the due
date or (ii) any other sum due under any other Finance Document within
ten (10) Business Days of the due date.
23.2 Misrepresentation
Any representation or statement made by an Obligor in this Agreement or
in any notice or other document, certificate or statement delivered by it
pursuant hereto or in connection herewith is or proves to have been
incorrect or misleading in any material respect when made and such
misrepresentation, if capable of remedy, is not remedied
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within ten (10) Business Days after the Agent has given notice thereof to
the relevant Obligor.
23.3 Specific Covenants
An Obligor fails duly to perform or comply with any of the obligations
expressed to be assumed by it in Clause 20 (Financial Information),
Clause 21 (Financial Condition) or Clause 22 (Covenants) provided,
however, that non-compliance with the financial conditions as set out in
the proviso of Clause 0 (Group's Net Debt/EBITDA-Ratio) and the proviso
of Clause 21.2 (Group's Interest Cover) does not constitute an Event of
Default.
23.4 Other Obligations
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents and such failure,
if capable of remedy, is not remedied within ten (10) Business Days after
the Agent has given notice thereof to such Obligor.
23.5 Cross Default
Any Financial Indebtedness of any member of the Group is not paid when
due nor within any applicable grace period in any agreement relating to
such Financial Indebtedness or any Financial Indebtedness of any member
of the Group is declared to be or otherwise becomes due and payable prior
to its originally specified maturity by reason of default, any commitment
for any Financial Indebtedness of any member of the Group is cancelled or
suspended by a creditor of any member of the Group or any creditor of any
member of the Group becomes entitled to declare any Financial
Indebtedness of any member of the Group due and payable prior to its
specified maturity, provided that it shall not constitute an Event of
Default if the aggregate amount (or its equivalent in United States
Dollar) of all such Financial Indebtedness of the Group is less than DEM
40,000,000.
23.6 Insolvency or Rescheduling of Debt in Germany
Any Principal Group Member whose jurisdiction of incorporation is Germany
(the "German Principal Group Member") is unable to pay its debts as they
fall due (Zahlungsunfuhigkeit), commences negotiations with any one or
more of its creditors with a view to a general readjustment or
rescheduling of its indebtedness of or, for any of the reasons set out in
sections 17 - 19 of the German Insolvency Code (Insolvenzordnung), the
Original Borrower or any other German Principal Group Member files for
insolvency (Antrag auf Eroffnung eines Insolvenzverfahrens) or the board
of directors of the Original Borrower or any other German Principal Group
Members is required by law to file for insolvency or the competent court
takes any of the actions set out in section 21 of the Insolvenzordnung or
the competent court institutes insolvency proceedings against the
Original Borrower or any other German Principal Group Member (Eroffnung
des Insolvenzverfahrens).
23.7 Insolvency and Rescheduling of Debt outside of Germany
Any Principal Group Member whose jurisdiction of incorporation is outside
of Germany (the "non-German Principal Group Member") ceases to pay or
suspends
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generally payment of its debts or announces its intention to do so (or is
deemed for the purposes of any law applicable to it to be) unable to pay
its debts as they fall due, commences negotiations with or makes a
proposal to any one or more of its creditors with a view to the general
readjustment or rescheduling of its indebtedness or makes a general
assignment for the benefit of or a composition with its creditors or a
moratorium is declared in respect of the indebtedness of any non-German
Principal Group Member.
23.8 Winding-up
Any Principal Group Member takes any corporate action or other steps are
taken or legal proceedings are started for its winding-up, dissolution or
administration or for the appointment of a liquidator, receiver,
administrator, administrative receiver, conservator, custodian, trustee
or similar officer of it or of any or all of its revenues and assets (or
any action or proceedings are taken with respect to any Principal Group
Member which has a similar or equivalent effect to any of the foregoing
in this Clause 0 (except for the solvent voluntary winding-up of a
company (other than the Original Borrower) in connection with the
transfer of its business and assets to another Principal Group Member).
23.9 Execution or Distress
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any part of the property, undertaking or
assets of any Principal Group Member or any event occurs which under the
laws of any jurisdiction has a similar or analogous effect in respect of
indebtedness and which, in any case, is not stayed or discharged within
fourteen days after such levy, taking of possession or effect and during
such fourteen day period is contested in good faith by appropriate means
diligently pursued.
23.10 Change of Control
Any person, or group of persons acting together in concert (which does
not have control at the date hereof) acquires control of any Obligor.
23.11 Failure to Comply with Final Judgment
Any member of the Group fails to comply with or pay any sum due from it
under any final judgment or order made or given by any court of competent
jurisdiction.
23.12 The Group's Business
Any Principal Group Member ceases to carry on the business it carries on
as of the date hereof.
23.13 Repudiation
Any Finance Document is repudiated by any person (other than a Finance
Party) or any Finance Document is not or ceases to be in full force and
effect or the validity or applicability thereof to any sums due or to
become due thereunder is disaffirmed by or on behalf of any Obligor.
23.14 Illegality
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At any time it is or becomes unlawful for an Obligor to perform or comply
with any or all of its obligations under any Finance Document to which it
is a party or any of the obligations of an Obligor thereunder are not or
cease to be legal, valid, binding and enforceable (other than as
described in the qualifications of the Bank's legal opinion setting out
the law in existence on the date hereof).
23.15 Material Adverse Change
Any event or circumstance occurs which could have a Material Adverse
Effect or a material adverse effect on the validity and enforceability on
the Acquisition Documents.
23.16 Auditor's Qualification
The auditors of the Original Borrower qualify their annual audit report
on the consolidated accounts of the Group or the unconsolidated accounts
of any Principal Group Member in a manner which is, in the reasonable
opinion of the Majority Banks, material in the context of the Facility.
23.17 Environmental Claim
Any member of the Group breaches any Environmental Law or any
Environmental Claim is made or threatened against any member of the Group
which, in either case, could have a Material Adverse Effect.
23.18 Litigation
Any litigation, arbitration, administrative proceedings or governmental
or regulatory investigations, proceedings or disputes are commenced or
threatened against any member of the Group or its assets or revenues or
there are any circumstances likely to give rise to any such litigation,
arbitration, administrative proceedings or governmental or regulatory
investigations, proceedings or disputes which, if likely to be adversely
determined, could have a Material Adverse Effect.
23.19 Acceleration and Cancellation
Upon the occurrence of an Event of Default, the Original Borrower shall
notify the Agent in writing forthwith of such occurrence and at any time
thereafter while such Event of Default is continuing, the Agent may (and,
if so instructed by the Majority Banks, shall) by written notice to the
relevant Borrower:
23.19.1 declare all or any part of the Advances to be immediately due
and payable (whereupon the same shall become so payable together
with accrued interest thereon and any other sums then owed by
the relevant Borrower hereunder) or declare all or any part of
the Advances to be due and payable on demand of the Agent;
and/or
23.19.2 declare that the Facility shall be cancelled, whereupon the same
shall be cancelled and the Commitment of each Bank shall be
reduced to zero, provided that, notwithstanding the foregoing,
upon the occurrence of an Event of Default specified in Clause
23.8 (Winding-up), the Available Commitment of each Bank shall
be immediately reduced to zero and all Advances, interest
thereon and other sums then owed by the relevant Borrower
hereunder shall become
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immediately due and payable, in each case without declaration,
notice or demand by or to any person.
23.20 Advances Due on Demand
If, pursuant to Clause 23.19 (Acceleration and Cancellation),
the Agent declares all or any part of the Advances to be due and
payable on demand of the Agent, then, and at any time
thereafter, the Agent may (and, if so instructed by the Majority
Banks, shall) by written notice to the relevant Borrower:
23.20.1 require repayment of all or such part of the Advances
on such date as it may specify in such notice
(whereupon the same shall become due and payable on the
date specified together with accrued interest thereon
and any other sums then owed by the relevant Borrower
hereunder) or withdraw its declaration with effect from
such date as it may specify; and/or
23.20.2 declare that the Facility shall be cancelled, whereupon
the same shall be cancelled and the Commitment of each
Bank reduced to zero; and/or
23.20.3 select as the duration of an Interest Period which
begins while such declaration remains in effect a
period of six months or less.
24. GUARANTEE
24.1 Guarantee
The Guarantor irrevocably and unconditionally guarantees by way of an
independent guarantee ("Garantie") to the Agent and each Bank the payment
of all amounts expressed to be payable by the Additional Borrower (other
than the Guarantor) under this Agreement in the currency and at the place
provided in this Agreement at its stated or accelerated maturity
irrespective of the factual or legal consequences and motives by reason
of which the Additional Borrower may fail to pay such amount.
The Guarantor shall effect payment hereunder immediately upon first
demand of the Agent (or any Bank through the Agent) and confirmation that
the amount claimed from the Guarantor equals the amount which the
Additional Borrower (other than the Guarantor) has not paid when due.
This guarantee constitutes the Guarantor's primary and independent
obligation to make payment to the Agent and the Banks in accordance with
the terms hereof, under any and all circumstances, regardless of the
validity, legality or enforceability of the obligations of the Additional
Borrowers hereunder and irrespective of all objections, exceptions or
defences from the Additional Borrower or third parties.
24.2 Exercise of Rights
The Agent and the Banks shall not be required first to claim payment
from, to proceed against, or enforce any claims on the Additional
Borrower or any other person before making demand from the Guarantor
hereunder.
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24.3 Continuing Obligations
The obligations of the Guarantor hereunder shall not be contingent upon
the legal relationship between the Agent and the Banks on the one hand and
the Additional Borrower on the other hand and shall be independent of and
enforceable notwithstanding:
24.3.1 any defect in any provision of this Agreement;
24.3.2 any absence or insufficiency of corporate resolutions relating to
the indebtedness of the Additional Borrower hereunder;
24.3.3 any inadequate representation of the Additional Borrower;
24.3.4 any absence of any licence or other authorisation or factual or
legal restriction or limitation existing or introduced in the
jurisdiction of incorporation of the Additional Borrower;
24.3.5 any agreement made between the Agent, the Banks and the Additional
Borrower concerning its obligations hereunder, including any
extension of the term of payment and any rescheduling or
restructuring of its indebtedness, whether or not the Guarantor
shall have given its consent thereto;
24.3.6 the taking, existence, variation or release of any other
collateral provided to the Agent and the Banks for the obligations
of the Additional Borrower hereunder and the Agent's and the
Banks' legal relationship with any provider of such other
collateral;
24.3.7 any right of the Additional Borrower to rescind the Agreement; and
24.3.8 any right that the Agent and the Banks may have to set-off the
indebtedness against a counterclaim of the Additional Borrower.
24.4 Obligations not Discharged and Deferral of Guarantor Rights
So long as any sum remains payable under this Agreement, the Guarantor
undertakes not to assert any claim it may have against the Additional
Borrower by reason of the performance of the Guarantor's obligations
hereunder whether on contractual grounds or on any other legal basis,
until all amounts payable to the Agent and the Banks under this Agreement
have been fully and irrevocably received or recovered; any amount received
or recovered by the Guarantor from the Additional Borrower shall be held
in trust for and immediately paid to the Agent and the Banks. If the
Guarantor makes any payment to the Agent and the Banks hereunder, the
Guarantor may only be entitled to require the assignment of the respective
claims against the Additional Borrower by the Agent and/or the Banks to it
once all amounts payable to the Agent and the Banks under this Agreement
have been fully and irrevocably received or recovered by them.
The obligations of the Guarantor hereunder shall remain in force
notwithstanding any dissolution or change in the structure or legal form
of the Additional Borrower.
24.5 Expiry
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The obligations of the Guarantor hereunder are effective as of the date
hereof and shall expire once:
24.5.1 the Commitments hereunder have irrevocably been reduced to zero;
and
24.5.2 all amounts expressed to be payable by the Additional Borrower to
the Agent and the Banks under this Agreement have been fully and
irrevocably received by the Agent and the Banks. However, should
the Agent and the Banks thereafter become liable to return monies
received in payment of the indebtedness as a result of any
bankruptcy, composition or similar proceedings affecting the
Additional Borrower, the obligations shall be reinstated and
become effective again notwithstanding such expiration.
24.6 Enforcement
The obligations of the Guarantor hereunder may be enforced against the
Guarantor by each Bank or by the Agent as agent for the Banks in any
proceedings including enforcement proceedings.
25. COMMITMENT COMMISSION AND FEES
25.1 Commitment Commission on the Facilities
The Original Borrower shall pay to the Agent for the account of each Bank
a commitment commission on the amount of such Bank's Available Commitment
from day to day during the Availability Period, such commitment commission
to be calculated at the rate of 50 per cent. of the applicable Margin and
payable in arrears on the last day of each successive period of three
months which ends during such period and on the last day of the
Availability Period.
25.2 Arrangement Fee
The Original Borrower shall pay to the Agent for the account of the
Arrangers the fees specified in the letter of even date herewith from the
Arrangers to the Original Borrower at the times, and in the amounts,
specified in such letter.
25.3 Agency Fee
The Original Borrower shall pay to the Agent for its own account the
agency fees specified in the letter of even date herewith from the Agent
to the Original Borrower at the times, and in the amounts, specified in
such letter.
26. COSTS AND EXPENSES
26.1 Expenses
Each Obligor shall promptly reimburse the Agent and the Arrangers and any
of their affiliates (on a full indemnity basis whether or not the
Facilities are used), for reasonable documented expenses and legal costs
properly incurred by them in reviewing and negotiating the documentation
for the Finance Documents and for legal costs and expenses, incurred in
connection with amendments, waivers and consents requested by the
Borrowers in connection with the Finance Documents and, following an Event
of
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Default, legal costs and expenses, incurred in connection with the
enforcement of the Finance Parties' rights under the Finance Documents.
26.2 Stamp Taxes
Each Obligor shall pay all stamp, registration and other taxes to which
the Finance Documents, any other document referred to in the Finance
Documents or any judgment given in connection therewith is or at any time
may be subject and shall, from time to time on demand of the Agent,
indemnify the Finance Parties against any liabilities, costs, claims and
expenses resulting from any failure to pay or any delay in paying any such
tax.
26.3 Banks' Liabilities for Costs
If any Obligor fails to perform any of its obligations under this Clause
30, each Bank shall, in its Proportion, indemnify each of the Agent and
the Arrangers against any loss incurred by any of them (or their
affiliates in the case of costs and expenses referred to in Clause 0
(Expenses)) as a result of such failure.
27. DEFAULT INTEREST AND BREAK COSTS
27.1 Default Interest Periods
If any sum due and payable by an Obligor under any Finance Document is not
paid on the due date therefor in accordance with Clause 30 (Payments) or
the provisions of the relevant Finance Document or if any sum due and
payable by an Obligor under any judgment of any court in connection
herewith is not paid on the date of such judgment, the period beginning on
such due date or, as the case may be, the date of such judgment and ending
on the date upon which the obligation of such Obligor to pay such sum is
discharged shall be divided into successive periods, each of which (other
than the first) shall start on the last day of the preceding such period
and the duration of each of which shall (except as otherwise provided in
this Clause 27) be selected by the Agent.
27.2 Default Interest
During each such period relating thereto as is mentioned in Clause 27.1
(Default Interest Periods) an Unpaid Sum shall bear interest or, insofar
as it relates to unpaid interest, shall give rise to a claim for lump sum
damages, at the rate per annum which is the sum from time to time of the
Margin and the Mandatory Cost Rate plus 1 per cent. per annum and the
relevant interbank rate on the Quotation Date therefor (provided that, in
the case of lump sum damages, the relevant Obligor shall be free to prove
that no damage has arisen, or that damage has not arisen in the asserted
amount, whereas the Finance Party shall be entitled to assert further
damages), provided that:
27.2.1 if, for any period, the interbank rate cannot be determined, the
rate of interest, or, as the case may be, lump sum damages
applicable to such Unpaid Sum shall be the sum from time to time
of the Margin plus 1 per cent. per annum and the rate per annum
determined by the Agent to be the arithmetic mean (rounded
upwards, if not already such a multiple, to the nearest four
decimal places) of the rates notified by each Reference Bank to
the Agent before the last day of such period to be those which
express as a percentage rate per annum the cost
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to it of funding from whatever source it may select of such
Unpaid Sum for such period; and
27.2.2 if such Unpaid Sum is all or part of an Advance which became due
and payable on a day other than the last day of the Interest
Period in respect thereof, the first such period applicable to
such Unpaid Sum shall be of a duration equal to the unexpired
portion of the current Interest Period relating to that Advance;
and
27.2.3 the percentage rate of interest or, as the case may be, lump sum
damages applicable thereto from time to time during such period
shall be that which exceeds by 1 per cent. the rate which would
have been applicable to it if it had not so fallen due.
27.3 Payment of Default Interest
Any interest or lump sum damages which accrue under Clause 27.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Obligor owing such Unpaid Sum on the last day of its
Interest Period or on such other date as the Agent may specify by notice
to such Obligor.
27.4 Break Costs
If any Bank or the Agent on its behalf receives or recovers all or any
part of such Bank's share of an Advance or Unpaid Sum otherwise than on
the last day of the Interest Period relating thereto, the relevant
Borrower shall pay to the Agent on demand for account of such Bank an
amount equal to the amount (if any) by which (a) the additional interest
which would have been payable on the amount so received or recovered if it
had been received or recovered on the last day of that Interest Period
exceeds (b) the amount of interest which in the reasoned opinion of the
Agent would have been payable to the Agent on the last day of that
Interest Period in respect of a deposit in the currency of the amount so
received or recovered equal to the amount so received or recovered placed
by it with a prime bank in the relevant interbank market for a period
starting on the third Business Day following the date of such receipt or
recovery and ending on the last day of that Interest Period.
28. GUARANTOR'S INDEMNITIES
28.1 Guarantor's Indemnity
The Guarantor undertakes to indemnify:
28.1.1 each Finance Party against any reasonable cost, claim, loss,
expense (including legal fees) or liability together with any VAT
thereon, whether or not reasonably foreseeable, which it may
sustain or incur as a consequence of the occurrence of any Event
of Default or any default by any Obligor in the performance of
any of the obligations expressed to be assumed by it in any
Finance Document;
28.1.2 each Bank against any cost or loss it may suffer under Clause 0
(Banks' Liabilities for Costs) or Clause 0 (Indemnification);
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28.1.3 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its portion
of an Advance requested by a Borrower hereunder but not made by
reason of the operation of any one or more of the provisions
hereof;
28.1.4 each Finance Party and in each case each of their affiliates and
each of their respective officers, directors, employees, agents,
advisors and representatives (each an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities,
costs and expenses (including, without limitation, fees and
disbursements of legal counsel), joint or several, that may be
incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or relating to
any investigation, litigation or proceeding or the preparation of
any defence with respect thereto, arising out of or in connection
with or relating to the Finance Documents or the transactions
contemplated thereby or any use made or proposed to be made of
the proceeds of the Facility, whether or not such investigation,
litigation or proceeding is brought by any member of the Group,
any of shareholders or creditors of any member of the Group, an
Indemnified Party or any other person, except to the extent that
such claim, damage, loss, liability, cost or expense results from
such Indemnified Party's gross negligence or wilful misconduct.
28.2 Currency Indemnity
If any sum (a "Sum") due from an Obligor under the Finance Documents or
any order, judgment, award or decision given or made in relation thereto
has to be converted from the currency (the "First Currency") in which such
Sum is payable into another currency (the "Second Currency") for the
purpose of:
28.2.1 making or filing a claim or proof against such Obligor;
28.2.2 obtaining an order, judgment, award or decision in any court,
arbitral proceedings or other tribunal; or
28.2.3 enforcing any order, judgment, award or decision given or made in
relation hereto,
the Guarantor shall indemnify each person to whom such Sum is due from and
against any loss suffered or incurred as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert such Sum
from the First Currency into the Second Currency and (b) the rate or rates
of exchange available to such person at the time of receipt of such Sum.
29. CURRENCY OF ACCOUNT
The United States Dollar is the currency of account and payment for each
and every sum at any time due from an Obligor hereunder, provided that:
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29.1 each repayment of an Advance or Unpaid Sum or a part thereof shall be made
in the currency in which such Advance or Unpaid Sum is denominated at the
time of that repayment;
29.2 each payment of interest shall be made in the currency in which the sum in
respect of which such interest is payable is denominated;
29.3 each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred;
29.4 each payment pursuant to Clause 14.2 (Tax Indemnity) or Clause 16.1
(Increased Costs) shall be made in the currency specified by the party
claiming thereunder; and
29.5 any amount expressed to be payable in a currency other than the United
States Dollar shall be paid in that other currency.
30. PAYMENTS
30.1 Payments to the Agent
On each date on which this Agreement requires an amount to be paid by an
Obligor or a Bank, such Obligor or, as the case may be, such Bank shall
make the same available to the Agent for value on the due date at such
time and in such funds and to such account with such bank as the Agent
shall specify from time to time.
30.2 Payments by the Agent
Save as otherwise provided herein, each payment received by the Agent
pursuant to Clause 30.1 (Payments to the Agent) shall:
30.2.1 in the case of a payment received for the account of an Obligor,
be made available by the Agent to the relevant Obligor by
application:
(a) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due from
the relevant Obligor hereunder to the person from whom the
amount was so received or in or towards the purchase of any
amount of any currency to be so applied; and
(b) secondly, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with such
bank in the principal financial centre of the country of the
currency of such payment as the relevant Obligor shall have
previously notified to the Agent for this purpose; and
30.2.2 in the case of any other payment, be made available by the Agent
to the person entitled to receive such payment in accordance with
this Agreement (in the case of a Bank, for the account of its
Facility Office) for value the same day by transfer to such
account of such person with such bank in the principal financial
centre of the country of the currency of such payment as such
person shall have previously notified to the Agent.
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30.3 Payments by the Agent to the Banks
Any amount payable by the Agent to the Banks under this Agreement in the
currency of a Participating Member State shall be paid in the Deutsche
Xxxx unit.
30.4 Payments Systems and the Agent
In relation to the payment of any amount, the Agent shall not be liable to
an Obligor or any of the Banks for any delay, or the consequences of any
delay, in the crediting to any account of any amount required by this
Agreement to be paid by the Agent if the Agent has taken all relevant
steps to achieve, on the date required by this Agreement, the payment of
such amount in immediately available, freely transferable, cleared funds
to the account with the bank in the principal financial centre which the
Borrowers or, as the case may be, any Bank shall have specified for such
purpose. In this Clause 30.4, "all relevant steps" means all such steps as
may be prescribed from time to time by the regulations or operating
procedures of such clearing or settling payments as the Agent may from
time to time determine for the purpose of clearing or settling payments.
30.5 No Set-off
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
30.6 Clawback
Where a sum is to be paid under a Finance Document to the Agent for
account of another person, the Agent shall not be obliged to make the same
available to that other person or to enter into or perform any exchange
contract in connection therewith until it has been able to establish to
its satisfaction that it has actually received such sum, but if it does so
and it proves to be the case that it had not actually received such sum,
then the person to whom such sum or the proceeds of such exchange contract
was so made available shall on request refund the same to the Agent
together with an amount sufficient to indemnify the Agent against any cost
or loss it may have suffered or incurred by reason of its having paid out
such sum or the proceeds of such exchange contract prior to its having
received such sum.
30.7 Partial Payments
If and whenever a payment is made by an Obligor hereunder and the Agent
receives an amount less than the due amount of such payment the Agent may
apply the amount received towards the obligations of the Obligors under
this Agreement in the following order (thereby explicitly deviating from
Sections 366 and 367 of the German Civil Code):
30.7.1 first, in or towards payment of any unpaid costs and expenses of
each of the Agent and the Arrangers;
30.7.2 secondly, in or towards payment pro rata of any accrued fees due
but unpaid under Clause 25 (Commitment Commissions and Fees);
30.7.3 thirdly, in or towards payment pro rata of any accrued interest
due but unpaid;
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30.7.4 fourthly, in or towards payment pro rata of any principal due but
unpaid; and
30.7.5 fifthly, in or towards payment pro rata of any other sum due but
unpaid.
30.8 Variation of Partial Payments
The order of payments set out in Clause 30.7 (Partial Payments) shall
override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 30.7.2, 30.7.3 and
30.7.4 of Clause 30.7 (Partial Payments) may be varied if agreed by all
the Banks.
31. SET-OFF
31.1 Contractual Set-off
Each Obligor authorises each Bank to apply any credit balance to which
such Obligor is entitled on any account of such Obligor with such Bank in
satisfaction of any sum due and payable from such Obligor to such Bank
under the Finance Documents but unpaid. For this purpose, each Bank is
authorised to purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect such
application.
31.2 Set-off not Mandatory
No Bank shall be obliged to exercise any right given to it by Clause 31.1
(Contractual Set-off).
32. SHARING
32.1 Payments to Banks
If a Bank (a "Recovering Bank") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is received
or recovered other than in accordance with Clause 30 (Payments), then such
Recovering Bank shall:
32.1.1 notify the Agent of such receipt or recovery;
32.1.2 at the request of the Agent, promptly pay to the Agent an amount
(the "Sharing Payment") equal to such receipt or recovery less
any amount which the Agent determines may be retained by such
Recovering Bank as its share of any payment to be made in
accordance with Clause 30.7 (Partial Payments).
32.2 Redistribution of Payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the Recovering Bank) in accordance with Clause 30.7 (Partial Payments).
32.3 Recovering Bank's Rights
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 32.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount equal
to the Sharing Payment).
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32.4 Repayable Recoveries
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
32.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 32.2 (Redistribution of Payments) shall, upon
request of the Agent, pay to the Agent for account of such
Recovering Bank an amount equal to its share of such Sharing
Payment; and
32.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing party for the amount so reimbursed.
32.5 Exception
This Clause 32 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor
32.6 Recoveries Through Legal Proceedings
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank commences any
action in any court to enforce its rights hereunder and, as a result
thereof or in connection therewith, receives any amount, then such Bank
shall not be required to share any portion of such amount with any Bank
which has the legal right to, but does not, join in such action or
commence and diligently prosecute a separate action to enforce its rights
in another court.
33. THE AGENT, THE ARRANGERS AND THE BANKS
33.1 Appointment of the Agent
Each of the Arrangers and the Banks hereby appoints the Agent to act as
its agent in connection with the Finance Documents and authorises the
Agent to exercise such rights, powers, authorities and discretions as are
specifically delegated to the Agent by the terms thereof together with all
such rights, powers, authorities and discretions as are reasonably
incidental thereto provided that the Agent shall not start or commence any
legal action on behalf of any Bank without such Bank's prior written
consent. The Agent shall be released from the restrictions set out in
Section 181 of the German Civil Code (Burgerliches Gesetzbuch). The Agent
may grant substitute powers of attorney and release any sub-agent from
such restrictions and revoke such substitute powers of attorney.
33.2 Agent's Discretions
The Agent may:
33.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto, that
(a) any representation made or deemed to be made by an Obligor in
connection herewith is true, (b) no Event of Default or Potential
Event of Default has occurred, (c) no Obligor is in breach of or
default under its obligations under the Finance Documents and (d)
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any right, power, authority or discretion vested hereunder in the
Banks or any other person or group of persons has not been
exercised;
33.2.2 assume that each Bank's Facility Office is that identified with
its signature below (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as Transferee)
until it has received from such Bank a notice designating some
other office of such Bank to replace such Facility Office and act
upon any such notice until the same is superseded by a further
such notice;
33.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem reasonably necessary, expedient or desirable and
rely upon any advice so obtained;
33.2.4 rely as to any matters of fact which might reasonably be expected
to be within the knowledge of an Obligor upon a certificate
signed by or on behalf of such Obligor;
33.2.5 rely upon any communication or document believed by it to be
genuine;
33.2.6 notwithstanding Clause 33.1, refrain from exercising any right,
power or discretion vested in it as agent hereunder unless and
until instructed by the Majority Banks as to whether or not such
right, power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised;
33.2.7 refrain from acting in accordance with any instructions of the
Majority Banks to begin any legal action or proceeding arising
out of or in connection with any Finance Documents until it has
received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying
with such instructions; and
33.2.8 for the avoidance of doubt, exercise any right, power or
discretion vested in it as agent hereunder without a prior
written consent of the Majority Banks (as requested hereunder) if
the Agent determines, in its absolute discretion, that to acquire
such prior written consent would materially impair any rights of
the Banks in connection with the Finance Documents or would for
any other reason in the best interest of all parties hereto not
be feasible.
33.3 Agent's Obligations
The Agent shall:
33.3.1 promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent from an Obligor
under any Finance Document;
33.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance of or
compliance with its
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obligations under any Finance Document of which the Agent has
notice from any other party hereto;
33.3.3 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by the Majority
Banks, which instructions shall be binding on the Arrangers and
the Banks; and
33.3.4 if so instructed by the Majority Banks, refrain from exercising,
and in exercising its discretion pursuant to Clause 33.28 shall
not be under any obligation whatsoever to exercise, any right,
power or discretion vested in it as agent under any Finance
Document.
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
33.4 Excluded Obligations
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor the Arrangers shall:
33.4.1 be bound to enquire as to (a) whether or not any representation
made by an Obligor in connection herewith is true, (b) the
occurrence or otherwise of any Event of Default or Potential
Event of Default, (c) the performance by an Obligor of its
obligations hereunder or (d) any breach of or default by an
Obligor of or under its obligations hereunder;
33.4.2 be bound to account to any Bank for any sum or the profit element
of any sum received by it for its own account;
33.4.3 be bound to disclose to any other person any information relating
to any member of the Group if (a) such person, on providing such
information, expressly stated to the Agent or, as the case may
be, the Arrangers, that such information was confidential or (b)
such disclosure would or might in its opinion constitute a breach
of any law or be otherwise actionable at the suit of any person;
33.4.4 be under any obligations other than those for which express
provision is made in any Finance Document; or
33.4.5 be or be deemed to be a fiduciary for any other party hereto.
33.5 Indemnification
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as agent
under any Finance Document (other than any which have been reimbursed by
the Guarantor pursuant to Clause 28.1 (Guarantor's Indemnity)).
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33.6 Exclusion of Liabilities among the Agent and the Arrangers
Except in the case of gross negligence or wilful misconduct, neither of
the Agent nor any of the Arrangers accepts any responsibility:
33.6.1 for the adequacy, accuracy and/or completeness of any information
supplied by the Agent or the Arrangers, by an Obligor or by any
other person in connection with any Finance Document, the
transactions herein contemplated or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document;
33.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document; or
33.6.3 for the exercise of, or the failure to exercise, any judgment,
discretion or power given to any of them by or in connection with
any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with any Finance Document.
Accordingly, neither the Agent nor any of the Arrangers shall be under any
liability (whether in negligence or otherwise) in respect of such matters,
save in the case of gross negligence or wilful misconduct.
33.7 No Actions
Each of the Banks agrees that it will not assert or seek to assert against
any director, officer or employee of the Agent or the Arrangers any claim
it might have against any of them in respect of the matters referred to in
Clause 33.6 (Exclusion of Liabilities among the Agent and the Arrangers).
33.8 Business with the Group
The Agent and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
33.9 Resignation
The Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days' prior
notice to that effect to each of the other parties hereto, provided that
no such resignation shall be effective until a successor for the Agent is
appointed in accordance with the succeeding provisions of this Clause 33.
33.10 Revocation by the Majority Banks
The Majority Banks may revoke the appointment of the Agent by giving no
less than thirty days' prior notice to that effect to the Agent. Such
revocation shall take effect only when a successor to the Agent is
appointed in accordance with the terms hereof.
33.11 Successor Agent
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If the Agent gives notice of its resignation pursuant to Clause 33.9
(Resignation) or it is removed pursuant to Clause 33.10 (Revocation by the
Majority Banks), then any reputable and experienced bank or other
financial institution may be appointed as a successor to the Agent by the
Majority Banks (which shall consult with the Original Borrower) during the
period of such notice but, if no such successor is so appointed, the Agent
may appoint such a successor itself.
33.12 Rights and Obligations
If a successor to the Agent is appointed under the provisions of Clause
33.11 (Successor Agent), then (a) the retiring or departing Agent shall be
discharged from any further obligation hereunder but shall remain entitled
to the benefit of the provisions of this Clause 33 and (b) its
successor and each of the other parties hereto shall have the same rights
and obligations amongst themselves as they would have had if such
successor had been a party hereto.
33.13 Own Responsibility
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigation into all risks arising under or
in connection with the Finance Documents including, but not limited to:
33.13.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
33.13.2 the legality, validity, effectiveness, adequacy and
enforceability of any Finance Documents and any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Documents;
33.13.3 whether such Bank has recourse, and the nature and extent of that
recourse, against an Obligor or any other person or any of their
respective assets under or in connection with any Finance
Documents, the transactions herein contemplated or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, pursuant to or in connection with any Finance
Documents; and
33.13.4 the adequacy, accuracy and/or completeness of any information
provided by the Agent or the Arrangers, an Obligor or by any
other person in connection with any Finance Documents, the
transactions contemplated therein or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Documents.
Accordingly, each Bank acknowledges to the Agent and the Arrangers that it
has not relied on and will not hereafter rely on the Agent and the
Arrangers or any of them in respect of any of these matters.
33.14 Agency Division Separation
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In acting as agent under the Finance Documents for the Banks, the Agent
shall be regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments and, notwithstanding the foregoing provisions of this Clause
0, any information received by some other division or department of the
Agent may be treated as confidential and shall not be regarded as having
been given to the Agent's agency division.
33.15 Reliance and Engagement Letters
Each Finance Party confirms that the Agent has authority to accept on its
behalf any reports or letters provided by accountants in connection with
the Finance Documents or the transactions contemplated therein and to
bind it in respect of such reports or letters and to sign such letters on
its behalf and further confirms that it accepts the terms and
qualifications set out in such letter.
33.16 Confidential Information
Notwithstanding anything to the contrary expressed or implied herein and
without prejudice to the provisions of Clause 33.14 (Agency Division
Separation), the Agent shall not as between itself and the Banks be bound
to disclose to any Bank or any other person any information which is
supplied by any Obligor to the Agent other than in its capacity as agent
hereunder.
34. ASSIGNMENTS AND TRANSFERS
34.1 Binding Agreement
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors and Transferees.
34.2 No Assignments and Transfers by the Obligors
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents.
34.3 Assignments and Transfers by Banks
Any Bank may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 34.3 (Transfers by Banks)
all or any of its rights, benefits and obligations hereunder to a bank or
financial institution after due consultation with the Guarantor.
34.4 Deemed Consent
Any consent required to be given by a party under Clause 34.3
(Assignments and Transfers by Banks) shall be deemed to have been given
unless such party has notified the requesting party to the contrary
within ten (10) Business Days of the request for such consent.
34.5 Assignments by Banks
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 34.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered a
notice to the Agent confirming in favour of the Agent, the Arrangers and
the other Banks that it shall be under the same obligations towards each
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of them as it would have been under if it had been an original party to
the Finance Documents as a Bank (whereupon such assignee shall become a
party hereto as a "Bank"), the Agent, the Arrangers and the other Banks
shall not be obliged to recognise such assignee as having the rights
against each of them which it would have had if it had been such a party
to the Finance Documents.
34.6 Transfers by Banks
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents as contemplated in Clause 34.3
(Assignments and Transfers by Banks), then such transfer may be effected
by the delivery to the Agent of a duly completed Transfer Certificate
executed by such Bank and the relevant Transferee in which event, on the
later of the Transfer Date specified in such Transfer Certificate and the
fifth Business Day after (or such earlier Business Day endorsed by the
Agent on such Transfer Certificate falling on or after) the date of
delivery of such Transfer Certificate to the Agent:
34.6.1 to the extent that in such Transfer Certificate the Bank which is
a party thereto seeks to transfer by transfer and assumption its
rights, benefits and obligations hereunder, each of the Obligors
and such Bank shall be released from further obligations towards
one another under the Finance Documents and their respective
rights against one another shall be cancelled (such rights and
obligations being referred to in this Clause 34.6 as "discharged
rights and obligations");
34.6.2 each of the Obligors and the Transferee party which is a party
thereto shall assume obligations towards one another and/or
acquire rights against one another which differ from such
discharged rights and obligations only insofar as such Obligor
and such Transferee have assumed and/or acquired the same in
place of such Obligor and such Bank;
34.6.3 the Agent, the Arrangers, such Transferee and the other Banks
shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and
assumed if such Transferee had been an original party to the
Finance Documents as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such
transfer and to that extent the Agent, the Arrangers and the
relevant Bank shall each be released from further obligations to
each other under the Finance Documents; and
34.6.4 such Transferee shall become a party hereto as a "Bank".
34.7 On the date upon which a transfer takes effect pursuant to Clause 34.5
(Assignments by Banks), the Transferee in respect of such transfer shall
pay to the Agent for its own account a transfer fee of DEM 1,000.
34.8 Disclosure of Information
34.8.1 Any Bank may disclose to any person:
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(i) to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations any under the Finance Documents;
(ii) with (or through) whom such Bank enters into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to be
made by reference to, any Finance Document or any Obligor;
or
(iii) to whom information may be required to be disclosed by any
applicable law or regulatory authority,
such information about any Obligor or the Group and the Finance Documents
as such Bank considers appropriate, provided that in relation to sub-
clauses 0 and 0, the person to whom such information is to be given has
entered into a confidentiality obligation to such Bank.
34.8.2 Neither the Borrowers nor the Guarantor shall, and shall procure
that no other person shall, without the prior written consent of
the Arrangers, the Underwriters and the Agent, make in connection
with the tender offer, the Acquisition or otherwise any statement
or other reference to the Arrangers, the Underwriters, the Banks
and/or the transaction contemplated hereunder which may lead to
any liability for the Arrangers, the Underwriters, the Agent, or
the Banks.
35. CALCULATIONS AND EVIDENCE OF DEBT
35.1 Basis of Accrual
Any interest, commission or fee accruing hereunder shall accrue from day
to day and shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed (or if in the Agent's discretion, market
practise differs, such basis as the Agent shall reasonably determine).
35.2 Quotations
If on any occasion a Reference Bank or a Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent,
provided that, in relation to determining the relevant interbank rate,
this Clause 0 shall not apply if only one Reference Bank supplies a
quotation.
35.3 Evidence of Debt
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
35.4 Control Accounts
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of any Advance or Unpaid Sum and
each Bank's share therein, (b) the amount of all principal, interest and
other sums due or to become due from an
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Obligor and each Bank's share therein and (c) the amount of any sum
received or recovered by the Agent hereunder and each Bank's share
therein.
35.5 Prima Facie Evidence
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 35.3 (Evidence of Debt) and Clause 35.4 (Control Accounts) shall
be prima facie evidence of the existence and amounts of the specified
obligations of the Obligors.
35.6 Certificates of Banks
A certificate of a Bank as to (a) the amount by which a sum payable to it
hereunder is to be increased under Clause 14.1 (Tax Gross-up), (b) the
amount for the time being required to indemnify it against any such cost,
payment or liability as is mentioned in Clause 14.2 (Tax Indemnity) or
Clause 16.1 (Increased Costs) or (c) the amount of any credit, relief,
remission or repayment as is mentioned in Clause 15.3 (Tax Credit
Payment) or Clause 15.4 (Tax Credit Clawback) shall be prima facie
evidence of the existence and amounts of the specified obligations of the
Obligors.
36. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
36.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
36.2 Partial Invalidity
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or
impaired thereby.
37. NOTICES
37.1 Communications in Writing
Each communication to be made hereunder shall be made in writing and,
unless otherwise stated, shall be made by fax or letter.
37.2 Addresses
Any communication or document to be made or delivered pursuant to this
Agreement shall (unless the recipient of such communication or document
has, by fifteen (15) days' written notice to the Agent, specified another
address or fax number) be made or delivered to the address or fax number:
37.2.1 in the case of the Obligors and the Agent, identified with its
name below; and
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37.2.2 in the case of each Bank, notified in writing to the Agent prior
to the date hereof (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as
Transferee);
provided that not more than one address may be specified by each party
pursuant to this Clause 37.2 at any time.
37.3 Delivery
Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall:
37.3.1 if by way of fax, be deemed to have been received when
transmission has been completed; and
37.3.2 if by way of letter, be deemed to have been delivered when left
at the relevant address or, as the case may be, ten (10) days
after being deposited in the post postage prepaid in an envelope
addressed to it at such address,
provided that any communication or document to be made or delivered to
the Agent shall be effective only when received by its agency division
and then only if the same is expressly marked for the attention of the
department or officer identified with the Agent's signature below (or
such other department or officer as the Agent shall from time to time
specify for this purpose) and (b) any document to be delivered pursuant
to Clause 2.5 (Conditions Precedent) shall be delivered in the original
form and any Notice of Drawdown shall be confirmed by letter, although
failure to confirm shall not invalidate the original request made
thereunder.
37.4 Notification of Changes
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 37.2 (Addresses) or changing its own address or
fax number, the Agent shall notify the other parties hereto of such
change.
37.5 English Language
Each communication and document made or delivered by one party to another
pursuant to any Finance Documents shall be in the English language or
accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true and
accurate translation thereof.
38. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
39. AMENDMENTS, MISCELLANEOUS
39.1 Amendments
The Agent, if it has the prior consent of the Majority Banks, and the
Obligors may from time to time agree in writing to amend the Finance
Documents or to waive, prospectively or retrospectively, any of the
requirements of the Finance Documents and
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any amendments or waivers so agreed shall be binding on all the Finance
Parties and the Obligors, provided that no such waiver or amendment shall
subject any party hereto to any new or additional obligations without the
consent of such party.
39.2 Amendments Requiring the Consent of all the Banks
An amendment or waiver which relates to:
39.2.1 Clause 2.7 (Banks' Obligations Several), Clause 2.8 (Banks'
Rights Several), Clause 22.2.1 (Negative Pledge), Clause 32
(Sharing), Clause 24 (Guarantee) or this Clause 39;
39.2.2 a change in the principal amount of or currency of any Advance,
or extending the term of the Facility;
39.2.3 a change in the Margin or the amount or currency of any payment
of interest, fees or any other amount payable hereunder to any
Finance Party or deferral of the date for payment thereof;
39.2.4 the conditions set out in sub-clause 3.1 (Drawdown Conditions for
Tranche A Advances), Clause 4.1 (Drawdown Conditions for Tranche
B Advances) and Clause 5.1 (Drawdown Conditions for Tranche C
Advances) if an Event of Default or Potential Event of Default
which relates to a Repeated Representation or Clause 0 (Negative
Pledge) is continuing;
39.2.5 the definition of Event of Default, Majority Banks, Potential
Event of Default, Permitted Encumbrance, Encumbrance or Financial
Indebtedness; or
39.2.6 any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
39.3 Exceptions
Notwithstanding any other provisions hereof, the Agent shall not be
obliged to agree to any such amendment or waiver if the same would:
39.3.1 amend or waive this Clause 39, Clause 26 (Costs and Expenses) or
Clause 33 (The Agent, the Arrangers and the Banks); or
39.3.2 otherwise amend or waive any of the Agent's rights hereunder or
subject the Agent or the Arrangers to any additional obligations
hereunder or under any other Finance Document.
40. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
German law.
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41. JURISDICTION
41.1 District Court of Frankfurt am Main
Each of the Obligors hereby agrees to the benefit of the Finance Parties
that the district court (Landgericht) of Frankfurt am Main shall have
non-exclusive jurisdiction to settle any dispute (a "Dispute") arising
out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement or the
consequences of its nullity).
41.2 Non-Exclusive Jurisdiction
The submission to the jurisdiction of the courts referred to in Clause 0
(District Court of Frankfurt am Main) shall not (and shall not be
construed as to) limit the right of the Finance Parties or any of them to
take proceedings against any of the Obligors in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted
by applicable law.
41.3 Process Agent for the Additional Borrowers
Each Obligor whose jurisdiction of incorporation is not Germany hereby
agrees that documents which start any legal proceeding which are required
to be served in relation to those legal proceedings may be served on it
by serving it on the Original Borrower.
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THE FIRST SCHEDULE
The Banks
Bank Tranche A Commitment Tranche B Commitment Tranche C Commitment
(USD) (USD) (USD)
Dresdner Bank AG in Wiesbaden 480,000,000 120,000,000 180,000,000
Deutsche Bank Luxembourg S.A. 320,000,000 80,000,000 120,000,000
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THE SECOND SCHEDULE
Form of Transfer Certificate
To: [ ]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facilities Agreement" dated 1 September 1999 whereby USD
1,300,000,000 term loan facilities, arranged by Deutsche Bank AG and Dresdner
Bank AG, were made available, inter alia, to Dyckerhoff Aktiengesellschaft and
certain of its subsidiaries by a group of banks on whose behalf Dresdner Bank
Luxembourg S.A. acted as agent in connection therewith.
1. Terms defined in the Facilities Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank and Transferee
and Portion Transferred are defined in the schedule hereto.
2. The Bank (a) confirms that the details in the schedule hereto under the
heading "Bank's Commitment" or "Advance(s)" accurately summarises its
Commitment and/or, as the case may be, its participation in, and the Term
and Repayment Date of, one or more existing Advances and (b) requests the
Transferee to accept and procure the transfer by transfer and assumption to
the Transferee of the Portion Transferred of, as the case may be, its
Commitment and/or its participation in such Advance(s) by counter-signing
and delivering this Transfer Certificate to the Agent at its address for
the service of notices specified in the Facilities Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 34.6 (Transfers by Banks) of the Facility Agreement so
as to take effect in accordance with the terms thereof on the Transfer Date
or on such later date as may be determined in accordance with the terms
thereof.
4. The Transferee confirms that it has received a copy of the Facilities
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of
any such information and further agrees that it has not relied and will not
rely on the Bank to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of the
Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Facilities Agreement that it will perform in accordance with
their terms all those obligations which by the terms of the Facilities
Agreement will be assumed by it after
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delivery of this Transfer Certificate to the Agent and satisfaction of the
conditions (if any) subject to which this Transfer Certificate is expressed
to take effect.
6. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facilities Agreement or any document relating thereto
and assumes no responsibility for the financial condition of the Obligors
or for the performance and observance by the Obligors of any of its
obligations under the Facilities Agreement, the Finance Documents or any
document relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Facilities
Agreement or the Finance Documents (or any document relating thereto) shall
oblige the Bank to (a) accept a re-transfer from the Transferee of the
whole or any part of its rights, benefits and/or obligations under the
Facilities Agreement or the Finance Documents transferred pursuant hereto
or (b) support any losses directly or indirectly sustained or incurred by
the Transferee for any reason whatsoever including the non-performance by
an Obligor or any other party to the Facilities Agreement or the Finance
Documents (or any document relating thereto) of its obligations under any
such document. The Transferee hereby acknowledges the absence of any such
obligation as is referred to in (a) or (b).
8. This Transfer Certificate and the rights, benefits and obligations of the
parties hereunder shall be governed by and construed in accordance with
German law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Commitment:
Bank's Tranche A Commitment Portion Transferred
Bank's Tranche B Commitment Portion Transferred
Bank's Tranche C Commitment Portion Transferred
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5. Advance(s):
Amount of Term and
Bank's Participation Repayment Date Portion Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments
in United States Dollars:
Telex:
Fax:
Telephone:
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THE THIRD SCHEDULE
Conditions Precedent
(A) Corporate Documents
(7) a copy, certified by an Authorised Signatory of each Obligor as being at
the date of this Agreement a true, complete and up-to-date copy of the
constitutional documents of such Obligor;
(8) a copy, certified by an Authorised Signatory of each Obligor as being at
the date of this Agreement a true, complete and up-to-date copy of the
extract from the commercial or company register of such Obligor;
(9) a certificate of an Authorised Signatory of each Obligor confirming that
any necessary board or shareholders resolution of each Obligor authorising
the execution, delivery and performance of the Finance Documents and the
terms and conditions hereof and authorising a named person or persons to
sign each Finance Document and any documents to be delivered by such
Obligor pursuant hereto have been passed;
(10) a certificate of an Authorised Signatory of each Obligor setting out the
names and signatures of the persons authorised to sign as of the date
hereof, on behalf of such Obligor, each Finance Document to which it is or
is to be party and each Notice of Drawdown which may be delivered by such
Obligor.
(11) a copy, certified by an Authorised Signatory of each Obligor as being at
the date of this Agreement or any relevant date thereafter a true, complete
and up-to-date copy of each approval (including cartel or tender offer)
which the Original Borrower has already obtained or will obtain and which
is required either for the completion of the Acquisition or to make the
Finance Documents and the Acquisition Documents valid and enforceable.
(B) Legal Opinions
(12) Opinion of Xxxxxxxx Chance, the Banks' Counsel, satisfactory in form and
substance to the Agent.
(13) Opinion of Borrower's U.S. Counsel, satisfactory in form and substance to
the Agent regarding the validity and enforceability of the Acquisition
Documents and the Finance Documents and stating that the Borrowers have
obtained all required approvals for the Acquisition other than any approval
which is a condition precedent to the tender offer (including disclosure
and filing requirements for the Acquisition with the SEC).
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(C) Miscellaneous
(14) Receipt by the Agent, Arrangers and the Banks of all fees required to be
paid and all reasonable expenses for which invoices have been presented.
(15) a copy certified by an Authorised Signatory of the Original Borrower as
being at the date of this Agreement a true, complete and up-to-date copy
of:
(a) the tender offer documents relating to the Acquisition in the form to be
filed;
(b) the signed Acquisition Documents;
(c) (i) audited accounts of the Group, the Original Borrower, the
Additional Borrower and Lone Star for the two most recent fiscal years
ended prior to the date of the signing of the Facilities Agreement in
a form satisfactory to the Agent and (ii) unaudited interim accounts
of the Group and Lone Star for each quarterly period ending after the
date of the latest accounts delivered pursuant to Clause (i) of this
paragraph for which such accounts are available. Each such financial
statement shall include a balance sheet, income statement, cash flow
statement and explanatory notes to the accounts and be in a form
satisfactory to the Agent;
(d) the Initial Financial Projections;
(e) any such information about the Original Borrower, the Group or Lone
Star as may be deemed necessary by the Arrangers to complete their
internal due diligence, including the Due Diligence Reports some of
which will be updated in the course of accomplishment of the
Acquisition;
(f) evidence that any drawdown will be applied in full in compliance with
the conditions set-out herein;
(g) a letter satisfactory in substance to the Agent describing the
Original Borrower's interest and currency hedging strategies;
(h) evidence that the Purchaser has received acceptance of at least 50
per cent, plus one share of its tender offer; and
(i) evidence that the Escrow Account and the Holding Account have been
opened and pledged to the Banks.
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THE FOURTH SCHEDULE
Notice of Drawdown
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs,
(16) We refer to the agreement (the "Facilities Agreement") dated 1 September
1999 and made between, inter alia, Dyckerhoff Aktiengesellschaft as
Borrower, Dresdner Bank Luxembourg S.A. as Agent and the financial
institutions named therein as banks. Terms defined in the Facilities
Agreement shall have the same meaning in this notice.
(17) This notice is irrevocable.
(18) We hereby give you notice that, pursuant to the Facilities Agreement and
on [date of proposed Advance], we wish to borrow a [Tranche A]/[Tranche
B]/[Tranche C] Advance [currency and amount] upon the terms and subject to
the conditions contained therein.
[We would like this Advance to have an Interest Period of [number of months'
duration]]
(19) We confirm that, at the date hereof, the Repeated Representations are true
in all material respects and no Event of Default or Potential Event of
Default is continuing.
(20) The proceeds of this drawdown should be credited to [account details].
Yours faithfully
_____________________________
Authorised Signatory
for and on behalf of
[Name of Borrower]
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THE FIFTH SCHEDULE
Existing Emcumbrances
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THE SIXTH SCHEDULE
FORM OF COMPLIANCE CERTIFICATE
To: [Agent]
Date:
Dear Sirs,
We refer to an agreement (the "Facilities Agreement") dated 1 September 1999
whereby term loan facilities were made available to a group of borrowers
including Dyckerhoff Aktiengesellschaft. Terms defined in the Facilities
Agreement shall bear the same meaning herein.
We confirm that: [insert details of Financial Covenants]
_____________________________
Authorised Signatory
for and on behalf of
the Guarantor
or
_____________________________
for and on behalf of
[name of auditors of the Guarantor]
-00-
XXX XXXXXXX SCHEDULE
Mandatory costs rate
For the purposes of this Agreement, the cost of compliance with existing
requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its
functions) will be calculated by the Agent in relation to each Advance on
the basis of the Agent's own rates (or the rates of such Bank as it may
from time to time specify) by reference to the circumstances existing on
the first day of each Interest Period or Term in respect of such Advance in
accordance with the following formulae:
(uuu) in relation to sterling Advances:
AB + C(B - D) + E x 0.01
------------------------per cent. per annum
100 - (A + C)
(vvv) in relation to Advances in any currency other than sterling:
E x 0.01
--------per cent. per annum.
300
Where:
A is the percentage of eligible liabilities (assuming these to be in
excess of any stated minimum) which the Agent (or such Bank as it may
determine) is from time to time required to maintain as an interest
free cash ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate per annum at which sterling deposits are
offered by the Agent (or such Bank as it may determine) in accordance
with its normal practice, for a period equal to the relevant
[Interest Period]/[Term] to a leading bank in the London interbank
market at or about 11.00 a.m. in a sum approximately equal to the
amount of such Advance.
C is the percentage of eligible liabilities which the Agent (or such
Bank as it may determine) is required from time to time to maintain
as interest bearing special deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to
the Agent (or such Bank as it may determine) on interest bearing
special deposits.
E is the rate payable by the Agent (or such Bank as it may determine)
to the Financial Services Authority pursuant to the Fee Regulations
(but, for this purpose, ignoring any minimum fee required pursuant to
the Fee Regulations)
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and expressed in pounds per (Pounds)1,000,000 of the Fee Base of the
Agent (or such Bank as it may determine).
For the purposes of this Schedule:
(a) "eligible liabilities" and "special deposits" shall bear the
meanings given to them from time to time under or pursuant to the
Bank of England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "Fee Regulations" means the Banking Supervision (Fees) Regulations
1999 or such other law as may be in force from time to time in
respect of the payment of fees for banking supervision; and
(c) "Fee Base" shall bear the meaning given to it, and shall be
calculated in accordance with, the Fee Regulations.
The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
In application of the above formulae, A, B, C and D will be included in the
formulae as figures and not as percentages e.g. if A is 0.5 per cent, and B
is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per cent,
x 12 per cent.
Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
A negative result obtained by subtracting D from B shall be taken as zero.
The resulting figures shall be rounded to four decimal places.
Additional amounts calculated in accordance with this Schedule are payable
on the last day of the Interest Period or Term to which they relate.
The determination of the Mandatory Cost Rate by the Agent in relation to
any period shall, in the absence of manifest error, be conclusive and
binding on all of the parties hereto.
The Agent may from time to time, after consultation with the Original Borrower
and the Banks, determine and notify to all parties any amendments or variations
which are required to be made to any of the formulae set out above in order to
comply with any requirements from time to time imposed by the Bank of England or
the Financial Services Authority (or, in either case, any other authority which
replaces all or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all the parties hereto
-77-
SIGNATURES
As Original Borrower and Guarantor
DYCKERHOFF AKTIENGESELLSCHAFT
By: ____________________ By: ______________________
Name: Name:
Address: Xxxxxxxxxx Xxxxxxx 00
X-00000 Xxxxxxxxx
Telephone: x00 000 000 0000
Fax: x00 000 000 0000
Attention: Xxxx Xxxxx, Esq.
LEVEL ACQUISITION CORP.
By: _____________________ By: ______________________
Name: Name:
Address: 0000 Xxxxxx Xxxxxx
Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxxxxxxxx, XX, 00000 X.X.X.
Telephone: 0-000-000-0000
Fax: 0-000-000-0000
Attention: Xxxxx Xxxxx, President
As Underwriter
DEUTSCHE BANK LUXEMBOURG S.A.
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By: ________________________ By: _______________________
Name: Name:
Address: 0, xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Telephone: x000 000 00 000
Fax: x000 000 00 000
Attention: Loan Department
As Arranger
DEUTSCHE BANK AG
By: ________________________ By: _______________________
Name: Name:
Address: Xxxxxxxxxxxx 00
X-00000 Xxxxxxxxx xx Xxxx
Telephone: x00 00 000 00000
Fax: x00 00 000 00000
Attention: Christof Murb
As Underwriter and Arranger
DRESDNER BANK AG in Wiesbaden
By: ________________________ By: _______________________
Name: Name:
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Address: Xxxxxxxxxxxxxx 0,
X-00000 Xxxxxxxxx
Telephone: x00 000 000 000
Fax: x00 000 000 000
Attention: Heinz Honing
As Agent
DRESDNER BANK LUXEMBOURG S.A.
By: _________________________ By: __________________________
Name: Name:
Address: Xxxxx Xxxxxxx 000
X-0000 Xxxxxxxxxx
Telephone: x000 0000 000
Fax: x000 0000 000
Attention: Xxxxxx Xxxxxxxxx
As Bank
DEUTSCHE BANK LUXEMBOURG S.A.
By: _____________________ By: __________________________
Name: Name:
Address: 0, xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Telephone: x000 000 00 000
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Fax: x000 000 00 000
Attention: Loan Department
As Bank
DRESDNER BANK AG in Wiesbaden
By: _____________________ By: __________________________
Name: Name:
Address: Xxxxxxxxxxxxxx 0,
X-00000 Xxxxxxxxx
Telephone: x00 000 000 000
Fax: x00 000 000 000
Attention: Heinz Honing
For the purposes of the Protocol annexed to the Convention on Jurisdiction and
the Enforcement in Civil and Commercial Matters signed at Brussels on 27
September 1968 (as amended) we hereby expressly and specially confirm our
agreement with the provisions of Clause 40 of the Facilities Agreement which
provides for our submission to the non-exclusive jurisdiction of the courts of
Germany.
_______________________________
Deutsche Bank Luxembourg S.A.
_______________________________
Dresdner Bank Luxembourg S.A.
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