Agreements filed as exhibits may contain
representations
and warranties
that
have been negotiated between the parties to
the agreement. Such
representations
and warranties should not be relied upon by any
shareholder of the
Corporation
in any investment decision in the
Corporation's securities.
CLIFFORD
CHANCE
Execution Copy
DATED 14 JUNE 2005
KRONOS TITAN GMBH
KRONOS EUROPE S.A./N.V.
KRONOS TITAN AS
KRONOS NORGE AS
TITANIA AS
AND
KRONOS DENMARK APS
AS BORROWERS
KRONOS TITAN GMBH
KRONOS EUROPE S.A./N.V.
KRONOS NORGE AS
AND
KRONOS DENMARK APS
AS GUARANTORS
WITH
DEUTSCHE BANK LUXEMBOURG S.A.
ACTING AS AGENT
--------------------------------------------------------------------------------
SECOND AMENDMENT AGREEMENT
RELATING TO A
FACILITY AGREEMENT
DATED 25 JUNE 2002
(as amended by an amendment agreement
dated 3 September 2004)
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
CONTENTS
CLAUSE
PAGE
<S>
<C>
1. Definitions and
Interpretation.........................................2
2.
Amendment..............................................................3
3.
Representations........................................................3
4. Continuity and further
Assurance.......................................3
5. Fees, Costs and
Expenses...............................................4
6. Transfer and
Assignment................................................4
7.
Miscellaneous..........................................................6
SCHEDULE 1 Conditions
Precedent............................................7
SCHEDULE 2 Amended Facility
Agreement......................................9
SCHEDULE 3 Transfer of Available
Commitments/Participations...............10
</TABLE>
THIS SECOND AMENDMENT AGREEMENT is dated 14 June 2005 (the
"Agreement") and
is made between:
(1) Kronos
Titan GmbH
(formerly known as Kronos Titan GmbH & Co. oHG), a
limited liability
company (Gesellschaft mit beschrankter Haftung)
organised under the laws of the Federal Republic of Germany,
having its
business address at Peschstrasse 5, 51373 Leverkusen, Federal Republic
of Germany,
which
is registered in the commercial register
(Handelsregister) of
the local court
(Amtsgericht)
of Koln under HRB
52058 (the "German Borrower");
(2) Kronos Europe
S.A./N.V., a Belgian company with its registered office at
Langerbruggekaai 10, 9000 Ghent, Belgium, registered nationally under
RPR 0449.103.862 (the "Belgian Borrower");
(3) Kronos Titan AS,
a Norwegian company
with registered office at Titangt.
1, 1630 Gamle Fredrikstad, Norway, registered under no. 948 616 491
(the
"Norwegian Borrower 1");
(4) Titania AS, a
Norwegian company with
registered office at
4380 Hauge i
Dalane, Norway,
registered
under no. 916 769 318 (the "Norwegian
Borrower 2");
(5) Kronos Norge AS,
a Norwegian company
with registered office at Titangt.
1, 1630 Gamle Fredrikstad, Norway, registered under no. 816 769 132
(the
"Norwegian Borrower 3"
and together with the
Norwegian Borrower 1
and
the Norwegian Borrower 2, collectively the "Norwegian
Borrowers");
(6) Kronos
Denmark ApS, a Danish
company with
registered
office at Hanne
Nielsens Vej 10, 2840 Holte, Denmark, with registration number
CVR. no.
24 24 27 81 (the "Danish Borrower");
(7) Deutsche Bank AG
as mandated lead arranger;
(8) THE EXITING
LENDERS as specified on the signature page;
(9) THE CONTINUING LENDERS as specified on the
signature page (the Exiting
Lenders and the Continuing Lenders are herein collectively referred to
as the "Lenders"); and
(10) Deutsche Bank Luxembourg S.A. as agent for the Finance Parties (as
defined in
the Original Facility Agreement) (the "Agent") and as
security agent for the
Secured Parties (as defined in the Original
Facility Agreement).
<PAGE>
RECITALS:
(A) The Lenders made a facility available to the German Borrower, the
Belgian Borrower,
the Norwegian Borrowers and the Danish Borrower
pursuant to the
terms and conditions under the Original Facility
Agreement (as defined below).
(B) The parties
hereto have agreed to amend the Original Facility Agreement
pursuant to the terms and conditions of this Agreement.
IT IS AGREED as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In
this Agreement:
"Amended Facility Agreement" means the Original Facility
Agreement,
as
amended by this Agreement.
"Effective Date"
means the date on which the Agent confirms to the
Lenders and the German
Borrower in writing that it has received each of
the documents listed in Schedule 1 (Conditions Precedent) in a form and
substance satisfactory to the Agent.
"Original Facility
Agreement"
means the EUR
80,000,000
multicurrency
revolving facility
agreement dated 25
June 2002 (as amended by a first
amendment agreement dated 3 September 2004) between, inter alia, Kronos
Titan GmbH
(formerly known as Kronos Titan GmbH & Co. oHG), Kronos
Europe S.A./N.V.
and others as
borrowers, Kronos
Titan GmbH (formerly
known as Kronos Titan
GmbH & Co. oHG),
Kronos Europe S.A./N.V. and
others as guarantors, Deutsche Bank AG as mandated lead arranger,
Deutsche Bank Luxembourg S.A. as agent and security agent and
others.
1.2 Unless
a contrary indication appears, terms used in the Original
Facility Agreement
shall, when used in this Agreement have the same
meaning as in the Original Facility Agreement.
1.3 Any reference in
this Agreement to a "Clause" or a "sub-clause" shall,
subject to any
contrary indication,
be construed as a reference to a
clause or a sub-clause hereof.
<PAGE>
2.
AMENDMENT
2.1 Amendment of the
Original Facility Agreement
As of the Effective
Date, the Original Facility Agreement shall be
amended so that it shall be read and construed for all purposes as set
out in Schedule 2 (Amended Facility Agreement).
2.2 Security
Confirmation
(a) The German
Borrower hereby confirms that the Security
Documents
entered into by it continue in full force and effect and also
shall
secure its
obligations
and the obligations of any of the other
Obligors under the Amended Facility Agreement.
(b) The Belgian
Borrower hereby
confirms that the
Security Documents
entered into by it continue in full force and effect and also
shall
secure its
obligations
and the obligations of any of the other
Obligors under the Amended Facility Agreement.
(c) Kronos
Denmark ApS hereby
confirms that the Security Documents
entered into by it continue in full force and effect and also
shall
secure its
obligations
and the obligations of any of the other
Obligors under the Amended Facility Agreement
(d) Each of the
Norwegian Borrowers
hereby confirms that
the Security
Documents entered into
by it continue in full force and effect and
also shall secure its obligations and the obligations of any of
the
other Norwegian Borrowers under the Amended Facility Agreement,
in
each case
to the extent as permitted under the Norwegian Companies
Act 1997 Section 8-7.
3.
REPRESENTATIONS
As of the Effective Date, the Obligors make the representations set out
in Clause 22 (Representations) (other than Clause 22.10) of the
Original
Facility Agreement
as if each
reference in those
representations
to
"this Agreement" or "the Finance Documents" includes a reference to (a)
this Agreement and (b) the Amended Facility Agreement.
4. CONTINUITY
AND FURTHER ASSURANCE
4.1 Continuing
obligations
The provisions of the Original Facility Agreement shall, save as
amended
in this Agreement, continue in full force and effect.
<PAGE>
4.2 Further
assurance
Each of the Obligors
shall, at the request
of the Agent and at its own
expense, do all such
acts and things
necessary or
desirable to give
effect to the
amendments effected or
to be effected
pursuant to this
Agreement.
5. FEES,
COSTS AND EXPENSES
5.1 Transaction
expenses
1 Each
of the Borrowers shall
within three Business
Days of demand,
pay
the Agent the amount of all reasonable out-of-pocket costs and
expenses
(including reasonable legal fees of outside counsel) reasonably
incurred
by the Agent in connection with the negotiation, preparation, printing
and execution of this Agreement and any other documents referred to in
this Agreement.
5.2 Enforcement
costs
Each of the Borrowers shall, within three Business Days of
demand, pay
to each Secured Party
and the Mandated Lead
Arranger the amount of all
reasonable
out-of-pocket costs
and expenses
(including
legal fees)
reasonably incurred by
that Secured Party or the Mandated Lead Arranger
in connection
with the enforcement of, or the preservation of any
rights, powers and remedies under this Agreement.
5.3 Stamp taxes
The Borrowers shall pay and, within three Business Days of demand,
indemnify each Finance
Party against any cost, loss or liability that
Finance Party
incurs in relation to
all stamp duty,
registration and
other similar Taxes payable in respect of this Agreement.
6. TRANSFER
AND ASSIGNMENT
6.1 Each Lender
confirms that the
details in Part I and Part II of Schedule
3 (Transfer of
Available
Commitment/Loans)
accurately summarise
its
participation in the Facility made available under the Original
Facility
Agreement.
6.2 Each Exiting
Lender hereby assigns
and transfers, with
effect from the
Effective Date
(aufschiebende
Befristung), such part
of its Available
Commitment
and its participation in outstanding Letters of Credit
(together with
all its rights and obligations under the Finance
Documents relating
thereto) as is set out in Part III and Part IV of
Schedule 3 (Transfer
of Available
Commitments/Participations) to such
Continuing Lender as
is set out in Part III and Part IV of Schedule 3
(Transfer of Available
Commitments/Participations) in accordance with
paragraph (b) of
Clause 27.5 (Procedure
for Transfer) of the
Original
Facility Agreement so that each Continuing Lender's Available
Commitment
is as referred
to in Part V of Schedule 3 (Transfer of Available
Commitments/Participations) and each Continuing Lender's
participation
in outstanding
Letters of Credit is as referred to in Part VI of
Schedule 3 (Transfer of Available Commitments/Participations).
<PAGE>
6.3 Each
of the Continuing Lenders hereby accepts such transfer and
assignment.
6.4 Each Continuing
Lender confirms that it has received such information as
it has required in connection with this transaction and that it has
not
relied and will not hereafter rely on the respective Exiting Lender 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 respective
Exiting Lender to
assess or keep under review on its
behalf the financial condition, creditworthiness, condition, affairs,
status or nature of the Obligors.
6.5 Each Exiting
Lender makes no
representation or
warranty and assumes no
responsibility with
respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or, in any
case, 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 Finance
Documents or, in any case, any document relating thereto and any
and all
such conditions and warranties, whether express or implied by law
or, in
any case, otherwise, are hereby excluded.
6.6 Each Exiting
Lender hereby gives notice that nothing
herein or in the
other Finance Documents (or, in any case, any document relating
thereto)
shall oblige such Exiting Lender to (a) accept a
re-transfer
from the
respective Continuing
Lender of the
whole or any part of
its rights,
benefits and/or
obligations
under the Finance
Documents transferred
pursuant hereto
or (b) support any losses directly or indirectly
sustained or incurred by the respective Continuing Lender for any
reason
whatsoever including
the non-performance by an Obligor or any other
party to the Finance
Documents (or, in any case, any document relating
thereto) of its
obligations under any
such document.
The respective
Continuing Lender hereby acknowledges the absence of any such
obligation
as is referred to in (a) or (b) above.
6.7 Each Exiting
Lender and the
respective Continuing
Lender hereby
agree
that the benefit of the guarantees and indemnities granted pursuant to
Clause 21 (Guarantee and Indemnity) of the Original Facility Agreement
and the benefit of each of the Security Documents shall be transferred
to the respective
Continuing Lender on the Effective Date to the extent
such guarantees
and indemnities relate to the portion of the
Outstandings assigned
and transferred to the respective Continuing
Lender pursuant hereto.
<PAGE>
6.8 Each Continuing
Lender hereby expressly consents to the declarations
of
the Security
Agent made on behalf
and in the name of
such Continuing
Lender as Future Pledgee (as such term is defined in the Security
Documents, being
pledges which are governed by German law) in such
Security Documents.
Each Continuing Lender confirms that it is aware of
the content of such Security Documents.
7.
MISCELLANEOUS
7.1 Incorporation of
terms
The provisions of
Clause 37 (Partial
Invalidity), Clause 38
(Remedies
and waivers), Clause 40 (Governing Law) and Clause 41.1
(Jurisdiction of
German Courts) of the Original Facility Agreement shall be
incorporated
into this Agreement as
if set out in full in this Agreement and as if
references in
those clauses to "this Agreement" or "the Finance
Documents" are references to this Agreement.
7.2 Designation as
Finance Document
The German Borrower
and the Agent designate this Agreement as a Finance
Document by
execution of this Agreement for the purposes of the
definition of Finance Document in the Original Facility
Agreement.
THIS AGREEMENT has been entered into on the
date stated at the beginning of this
Agreement.
<PAGE>
SCHEDULE 1
Conditions Precedent
<PAGE>
1.
Obligors
(a) A copy of the
constitutional documents of each Obligor.
(b) A copy of a
resolution
of the board of
directors of the Belgian
Borrower, each Norwegian Borrower and the Danish Borrower:
(i)
approving the terms
of, and the
transactions
contemplated
by, this Agreement
and resolving that it executes this
Agreement;
(ii) authorising
a specified
person or persons to
execute this
Agreement on its behalf; and
(iii) authorising a
specified person or persons, on its behalf, to
sign and/or despatch
all documents and notices to be signed
and/or despatched
by it under or in
connection
with this
Agreement.
(c) A copy of a
resolution
signed by all the
holders of the issued
shares in the German
Borrower, approving the terms of, and the
transactions contemplated by, this Agreement.
(d) A specimen of the
signature of each person authorised to sign this
Agreement.
(e) A certificate validly signed on behalf of the
relevant Obligor
confirming that borrowing and/or guaranteeing the Total
Commitments
would not cause any borrowing and/or guaranteeing limit binding on
it to be exceeded.
(f) A certificate of an authorised signatory of the relevant
Obligor
certifying that each copy document relating to it specified in
this
Schedule 1 is correct,
complete and in full force and effect as at
a date no earlier than the date of this Agreement.
(g) The Original Financial Statements (as defined in the Amended
Facility Agreement) of each Obligor.
2. Legal
Opinions
(a) A legal
opinion of Clifford Chance Partnerschaftsgesellschaft,
legal advisers to the Agent in Germany, substantially in the form
distributed to the Lenders prior to signing this Agreement.
(b) A legal opinion of
Clifford Chance, legal
advisers to the Agent in
Belgium, substantially in the form distributed to the Lenders
prior
to signing this Agreement.
(c) A legal opinion of
Bugge, Arentz-Hansen & Rasmussen, legal advisers
to the Agent in Norway, substantially in the form distributed to
the Lenders prior to signing this Agreement.
(d) A legal opinion of
Gorissen Federspiel Kierkegaard, legal advisers
to the Agent in Denmark, substantially in the form distributed to
the Lenders prior to signing this Agreement.
(e) A legal opinion of
Clifford Chance LLP, legal advisers to the Agent
in the United States of America, substantially in the form
distributed to the Lenders prior to signing this Agreement.
3. Other
documents and evidence
(a) A copy of a
confirmation agreement
relating to the
Subordination
Agreement, duly executed by the Parent and the German Borrower.
(b) A copy of any
other Authorisation
or other document, opinion or
assurance which the Agent considers to be necessary or desirable
in
connection with the
entry into and
performance of the transaction
contemplated by
this Agreement or for the validity and
enforceability of this Agreement.
<PAGE>
SCHEDULE 2
Amended Facility Agreement
CLIFFORD
CHANCE
Conformed Copy
DATED 25 June 2002
as amended by an
amendment agreement dated 3 September 2004 and a second
amendment agreement dated 14 June 2005
KRONOS TITAN GMBH & CO. OHG
KRONOS EUROPE S.A./N.V.
KRONOS TITAN AS
and
TITANIA AS
as
Borrowers
KRONOS TITAN GMBH & CO. OHG
KRONOS EUROPE S.A./N.V.
and
KRONOS NORGE AS
as Guarantors
KRONOS DENMARK APS
as Security Provider
DEUTSCHE BANK AG
as Mandated Lead Arranger
DEUTSCHE BANK LUXEMBOURG S.A.
as Agent and Security Agent
and
KBC BANK NV
as Fronting Bank
and
Others
--------------------------------------------------------------------------------
EUR 80,000,000
FACILITY AGREEMENT
--------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
CONTENTS
CLAUSE
PAGE
<S>
<C>
1. Definitions And
Interpretation...........................................1
2. The
Facility............................................................20
3.
Purpose.................................................................20
4. Conditions Of
Utilisation...............................................20
5.
Utilisation.............................................................22
6. Optional
Currencies.....................................................23
7. Letters of
Credit.......................................................24
8.
Repayment...............................................................26
9. Borrower's Liabilities In Relation
To Letters Of Credit.................26
10. Prepayment And
Cancellation.............................................28
11.
Interest................................................................31
12. Default
Interest........................................................31
13. Interest Periods and
Terms..............................................32
14. Changes To The Calculation Of
Interest..................................33
15.
Fees....................................................................34
16. Tax Gross Up And
Indemnities............................................36
17. Increased
Costs.........................................................40
18. Other
Indemnities.......................................................41
19. Mitigation By The
Lenders...............................................42
20. Costs And
Expenses......................................................43
21. Guarantee And
Indemnity.................................................45
22.
Representations.........................................................48
23. Information
Undertakings................................................52
24. Financial
Covenants.....................................................54
25. General
Undertakings....................................................56
26. Events Of
Default.......................................................64
27. Changes To The
Lenders..................................................69
28. Changes To The
Obligors.................................................73
29. Role Of The Agent, the Security Agent
And The Mandated Lead Arranger ...74
30. Conduct Of Business By The Finance
Parties..............................83
31. Sharing Among The Finance
Parties.......................................83
32. The Lenders and the Fronting
Bank.......................................85
33. Payment
Mechanics.......................................................88
34.
Set-Off.................................................................91
36. Calculations And
Certificates...........................................94
37. Partial
Invalidity......................................................94
38. Remedies And
Waivers....................................................94
39. Amendments And
Waivers..................................................94
40. Governing
Law...........................................................96
41.
Enforcement.............................................................96
SCHEDULE 1 The Original
Lenders............................................97
SCHEDULE 2 Conditions
Precedent............................................98
SCHEDULE 3 Utilisation
Request.................... .......................102
SCHEDULE 4 Mandatory Cost
Formulae........................................104
SCHEDULE 5 Form of Transfer
Certificate....................................108
SCHEDULE 6 Form of Compliance
Certificate..................................112
SCHEDULE 7 Existing
Security..............................................114
SCHEDULE 8 Existing Financial
Indebtedness.................................115
SCHEDULE 9
Timetables......................................................116
SCHEDULE 10 Form of Combining
Schedule.....................................119
SCHEDULE 11 Form of Confidentiality
Undertaking............................136
SCHEDULE 12 Form of Letter of
Credit.......................................141
SCHEDULE 13 Form of Auditor's
Report.......................................143
</TABLE>
<PAGE>
THIS AGREEMENT is dated 25 June 2002 and
made between:
(1) KRONOS
TITAN GMBH & CO. OHG (the
"German Borrower"), KRONOS EUROPE
S.A./N.V. (the
"Belgian Borrower"), KRONOS TITAN AS (the "Norwegian
Borrower 1") and
TITANIA AS (the
"Norwegian Borrower
2") as borrowers
(each a "Borrower" and together the "Borrowers");
(2) KRONOS
TITAN GMBH & CO.
OHG (the "German
Guarantor"),
KRONOS EUROPE
S.A./N.V. (the
"Belgian Guarantor") and KRONOS NORGE AS (the "Norwegian
Guarantor") as
guarantors
(each
a "Guarantor" and together the
"Guarantors");
(3) KRONOS DENMARK
APS as additional security provider ("Kronos Denmark");
(4) DEUTSCHE
BANK AG as mandated lead arranger (the "Mandated Lead
Arranger");
(5) KBC BANK NV as
fronting bank (the "Fronting Bank");
(6) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the
"Original Lenders"); and
(7) DEUTSCHE BANK
LUXEMBOURG S.A. as agent of the other Finance Parties (the
"Agent") and as Security Agent for the Secured Parties (the "Security
Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1.
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Additional Cost
Rate" has the meaning given to it in Schedule 4
(Mandatory Cost formulae).
"Affiliate" means,
in relation to any person,
a Subsidiary of that
person or a Holding
Company of that person or any other Subsidiary of
that Holding Company.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of
exchange
for the purchase of the relevant currency with the Base Currency in
the
European foreign
exchange market at or about 11:00 a.m. on a particular
day.
<PAGE>
"Amendment Agreement"
means the amendment agreement dated [?] 2005
relating to this Agreement.
"Applicable GAAP" means:
(b) in relation to any
Obligor whose
jurisdiction of
incorporation is
the Federal
Republic of Germany,
generally accepted accounting
principles in the Federal Republic of Germany;
(c)
in relation to any
Obligor whose
jurisdiction of
incorporation is
Belgium, generally accepted accounting principles in Belgium;
(d) in relation to any
Obligor whose
jurisdiction of
incorporation is
Norway, generally accepted accounting principles in Norway; and
(e) in relation to Kronos Denmark, generally accepted accounting
principles in Denmark; and
(f) in relation to the
Parent, US GAAP.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Availability Period"
means the period from
and including the date
of
this Agreement to and
including the Business Day falling
immediately
before the Termination Date.
"Available Commitment" means a Lender's Commitment minus:
(a) the Base Currency
Amount of its
participation
in any outstanding
Loans and Letters of Credit; and
(b) in relation to any
proposed Utilisation,
the Base Currency
Amount
of its participation
in any Loans and
Letters of Credit that
are
due to be made on or before the proposed Utilisation Date,
other than that
Lender's participation in any Loans and Letters of
Credit that are due to
be repaid,
prepaid or expire on or before the
proposed Utilisation Date.
"Available Facility"
means the aggregate for the time being of each
Lender's Available Commitment.
"Base Currency" means euros.
"Base Currency
Amount" means, in relation to a Loan or a Letter of
Credit, the amount
specified in the Utilisation Request delivered by a
Borrower for that Loan
or a Letter of Credit (or, in the case of a Loan
only, if the amount
requested is not
denominated in the Base Currency,
that amount converted into the Base Currency at the Agent's Spot
Rate of
Exchange on the date which is three Business Days before the
Utilisation
Date adjusted to reflect any repayment or prepayment of the
Loan).
<PAGE>
"Break Costs" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period
from the date of receipt of all or any part of its participation
in
a Loan or Unpaid Sum to the last day of the current Interest
Period
in respect of that Loan or Unpaid Sum, had the principal
amount or
Unpaid Sum
received been paid on the last day of that
Interest
Period;
exceeds:
(b) the amount
which that Lender
would be able to obtain by placing an
amount equal to the
principal amount or
Unpaid Sum received by it
on deposit with a leading bank in the Relevant Interbank Market
for
a period starting on the Business Day following receipt or
recovery
and ending on the last day of the current Interest Period.
"Business Day" means:
(a) (in relation to
any day other than a date for the payment, purchase
of, or rate fixing
relating to euro) a day, other than a Saturday
or Sunday,
on which banks are open for general business in
Luxembourg, (in
relation to the Letter
of Credit) the
principal
financial centre
of the country of the Facility Office of the
Fronting Bank and (in
relation to any date for payment or purchase
of, or rate fixing
relating to, a sum
denominated
in a currency
other than euro) the principal financial centre of the country of
that currency; or
(b) (in relation to
any date for payment,
purchase of, or rate
fixing
relating to euro) any TARGET Day.
"Capital Lease" means
any lease or hire purchase contract which would,
in accordance with
Applicable GAAP, be
treated as a finance or capital
lease.
"Cash Collateral"
means, in relation to any Letter of Credit or L/C
Proportion of a Letter
of Credit, a deposit in an interest-bearing
account or
accounts with the Fronting Bank as the Agent (with the
consent of the Fronting Bank) may specify, that deposit and account to
be secured in favour of, and on terms and conditions acceptable to, the
Agent and the Fronting Bank.
<PAGE>
"Cash Collateral
Documents"
means any documents as the Agent may
specify, to be entered into in relation to the Cash Collateral.
"Cash Equivalent Investments" means:
(a) marketable
debt securities for which a recognised
trading market
exists (including money market funds that invest substantially all
of their assets
in debt securities accessible within 30 days)
maturing within one
year after the relevant date of calculation,
denominated in euros,
sterling or dollars or kroner ("Accepted
Currency") issued by any member state of the European Union,
Norway
and the United States of America which are not convertible into
any
other form of security;
(b) marketable debt securities for which a recognised
trading market
exists (including money market funds that invest substantially all
of their assets
in debt securities accessible within 30 days)
maturing within one
year after the relevant date of calculation,
denominated in any Accepted Currency which are not convertible
into
any other form of security, rated P-1 (Moody's Investor Services
Inc.) or A-1 (Standard & Poors' Corporation);
(c) certificates of
deposit and time deposits maturing within one year
after the relevant date of calculation, denominated in any
Accepted
Currency issued
by, and acceptances by, banking institutions
authorised under applicable legislation of any member state of
the
European Union, the United States of America or Norway which at
the
time of making such issue or acceptances, have outstanding debt
securities rated as
provided in paragraph
(b) above or which have
minimum capital of EUR 250,000,000; and
(d) such other
securities (if any) as
are approved in writing by the
Agent,
in each case to which any member of the Group is beneficially entitled
at that time and which are not issued or guaranteed by any member
of the
Group.
"Charged Property"
means all the assets of the Borrowers or Kronos
Denmark which from time to time are, or are expressed to be, the
subject
of the Transaction Security.
"Combining Schedule" means a schedule substantially in the form set
out
in part I of Schedule 10 (Form of Combining Schedule) when delivered
pursuant to
Clause 23.3(a)(i) and part II of Schedule 10 (Form of
Combining Schedule)
when delivered pursuant to Clause 23.3(a)(ii), in
each case combining the financial information of the Parent including
each of
the Obligors and its
Subsidiaries
(on a legal
entity basis)
which is used to prepare and corresponds with the Parent's
(audited, in
the case of a financial year) consolidated balance sheet and statements
of income and cash flows for the relevant financial year or financial
quarter (as the case may be), in each case prepared using US
GAAP.
<PAGE>
"Commitment" means:
(a) in relation to an
Original Lender, the
amount in the Base Currency
set opposite its name under the heading "Commitment" in Schedule 1
(The Original
Lenders) and the amount of any other Commitment
transferred to it under this Agreement; and
(b) in relation to any
other Lender, the amount in the Base Currency of
any Commitment transferred to it under this Agreement,
to the extent not
cancelled, reduced or
transferred
by it under this
Agreement.
"Compliance
Certificate" means a certificate substantially in the form
set out in part I of Schedule 6 (Form of Compliance
Certificate).
"Confidentiality
Undertaking" means
a confidentiality undertaking
substantially as set
out in Schedule 11 (Form of Confidentiality
Undertaking) or in any other form agreed between the German
Borrower and
the Agent.
"Default" means an
Event of Default or any event or circumstance
specified in Clause 26 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any
determination
under the Finance
Documents or any combination of any of the foregoing)
be an Event of Default.
"Environmental Claim"
means any claim,
proceeding or
investigation by
any person in respect of 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.
<PAGE>
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable
Screen Rate; or
(b) (if no Screen Rate
is available
for the Interest Period of that
Loan) the arithmetic
mean of the rates
(rounded upwards to four
decimal places) as
supplied to the Agent at its request quoted by
the Reference
Banks to leading
banks in the
European interbank
market,
as of the Specified
Time on the
Quotation Day for the offering of
deposits in euro for a period comparable to the Interest
Period of the
relevant Loan.
"Event of Default" means any event or circumstance specified as such in
Clause 26 (Events of Default).
"Expiry Date" means,
in relation to any
Letter of Credit, the
date on
which the maximum aggregate liability under that Letter of
Credit is to
be reduced to zero provided that any such date will end on or
before the
Termination Date.
"Facility" means the
revolving loan and letter of credit facility made
available under this Agreement as described in Clause 2 (The
Facility).
"Facility Office"
means the office or
offices notified by a
Lender to
the Agent in writing
on or before
the date it
becomes a Lender
(or,
following that
date, by not less than five Business Days' written
notice) as the office
or offices
through which it will perform its
obligations under this Agreement.
"Fee Letter" means any
letter or letters
dated on or about the date of
this Agreement
between the Mandated Lead Arranger and the German
Borrower (or the Agent and the German Borrower or the Fronting Bank
and
the relevant Borrower) setting out any of the fees referred to in
Clause
15 (Fees).
"Finance Document"
means this Agreement,
the Security
Documents, the
Subordination
Agreement, any
Fee Letter and any other document
designated as such by the Agent and the German Borrower.
"Finance Party"
means the Agent, the Mandated Lead Arranger, the
Fronting Bank, the Security Agent or a Lender.
"Financial
Indebtedness" means any indebtedness for or in respect of:
(a) moneys
borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount
raised pursuant to any note purchase facility or the
issue of bonds,
notes, debentures, loan stock or any similar
instrument;
(d) the amount of any
liability in respect of any Capital Lease;
<PAGE>
(e) receivables
sold or discounted
(other than any
receivables to the
extent they are sold on a non-recourse basis);
(f) any amount under
any other transaction
(including any forward sale
or purchase agreement)
having the commercial effect of a borrowing
as defined in paragraphs (a) or (c) above (which, for the
avoidance
of doubt, shall not include deferred payment obligations which are
standard within
the industry and in the ordinary course of
business);
(g) any derivative transaction and the resulting net liability as
determined from time
to time, if any,
entered into in
connection
with protection
against or benefit from fluctuation in any rate or
price (and,
when
calculating
the value of any derivative
transaction, only the
marked to market value
shall be taken
into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond,
standby or
documentary
letter of credit or
any
other instrument issued by a bank or financial institution; and
(i) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to
(h)
above.
"Fronting Bank" means KBC Bank NV.
"Group" means each of the Obligors and their Subsidiaries.
"Holding Company"
means, in relation to
a company or corporation, any
other company or corporation in respect of which it is a
Subsidiary.
"Intellectual
Property" means all patents, trade marks, service marks,
trade names, design
rights, copyright (including rights in computer
software and moral
rights and in published and unpublished work),
titles, rights to
know-how and other
intellectual property
rights, in
each case whether registered or unregistered and including
applications
for the grant
of any of the
foregoing and all rights or forms of
protection having
equivalent or similar
effect to any of the foregoing
which may subsist anywhere in the world.
"Interest Period"
means, in relation to a Loan, each period determined
in accordance with
Clause 13 (Interest
Periods) and, in relation to an
Unpaid Sum,
each period determined in accordance with Clause 12.1
(Default interest periods).
"Intra-group Loan"
means a borrowing of money as defined in paragraphs
(a), (c) and (f) of the definition of Financial
Indebtedness
from the
Parent or any other
member of the
Kronos Group by any member of the
Group.
<PAGE>
"Kronos Group" means Kronos Worldwide, Inc. and its Subsidiaries
(other
than any such Subsidiaries which form part of the Group).
"L/C Amount" means:
(a) each sum paid or due and payable by the Fronting Bank to the
beneficiary of a
Letter of Credit
pursuant to the terms of that
Letter of Credit; and
(b) all liabilities,
costs (including,
without limitation,
any costs
incurred in funding
any amount which falls
due from the
Fronting
Bank under a Letter of Credit), claims, losses and out-of-pocket
expenses which the
Fronting Bank incurs
or sustains in connection
with a Letter of Credit,
in each case
which has not been reimbursed pursuant to Clause 9
(Borrower's liabilities in relation to Letters of Credit).
"L/C Commission Rate"
means a letter of credit commission rate of 1.75
per cent. per annum.
"L/C Proportion" means, in relation to a Lender in respect of any
Letter
of Credit and save as otherwise provided in this Agreement, the
proportion (expressed
as a percentage) borne by that Lender's Available
Commitment to the Available Facility immediately prior to the issue
of
that Letter of Credit.
"Legal Opinions"
means the legal opinions delivered to the Agent
pursuant to Clause 4.1 (Initial conditions precedent).
"Legal Reservations" means:
(a) the principle that
equitable remedies may
be granted or refused at
the discretion of a
court, the
limitation of
enforcement by laws
relating to
insolvency,
reorganisation and
other laws
generally
affecting the rights of creditors; and
(b) the time bearing
of claims, defences of set-off or counterclaim and
similar principles
which are set out in the Legal Opinions as
qualifications as to matters of law.
"Lender" means:
(a) any Original
Lender; and
(b) any bank,
financial institution,
trust, fund or other entity which
has become a Party in
accordance with
Clause 27 (Changes to the
Lenders),
<PAGE>
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Letter of Credit"
means a letter of
credit issued or to be
issued by
the Fronting Bank under the Facility substantially in the form set out
in Schedule
12 (Form of Letter of Credit) or in such other form
requested by the
Borrower which is acceptable to the Agent and the
Fronting Bank.
"LIBOR" means:
(a) in relation to any
Loan (other
than a Loan
denominated
or to be
denominated in sterling), the applicable Screen Rate; or
(b) in relation to (i)
any Loan denominated
in or to be denominated in
sterling or (ii) any other Loan if no Screen Rate is available
for
the currency or Interest Period of that other Loan, the
arithmetic
mean of the rates
(rounded upwards
to four decimal places) as
supplied to the Agent at its request quoted by the Reference
Banks
to leading banks in the London interbank market,
as of the Specified
Time on the
Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable
to the
Interest Period for that Loan.
"Loan" means a loan
made or to be made under the Facility or the
principal amount outstanding for the time being of that loan.
"LMA" means the Loan Market Association.
"Majority Lenders" means:
(a) until the Total
Commitments have been
reduced to zero, a Lender or
Lenders whose
Commitments
aggregate more than 51% of the Total
Commitments (or, if the Total Commitments have been reduced to
zero
and there are no Loans
or Letters
of Credit then outstanding,
aggregated more than 51% of the Total Commitments immediately
prior
to the reduction); or
(b) at any other time,
a Lender or Lenders whose participations in the
Outstandings aggregate more than 51% of all the Outstanding.
"Mandatory Cost" means
the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"Margin" means 1.125 per cent. per annum.
<PAGE>
"Material Adverse
Effect" means a material adverse effect on the
business, assets or
financial condition of the German
Borrower, the
Belgian Borrower or the Group taken as a whole.
"Material Contracts"
means any agreements
including licence agreements
entered into by any member of the Group which is reasonably likely
to be
material to the
business or financial
condition of any
Obligor or the
Group taken as a whole.
"Material Subsidiary"
means
Unterstutzungskasse
Kronos Titan GmbH and
any other Subsidiary of any Obligor:
(a) whose total assets represent 5 per cent. or more of the
consolidated total assets of the Group; or
(b) whose total
operating income
represents 5 per cent. or more of the
consolidated total operating income of the Group,
all as shown (in the case of any Subsidiary) in its most recent annual
or half yearly
accounts (consolidated, as the case may be, if it has
Subsidiaries) and (in
the case of the Group) the most recent annual or,
as the case may be,
half yearly Combining Schedules of the Group,
provided that:
(i) if any
Material Subsidiary sells, transfers or otherwise
disposes of the
majority of its undertaking or assets
(whether by a single
transaction
or a number
of related
transactions) to any other member of the Group:
(1)
that other
member of the Group
shall be deemed to
become a Material Subsidiary on the date of the
relevant sale, transfer or disposal; and
(2)
any Material
Subsidiary which
sells, transfers
or
otherwise
disposes of
the majority of its
undertaking or
assets
(whether
by a single
transaction or a
number of related transactions)
shall no longer be a Material Subsidiary on the date
of the relevant sale, transfer or disposal,
until the Material Subsidiaries are next determined from the
annual or half yearly accounts referred to above;
(ii) if any
Material Subsidiary
does not satisfy
either of the
tests set out in
paragraphs (a) and (b)
above for reasons
other than those referred to under paragraph (i) above, then
such Material
Subsidiary
shall cease to be a Material
Subsidiary from the point of time that the non-satisfaction
of such tests can be
determined
from the annual audited
accounts or the half yearly unaudited accounts referred to
above; and
<PAGE>
(iii) if a Subsidiary
has been acquired since the date as of which
the latest
consolidated annual or
half yearly accounts
of
the Group were prepared, such accounts shall be adjusted
in
order to take into account the acquisition of such
Subsidiary.
"Month" means a period
starting on one day in a calendar month and
ending on the numerically corresponding day in the next
calendar month,
except that:
(a) if the
numerically
corresponding
day is not a Business
Day, that
period shall end on the next Business Day in that calendar month
in
which that period is to end if there is one, or if there is not,
on
the immediately preceding Business Day; and
(b) if there is no
numerically
corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month.
The above exceptions will only apply to the last Month of any
period.
"Norwegian Borrowers"
means the Norwegian Borrower 1, the Norwegian
Borrower 2 and Kronos Norge AS.
"Obligor" means a Borrower or a Guarantor.
"Optional Currency"
means a currency
(other than the Base Currency)
which complies with
the conditions
set out in Clause 4.3
(Conditions
relating to Optional Currencies).
"Original Financial Statements" means:
(a) in relation to the
Norwegian Guarantor,
its audited
consolidated
financial statements
for the financial year ended 31 December 2004
prepared using Applicable GAAP;
(b) in relation to
each Obligor, its audited unconsolidated financial
statements for the
financial year ended
31 December 2004 prepared
using Applicable GAAP; and
(c) in relation to the
Group, a Combining
Schedule for the
financial
year ended 31 December 2004 prepared using US GAAP.
<PAGE>
"Outstandings" means
at any time, the
aggregate of the Base
Currency
Amounts of the
outstanding Loans and
the amount of the maximum actual
and contingent liabilities of the Lenders in respect of each
outstanding
Letter of Credit. "Parent" means Kronos International, Inc., a Delaware
corporation.
"Participating Member
State" means any member state of the European
Communities that
adopts or has adopted the euro as its lawful currency
in accordance with
legislation of the
European Community
relating to
Economic and Monetary Union.
"Party" means a party to this Agreement.
"Permitted Affiliate
Transactions"
means any transaction
entered into
between any member of
the Group and the
Parent or any other
member of
the Kronos
Group either (i) in the ordinary course of trading or
business and in accordance with past practice or (ii) which is
necessary
to accommodate legal
or regulatory
requirements of such
member of the
Group.
"Permitted Financial Indebtedness" means Financial Indebtedness,
without
duplication:
(a) arising under or
permitted pursuant to the Finance Documents;
(b) incurred with the
prior written consent of the Majority Lenders and
any Refinancing thereof;
(c) existing
on the date of this
Agreement and listed in Schedule 8
(Existing Financial
Indebtedness)
and any Refinancing thereof,
provided that the Financial Indebtedness referred to in item 1 of
Schedule 8 (Existing
Financial
Indebtedness) (or any
Refinancing
thereof) is
repaid upon the first Utilisation Date and the
Financial Indebtedness
referred to in item 7 of Schedule 8
(Existing Financial
Indebtedness) (or any Refinancing thereof) is
repaid no later than 120 days from the date of this Agreement and
provided further that any Refinancing of the Financial
Indebtedness
referred to in items 2
and 3 of Schedule
8 (Existing Financial
Indebtedness) is subject to a subordination agreement between the
debtor, the creditor
and the Security Agent on substantially the
same terms as in the Subordination Agreement;
(d) arising under any
derivative transaction entered into by any member
of the Group in respect of Financial Indebtedness of such members
of the Group
and any Refinancing thereof provided that such
derivative
transactions are (i) entered into to protect members of
the Group from fluctuations in interest rates on outstanding
Financial Indebtedness
to the extent the notional principal amount
of such derivative transactions does not, at the time of the
incurrence thereof,
exceed the principal
amount of the
Financial
Indebtedness to which such derivative transaction relates and (ii)
entered into in the ordinary course of business of such members
of
the Group and not for investment or speculative purposes;
<PAGE>
(e) arising
under any commodity agreements or currency agreements
entered into by any
member of the Group
provided that (i) in
the
case of any such
currency agreements
which relate to Financial
Indebtedness or trade
payables of any member of the Group,
such
currency agreements
do not increase the outstanding Financial
Indebtedness
or trade payables of such member of the
Group (other
than as a result of fluctuations in foreign currency exchange
rates
or by reason of fees, indemnities and compensation payable
thereunder) and (ii)
in the case of any such commodity agreements
or currency
agreements, such
agreements
are entered into in
the
ordinary course of
business of such
members of the Group
and not
for investment or speculative purposes;
(f) owed by any
Obligor to any other Obligor;
(g) owed by any
member of the
Group which is not an Obligor to any
other member of the Group which is not an Obligor or to an
Obligor,
unless incurred in violation of this Agreement;
(h) arising
under any Intra-group Loans provided that the payment
claims of the Parent
or any other member of
the Kronos
Group in
respect of any such Intra-group Loans have been subordinated to
the
claims of the Finance Parties pursuant to the Subordination
Agreement; and
(i) arising
from the honouring by a Lender or other financial
institution of a cheque, draft or similar instrument inadvertently
(except in
the case of daylight overdrafts) drawn against
insufficient funds in
the ordinary course of
business, provided
that such Financial Indebtedness is extinguished within two
Business Days of incurrence;
(j) consisting of
guarantees,
indemnities or obligations in respect of
customary
purchase price
adjustments
in connection with the
acquisition of or disposal over assets up to an aggregate amount
of
EUR 2,000,000
(or its equivalent in another currency or
currencies);
(k) incurred
by the Norwegian Borrower 2 in the ordinary course of
business to finance the purchase price for the acquisition of
heavy
earth moving equipment or other similar equipment related to
mining
by it or any Refinancing thereof up to an aggregate
amount of EUR
10,000,000 (or its equivalent in another currency or
currencies);
<PAGE>
(l) incurred by any
member of the Group the principal amount of which
(when aggregated with
the principal amount
of all other Financial
Indebtedness incurred
by the members of the Group other than
any
Financial Indebtedness permitted under paragraphs (a) to (k)
above)
does not exceed EUR 5,000,000 (or its equivalent in another
currency or currencies).
"Permitted Loans and Guarantees" means:
(a) any guarantee or indemnity granted by any member of the Group
or
any assumption
of liability in
respect of any
obligation of any
other person made by any member of the Group in the ordinary
course
of its trading or business and upon terms usual for such trading
or
business;
(b) any guarantee or indemnity required under any of the Finance
Documents;
(c) any loan, grant of
credit, guarantee or
indemnity or assumption of
any liability
in respect of any
other person which is
granted or
made by any member of the Group who is not an Obligor to or for
the
benefit of an Obligor;
(d) any loan, grant of
credit, guarantee or
indemnity or assumption of
any liability
in respect of any
other person which is
granted or
made by any Obligor to or for the benefit of any other Obligor;
and
(e) any loan
granted by any Obligor to any wholly-owned subsidiary
being a member of the Group which is not an Obligor (including the
sale or discounting
of receivables by any member of the
Group to
the
German Borrower) up to an aggregate amount of EUR 5,000,000.
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the
currency is euro) two TARGET Days before
the first day of
that period; or
(b) (for any other
currency) two Business
Days before the first day of
that period,
unless market practice
differs in the Relevant Interbank Market for a
currency, in which
case the Quotation
Day for that
currency will be
determined by the
Agent in accordance with market practice in the
Relevant Interbank
Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one
day, the
Quotation Day will be the last of those days).
<PAGE>
"Reference Banks"
means Deutsche Bank Luxembourg S.A. and the principal
offices of Commerzbank
Aktiengesellschaft and
Dexia Bank Belgium NV/SA
or such other bank or
banks as may from time to time be agreed between
the German Borrower
and the Agent
acting on the
instructions
of the
Majority Lenders.
"Refinance" means,
in respect of any Financial Indebtedness, to
refinance in whole or in part the amount of such Financial
Indebtedness
on arms' length terms and in accordance with market standards and the
terms "Refinanced" and "Refinancing" shall be construed
accordingly.
"Relevant Interbank
Market" means in relation to euro,
the European
interbank market and,
in relation
to any other
currency, the London
interbank market.
"Relevant Jurisdiction" means:
(a) the jurisdiction
of incorporation of each member of the Group; and
(b) the jurisdiction where any asset subject to or intended to be
subject to the Transaction Security is situated.
"Repeating Representations" means each of the representations set
out in
Clauses 22.1 (Status) to 22.6 (Governing law and enforcement), Clause
22.9 (No default),
Clause 22.13 (No proceedings pending or threatened),
Clause 22.19 (Legal and beneficial owner) and Clause 22.20 (No
winding
up).
"Rollover Loan" means one or more Loans:
(a) made or to be made
on the same day that a:
(i)
maturing Loan is due to be repaid; or
(ii) demand in
respect of a Letter of Credit is due to be met;
(b) the aggregate
amount of which is equal to or less than the maturing
Loan or Letter of Credit;
(c) in the same
currency as the
maturing Loan (unless it arose as a
result of the operation of Clause 6.2 (Unavailability of a
currency)) or Letter of Credit; and
(d) made or to be made
to the same Borrower for the purpose of:
<PAGE>
(i)
refinancing a maturing Loan; or
(ii) satisfying
any demand made by the
Fronting Bank through the
Agent pursuant to a drawing under a Letter of Credit.
"Screen Rate" means:
(a) in relation to any amount to be advanced or owing in euro, the
percentage rate per annum determined by the Banking
Federation of
the European Union for the relevant period; and
(b) in all other
respects, the British Bankers Association Interest
Settlement Rate for the relevant currency and period,
displayed on the appropriate page of the Reuters screen.
If the agreed
page is replaced
or service ceases to be available, the Agent may
specify another page or service displaying the appropriate
rate in the
Agent's reasonable
discretion with the
approval of the German Borrower
(which approval shall not be unreasonably withheld or delayed) and
after
consultation with the Lenders.
"Secured Parties" means the Security Agent, the Agent, the Fronting
Bank
and each Lender from time to time party to this Agreement.
"Security" means a
mortgage, charge,
pledge, lien or other security
interest securing any obligation of any person or any other
agreement or
arrangement having a similar effect.
"Security Document"
means each of the documents delivered to the Agent
listed in Section 4 of Schedule 2 (Conditions Precedent) together with
any other document entered into by a Borrower or Kronos Denmark
creating
or expressed to create
Security over all or any part of its assets
in
respect of the
obligations
of any of the
Obligors under any of the
Finance Documents.
"Specified Time" means
a time determined in
accordance with Schedule 9
(Timetables).
"Structure Chart"
means a chart showing the Parent and its Subsidiaries
and any direct shareholders of any member of the Group and the
relationship between all such entities.
"Subordination Agreement" means the subordination agreement entered
into
between the Security Agent, the Parent and the German Borrower.
"Subsidiary" means in relation to any company or corporation,
a company
or corporation:
<PAGE>
(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,
and for this purpose, a company or corporation shall be treated as
being
controlled by another
if that other company or corporation is able to
direct its affairs
and/or to control the
composition
of its board of
directors or equivalent body.
"TARGET"
means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the
settlement of
payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or
withholding
of a similar nature
(including
any penalty or interest payable in
connection with any
failure to pay or any delay in paying
any of the
same).
"Term" means, in
relation to any Letter of Credit, the period from its
Utilisation Date until its Expiry Date.
"Termination Date"
means the date falling
36 Months after the
date of
the Amendment Agreement.
"Total Commitments"
means the aggregate of
the Commitments, being
EUR
80,000,000 at the date of this Agreement.
"Transaction Security"
means the Security created or expressed to be
created in favour of
the Security
Agent and/or the Secured Parties
pursuant to the Security Documents or this Agreement.
"Transfer Certificate"
means a certificate
substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificate) or any other
form agreed between the Agent and the German Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed
Transfer Date
specified in the Transfer Certificate;
and
(b) the date on which
the Agent executes the Transfer Certificate.
<PAGE>
"Unpaid Sum"
means any sum due and
payable but unpaid by an Obligor
under the Finance Documents.
"US GAAP" means generally accepted accounting principles in the United
States of America.
"Utilisation" means a
utilisation of the
Facility, whether by way of
Loan or Letter of Credit.
"Utilisation Date"
means the date of a
Utilisation, being the
date on
which a Loan is to be made or the relevant Letter of Credit is to be
issued.
"Utilisation Request"
means a notice
substantially in the form set out
in Schedule 3 (Utilisation Request).
1.2 Construction
(a) Unless
a contrary indication appears, any reference in this
Agreement to:
(i) the
"Agent", the "Mandated
Lead Arranger", the "Security
Agent", any "Finance Party", any "Lender", the "Parent", any
"Obligor" or any "Party" shall be construed so as to include
its successors
in title, permitted assigns and permitted
transferees;
(ii) "assets"
includes present and
future properties,
revenues
and rights of every description;
(iii) the "European
interbank market" means the interbank
market
for euro operating in Participating Member States;
(iv) a "Finance
Document" or any other agreement or instrument is
a reference to that Finance Document or other agreement or
instrument as amended or novated;
(v)
"indebtedness"
includes any obligation (whether incurred as
principal or as
surety) for the
payment or
repayment of
money, whether present or future, actual or contingent;
(vi) a
Lender's "participation", in relation to a Letter of
Credit, shall be
construed as a reference to the rights and
obligations of that
Lender in relation to that Letter of
Credit as are expressly set out in this Agreement;
(vii) a "person"
includes any individual, person, firm, company,
corporation,
unincorporated organisation, government, state
or agency of a state or any association, trust, joint
venture or partnership (whether or not having separate legal
personality) or two or more of the foregoing;
<PAGE>
(viii) a "regulation"
includes any regulation, rule, official
directive, request or
guideline (whether or
not having the
force of law)
of any governmental, intergovernmental or
supranational
body, agency,
department
or regulatory,
self-regulatory or other authority or organisation;
(ix) a
provision of law is a reference to that provision as
amended or re-enacted; and
(x) a time
of day is a reference to Luxembourg time.
(b) Section,
Clause and
Schedule headings are for ease of reference
only.
(c) Unless a
contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with
any Finance Document
has the same meaning in that Finance Document
or notice as in
this Agreement.
(d) A Default
(other than an Event
of Default) is
"continuing" if it
has not been
remedied or waived and an Event of Default is
"continuing" if it has not been waived.
1.3 Currency Symbols and Definitions
"$" and "dollars"
denote lawful currency of the United States of
America, "(pound)" and
"sterling" denote
lawful currency of the United
Kingdom, "NOK" and
"kroner" denote lawful
currency of Norway and "EUR"
and "euro" means the single currency unit of the Participating Member
States.
<PAGE>
SECTION 2
THE FACILITY
2. THE
FACILITY
2.1 The Facility
Subject to the terms of this Agreement, the Lenders make available to
the Borrowers
a multicurrency revolving loan and letter of credit
facility in an aggregate amount equal to the Total Commitments.
2.2 Finance Parties'
rights and obligations
(a) The obligations of each Finance Party
under the Finance
Documents
are several. Failure
by a Finance Party to perform its obligations
under the Finance
Documents does not affect the obligations of any
other Party
under the Finance Documents. No Finance Party is
responsible for the
obligations
of any other Finance
Party under
the Finance Documents.
(b) The rights of each
Finance Party under or
in connection
with the
Finance Documents are separate and independent rights and any debt
arising under the
Finance Documents to a Finance Party from an
Obligor shall be a separate and independent debt.
(c) A Finance
Party may,
except as otherwise stated in the Finance
Documents,
separately
enforce its
rights under the Finance
Documents.
3.
PURPOSE
3.1 Purpose
Each Borrower shall apply all amounts borrowed by it under the
Facility
towards its general
corporate purposes,
including its working
capital
requirements and refinancing its existing indebtedness.
3.2 Monitoring
No Finance Party is
bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS
OF UTILISATION
4.1 Initial
conditions
precedent
No Borrower
may deliver a Utilisation Request unless the Agent has
received all of the
documents and other
evidence listed in
Schedule 2
(Conditions precedent)
in form and substance satisfactory to the Agent,
except for the
evidence referred to
in paragraph 3 (a) of
Schedule 2,
provided
that such evidence
must be received by the Agent no later than
on the Utilisation
Date and prior to the first Utilisation. The Agent
shall notify the German Borrower and the Lenders promptly upon being so
satisfied.
<PAGE>
4.2 Further
conditions precedent
The Lenders and the
Fronting Bank will only be obliged to
comply with
Clause 5.4 (Lenders' and Fronting Bank participation) if on the date
of
the Utilisation Request and on the proposed Utilisation Date:
(a) no Default is
continuing or would
result from the proposed Loan or
Letter of Credit, as the case may be; and
(b) the Repeating
Representations to be made by each Obligor and Kronos
Denmark are true in all material respects.
4.3 Conditions
relating to Optional Currencies
(a) A currency will
constitute
an Optional
Currency in relation
to a
Loan if:
(i) it is
readily available
in the amount
required and
freely
convertible into the Base Currency in the Relevant Interbank
Market on the
Quotation Day and the
Utilisation
Date for
that Loan; and
(ii) it is
either (y) dollars or kroner or (z) some other
currency that has been
approved by the Agent (acting on the
instructions of all
the Lenders) on or
prior to receipt by
the Agent of the relevant Utilisation Request for that Loan.
(b) If the Agent has
received a written
request from a
Borrower for a
currency to be approved under paragraph (a)(ii) above, the Agent
will confirm to that Borrower by the Specified Time:
(i)
whether or not the Lenders have granted their approval; and
(ii) if approval
has been granted,
the minimum
amount (and, if
required, integral multiples) for any subsequent Utilisation
in that currency.
4.4 Maximum number
of Loans
(a) A Borrower may not
deliver a Utilisation
Request if as a result of
the proposed
Utilisation 8 or more
Loans and/or 6 or more Letters
of Credit would be outstanding.
(b) Any Loan made by a
single Lender under
Clause 6.2
(Unavailability
of a currency) shall not be taken into account in this Clause
4.
<PAGE>
SECTION 3
UTILISATION
5.
UTILISATION
5.1 Delivery of a
Utilisation Request
A Borrower may utilise
the Facility by
delivery to the Agent of a duly
completed Utilisation Request not later than the Specified
Time.
5.2 Completion of a
Utilisation Request
(a) Each Utilisation
Request is irrevocable and will not be regarded as
having been duly completed unless:
(i) the
proposed Utilisation
Date is a Business Day
within the
Availability Period;
(ii) the
currency and amount of the Utilisation comply with
Clause 5.3 (Currency and amount); and
(iii) the proposed
Interest Period or Term, as the case may be,
complies with Clause 13 (Interest Periods and Terms).
(b) Only one Loan or Letter of Credit may be requested in each
Utilisation Request.
5.3 Currency and
amount
(a) The currency
specified in a
Utilisation
Request must be the
Base
Currency or, in the case of Loans only, an Optional Currency.
(b) The amount of the
proposed Loan or Letter of Credit must be:
(i) (in
respect of a Loan) if the currency selected is the Base
Currency, a
minimum of EUR 5,000,000 or, if less, the
Available Facility; or
(ii) if
the currency selected is dollars, a minimum of $
5,000,000 or, if less, the Available Facility; or
(iii) if the
currency selected is kroner, a minimum of NOK
50,000,000, or, if less, the Available Facility; or
(iv) if the
currency selected is
an Optional Currency other than
dollars or kroner, the
minimum amount
(and, if required,
integral multiple)
specified by the Agent pursuant to
paragraph (b)(ii) of
Clause 4.3
(Conditions
relating to
Optional Currencies)
or, if less,
the Available
Facility
provided that the
minimum amount so
specified by the Agent
does not materially
exceed the
minimum amount set out in
sub-paragraphs (i) of paragraph (b) above;
<PAGE>
(v) (in
respect of a Letter of
Credit) an amount
which, when
aggregated with the
amount of Outstandings in respect of
Letters of
Credit at such time, does not exceed EUR
5,000,000; and
(vi) in any
event such that its Base Currency Amount is less than
or equal to the Available Facility.
5.4 Lenders' and
Fronting Bank participation
(a) If the conditions
set out in this Agreement have been met, (i) each
Lender shall make its
participation in each
Loan available by the
Utilisation Date through its Facility Office, and (ii) the
Fronting
Bank shall issue each Letter of Credit through its Facility
Office.
(b) The amount of each Lender's participation in each Loan and each
Letter of Credit will be equal to the proportion borne by its
Available
Commitment to the Available Facility immediately prior to
making the Loan or issuing the Letter of Credit.
(c) The Agent shall
determine the Base Currency Amount of each Loan
which is to be made in an Optional Currency and shall notify each
Lender of the amount, currency and the Base Currency Amount of
each
Loan and the amount of its participation in that Loan, in each
case
by the Specified Time.
6. OPTIONAL
CURRENCIES
6.1 Selection of
currency
A Borrower shall select the currency of a Loan in a Utilisation
Request.
6.2 Unavailability
of a currency
If before the Specified Time on any Quotation Day:
(a) a Lender notifies
the Agent that the Optional Currency (other than
an Optional Currency
which is dollars or kroner) requested is not
readily available to it in the amount required; or
(b) a Lender
notifies the Agent
that compliance with its obligation to
participate in a Loan
in the proposed Optional Currency would
contravene a law or regulation applicable to it,
<PAGE>
the Agent will give notice to the relevant Borrower to that effect
by the Specified Time
on that day. In this event, any Lender that
gives notice
pursuant to this Clause 6.2 will be required to
participate in the Loan in the Base Currency (in an amount equal
to
that Lender's proportion of the Base Currency Amount or, in
respect
of a Rollover Loan, an amount equal to that Lender's proportion of
the Base Currency
Amount of the
maturing Loan that is due to be
made) and its
participation will be
treated as a
separate Loan
denominated in the Base Currency during that Interest Period.
6.3 Participation
in a Loan
Each Lender's
participation in a
Loan will be determined in accordance
with paragraph
(b) of Clause 5.4 (Lenders' and Fronting Bank
participation).
7. LETTERS OF
CREDIT
7.1 Completion of
Letters of Credit
The Fronting Bank is
authorised to issue any Letter of Credit pursuant
to Clause 5 (Utilisation) by:
(a) completing
the issue date and the proposed Expiry Date of that
Letter of Credit; and
(b) executing
and delivering that Letter of Credit to the
relevant
recipient on the Utilisation Date.
7.2 Renewal of a
Letter of Credit
(a) Not less than
three Business
Days before the Expiry Date of a
Letter of Credit the Borrower may, by written notice to the Agent,
request that the Term of that Letter of Credit be extended.
(b) The Finance Parties shall treat the request in the
same way as a
Utilisation Request
for a Letter
of Credit in the amount and
maturity of the Letter of Credit (as to be extended).
(c) The terms of each
renewed Letter of Credit shall be the same as
those of the relevant
Letter of Credit
immediately
prior to its
renewal, save that its
Term shall commence
on the date which
was
the Expiry Date of that Letter of Credit immediately prior to its
renewal and shall end on the proposed Expiry Date specified in the
request.
(d) The Fronting Bank is authorised to amend any Letter of Credit
pursuant to a request if the conditions set out in this Agreement
have been complied with.
<PAGE>
7.3 Restrictions on
participation in
Letters of Credit
If at any time prior
to the issue of a Letter of Credit any Lender is
prohibited by law or pursuant to any request from or requirement of any
central bank or other fiscal, monetary or other authority from having
any right or obligation under this Agreement in respect of a Letter
of
Credit, that Lender shall notify the Agent on or before the
Business Day
prior to the proposed Utilisation Date and:
(a) the maximum actual
and contingent
liabilities of the Fronting Bank
under that Letter of Credit shall be reduced by an amount
equal to
an amount which
would have been the
amount of that
Lender's L/C
Proportion of that
Letter of Credit
if the prohibition had not
occurred;
(b) the L/C
Proportion
of that Lender in relation to that Letter of
Credit shall be nil; and
(c) that Lender's
Available Commitment shall be reduced by an amount
equal to an
amount which would have been the amount of that
Lender's L/C Proportion of the Letter of Credit if the prohibition
had not occurred.
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
8.
REPAYMENT
8.1 Repayment of
Loans
Each Borrower
which has drawn a Loan
shall repay that Loan on the last
day of its Interest Period.
9. BORROWER'S
LIABILITIES IN RELATION TO LETTERS OF CREDIT
9.1 Demands
under Letters of Credit
If a demand is made under a Letter of Credit or the Fronting Bank
incurs
in connection with a Letter of Credit any other liability,
cost, claim,
loss or expense which
is to be reimbursed
pursuant to this
Agreement,
the Fronting Bank shall promptly notify the Agent of the amount of
such
demand or such liability, cost, claim, loss or expense and the
Letter of
Credit to which it relates and the Agent shall promptly make demand
upon
the relevant Borrower
in accordance with
this Agreement and notify the
Lenders.
9.2 Borrowers'
indemnity to Fronting Banks
The relevant Borrower shall irrevocably and unconditionally as a
primary
obligation indemnify (within three Business Days of demand of the
Agent)
the Fronting Bank at its request against:
(a) any sum paid or
due and payable
by the Fronting Bank under the
Letter of Credit; and
(b) all liabilities,
costs (including,
without limitation,
any costs
incurred in funding
any amount which falls
due from the
Fronting
Bank under any
Letter of Credit or in connection with any such
Letter of Credit),
claims, losses and out-of-pocket expenses which
the
Fronting Bank may at any time incur or
sustain in
connection
with or arising out of any such Letter of Credit.
9.3 Borrowers'
indemnity to
Lenders
The relevant Borrower shall irrevocably and unconditionally as a
primary
obligation indemnify (within three Business Days of demand of the
Agent)
each Lender against:
(a) any sum
paid or due and
payable by that Lender (whether under
Clause 32.1 (Lenders'
Indemnity) or otherwise) in connection with
that Letter of Credit; and
(b) all liabilities,
costs (including,
without limitation,
any costs
incurred in funding any amount which falls due from that Lender
in
connection with that Letter of Credit), claims, losses and
expenses
which that Lender
may at any time incur
or sustain in
connection
with any Letter of Credit.
<PAGE>
9.4 Preservation of
rights
Neither the obligations of the relevant Borrower set out in this
Clause
9 nor the rights,
powers and remedies conferred on the Fronting Bank or
Lender by this
Agreement or by law
shall be discharged,
impaired or
otherwise affected by:
(a) the winding-up,
dissolution,
administration or
re-organisation of
the Fronting Bank, any
Lender or any other person or any change in
its status, function, control or ownership;
(b) any of the
obligations
of the Fronting Bank, any Lender or any
other person under this Agreement or under any Letter of
Credit or
under any other security taken in respect of its obligations
under
this Agreement or
otherwise in connection with a Letter of Credit
being or becoming illegal, invalid, unenforceable or ineffective
in
any respect;
(c) time or other
indulgence
being granted or
agreed to be granted to
the Fronting Bank, any Lender or any other person in respect of
its
obligations under this
Agreement or under or in connection with a
Letter of Credit or under any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the
Fronting Bank, any Lender or any other person
under a Letter of Credit or this Agreement;
(e) any other act,
event or omission which, but for this Clause 9,
might operate to discharge, impair or otherwise affect any of the
obligations of the
relevant Borrower set out in this Clause 9
or
any of the rights,
powers or remedies conferred upon that Fronting
Bank or any Lender by this Agreement or by law.
The obligations
of the relevant
Borrower set out in this Clause 9 shall
be in addition to and
independent of every
other security which the
Fronting Bank or any
Lender may at any time hold in respect of the
Borrower's obligations under this Agreement.
9.5 Settlement
conditional
Any settlement
or discharge between the relevant Borrower and the
Fronting Bank or a
Lender shall be
conditional
upon no security or
payment to the
Fronting Bank or
Lender by the
Borrower, or any
other
person on behalf of the Borrower, being avoided or reduced by virtue
of
any laws relating to bankruptcy, insolvency, liquidation or similar
laws
of general
application
and, if any such security or payment is so
avoided or reduced,
the Fronting
Bank or Lender
shall be entitled
to
recover the
value or amount of such security or payment from the
Borrower subsequently
as if such settlement or discharge had not
occurred.
<PAGE>
9.6 Right to make
payments under Letters of Credit
The Fronting
Bank shall be entitled
to make any payment in
accordance
with the terms of the relevant Letter of Credit without any
reference to
or further
authority
from
the relevant Borrower or any other
investigation or enquiry. The relevant Borrower irrevocably authorises
the Fronting
Bank to comply
with any demand
under a Letter of
Credit
which is valid on its face.
10. PREPAYMENT AND
CANCELLATION
10.1 Illegality
If it becomes
unlawful after the date of this Agreement in any
applicable jurisdiction for a Lender or the Fronting Bank to
perform any
of its obligations as
contemplated by this Agreement or to fund, issue
or participate in any Loan or Letter of Credit and without
prejudice to
its rights and obligations under Clause 19 (Mitigation by the
Lenders):
(a) that Lender or the Fronting Bank, as the case may be, shall
promptly notify the Agent upon becoming aware of that event;
(b) upon the Agent
notifying the German Borrower (on behalf of the
Borrowers), the
Commitment
of that Lender will be immediately
cancelled; and
(c) upon cancellation
of such Lender's Commitment, each Borrower shall:
(i) repay
that Lender's
participation in the Loans made to that
Borrower; and
(ii) ensure that
the liabilities
of that Lender or the
Fronting
Bank under or in
respect of each Letter of Credit are
reduced to zero or
otherwise secured by providing Cash
Collateral in
an amount equal to such Lender's L/C
Proportion of those Letters of Credit or the Fronting Bank's
maximum actual and contingent liabilities under that Letter
of Credit in the currency of those Letters of Credit
on the last day of the
Interest Period
for each Loan or Term
for
each Letter of Credit,
as the case may be,
outstanding as at
the
date upon which the Agent has so notified the German Borrower or,
if earlier,
the date specified by the Lender in the notice
delivered to the Agent
(being no earlier than
the last day of any
applicable grace period permitted by law).
<PAGE>
10.2 Voluntary
cancellation
(a) The German
Borrower may, if it gives the Agent not less
than ten
(10) days' (or such
shorter period as the
Majority Lenders may
agree) prior written notice, cancel the whole or any part
(being a
minimum amount of EUR
10,000,000) of the Available Facility. Any
cancellation under this Clause 10.2 shall reduce the Commitments
of
the Lenders rateably.
(b) The relevant Borrower may give the
Agent not less than ten Business
Days' prior notice of
its intention
to procure that the
Fronting
Bank's liability
under a Letter
of Credit is reduced to zero
(whereupon it shall do so)
10.3 Right of repayment and
cancellation in relation to a single Lender
(a) If:
(i) any
sum payable
to any Lender or the
Fronting Bank by an
Obligor is required to be increased under Clause 16.2 (Tax
gross-up); or
(ii) any Lender
or the Fronting Bank claims indemnification from
the Borrowers
under Clause 16.3 (Tax
indemnity) or
Clause
17.1 (Increased costs); or
(iii) any Lender or Fronting Bank notifies the Agent of its
Additional Cost
Rate under paragraph 3 of Schedule 4
(Mandatory Cost formulae),
the German Borrower
may, whilst (in the case of paragraphs (i) and
(ii) above) the
circumstance
giving rise to the
requirement
or
indemnification continues or (in the case of paragraph (iii)
above)
that the Additional
Cost Rate is greater than zero, give the Agent
notice:
(1) of
cancellation
of the Commitment of that Lender and its
intention to
procure the repayment of that Lender's
participation in the Loans; or
(2) (if
such circumstance relates to the Fronting Bank) of
cancellation of the
Letters of Credit or of the Borrower's
intention to
provide Cash Collateral in respect of the
Fronting Bank's liability under such Letters of Credit.
(b) On receipt
of a notice
from the German
Borrower referred to in
paragraph (a)
above, the Commitment of that Lender shall
immediately be reduced to zero.
<PAGE>
(c) On the last day of
each Interest
Period or Term,
as the case may
be, which ends after
the German Borrower
has given notice under
paragraph (a) above
(or, if earlier,
the date specified by the
German Borrower in
that notice), each
Borrower to which a Loan or
Letter of Credit is outstanding shall repay that Lender's
participation in that
Loan and shall procure either that such
Lender's L/C
Proportion
of each relevant Letter of Credit be
reduced to zero (by
reduction of the amount of that Letter of
Credit in an amount equal to that Lender's L/C Proportion) or that
Cash Collateral be provided to the Agent in an amount equal to
such
Lender's L/C
Proportion
of that Letter of
Credit); and (if the
circumstance relates
to the Fronting Bank) the Borrower shall
procure that the
Fronting Bank's
liability under any Letters of
Credit issued by it
shall either be
reduced to zero or
otherwise
secured by the
Borrower providing
Cash Collateral in an amount
equal to the Fronting Bank's maximum actual and contingent
liabilities under those Letters of Credit.
10.4 Restrictions
(a) Any notice of
cancellation or
prepayment given by
any Party under
this Clause
10 shall be irrevocable and, unless a contrary
indication appears in
this Agreement,
shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on
the amount prepaid
and, subject to any
Break
Costs, without premium or penalty.
(c) Unless a contrary
indication appears in this Agreement, any part of
the Facility which is prepaid may be reborrowed in accordance
with
the terms of this Agreement.
(d) The Borrowers shall not repay or prepay all or any part of the
Outstandings or cancel all or any part of the Commitments except
at
the times and in the manner expressly provided for in this
Agreement.
(e) No amount of the
Total Commitments
cancelled under this
Agreement
may be subsequently reinstated.
(f) If the
Agent receives a notice under this Clause 10 it shall
promptly forward
a copy of that notice to either the German
Borrower or the affected Lender, as appropriate.
SECTION 5
COSTS OF UTILISATIONS
11. INTEREST
11.1 Calculation of
interest
The rate of
interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the
applicable:
(a) Margin;
(b) LIBOR or, in
relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if
any.
11.2 Payment of
interest
The Borrower to which a Loan has been made shall pay accrued
interest on
that Loan on the last day of each Interest Period (and, if the Interest
Period is longer than
six Months, on the
dates falling at six
monthly
intervals after the first day of the Interest Period).
12. DEFAULT
INTEREST
12.1 Default interest
periods
If any sum due and
payable by an Obligor
hereunder is not paid
on the
due date therefor in accordance with Clause 33.1 (Payments to the
Agent)
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 12) be
selected
by the Agent.
12.2 Default interest
An Unpaid Sum shall bear interest, or, insofar as it relates to
unpaid
interest, shall give
rise to a claim for lump sum damages, during each
Interest Period in
respect thereof at the
rate per annum which
is one
per cent. per annum
above the percentage
rate which would apply
if it
had been a Loan in the amount and currency of such Unpaid Sum and for
the same Interest Period (provided that in the case of lump sum
damages,
the Obligor
shall be free to prove
that no damage
has arisen or that
damage has not arisen
in the asserted
amount, whereas in the case of
lump sum damages
and default interest the Finance Party shall be
entitled to assert
further damages),
provided that if such
Unpaid Sum
relates to a Loan which became due and payable on a day other than
the
last day of an Interest Period relating thereto:
<PAGE>
12.2.1 the first Interest Period applicable to such Unpaid Sum
shall be of a
duration equal to the unexpired portion of the current
Interest Period
relating to that Loan; and
12.2.2 the percentage rate of interest applicable thereto from time to time
during such period shall be that which exceeds by one per cent. the
rate
which would have been applicable to it had it not so fallen
due.
12.3 Payment of default
interest
Any interest
which shall have accrued under Clause 12.2 (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
each
Interest Period in
respect thereof or on
such other dates as the Agent
may specify by notice to such Obligor.
12.4 Notification of rates
of interest
The Agent shall promptly notify the Lenders and the relevant
Borrower of
the determination of a rate of interest under this Agreement.
13. INTEREST PERIODS
AND TERMS
13.1 Selection of Interest
Periods and Terms
(a) A Borrower may
select an Interest
Period for a Loan and a Term for
a Letter of
Credit in the
Utilisation
Request for that Loan or
Letter of Credit, as the case may be.
(b) Subject to this
Clause 13, a Borrower may select an Interest Period
of
one, two, three or six
Months or any other period not exceeding
twelve Months agreed between such Borrower and the Agent (acting
on
the instructions of all the Lenders).
(c) The Borrower may select a Term for a Letter of
Credit of a period
not exceeding twelve
months, ending on or
before the
Termination
Date.
(d) An Interest Period for a Loan and a Term for a Letter
of Credit
shall not extend beyond the Termination Date.
(e) Each Interest Period for a Loan and each Term for a Letter of
Credit shall start on the Utilisation Date.
(f) A Loan has one
Interest Period only.
<PAGE>
13.2 Non-Business Days
If an Interest Period
or Term would otherwise end on a day which is not
a Business Day, that
Interest Period or
Term, as the case may be, will
instead end on the next Business Day in that calendar month (if
there is
one) or the preceding Business Day (if there is not).
14. CHANGES TO THE
CALCULATION OF INTEREST
14.1 Absence of
quotations
Subject to Clause 14.2 (Market disruption), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does
not supply a quotation by the Specified Time on the
Quotation Day, the
applicable
LIBOR or EURIBOR shall
be determined on
the basis of the quotations of the remaining Reference Banks.
14.2 Market disruption
(a) If a Market
Disruption
Event occurs in
relation to a Loan for any
Interest Period,
then the rate of
interest on each Lender's share
of that Loan for the
Interest Period
shall be the rate per
annum
which is the sum of:
(i) the
Margin;
(ii) the rate
notified to the Agent by that Lender as soon as
practicable and in any
event before
interest is due to
be
paid
in respect of that
Interest Period,
to be that which
expresses as a
percentage
rate per annum the
cost to that
Lender of funding its participation in that Loan from
whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement
"Market Disruption Event" means:
(i) at or
about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Agent
to determine
LIBOR or, if applicable, EURIBOR for the
relevant currency and Interest Period; or
(ii) before
close of business in
Luxembourg on the Quotation Day
for the relevant Interest Period, the Agent receives
notifications from a Lender or Lenders (whose participations
in a Loan exceed 35 per cent. of that Loan) that the cost to
it of obtaining
matching deposits in the Relevant Interbank
Market would be in
excess of LIBOR or, if applicable,
EURIBOR.
<PAGE>
14.3 Alternative basis of
interest or funding
(a) If a Market
Disruption
Event occurs and the Agent or the German
Borrower so requires, the Agent and the German Borrower shall
enter
into negotiations (for
a period of not more than thirty days
