Exhibit 4.4.1
14 March 2008
SAP AG
as Borrower
DEUTSCHE BANK AG
ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND
BNP PARIBAS S.A.
COMMERZBANK AKTIENGESELLSCHAFT
J.P. MORGAN PLC
SUMITOMO MITSUI BANKING CORPORATION
as Mandated Lead Arrangers
DEUTSCHE BANK AG PARIS BRANCH
as Offer Guarantor
Certain Financial Institutions
as Existing Lenders
Certain Financial Institutions
as New Lenders
DEUTSCHE BANK LUXEMBOURG S.A.
as Agent
ACCESSION AGREEMENT
relating to the
€5,000,000,000 (subsequently reduced to€2,947,679,513.45)
SYNDICATED MULTICURRENCY TERM LOAN
FACILITY AGREEMENT
dated 1 October 2007
2
CONTENTS
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CLAUSE | | PAGE | |
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1. INTERPRETATION | | | 4 | |
2. AMENDMENT | | | 4 | |
3. TRANSFER | | | 4 | |
4. REPRESENTATIONS | | | 5 | |
5. SYNDICATION DATE | | | 6 | |
6. MISCELLANEOUS | | | 6 | |
SCHEDULE 1 Existing Lenders and New Lenders | | | 7 | |
Part A Existing Lenders | | | 7 | |
Part B Portions Transferred | | | 8 | |
Part C Allocation of participations in Loans outstanding following Transfers | | | 10 | |
SIGNATORIES TO THE ACCESSION AGREEMENT | | | 12 | |
3
THIS AGREEMENTis made on 14 March 2008
Between:
(1) | | SAP AG(the “Borrower”); |
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(2) | | DEUTSCHE BANK AG, ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND,BNP PARIBAS S.A.,COMMERZBANK AKTIENGESELLSCHAFT,J.P. MORGAN PLCandSUMITOMO MITSUI BANKING CORPORATIONas mandated lead arrangers (the “Mandated Lead Arrangers”); |
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(3) | | THE FINANCIAL INSTITUTIONSidentified in Part A of Schedule 1 (Existing Lenders and New Lenders) as existing lenders (the “Existing Lenders”); |
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(4) | | THE FINANCIAL INSTITUTIONSidentified in Part B of Schedule 1 (Existing Lenders and New Lenders) as new lenders (the “New Lenders”); |
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(5) | | DEUTSCHE BANK AG PARIS BRANCHas offer guarantor (the “Offer Guarantor”); and |
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(6) | | DEUTSCHE BANK LUXEMBOURG S.A.as agent of the other Finance Parties (the “Agent”). |
whereas:
1. | | The Borrower, the Mandated Lead Arrangers, the Existing Lenders, the Offer Guarantor and the Agent entered into or, as the case may be, acceded to a facility agreement dated 1 October 2007 (as amended and restated pursuant to an Amendment and Restatement Agreement dated 27 February 2008, the “Facility Agreement”) whereby a€5,000,000,000 syndicated multicurrency term loan facility was made available to the Borrower. As a result of voluntary cancellations of the Available Facility and voluntary prepayments of Loans, the Total Commitments were subsequently reduced to€2,947,679,513.45. |
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2. | | The Offer Guarantor has confirmed that the Offer Guarantee Discharge Date has occurred. |
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3. | | The Borrower, the Mandated Lead Arrangers, the Existing Lenders, the Offer Guarantor and the Agent wish to record the arrangements agreed between them to amend the Facility Agreement as set out herein. |
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4. | | The Borrower, the Mandated Lead Arrangers, the Offer Guarantor, the Agent, the Existing Lenders and the New Lenders wish to record the arrangements agreed between them to transfer (in part) from the Existing Lenders to the New Lenders the Existing Lenders’ participations in Loans drawn and outstanding under the Facility Agreement. |
it is agreed as follows:
4
Save as otherwise defined herein, a term defined in the Facility Agreement has the same meaning in this Agreement. The principles of construction set out in the Facility Agreement will have effect as if set out in this Agreement.
The Borrower, the Mandated Lead Arrangers, the Existing Lenders, the Offer Guarantor and the Agent agree that, with effect from and including the date hereof, a new definition of “Treaty State” is inserted after the definition of “Treaty Lender” in Clause 15.1 (Definitions) of the Facility Agreement:
““Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with Germany which makes provision for full exemption from any tax imposed by Germany on interest payments under a Finance Document.”
3. | | TRANSFER |
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3.1 | | Confirmation by Existing Lender |
Each Existing Lender (in respect of itself) confirms that the details set out in Part A of Schedule 1 (Existing Lenders and New Lenders) under the heading “Existing Lenders’ participations in Loans outstanding” accurately summarise its respective participations in Loans outstanding.
(a) | | Each Existing Lender agrees with each New Lender set out opposite such Existing Lender’s name in Part B of Schedule 1 (Existing Lenders and New Lenders) to the transfer by each such Existing Lender to each such New Lender by way of assumption of contract (Vertragsübernahme) on 25 March 2008 (the “Effective Date”) of that part of that Existing Lender’s participations in Loans outstanding as is specified in Part B of Schedule 1 (Existing Lenders and New Lenders) in accordance with Clause 24.1 (Assignments and transfers by the Lenders) of the Facility Agreement. |
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(b) | | As consideration for the transfers contemplated by paragraph (a) each New Lender shall make available to the Agent for value on the Effective Date and for onward distribution by the Agent on such date to the respective Existing Lenders an amount in EUR corresponding to the aggregate amount of participations in Loans outstanding transferred to such New Lender as contemplated hereby. Upon receipt by the Agent of such payments from the New Lenders the Agent shall, subject to Clause 29.4 (Clawback) of the Facility Agreement, distribute as soon as practicable after receipt to each Existing Lender an amount in EUR corresponding to the aggregate amount of participations in Loans outstanding transferred by such Existing Lender as contemplated hereby. |
3.3 | | Acceptance by the Agent |
The Agent accepts this Agreement as being delivered to it as a Transfer Certificate pursuant to and for the purposes of Clause 24.5 (Procedure for transfer) of the Facility Agreement so as to take effect in accordance with the terms thereof on (and including) the Effective Date and resulting in the final allocations following each transfer contemplated hereby being as set out in Part C of Schedule 1 (Existing Lenders and New Lenders).
5
3.4 | | Acknowledgement by New Lenders |
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(a) | | Each New Lender expressly acknowledges the limitations on the Existing Lenders’ obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders) of the Facility Agreement. |
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(b) | | Each New Lender hereby acknowledges, accepts and consents to the amendment of the Facility Agreement set out in Clause 2 (Amendment). |
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3.5 | | Consent, confirmation and undertaking of the Borrower |
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(a) | | The Borrower hereby consents to the transfers contemplated hereby for the purposes of Clause 24.2 (a) (Conditions of assignment or transfer) of the Facility Agreement. |
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(b) | | The Borrower hereby confirms that this Agreement is a Transfer Certificate for the purposes of Clauses 24.5 (Procedure for transfer) and 24.6 (Copy of Transfer Certificate to Borrower) of the Facility Agreement and that, accordingly, upon receipt by it of an executed copy of this Agreement, the Borrower has received a copy of such Transfer Certificate in accordance with that clause. |
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(c) | | The Borrower hereby undertakes not to make use of its right under Clause 8.6 (Voluntary prepayment of Loans) of the Facility Agreement to voluntarily prepay any Loan outstanding on the date hereof during the period beginning on the date hereof and ending on (and including) the Effective Date. |
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3.6 | | Amounts payable prior to Effective Date |
Any amounts payable to the Existing Lenders by the Borrower pursuant to any Finance Document in respect of any period ending on or before the Effective Date shall be for the account of the Existing Lenders and none of the New Lenders shall have any interest in, or any rights in respect of, any such amount.
No fees (as provided in Clause 24.3(a) (Fees) of the Facility Agreement) shall be payable in respect of the transfers contemplated hereby.
The Facility Office and the address, fax number and attention details for notices of each New Lender for the purposes of Clause 31.2 (Addresses) of the Facility Agreement are as have been notified in writing to the Agent on or prior to the date hereof in accordance with paragraph (b) of that clause.
The Borrower hereby repeats on the date hereof each of the Repeating Representations and the representations and warranties set out in Clauses 20.12 (No material adverse change) of the Facility Agreement and makes the representations and warranties set out in Clause 20.8(a) to (c) (No misleading information) of the Facility Agreement, in each case with reference to the facts and circumstances existing on the date hereof, as if such representations and warranties were set out in full herein.
6
The parties to this Agreement agree that the Effective Date shall constitute the Syndication Date within the meaning of the Facility Agreement.
6.1 | | Incorporation of terms |
The provisions of Clauses 31 (Notices), 33 (Partial Invalidity), 36.1 (Conclusion of this Agreement), 36.2 (Counterparts), 37 (Governing law) and 38 (Jurisdiction) of the Facility Agreement shall be incorporated in this Agreement as if set out in full in this Agreement and as if references in those clauses to “this Agreement” are references to this Agreement and as if references in those clauses to “Party”, “Finance Party” and “Lender” include the New Lenders.
In accordance with the Facility Agreement, the Borrower and the Agent designate this Agreement as a Finance Document.
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SCHEDULE 1
Existing Lenders and New Lenders
Part A
Existing Lenders
| | | | |
| | Existing Lenders’ participations in Loans outstanding |
Existing Lender | | (EUR) |
Deutsche Bank Luxembourg S.A. | | | 491,279,918.90 | |
ABN AMRO Bank N.V., Niederlassung Deutschland | | | 491,279,918.91 | |
BNP Paribas S.A. Niederlassung Frankfurt am Main | | | 491,279,918.91 | |
Commerzbank Aktiengesellschaft | | | 491,279,918.91 | |
JPMorgan Chase Bank, N.A. | | | 491,279,918.91 | |
Sumitomo Mitsui Banking Corporation | | | 491,279,918.91 | |
| | | | |
TOTAL | | | 2,947,679,513.45 | |
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Part B
Portions Transferred
| | | | | | |
| | | | Portions of Existing Lenders’ participations in |
| | | | Loans outstanding Transferred |
Existing Lender | | New Lender | | € |
Deutsche Bank Luxembourg S.A. | | The Bank of Tokyo-Mitsubishi UFJ, Ltd., Düsseldorf Branch | | | 145,000,000.00 | |
Deutsche Bank Luxembourg S.A. | | Crédit Industriel et Commercial | | | 36,600,405.45 | |
Deutsche Bank Luxembourg S.A. | | Crédit Mutuel Banque de l’Economie du Commerce et de la Monétique S.A. Niederlassung Deutschland | | | 72,500,000.00 | |
| | | | | | |
ABN AMRO Bank N.V., Niederlassung Deutschland | | Crédit Industriel et Commercial | | | 35,899,594.55 | |
ABN AMRO Bank N.V., Niederlassung Deutschland | | DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main | | | 145,000,000.00 | |
ABN AMRO Bank N.V., Niederlassung Deutschland | | Fortis Banque Luxembourg S.A. | | | 128,880,324.36 | |
|
BNP Paribas S.A. Niederlassung Frankfurt am Main | | Fortis Banque Luxembourg S.A. | | | 16,119,675.64 | |
BNP Paribas S.A. Niederlassung Frankfurt am Main | | Intesa Sanpaolo S.p.A., Frankfurt Branch | | | 145,000,000.00 | |
BNP Paribas S.A. Niederlassung Frankfurt am Main | | Morgan Stanley Bank | | | 55,000,000.00 | |
BNP Paribas S.A. Niederlassung Frankfurt am Main | | UBS AG, London Branch | | | 1,660,243.27 | |
BNP Paribas S.A. Niederlassung Frankfurt am Main | | Zürcher Kantonalbank | | | 92,000,000.00 | |
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| | | | | | |
| | | | Portions of Existing Lenders’ participations in |
| | | | Loans outstanding Transferred |
Existing Lender | | New Lender | | € |
Commerzbank Aktiengesellschaft | | Barclays Bank PLC | | | 92,000,000.00 | |
Commerzbank Aktiengesellschaft | | BoA Netherlands Coöperatieve U.A. | | | 55,000,000.00 | |
Commerzbank Aktiengesellschaft | | Landesbank Baden-Württemberg, London Branch | | | 145,000,000.00 | |
Commerzbank Aktiengesellschaft | | UBS AG, London Branch | | | 17,779,918.91 | |
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JPMorgan Chase Bank, N.A. | | Citibank N.A., Frankfurt Branch | | | 92,000,000.00 | |
JPMorgan Chase Bank, N.A. | | Credit Suisse | | | 55,000,000.00 | |
JPMorgan Chase Bank, N.A. | | Société Générale | | | 145,000,000.00 | |
JPMorgan Chase Bank, N.A. | | UBS AG, London Branch | | | 17,779,918.91 | |
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Sumitomo Mitsui Banking Corporation | | Deutsche Postbank International S.A. | | | 55,000,000.00 | |
Sumitomo Mitsui Banking Corporation | | HVB Banque Luxembourg Société Anonyme | | | 145,000,000.00 | |
Sumitomo Mitsui Banking Corporation | | Nordea Bank Finland Plc, Niederlassung Deutschland | | | 92,000,000.00 | |
Sumitomo Mitsui Banking Corporation | | UBS AG, London Branch | | | 17,779,918.91 | |
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Part C
Allocation of participations in Loans outstanding following Transfers
| | | | |
| | Participations in Loans outstanding |
Lender | | (EUR) |
Deutsche Bank Luxembourg S.A. | | | 237,179,513.45 | |
ABN AMRO Bank N.V., Niederlassung Deutschland | | | 181,500,000.00 | |
BNP Paribas S.A. Niederlassung Frankfurt am Main | | | 181,500,000.00 | |
Commerzbank Aktiengesellschaft | | | 181,500,000.00 | |
JPMorgan Chase Bank, N.A. | | | 181,500,000.00 | |
Sumitomo Mitsui Banking Corporation | | | 181,500,000.00 | |
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Düsseldorf Branch | | | 145,000,000.00 | |
Crédit Industriel et Commercial | | | 72,500,000.00 | |
Crédit Mutuel Banque de l’Economie du Commerce et de la Monétique S.A. Niederlassung Deutschland | | | 72,500,000.00 | |
DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main | | | 145,000,000.00 | |
Fortis Banque Luxembourg S.A. | | | 145,000,000.00 | |
HVB Banque Luxembourg Société Anonyme | | | 145,000,000.00 | |
Intesa Sanpaolo S.p.A., Frankfurt Branch | | | 145,000,000.00 | |
Landesbank Baden-Württemberg, London Branch | | | 145,000,000.00 | |
Société Générale | | | 145,000,000.00 | |
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| | | | |
| | Participations in Loans outstanding |
Lender | | (EUR) |
Barclays Bank PLC | | | 92,000,000.00 | |
Citibank N.A., Frankfurt Branch | | | 92,000,000.00 | |
Nordea Bank Finland Plc, Niederlassung Deutschland | | | 92,000,000.00 | |
Zürcher Kantonalbank | | | 92,000,000.00 | |
BoA Netherlands Coöperatieve U.A. | | | 55,000,000.00 | |
Credit Suisse | | | 55,000,000.00 | |
Deutsche Postbank International S.A. | | | 55,000,000.00 | |
Morgan Stanley Bank | | | 55,000,000.00 | |
UBS AG, London Branch | | | 55,000,000.00 | |
| | | | |
TOTAL | | | 2,947,679,513.45 | |
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SIGNATORIES TO THE ACCESSION AGREEMENT
THE BORROWER
| | |
SAP AG | | |
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By: /s/ DR. BRANDT | | /s/ SCHOLTEN |
THE MANDATED LEAD ARRANGERS
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DEUTSCHE BANK AG | | |
| | |
By: /s/ GAAB | | /s/ NEIDERT |
ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND
| | |
By: /s/ GRUNWALD | | /s/ MEISER |
BNP PARIBAS S.A.
| | |
By: /s/ SCHRÖTER | | /s/ CÉBÉLIEN |
COMMERZBANK AKTIENGESELLSCHAFT
| | |
By: /s/ SCHERFF | | /s/ RICHEBÄCHER |
J.P. MORGAN PLC
SUMITOMO MITSUI BANKING CORPORATION
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THE EXISTING LENDERS
DEUTSCHE BANK LUXEMBOURG S.A.
| | | | |
By: | | /s/ BUDZISCH | | /s/ BREYER-SIMSKI |
ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND
| | | | |
By: | | /s/ GRUNWALD | | /s/ MEISER |
BNP PARIBAS S.A. NIEDERLASSUNG FRANKFURT AM MAIN
| | | | |
By: | | /s/ SCHRÖTER | | /s/ CÉBÉLIEN |
COMMERZBANK AKTIENGESELLSCHAFT
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By: | | /s/ BOTHE | | /s/ WEINACHT |
JPMORGAN CHASE BANK, N.A.
SUMITOMO MITSUI BANKING CORPORATION
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THE NEW LENDERS
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., DÜSSELDORF BRANCH
CRÉDIT INDUSTRIEL ET COMMERCIAL
| | | | |
By: | | /s/ DESLAURIERS | | /s/ PLATTARD |
CRÉDIT MUTUEL BANQUE DE L’ECONOMIE DU COMMERCE ET DE LA MONÉTIQUE S.A. NIEDERLASSUNG DEUTSCHLAND
| | | | |
By: | | /s/ FOLLINI | | /s/ LORANG |
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN
FORTIS BANQUE LUXEMBOURG S.A.
HVB BANQUE LUXEMBOURG SOCIÉTÉ ANONYME
INTESA SANPAOLO S.P.A., FRANKFURT BRANCH
| | | | |
By: | | /s/ PERAZZO | | /s/ RÜCKER |
LANDESBANK BADEN-WÜRTTEMBERG, LONDON BRANCH
| | | | |
By: | | /s/ MARCH | | /s/ LAVIOLETTE |
SOCIÉTÉ GÉNÉRALE
| | | | |
By: | | /s/ BECK | | /s/ ENGELHARD |
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BARCLAYS BANK PLC
CITIBANK N.A., FRANKFURT BRANCH
NORDEA BANK FINLAND PLC, NIEDERLASSUNG DEUTSCHLAND
| | | | |
By: | | /s/ HASTRICH | | /s/ LARSEN |
ZÜRCHER KANTONALBANK
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By: | | /s/ POLTERA | | /s/ SCHMIDLIN |
BOA NETHERLANDS COÖPERATIEVE U.A.
| | | | |
By: | | /s/ STAGG | | /s/ BROUWEN |
CREDIT SUISSE
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By: | | /s/ KRAMER | | /s/ SCHWARZENBERGER |
DEUTSCHE POSTBANK INTERNATIONAL S.A.
| | | | |
By: | | /s/ BRANDT | | /s/ LAUDWEIN |
MORGAN STANLEY BANK
UBS AG, LONDON BRANCH
| | | | |
By: | | /s/ VANCE | | /s/ HERBERT |
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THE OFFER GUARANTOR
DEUTSCHE BANK AG PARIS BRANCH
| | | | |
By: | | /s/ DRAY | | /s/ MARTINELLI |
THE AGENT
DEUTSCHE BANK LUXEMBOURG S.A.
| | | | |
By: | | /s/ BELHOSTE | | /s/ EWERHARDY |