EXHIBIT 10.5
CONFORMED COPY
SENIOR SUBORDINATED FACILITY AGREEMENT
between
IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH
as Borrower
IFCO EUROPE BETEILIGUNGS-GmbH
as IFCO Europe
BARCLAYS CAPITAL
as Arranger
BHF BANK AKTIENGESELLSCHAFT
as Security Trustee
and
BARCLAYS BANK PLC
as Agent
Clifford Chance
CONTENTS
Clause Page No.
Part 1
INTERPRETATION
1. Interpretation...................................... 1
Part 2
THE FACILITY
2. The Facility........................................ 22
3. Purpose............................................. 22
4. Conditions Precedent................................ 22
5. Nature of Banks' Rights and Obligations............. 22
Part 3
UTILISATION OF THE FACILITY
6. Utilisation of the Facility......................... 24
Part 4
INTEREST
7. Interest Periods.................................... 25
8. Interest Rate and Payment........................... 26
9. Market Disruption................................... 26
Part 5
REPAYMENT, PREPAYMENT AND CANCELLATION
10. Repayment........................................... 28
11. Prepayment.......................................... 28
12. Intentionally left blank............................ 30
Part 6
CHANGES IN CIRCUMSTANCES
13. Taxes................................................. 31
14. Tax Credits........................................... 32
15. Tax Receipts.......................................... 32
16. Increased Costs....................................... 32
17. Illegality............................................ 34
18. Mitigation............................................ 34
Part 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
19. Representations....................................... 36
20. Financial Information................................. 40
21. Financial Condition................................... 44
22. Covenants............................................. 54
23. Events of Default..................................... 62
Part 8
DEFAULT INTEREST AND INDEMNITY
24. Default Interest and Indemnity........................ 66
Part 9
PAYMENTS
25. Currency of Account and Payment....................... 68
26. Payments.............................................. 68
27. Set-Off............................................... 69
28. Redistribution of Payments............................ 69
Part 10
FEES, COSTS AND EXPENSES
29. Fees.................................................. 71
30. Costs and Expenses.................................... 71
Part 11
AGENCY PROVISIONS
31. The Agent, the Arranger and the Banks........................................................... 73
Part 12
ASSIGNMENTS AND TRANSFERS
32. Benefit of Agreement............................................................................ 78
33. Assignments and Transfers by the Borrower....................................................... 78
34. Assignments and Transfers by Banks.............................................................. 78
35. Disclosure and Syndication...................................................................... 79
Part 13
MISCELLANEOUS
36. Calculations and Evidence of Debt............................................................... 81
37. Remedies, Waivers, Amendments and Consents...................................................... 81
38. Partial Invalidity.............................................................................. 82
39. Notices......................................................................................... 82
40. European Monetary Union......................................................................... 83
41. Intercreditor and Security Trust Agreement Acknowledgements and Undertakings.................... 83
Part 14
LAW AND JURISDICTION
42. Law............................................................................................. 86
43. Jurisdiction.................................................................................... 86
THE FIRST SCHEDULE
The Banks and their Commitments...................................................................... 87
THE SECOND SCHEDULE
Form of Transfer Certificate......................................................................... 88
THE THIRD SCHEDULE
Conditions Precedent................................................................................. 91
THE FOURTH SCHEDULE
Notice of Drawdown of Advances....................................................................... 96
THE FIFTH SCHEDULE
Group Structure Chart................................................................................ 97
THE SIXTH SCHEDULE
Existing Indebtedness................................................................................ 98
THE SEVENTH SCHEDULE
Material Intellectual Property....................................................................... 99
THIS AGREEMENT is made the 20 day of February 1998
BETWEEN
(1) IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH as borrower (the
"Borrower");
(2) IFCO EUROPE BETEILIGUNGS-GmbH ("IFCO Europe");
(3) BARCLAYS CAPITAL as Arranger of the Facility (the "Arranger");
(4) BHF BANK AKTIENGESELLSCHAFT as security trustee for the Beneficiaries (the
"Security Trustee");
(5) BARCLAYS BANK PLC as agent for the Banks (the "Agent"); and
(6) THE FINANCIAL INSTITUTIONS named in the First Schedule (the "Banks").
NOW IT IS HEREBY AGREED as follows:
Part 1
INTERPRETATION
1. Interpretation
1.1 In this Agreement:
"Accountant's Report" means the report of C&L Deutsche Revision dated 10 October
1997 with a reliance letter in favour of the Security Trustee as security
trustee for the Beneficiaries from time to time;
"Accounting Principles" means accounting principles generally accepted in the
Relevant Jurisdiction in effect from time to time and consistently applied
Provided that, in respect of any consolidated financial statements of the Group,
"Accounting Principles" means accounting principles generally accepted in
Germany from time to time and consistently applied;
"Accounting Reference Period" means, in respect of any Group Entity, the
financial year or other period in respect of which the audited accounts of such
Group Entity are drawn up;
"Adjusted EBITDA" shall have the meaning ascribed to it in Clause 21.5;
"Advance" means, save as otherwise provided herein, the advance made or to be
made by the Banks hereunder;
"Apollo" means Apollo Verwaltungsgesellschaft mbH & Co.;
"Auditors" means any of Coopers & Lybrand, Price Waterhouse, Arthur Andersen,
KPMG, Ernst &
Young or such other firm of auditors of international repute approved in writing
by the Agent (such approval not to be unreasonably withheld or delayed) and
being the auditors for the time being of all Group Entities;
"Authorised Signatory" in relation to either the Borrower or IFCO Europe and any
communication to be made, or any document to be executed or certified, by it,
means, at any time, any person:
(i) who is duly authorised at such time, in such manner as may be
reasonably acceptable to the Agent, to make such communication, or
to execute or certify such document on its behalf; and
(ii) in respect of whom the Agent has received a certificate signed by a
director or other authorised officer of it, or by another of its
Authorised Signatories, setting out the name and, where such person
is authorised to execute or certify documents, signature of such
person and confirming such person's authority to act as aforesaid;
"Available Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, such Bank's Commitment at such time less the
aggregate of its portion of the Loan at such time;
"Available Facility" means, at any time, the aggregate amount of the Available
Commitments of the Banks at such time;
"Bardusch" means Helmut Bardusch GmbH & Co;
"Bardusch Loan" means a loan from Bardusch to the Borrower dated 30 September
1997 in an amount of DM3,438,028.60 ;
"Beneficiaries" means the Agent, the Arranger, the Banks, each Hedge
Counterparty and the Security Trustee, and "Beneficiary" means any of them;
"Budget" means the consolidated budget of the Group for a financial year
delivered by the Borrower to the Agent pursuant to Clause 20.2;
"Business" means the business carried on by the Group at the date hereof;
"Business Plan" means the medium term profit and loss forecast for the Group
provided to the Banks in relation to the proposed Facility and the financial
model initialled by the Agent and the Borrower and designated by the Agent and
the Borrower as "the Business Plan";
"Capital Expenditure" shall have the meaning ascribed thereto in Clause 21.5;
"Cash Flow" shall have the meaning ascribed thereto in Clause 21.5;
"Commitment" means, in relation to any Bank at any time and save as otherwise
provided herein, the amount set opposite its name under the heading "Commitment"
in the First Schedule;
"Confidentiality Undertaking" means a confidentiality undertaking substantially
in the standard form
from time to time of the LMA or in such other form as may be agreed between the
Borrower and the Agent;
"Contribution Contract" means the contribution contract dated 4 November/5
November 1997 between Schoeller Packaging Systems GmbH and IFCO Europe as set
out in the Seventh Schedule to the Investment Agreement;
"Current Assets" shall have the meaning ascribed thereto in Clause 21.5;
"Dangerous Substance" means any radioactive emissions and any solid, liquid or
gaseous matter which is dangerous or toxic to living things or which damages the
environment;
"Disclosure Letter" means the letter from the Borrower to the Agent dated the
date hereof in the agreed form;
"Drawdown Date" means, in relation to any Advance, the proposed date for the
making of such Advance;
"Duly Authorised Officer" means, in relation to any certification to be given by
or on behalf of either the Borrower or IFCO Europe, its Authorised Signatory
whose office and identity has been notified to the Agent where the Agent is
reasonably satisfied that such person is the appropriate person to give such
certification;
"EBITA" shall have the meaning ascribed thereto in Clause 21.5;
"EBITDA" shall have the meaning ascribed thereto in Clause 21.5;
"Encumbrance" includes any mortgage, charge, pledge, lien, hypothecation or
other encumbrance securing any obligation of any person or any other type of
preferential arrangement (including, without limitation, title transfer and
retention arrangements (other than those entered into in the ordinary course of
trading and liens and retention of title rights created by operation of law or
standard business terms), sale and leaseback, sale and purchase or deferred
purchase arrangements and the discounting or factoring of receivables on
recourse terms) having a similar effect or any other arrangement having
substantially the same economic effect as any of the foregoing;
"Environmental Approvals" means any permit, approval, identification number,
consent, licence or other authorisation required under any applicable
Environmental Laws;
"Environmental Claims" means any and all actions, suits, demands, demand
letters, claims, notices, investigations, proceedings, consent orders or consent
agreements relating in any way to any Environmental Law or any Environmental
Approval (hereafter "Claims"), including without limitation (a) any and all
Claims by governmental or regulatory authorities for enforcement, clean-up,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (b) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief arising from alleged injury or threat to health, safety or the
environment;
"Environmental Laws" means all laws and regulations compliance with which is
mandatory for any
Group Entity in any jurisdiction, relating to waste or contamination or
pollution of air, water (including ground water and underground water) or soil;
"Environmental Report" means the report of Environmental Resources Management
dated September 1997 with a reliance letter in favour of the Agent as agent for
the Beneficiaries from time to time;
"Event of Default" means any of those events specified in Clause 23.1;
"Excess Cash Flow" means, in respect of any Accounting Reference Period of the
Group ending on and after 31 December 1998, EBITDA for such Accounting Reference
Period adjusted as follows:
(i) deducting taxes paid during the relevant Accounting Reference
Period;
(ii) deducting increases (or adding decreases) in Working Capital over
the relevant Accounting Reference Period;
(iii) deducting Capital Expenditure;
(iv) deducting Total Debt Service;
(v) deducting the actual cash effect of extraordinary charges and
adding the actual cash effect of extraordinary income under the
Accounting Principles during the relevant Account Reference
Period;
(vi) deducting the actual cash effect of currency losses and adding the
actual cash effect of currency gains during the relevant
Accounting Reference Period;
(vii) adding the actual cash effect of disposals (deducting any profit
element and/or adding any loss made on) of any asset made during
the relevant Accounting Reference Period permitted hereunder;
(viii) plus any net increase or minus any net decrease in the capital
element of any Permitted External Leasing entered into during such
Accounting Reference Period;
(ix) less the sum of (a) DM5,000,000 after deducting (b) the amount of
any taxes which are payable by any member of the Group in respect
of the Investment and in respect of any potential tax liabilities
identified in the Tax Report and which are not indemnified by SPS
pursuant to the Investment Agreement,
(without any double counting) each as determined by reference to the
relevant audited consolidated financial statements of the Group delivered
pursuant to the provisions of Clause 20.1;
"Existing Crates" means crates which are in existence at the date hereof and
which are the subject of the Leasing Facilities or which are manufactured after
the date hereof but for the sole purpose of replacing broken crates which are in
existence at the date hereof and which are the subject of Leasing Facilities and
which are otherwise dealt with in accordance with the terms of the Facility
Documents;
"Existing Indebtedness" means the Pool Indebtedness, the SPS Shareholder Loan,
the Bardusch Loan, the Hanover Finanz Loan, the Schroder Loan and the
indebtedness under the Leasing Facilities;
"External Finance Lease" means any Finance Lease where the lessor is not a
member of the Group;
"Facility" means the term loan facility granted by the Banks to the Borrower
pursuant to Clause 2;
"Facility Documents" means this Agreement, the Intercreditor Agreement, the
Senior Subordinated Security Documents, the Security Trust Agreement, the
Hedging Agreements, the fee letters referred to in Clauses 29.1 and 29.2, any
documents evidencing the terms of any other agreement or document that may be
entered into or executed pursuant to or in connection with any of the foregoing
by the Borrower or IFCO Europe or any of them or entered into by any person
creating or evidencing security for the obligations of the Borrower hereunder
whether by way of personal covenant, charge, security interest, mortgage,
pledge, or otherwise or regulating the priorities of such security, and any
other agreement or document designated in writing as a "Facility Document" by
the Borrower and the Agent;
"Facility Office" means, in relation to the Agent or any Bank, the office
identified with its signature below (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as Transferee) or such other
office as it may from time to time select;
"FIBOR" means, in relation to any Advance or unpaid sum and any specified
period, the rate per annum determined by the Agent to be equal to either:
(i) the offered rate appearing on the relevant page (being currently page
"22000") of the Telerate screen which displays interest rates for the
currency in which such Advance or unpaid sum is denominated (or, if such
page or such service shall cease to be available, such other page or such
other service (as the case may be) for the purpose of displaying interest
rates for such currency as the Agent, after consultation with the Banks and
the Borrower, shall select) and for such specified period at or about 11.00
a.m. on the Quotation Date for such specified period; or
(ii) if the Agent is unable to access the Telerate Screen or if no such display
rate is then available for such currency or such specified period and, at
such time, the Agent has not selected any alternative service as
contemplated in (i) above, the arithmetic mean (rounded upwards, if
necessary, to four decimal places) of the rates (as notified to the Agent)
at which each of the Reference Banks was offering to prime banks in the
Frankfurt Interbank Market deposits in the currency in which such Advance
or unpaid sum is denominated and for such specified period at or about
11.00 a.m. on the Quotation Date for such specified period,
and, for the purposes of this definition, "specified period" means the Interest
Period for such Advance or, as the case may be, the relevant period in respect
of which FIBOR falls to be determined in relation to such unpaid sum;
"Final Maturity Date" means 30 September 2005 provided that if such day is not a
business day the Final Maturity Date shall be the immediately preceding business
day;
"Finance Lease" means a contract between a lessor and a lessee for lease or hire
of a specific asset in
respect of the financing of crates and/or plant and equipment;
"Financial Indebtedness" means in relation to any Group Entity at any time any
indebtedness incurred in respect of:
(i) the principal amount, and the capitalised element (if any), of
money borrowed or raised and debit balances at banks and premiums
if any and capitalised interest in respect thereof;
(ii) the principal and premiums (if any) and capitalised interest in
respect of any debenture, bond, note, loan stock or similar
instrument;
(iii) liabilities (including pursuant to counter-indemnities and
reimbursement obligations) in respect of any letter of credit,
standby letter of credit securing Financial Indebtedness arising
under this definition, acceptance credit, bill discounting or note
purchase facility and any receivables purchase, factoring or
discounting arrangements (to the extent that such arrangement is
with recourse to any Group Entity);
(iv) the capital value of any Finance Lease;
(v) the deferred purchase price of assets or services (except any such
arrangement entered into in the ordinary course of trading and
having a term not exceeding 180 days from the date on which the
liability was originally incurred);
(vi) liabilities in respect of any foreign exchange agreement (other
than foreign exchange agreements for spot delivery), currency or
interest purchase or swap or other derivative transactions or
similar arrangements (and the amount of the Financial Indebtedness
in relation to any such transaction shall be calculated by
reference to the mark-to-market valuation of such transaction at
the relevant time);
(vii) all obligations to purchase, redeem, retire, defease or otherwise
acquire for value any share capital of any person or any warrants,
rights or options to acquire such share capital in respect of
transactions which have the commercial effect of borrowing or which
otherwise finance its or the Group's operations or capital
requirements;
(viii) any other transactions having the commercial effect of borrowing
entered into by such Group Entity; and
(ix) all Financial Indebtedness of other persons of the kinds referred
to in paragraphs (i) to (viii) above guaranteed or indemnified
directly or indirectly in any manner by such Group Entity, or
having the commercial effect of being guaranteed or indemnified
directly or indirectly by such Group Entity;
"Financial Quarter" shall have the meaning ascribed thereto in Clause 21.5;
"Financial Statements" shall be deemed to be a reference to the most recent
audited consolidated financial statements of the Group delivered pursuant to
paragraph (i) of Clause 20.1;
"First Repayment Date" means 31 March 2005 provided that if such day is not a
business day the First Repayment Date shall be the immediately preceding
business day;
"Flotation" means the listing of any shares on any stock exchange or the grant
of permission to deal in any such shares on any recognised exchange;
"GBL" means GISO Verwaltungsgesellschaft mbH & Co. Behalterleasing KG;
"GE" means General Electric Erste Beteiligungs GmbH, a wholly owned subsidiary
of General Electric Capital Corporation;
"Group" means the Borrower and its subsidiaries from time to time;
"Group Entity" means any member of the Group;
"Growth Capital Expenditure" shall have the meaning ascribed thereto in Clause
28.5;
"Hannover Finanz Loan" means a loan from Hannover Finanz to the Borrower dated 7
November 1995 in an amount of DM5,000,000;
"Hedge Counterparty" means any Bank which is a party to an outstanding Hedging
Agreement with the Borrower from time to time;
"Hedging Agreements" means any agreements entered into from time to time by the
Borrower with a Bank in relation to Permitted Treasury Transactions entered into
as described in the Hedging Strategy Letter;
"Hedging Strategy Letter" means the letter addressed to the Agent from the
Borrower setting out the approved and agreed hedging strategy in agreed terms
(to include interest rate hedging as well as foreign exchange rate hedging);
"Information Memorandum" means the document concerning the Group and the
Investment dated October 1997 prepared by the Borrower in relation to this
transaction as the same may be updated from time to time with the agreement of
the Borrower and further circulated to certain banks or financial institutions
after the date hereof;
"Insurance Report" means the report regarding the insurances of each Group
Entity prepared by Burmester, Duncker & Joly, insurance brokers to the Borrower
and addressed to the Agent on behalf of the Beneficiaries dated 14 January 1998
(as the same may be updated on or about the date hereof);
"Instructing Group" means:
(a) whilst no Advances are outstanding hereunder, a Bank or group of Banks
whose aggregate Commitments, calculated on the date on which the Agent
seeks instructions from the Banks, amount (or, if each Bank's
Commitment has been reduced to zero, did immediately before such
reduction to zero, amount) in aggregate to more than sixty six and two
thirds per cent. (66%) of the aggregate of the Total Commitments;
(b) whilst at least one Advance is outstanding hereunder, a Bank or group
of Banks to whom in aggregate more than sixty six and two thirds per
cent. (66%) of the Loan is owed;
"Intellectual Property" means the Material Intellectual Property interests
together with any renewals or redesignations thereof and all other material
intellectual property now or in the future owned by any member of the Group;
"Intercreditor Agreement" means the intercreditor agreement entered into on or
before the date on which the first Advance is made hereunder between, inter alia
the Agent, the Security Trustee, the Hedge Counterparties, the Banks, the Senior
Agent and the Senior Lenders;
"Interest Period" means any of the periods determined pursuant to Clauses 7.1 to
7.4 (inclusive);
"Investment" means the investment of DM45,000,000 by way of equity in IFCO
Europe by GE in accordance with the Investment Agreement and the Contribution
Contract;
"Investa" means Investa Projektentwicklungs-und Verwaltungs GmbH;
"Investment Agreement" means the investment agreement (including all schedules
thereto) dated 21/22 August 1997 and amended by amendment agreements dated 15
October 1997 and 4/5 November 1997 between Christoph Schoeller, Schoeller
Packaging Systems GmbH, Andrea Schoeller, Martin Alexander Schoeller, Schoeller
KG, Schoeller Plast Industries GmbH, General Electric Erste Beteiligungs GmbH
and GE Capital Corporation;
"IT Schedule" means a schedule setting out the planned timetable for the
installation of an information technology system within the Group;
"Leasing Facilities" means the leasing facilities provided pursuant to
agreements dated 1 October 1995, 5 November 1996, 17 December 1996, 8 August
1997 and 30 September 1997 relating to a maximum aggregate amount of 4,980,770
crates between the Borrower and Bardusch and the leasing facility provided
pursuant to an agreement dated 1 October 1994 between Investa and the Borrower
relating to a maximum amount of 1,005,369 crates;
"Legal Due Diligence Report" means the legal due diligence report in relation to
the Investment prepared by Feddersen Laule Scherzberg & Ohle Hansen Ewerwahn
dated 17 October 1997 addressed to or with a reliance letter in favour of the
Agent for and on behalf of the Beneficiaries from time to time;
"Legal Opinions" means the opinions in the agreed form referred to in part F of
the Third Schedule and delivered on or before the date on which the first
Advance is made hereunder;
"Liabilities" shall have the meaning ascribed thereto in Clause 21.5;
"LMA" means the Loan Market Association;
"Loan" means the aggregate amount of the Advances for the time being outstanding
under the Facility;
"Margin" means two point seven five per cent. (2.75%) per annum;
"Market Report" means the report of LEK dated 5 September 1997 with a reliance
letter in favour of the Agent as agent for the Beneficiaries from time to time;
"Material Adverse Effect" shall mean a material adverse effect on the business,
operations, liabilities, assets or condition (financial or otherwise) of any
Material Group Entity or on the ability of either of the Borrower or IFCO Europe
to perform its obligations under any of the Facility Documents;
"Material Group Entity" means the Borrower, IFCO Europe, GBL or any Group
Entity:
(a) having (when consolidated with the earnings before interest and tax or
turnover or gross assets of its subsidiaries) more than five per cent.
(5%) of the earnings before interest and tax or turnover or gross
assets of the Group all as determined by reference to the most latest
audited consolidated accounts of such Group Entity and the Group
Provided that:
(1) in the case of a Group Entity acquired after the end of the
financial period to which the latest relevant audited accounts
relate, the reference to the latest audited accounts for the
purposes of the calculation above shall, until audited accounts
for the financial period in which the acquisition is made are
published, be deemed to be a reference to such first-mentioned
accounts as if such subsidiary had been shown in such accounts by
reference to its own latest audited accounts, adjusted as deemed
appropriate by the Auditors; and
(2) if, in the case of any subsidiary which itself has subsidiaries,
no consolidated accounts are prepared and audited, its earnings
before interest and tax or, as the case may be, gross assets
shall be determined on the basis of pro forma consolidated
accounts of the relevant subsidiary and its subsidiaries prepared
for this purpose by the Auditors or the auditors for the time
being of the relevant subsidiary; or
(b) not falling within paragraph (a) above but which, as a result of any
intra-group transfer or re-organisation would, adopting either test
referred to in paragraph (a) above and as if the accounts referred to
in such paragraph had been drawn up immediately following such
transfer or reorganisation, be a Material Group Entity Provided that
such subsidiary shall only become a Material Group Entity upon the
completion of such transfer or reorganisation,
and a report by the Auditors that in their opinion a subsidiary is or is not, or
was or was not, at any particular time or during any particular period a
Material Group Entity shall, in the absence of manifest error, be conclusive and
binding on all parties hereto;
"Material Intellectual Property" means the intellectual property specified in
the Ninth Schedule and any other Intellectual Property which is material to the
Group's business;
"Material Leasing Agreements" means each of the Leasing Facilities and the
leasing agreements between the Borrower and GBL dated 1 January 1995, 31
December 1995, 31 October 1996, 1 January 1997, 1 July 1997 and 1 October 1997,
for an aggregate amount of 41,166,662 crates and any other leasing agreement or
contract entered into by the Borrower or any other Group Entity where the
duration of such agreement or contract is in excess of twelve months and the
capital amount of such leasing facility is in excess of DM1,000,000;
"MTS" means MTS Okologistik Verwaltungs GmbH;
"Net Disposal Proceeds" means the gross total proceeds of disposals, leases or
transfers of the right to receive any revenues or of any assets (including
marketable securities) of any Group Entity (other than disposals which
constitute Permitted Leasing or Permitted Factoring) which (when aggregated with
the proceeds of all other such disposals, leases or transfers by Group Entities)
exceed DM1,500,000 (or its equivalent) in any financial year of the Group less:
(i) out of pocket expenses properly incurred;
(ii) sales of stock and other disposals in the ordinary course of
business;
(iii) the unpaid principal balance on the date of such disposal, lease or
transfer of any Permitted Indebtedness secured by a Permitted
Encumbrance on the asset disposed of, leased or transferred which
must be repaid by the seller on such disposal (together with any
premiums, interests or fees required to be paid in connection
therewith);
(iv) any sale taxes paid or payable by the seller due to such sale; and
(v) any income, capital gains or other taxes incurred and required to
be paid by the seller in connection with such disposal, lease or
transfer as reasonably determined in good faith by the seller on
the basis of the existing average tax rates applicable to the gain
(if any) and after taking into account all available credits,
deductions and allowances;
"Net Worth" shall have the meaning ascribed thereto in Clause 21.5;
"New Crates" means any crates not owned by any member of the Group at the date
hereof and which have not been used by the Borrower or any other member of the
Group for trading purposes;
"Non-Group Entity" means any person which is not a member of the Group;
"Notice of Drawdown" means a duly completed notice substantially in the form set
out in the Fourth Schedule;
"Original Financial Statements" means the audited consolidated financial
statements of the Group for its financial year ending 31 December 1996;
"Patent" means the Patent relating to a plastic container, especially a
vegetable container with hinged sides (registered at the European Patent Office
under number EP93902215) and with the World Intellectual Property Organisation
under number PLT/EP93/00091;
"Permitted Crate Disposals" means any disposal of New Crates made for the
purposes of sale and leaseback arrangements forming part of any Permitted
Leasing transaction;
"Permitted Disposals" means in any financial year disposals of assets not being
Material Intellectual Property which are:
(i) disposals by a Group Entity in its ordinary course of trade;
(ii) disposals of assets and/or revenues for cash by a Group Entity
where the value of the aggregate net consideration received in
respect of all such disposals by Group Entities does not exceed
DM2,500,000 or its equivalent in any one financial year; or
(iii) disposals which are Permitted Transactions, Permitted Crate
Disposals or made pursuant to Permitted Factoring;
"Permitted Encumbrances" means:
(i) Encumbrances arising hereunder or under any of the Senior
Subordinated Security Documents or Senior Security Documents;
(ii) any Encumbrance which the Agent, acting on the instructions of an
Instructing Group, has at any time in writing agreed shall be a
Permitted Encumbrance, provided that the amount secured thereby is
not increased in amount or extended in terms of repayment date;
(iii) up to the date falling six months after the date hereof only, any
Encumbrance securing up to a maximum of 3,300,000 Existing Crates
created pursuant to the agreement dated 4 July/12 July 1996 between
the Borrower and Rewe-Zentral AG, Koln, Cologne;
(iv) liens arising by operation of law in the ordinary course of
business and not by reason of default and liens and retention
rights created pursuant to standard business terms (and not by
reason of default);
(v) any Encumbrance created in relation to the netting of Group bank
account balances;
(vi) any retention of title to goods supplied to the relevant Group
Entity where such retention is agreed in the ordinary course of its
trading activities;
(vii) any Encumbrance constituted by a Finance Lease, hire purchase or
conditional sale agreement, where the Financial Indebtedness
arising under such arrangement constitutes Permitted Indebtedness;
or
(viii) any Encumbrance arising under condition 14 of the general business
conditions of German banks with whom any Group Entity maintains a
banking relationship in the ordinary course of business;
"Permitted Expenditure" means, in respect of any financial year of the Group,
(i) capital expenditure made in accordance with the Business Plan; (ii) capital
expenditure financed by way of lease financing falling within paragraph (vi) of
the definition of Permitted Indebtedness (to the extent not already included in
(i) above) and (iii) other capital expenditure in a maximum aggregate amount
equal to 50% of the Excess Cash Flow for the previous financial year (or its
equivalent) (or such greater figure as may be agreed to in writing by an
Instructing Group);
"Permitted External Leasing" means any leasing of crates under External Finance
Leases where the aggregate Financial Indebtedness created thereunder falls
within the provisions of sub-paragraph (vi) of the definition of Permitted
Indebtedness and where the number of Existing Crates leased thereunder does not
exceed (when aggregated with the number of Existing Crates leased under all such
other leasing transactions) 6,000,000;
"Permitted Factoring" means the non-recourse factoring arrangements between the
Borrower and DG Diskontbank GmbH as the same are in existence at the date hereof
or any other factoring arrangement made by the Borrower with any Bank provided
that the aggregate amount permitted to be outstanding at any relevant time under
all such factoring arrangements does not exceed DM80,000,000 or its equivalent
and in respect of which the Borrower has granted an assignment (in form and
substance satisfactory to the Agent) to the Security Trustee of all of the
Borrower's rights under such factoring agreement;
"Permitted Indebtedness" means:
(i) any Financial Indebtedness arising under the Facility Documents;
(ii) any Financial Indebtedness arising in respect of Senior Debt;
(iii) any Financial Indebtedness arising under Permitted Treasury
Transactions;
(iv) any Financial Indebtedness arising in respect of Permitted
Factoring;
(v) any Financial Indebtedness supported by a guarantee issued pursuant
to the Senior Facility Agreement by the Fronting Bank (as defined
in the Senior Facility Agreement) or by the Senior Agent on behalf
of the Senior Lenders (or any of them);
(vi) any Financial Indebtedness arising under or in respect of any
External Finance Lease where the amount of such Financial
Indebtedness when aggregated with the Financial Indebtedness under
or in respect of any other External Finance Lease does not exceed
(subject to the provisions of Clause 18.2), (a) at any time on or
before 1 January 1999, DM60,000,000 (or its equivalent) or (b) at
any time after 1 January 1999, DM75,000,000 (or its equivalent);
(vii) any Financial Indebtedness arising under or pursuant to Permitted
Internal Leasing;
(viii) any Financial Indebtedness arising under any Permitted Loans; and
(ix) any Financial Indebtedness secured by a Permitted Encumbrance
referred to in paragraph (ii) of the definition thereof;
"Permitted Internal Leasing" means any leasing of crates under a Finance Lease
where the Lessor is GBL and the Lessee thereunder is the Borrower and where the
terms of such leasing are substantially the same as the terms of the existing
leases between GBL and the Borrower referred to in the definition of Leasing
Facilities;
"Permitted Leasing" means Permitted External Leasing and Permitted Internal
Leasing;
"Permitted Loan" means:
(i) any loan made by the Borrower to GBL where the purpose of such loan
is to facilitate Permitted Internal Leasing; and
(ii) any loan or other financial accommodation made by the Borrower to
any of its employees provided that the amount of such loans to
employees, when aggregated with the amount of loans made by other
Group Entities to their employees, does not exceed DM500,000 (or
its equivalent);
"Permitted Transactions" means the payment or declaration of any dividend,
return on capital, repayment of capital contributions or other distributions by
any Group Entity to the Borrower or to any other Group Entity for the purpose of
immediate distribution through other relevant Group Entities to the Borrower;
"Permitted Treasury Transactions" means the following Treasury Transactions:
(i) forward foreign exchange contracts for hedging currency exposures
in the ordinary course of trade; and
(ii) transactions entered into in accordance with the Hedging Strategy
Letter;
"Pool Indebtedness" means the indebtedness created pursuant to (i) agreements
dated 28 July 1995, 26 March/2 April 1997 and 24/30 June 1997 between the
Borrower and DG Bank Deutsche Genossenschaftsbank in an amount of DM32,000,000,
(ii) agreements dated 14 December 1995 and 14 March 1997 between the Borrower
and Deutsche Bank Aktiengesellschaft, Munich Branch in an amount of
DM24,500,000, (iii) an agreement dated 9 August 1995 between the Borrower and
Oldenburgische Landesbank in an amount of DM17,100,000 and (iv) an agreement
dated 20 December 1994 between the Borrower and Norddeutsche Hypotheken-und
Wechselbank AG in an amount of DM17,000,000;
"Potential Event of Default" means any event which would (but for the passage of
any period of time provided for in Clause 23.1, the giving of notice, the making
of any determination hereunder or any combination thereof) be an Event of
Default;
"Proportion" means, in relation to a Bank at any time, the proportion borne, at
such time, by its Commitment to the Total Commitments (or, if all the Total
Commitments are then zero, by its Commitment to the Total Commitments
immediately prior to their reduction to zero);
"Qualifying Bank" means any bank or other financial institution in respect of
which the Borrower will not be obliged to make any withholding or deduction on
account of tax from payments of interest made to such bank under German law at
the date hereof (or, in the case of a Transferee, the date of the relevant
Transfer Certificate);
"Quarter Date" means each of 31 March, 30 June, 30 September and 31 December;
"Quotation Date" means, in relation to any period for which an interest rate is
to be determined hereunder, the day on which quotations would ordinarily be
given by prime banks in the Frankfurt Interbank Market for deposits in the
currency in relation to which such rate is to be determined for delivery on the
first day of that period Provided that, if for any such period quotations would
ordinarily be given by prime banks in the Frankfurt Interbank Market for
deposits in such currency on more than one date, the Quotation Date for that
period shall be the last of those dates;
"Reference Banks" means the principal Frankfurt offices of Barclays Bank PLC or
such other bank or banks as may from time to time be agreed between the Borrower
and the Agent (acting on the instructions of an Instructing Group);
"Relevant Jurisdictions" means, in respect of any person, the jurisdiction of
the country in which such person is incorporated and, if different, where it is
resident or has its principal place of business, and each jurisdiction or state
in which it owns or leases property or otherwise conducts its business;
"Relevant Laws" means, in respect of any person, the laws of its Relevant
Jurisdictions;
"Relevant Period" shall, save as otherwise provided herein, have the meaning
ascribed thereto in Clause 21.5;
"Relevant Taxes" means, in relation to any payment which falls to be made by the
Borrower any present or future Taxes of any nature (other than Taxes imposed on
or measured by net income) now or hereafter imposed by the laws of (a) its
Relevant Jurisdictions, (b) any other jurisdiction from which, or through which,
such payment is made or any country to whose taxation laws the Borrower is at
the time of such payment subject, (c) any political sub-division of one or more
of its Relevant Jurisdictions or any other such jurisdictions or (d) any
federation or association of which one or more of its Relevant Jurisdictions or
any other such jurisdiction is or are, at the time of such payment, a member or
members;
"Repayment Date" means each of the First Repayment Date and the Final Maturity
Date;
"Replacement Capital Expenditure" shall have the meaning ascribed thereto in
Clause 21.5;
"Reports" means the Accountant's Report, the Legal Due Diligence Report, the
Environmental Report, the Tax Report, the Insurance Report and the Market
Report;
"Reservations" means the principle that equitable remedies are remedies which
may be granted or
refused at the discretion of the court, the limitation of enforcement by laws
relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws generally affecting the rights of
creditors, the time barring of claims under any applicable limitation acts, the
possibility that a court may strike out provisions of a contract as being
invalid for reasons of oppression, undue influence or similar reasons and any
other reservations or qualifications of law (but not of fact) expressed in any
of the Legal Opinions;
"Rolling Basis" shall have the meaning ascribed thereto in Clause 21.5;
"Schroder Loan" means the loan from Schroder, Munchmeyer, Hengst & Co made
pursuant to an agreement dated 1/10 December 1993 to the Borrower in an amount
of DM1,000,000;
"Secured Obligations" in relation to any Senior Subordinated Security Document
has the meaning ascribed thereto in that Senior Subordinated Security Document;
"Security Trust Agreement" means the security trust agreement entered into on or
about the date hereof between, amongst others, the Borrower, the Beneficiaries,
the Security Trustee, the Agent, the Senior Agent and the Senior Lenders;
"Senior Agent" means the agent under the Senior Facility Agreement or any
refinancing thereof;
"Senior Debt" means at any time all amounts outstanding under the Senior
Facility Agreement at such time;
"Senior Facility" means the revolving and term loan facilities in an aggregate
amount of DM146,000,000 or any refinancing thereof made available to the
Borrower by the Senior Lenders;
"Senior Facility Agreement" means the agreement dated on or about the date
hereof pursuant to which the Senior Facility is made available to the Borrower
or any refinancing thereof;
"Senior Facility Documents" means the Senior Facility Agreement and any other
agreement or document that may be entered into or executed pursuant thereto or
in connection therewith or any refinancing thereof;
"Senior Interest Expense" shall have the meaning ascribed thereto in Clause
28.5;
"Senior Lenders" means each of the financial institutions party to the Senior
Facility Agreement as "Banks" and any bank becoming a party to the Senior
Facility Agreement pursuant to the provisions thereof or any lenders providing
the refinancing thereof;
"Senior Loan" means at any time the amount outstanding (whether actual or
contingent) in respect of principal under the Senior Facility Agreement at such
time;
"Senior Security Documents" has the meaning ascribed to that term in the Senior
Facility Agreement;
"Senior Subordinated Security Documents" means the documents, in the agreed
form, listed in paragraphs E1 and E2 of the Third Schedule together with any
other document entered into by any person creating or evidencing security for
all or any part of the obligations of the Borrower under any
of the Facility Documents whether by way of personal covenant, charge, security
interest, mortgage, pledge or otherwise;
"SPI" means Schoeller Plast Industries GmbH;
"SPS" means Schoeller Packaging Systems Europe GmbH;
"SPS Shareholder Loan" means a loan from SPS to the Borrower made pursuant to an
agreement dated 21 November 1996 in an amount of DM37,500,000;
"Supply Agreement" means the supply agreement dated 4/5 November 1997 between
the Borrower and Schoeller Plast Industries GmbH together with the supplemental
agreements thereto dated 3 February 1998 and 11 February 1998 and any other
agreement which may, from time to time and with the approval of the Agent
(acting on the instructions of an Instructing Group) replace such agreement;
"Syndication" means the first transfer or assignment of rights, benefits and
obligations pursuant to Clause 34.1 by the Banks set out in the First Schedule;
"Tax Report" means the report of Arthur Andersen dated 18 September 1997
addressed to General Electric Capital Corporation entitled "Project Pineapple
Tax Due Diligence (Final Report)" together with confirmation that calculations
in relation to the VAT tax treatment are correctly integrated in the Business
Plan;
"Taxes" includes all present and future income and other taxes, levies,
assessments, imposts, deductions, charges, compulsory loans and withholdings
whatsoever together with interest thereon, additions to tax and penalties and
surcharges and fines with respect thereto, if any, and any payments made on or
in respect thereof and "Tax" and "Taxation" shall be construed accordingly;
"Termination Date" means 28 February 1998;
"Total Debt" shall have the meaning ascribed thereto in Clause 21.5;
"Total Commitments" means the aggregate for the time being of the Banks'
Commitments;
"Total Fixed Charges" shall have the meaning ascribed thereto in Clause 21.5;
"Total Interest Expense" shall have the meaning ascribed thereto in Clause 21.5;
"Transaction Costs" means all up-front fees, out-of-pocket costs and expenses,
stamp and registration Taxes or the equivalent in any jurisdiction incurred by
IFCO Europe or any Group Entity in connection with the Investment, the Facility,
the Senior Facility or the transactions entered into in accordance with the
Hedging Strategy Letter;
"Transfer Certificate" means a certificate substantially in the form set out in
the Second Schedule (with such amendments as may be approved by the Agent)
signed by a Bank and a Transferee whereby:
(i) such Bank seeks to transfer to such Transferee all or a part of such
Bank's rights and
obligations under the Facility Documents upon and subject to the terms
and conditions set out in Clause 34; and
(ii) such Transferee undertakes to perform the obligations it will assume
as a result of delivery of such certificate to the Agent as is
contemplated in Clause 34.3;
"Transfer Date" means, in relation to any Transfer Certificate, the date for the
making of the transfer as specified in the schedule to such Transfer
Certificate;
"Transferee" means a person to which a Bank seeks to assign all or part of such
Bank's rights and by which all or part of such Bank's obligations hereunder are
assumed;
"Treasury Transaction" means any currency or interest purchase, cap or collar
agreement, forward rate agreements, interest rate or currency future or option
contract, foreign exchange or currency purchase or sale agreement and any
similar agreement, interest rate swap, currency swap or combined interest rate
and currency swap agreement and any other similar agreement entered into prior
to, on or after the date hereof by any Group Entity; and
"Working Capital" shall have the meaning ascribed thereto in Clause 21.5.
1.2 Any reference in this Agreement to:
"acting together in concert" means persons who pursuant to an agreement or
understanding (whether formal or informal) actively co-operate together with a
view to achieving a common objective or to control another body corporate;
"affiliate" of any person shall be construed as a reference to the ultimate
holding company of that person or an entity of which that person or its ultimate
holding company (a) has direct or indirect control or (b) owns directly or
indirectly more than fifty per cent. (50%) of the share capital or similar
rights of ownership;
the "Agent", the "Arranger", a "Beneficiary", the "Security Trustee", the
"Borrower", "IFCO Europe" or any "Bank" shall be construed so as to include its
and any subsequent successors, permitted Transferees and assigns in accordance
with their respective interests (and, for the avoidance of doubt, defining any
person as a "Bank" does not imply that such person is a bank for regulatory
purposes);
a document in "agreed form" or on "agreed terms" is if it is initialled for the
purposes of identification as such by or on behalf of the Borrower and the
Agent;
on "arm's-length terms" means on terms that are fair and reasonable to the
relevant Group Entity and no more or less favourable to the relevant person
(being the other party to the relevant transaction) than could reasonably be
expected to be obtained in a comparable arm's length transaction with a person
which is not an affiliate of the relevant Group Entity;
the "assets" of any person shall be construed as a reference to the whole or any
part of its business, undertakings, property, intellectual property, shares,
securities, debts, accounts, revenues (including any right to receive revenues),
goodwill, shareholdings and uncalled capital including premium
whether now or hereafter acquired and any other assets whatsoever;
"Barclays Capital" shall be construed as a reference to Barclays Capital Group,
the investment banking division of Barclays Bank PLC;
a "business day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in Frankfurt
and Munich;
a "Clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
"control" of a body corporate means:
(i) the power to:
(a) cast or control the casting of more than one-half of the maximum
number of votes that might be cast at a general meeting of the
body corporate; or
(b) appoint or remove all, or the majority, of the directors of the
body corporate (and the relevant person or persons shall be
deemed to have power to make such an appointment if:
(1) an individual cannot be appointed as a director of the body
corporate without the exercise by the relevant person or
persons of such power in the individual's favour; or
(2) an individual's appointment as a director of the body
corporate follows necessarily from the individual being a
director or other officer of any of the relevant person or
persons); or
(c) to give directions with respect to the operating and financial
policies of the body corporate which the directors of the body
corporate are obliged to comply with; or
(ii) the holding of more than one-half of the issued share capital of the
body corporate (excluding any part of that issued share capital that
carries no right to participate beyond a specified amount in a
distribution of either profits or capital);
"disposal" shall be construed as any sale, lease, transfer, conveyance,
assignment or other disposal (including, without limitation, any other
transaction or arrangement pursuant to which the economic or other commercial
benefit of the existing and/or remaining assets of the relevant person is lost
or materially diluted) and "dispose" shall be construed accordingly;
the "equivalent" on any given date in one currency (the "first currency") of an
amount denominated in another currency (the "second currency") is a reference to
the amount of the first currency which could be purchased with the amount of the
second currency at the rate of exchange quoted by the Agent at or about 11.00
a.m. Frankfurt time on such date (or such other time as may be appropriate) for
the purchase of the first currency with the second currency;
a "holding company" of a legal person shall be construed as a reference to any
legal person of which the first-mentioned legal person is a subsidiary;
a "guarantee" means any guarantee, suretyship, bond, indemnity, letter of
credit, third party security or other legally binding assurance against
financial loss granted by one person in respect of any indebtedness of another
person, or any agreement to assume any indebtedness of any other person or to
supply funds or to invest in any manner whatsoever in such other person by
reason of or otherwise in relation to indebtedness of such other person;
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
"legal person" shall be construed as a reference to any person having separate
legal personality under the jurisdiction of its incorporation or establishment;
"loans" shall be construed so as to include, without limitation, any transaction
or arrangement pursuant to which any Financial Indebtedness is or may be owed by
or to any Group Entity to or by any other person;
a "month" is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month save
that, where any such period would otherwise end on a day which is not a business
day, it shall end on the next business day, unless that day falls in the
calendar month succeeding that in which it would otherwise have ended, in which
case it shall end on the preceding business day Provided that, if a period
starts on the last business day in a calendar month or if there is no
numerically corresponding day in the month in which that period ends, that
period shall end on the last business day in that later month (and references to
"months" shall be construed accordingly);
a "Part" shall, subject to any contrary indication, be construed as a reference
to a part hereof;
a "person" shall be construed as a reference to any person, firm, company, body
corporate, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal personality) of
two or more of the foregoing;
a "Schedule" shall, subject to any contrary indication, be construed as a
reference to a schedule hereto;
a "subsidiary" of a legal person shall be construed as a reference to any legal
person:
(i) which is controlled, directly or indirectly, by the first-mentioned
legal person;
(ii) more than half the issued share capital (or equivalent right of
ownership) of which is beneficially owned, directly or indirectly, by
the first-mentioned legal person; or
(iii) which is a subsidiary of another subsidiary of the first-mentioned
legal person;
and, for these purposes, a legal person shall be treated as being controlled by
another if that other legal person is able to direct its affairs and/or to
control the composition of its board of directors or
equivalent body;
"VAT" shall be construed as a reference to value added tax including any similar
tax which may be imposed in place thereof from time to time;
a "wholly-owned subsidiary" of a company or corporation shall be construed as a
reference to any company or corporation which has no other members except that
other company or corporation and that other company's or corporation's wholly-
owned subsidiaries or persons acting on behalf of that other company or
corporation or its wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a partnership, company or
corporation shall be construed so as to include any equivalent or analogous
proceedings under the law of the jurisdiction in which such company or
corporation or partnership is incorporated or any jurisdiction in which such
company or corporation carries on business including the seeking of liquidation,
winding-up, reorganisation, dissolution, administration, arrangement,
adjustment, protection or relief of debtors.
1.3 "DM" or "Deutsche Mark" denotes the lawful currency for the time being of
the Federal Republic of Germany (and, for the avoidance of doubt, such term
shall include, where appropriate and where such currency is the lawful currency
of the Federal Republic of Germany, the European Single Currency Unit (Euro)).
1.4 Save where the contrary is indicated:
(i) any reference in this Agreement to this Agreement, any other Facility
Document or any other agreement or document shall be construed as a
reference to this Agreement, such other Facility Document or, as the
case may be, such other agreement or document as the same may have
been, or may from time to time be, amended, varied, novated,
supplemented or replaced;
(ii) any reference in this Agreement to a statute shall be construed as a
reference to such statute as the same may have been, or may from time
to time be, amended or re-enacted to the extent such amendment or re-
enactment is substantially to the same effect as such statute on the
date hereof;
(iii) any reference in this Agreement to a time of day shall be construed
as a reference to Frankfurt time.
1.5 Clause, Part and Schedule headings are for ease of reference only.
1.6 The general terms and conditions (Allgemeine Geschaftsbedingungen) of the
Agent (as the same are in force from time to time) shall apply to this
Agreement as if set out in full herein and as if any references to
"customer" therein were a reference to the Borrower save that, where those
terms and conditions conflict with the terms of this Agreement, the terms
of this Agreement shall prevail Provided that it is understood that,
without limitation, Clause 19 of the Allgemeine Geschaftsbedingungen does
not conflict with the terms of this Agreement.
1.7 This Agreement is subject to the terms of the Intercreditor Agreement and
in any case where the terms of this Agreement and the terms of the
Intercreditor Agreement conflict, the terms of the Intercreditor Agreement
shall prevail.
Part 2
THE FACILITY
2. The Facility
The Banks grant to the Borrower, upon the terms and subject to the conditions
hereof, an amortising term loan facility in an amount of DM35,000,000 (the
"Facility").
3. Purpose
3.1 The Facility is intended for the purpose of refinancing certain of the
Existing Indebtedness (not including any Leasing Facilities) and funding certain
of the costs of the Investment (the details and amounts of which have been
agreed with the Agent prior to making payment) and the Borrower shall apply
amounts drawn by it under the Facility accordingly.
3.2 Without prejudice to the obligations of the Borrower under this Clause 3,
none of the Beneficiaries shall be obliged to concern themselves with the
application of amounts raised by the Borrower hereunder.
4. Conditions Precedent
Save as the Banks may otherwise agree, the Facility will not be available for
utilisation unless the Agent has received all of the documents and other
evidence listed in the Third Schedule (or the Agent has confirmed to the
Borrower in writing that it is satisfied that, subject only to the making of the
requested Advances, it will receive the same) in form and substance satisfactory
to the Agent and the Arranger.
5. Nature of Banks' Rights and Obligations
5.1 The obligations of each Beneficiary under the Facility Documents are
several.
5.2 The failure by any Beneficiary to perform its obligations under the
Facility Documents shall not affect the obligations of the Borrower or IFCO
Europe towards any other party hereto or to any other Facility Document nor
shall any other party be liable for the failure by such Beneficiary to perform
its obligations under the Facility Documents.
5.3 The amounts outstanding at any time hereunder from the Borrower to any of
the other parties hereto shall be a separate and independent debt, and except as
otherwise stated herein each such party shall be entitled to protect and enforce
its individual rights arising out of the Facility Documents independently of any
other party, and it shall not be necessary for any party hereto to be joined as
an additional party in any proceedings for such purposes Provided that if any
Bank commences proceedings in respect of this Agreement it shall notify the
Agent as soon as practicable thereafter and the Agent shall notify the other
Banks accordingly.
5.4 No Bank shall be entitled to terminate its relationship with the Borrower
hereunder unless such termination is expressly permitted hereunder.
5.5 Where any Bank fails to perform its obligations hereunder, then such Bank
shall, at the request
of the Borrower (and upon reasonable notice), transfer its participation
hereunder (at par value) to another bank or financial institution nominated by
the Borrower and acceptable to the Agent which is willing to participate in the
Facility Provided that such transfer is made in accordance with the terms hereof
(and in particular but without limitation, in accordance with the provisions of
Part 12 hereof).
Part 3
UTILISATION OF THE FACILITY
6. Utilisation of the Facility
6.1 Save as otherwise provided herein, the Advance will be made by the Banks to
the Borrower, if:
(i) not later than 10.00 a.m. on the third business day (or such lesser
period as the Agent may agree) before the proposed date for the
making of the Advance, the Agent has received from the Borrower an
irrevocable Notice of Drawdown therefor, receipt of which shall
oblige the Borrower to borrow the amount therein requested in the
currency (being Deutsche Mark) and on the date therein stated upon
the terms and subject to the conditions contained herein;
(ii) the proposed date for the making of the Advance is a business day
which is or precedes the Termination Date;
(iii) none of the events described in Clause 9 have occurred in such a way
that, in accordance with the provisions of that clause, would operate
to prevent the Advance from being made;
(iv) the proposed amount of the Advance is equal to the amount of the
Available Facility; and
(v) either:
(a) no Event of Default or Potential Event of Default has occurred
and is continuing and has not been waived or would result from
the making of the Advances; and
(b) the representations set out in Clause 19.1 are true on and as of
the proposed date for the making of such Advance in all material
respects,
or each of the Banks agrees (notwithstanding any matter mentioned at
(a) or (b) above) to participate in the making of the Advance.
6.2 Each Bank participating in the Facility will participate in the Advance
made pursuant to Clause 6.1 through its Facility Office in the proportion borne
by its Available Commitment to the Available Facility immediately prior to the
making of the Advance.
6.3 If a Bank's Available Commitment is reduced in accordance with the terms
hereof after the Agent has received a Notice of Drawdown then the amount of the
Advance shall be reduced accordingly.
6.4 Each Bank's Available Commitment shall be reduced to zero at the close of
business on the day on which the Advance is made.
Part 4
INTEREST
7. Interest Periods
7.1 The period for which an Advance is outstanding shall be divided into
successive periods each of which (other than the first) shall start on the last
day of the preceding such period.
7.2 The duration of each Interest Period shall, save as otherwise provided
herein, be one, three or six months (or such other period as the Borrower and
the Banks may agree), in each case as the Borrower may, by not less than three
business days' prior notice to the Agent, select (and the Agent shall promptly
notify the Banks participating in the Advance of the duration selected by the
Borrower) Provided that:
(i) if the Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest Period
shall, subject to (ii) and (iii) below, be three months;
(ii) any Interest Period which begins during or at the same time as any
other Interest Period shall end at the same time as that other
Interest Period; and
(iii) any Interest Period in respect of the Advance which would otherwise
end during the month preceding, or extend beyond, a Repayment Date
shall be of such duration that it shall end on such Repayment Date.
7.3 The Borrower may, by not less than three business days' prior notice to the
Agent, direct that any Advance shall, at the beginning of any Interest Period
relating thereto, be divided into (and thereafter, save as otherwise provided
herein, treated in all respects as) two or more Advances having such amounts (in
aggregate, equalling the amount of the Advance being so divided) as shall be
specified by the Borrower in such notice Provided that the Borrower shall not
be entitled to make such a direction if:
(i) as a result of so doing, there would be more than four outstanding
Advances; or
(ii) any Advance thereby coming into existence would be in an amount of
less than DM5,000,000
7.4 If following a direction under Clause 7.3 two or more Interest Periods in
respect of the Advance made to the Borrower end at the same time, then, on the
last day of those Interest Periods, the Advances to which such Interest Periods
relate shall be consolidated into (and thereafter, save as otherwise provided
herein, treated in all respect as) a single Advance.
8. Interest Rate and Payment
8.1 On the last day of each Interest Period relating to an Advance (and, if
such Interest Period is longer than six months, on the day falling six months
after the first day of such Interest Period and on the last day of each
successive period of six months during such Interest Period) the Borrower shall
pay accrued interest on such Advance.
8.2 The rate of interest on each Advance during each Interest Period relating
thereto shall be the rate per annum which is the sum of the Margin and FIBOR on
the Quotation Date therefor.
9. Market Disruption
9.1 If, in relation to any Advance:
(i) the Agent determines that at or about 11.00 a.m. on the Quotation Date
for an Interest Period in respect of such Advance FIBOR cannot be
ascertained; or
(ii) before the close of business in Frankfurt on the Quotation Date for an
Interest Period in respect of such Advance, the Agent has been
notified by a Bank or each of a group of Banks to whom in aggregate
fifty per cent. or more of the Facility is (or, if an Advance were
then made, would be) owed that the FIBOR rate does not accurately
reflect the cost to it of obtaining such deposits in Deutschemark for
the relevant period,
then, notwithstanding the provisions of Clauses 6, 7 and 8:
(a) the Agent shall promptly notify the Borrower and the Banks of such
event; and
(b) where, in the opinion of the Agent, the events described in paragraph
(i) or (ii) above have occurred pursuant to events in the banking
market generally such that it is not feasible for such Advance to be
made, the Advance shall not be made; and
(c) where paragraph (b) does not apply such Advance shall be made; and
(d) the rate of interest applicable to the Advances from time to time
during the relevant Interest Periods shall be the rate per annum which
is the sum of the Margin and the rate per annum determined by the
Agent to be the weighted average (rounded to four decimal places) of
the rates notified by each Bank to the Agent before the last day of
such Interest Period to be those which express as a percentage rate
per annum the cost to such Bank of funding from whatever sources it
may select its portion of such Advance during such Interest Period;
and
(e) if the Agent or the Borrower so requires, within five days of such
notification the Agent and the Borrower shall enter into negotiations
with a view to agreeing a substitute basis (1) for determining the
rates of interest from time to time applicable to the Advances and/or
(2) upon which the Advances may be made or maintained thereafter and
any such substitute basis that is agreed shall take effect in
accordance
with its terms and be binding on each party hereto.
9.2 Interest on an Advance during an Interest Period specified in Clause 9.1
shall be distributed by the Agent to the Banks in proportion to the amounts
which represent the cost to each Bank of funding its share of such Advance
during such Interest Period provided that any such interest which is
attributable to the Margin shall be distributed by the Agent to the Banks in
proportion to their respective participations in such Advance.
Part 5
REPAYMENT, PREPAYMENT AND CANCELLATION
10. Repayment
10.1 The Borrower shall repay the Loan in two instalments by repaying on the
First Repayment Date, an amount of DM17,500,000 and by repaying on the Final
Maturity Date all amounts then outstanding in full.
11. Prepayment
11.1 Subject to the terms of the Intercreditor Agreement, the Borrower may, if
it has given to the Agent not less than ten business days' prior written notice
to that effect, prepay the whole or any part of the Loan (being an amount such
that the Loan is reduced by at least DM1,000,000) on the last day of any
Interest Period relating thereto (or at any other time on payment of the
appropriate breakage costs and accrued interest in accordance with Clause 24.
11.2 The Borrower and IFCO Europe shall apply the following or procure that the
following are applied, within the time limits specified below, in repayment of
the Facility in the manner specified in Clause 11.4:
(i) within one month of delivery of the annual consolidated accounts
under Clause 20.1 in each year, fifty per cent. (50%) of Excess Cash
Flow of the Group for the financial year to which those consolidated
accounts relate;
(ii) within fourteen business days of receipt, all Net Disposal Proceeds
save to the extent that it is demonstrated to the reasonable
satisfaction of the Agent that such Net Disposal Proceeds have been
or will, within six months of their receipt be reinvested by the
relevant member of the Group in assets within the Group which are of
a similar nature to those which have been disposed of;
(iii) within fourteen business days of receipt, the proceeds (net of costs
and expenses associated with such claim together with transmission
and foreign exchange costs and expenses) of any insurance claim
received by any Group Entity, other than where such proceeds do not
exceed DM1,000,000 (or its equivalent in any other currency) in
aggregate or where such proceeds arise from claims under third party
or public liability insurance policies and save to the extent that
such proceeds are demonstrated to the reasonable satisfaction of the
Agent to be paid to such Group Entity by way of reimbursement of such
Group Entity for amounts applied by such Group Entity in respect of
the damage or liability in relation to which such relevant insurance
claim was made prior to receipt of such proceeds or to meet a
liability in respect of which such monies were received or are,
within a period of 12 months of receipt by the relevant Group Entity,
demonstrated to the reasonable satisfaction of the Agent to be
applied to the replacement and/or repair of the assets in respect of
which the relevant insurance claim was made or to meet such
liability;
(iv) within two business days of receipt, the net proceeds received by
IFCO Europe or
any Group Entity as a result of any Flotation of its shares or any
Flotation of the shares of any of its subsidiaries;
(v) within two business days of receipt, an amount equal to all amounts
which are raised out of (a) any loans or other Financial Indebtedness
(other than Permitted Loans and Permitted Indebtedness) raised by the
Borrower or any other member of the Group and (b) the proceeds of any
equity subscribed for in the Borrower save to the extent that
proceeds of any capital increase need to be retained by the relevant
company in order to comply with applicable companies law; and
(vi) within fourteen business days of receipt, an amount equal to all
amounts paid by MTS to IFCO Europe by way of share dividends,
provided that any requirement to make a prepayment hereunder shall be
subject always to the terms of the Intercreditor Agreement.
11.3 Any amount prepaid pursuant to Clauses 11.2(iv) or 11.2(v) shall be
immediately applied by the Agent in accordance with Clause 11.4 and any other
amounts prepaid pursuant to Clause 11.2 shall, at the Borrower's option, either
be immediately applied by the Agent in accordance with Clause 11.4 (in which
case the Borrower shall also pay any amounts payable pursuant to Clause 24.4) or
shall be held by the Agent in an interest bearing account (which shall be
secured to the reasonable satisfaction of the Agent) and shall then be applied
by the Agent on the last day of the then relevant current Interest Periods in
accordance with the terms of Clause 11.4 and the Agent is authorised to purchase
with any amounts held by it hereunder, such other currencies as may be necessary
to enable it to make such applications.
11.4 Any amount prepaid pursuant to Clause 11.2 shall be applied against
outstandings under the Facility against instalments due on the remaining
Repayment Dates in inverse order of maturity.
11.5 If, at any time, any person other than the Borrower or IFCO Europe becomes
the owner of any shares in any member of the Group then the Agent may, by giving
five business days' notice, require the Facility to be prepaid in full and the
Borrower shall prepay the Loan in accordance with such notice.
11.6 Any prepayments shall be made together with accrued interest thereon and
all other amounts (including, without limitation, any amounts payable under
Clause 24.4) payable under this Agreement in relation to the amount prepaid
calculated up to the date of prepayment.
11.7 The Borrower shall not repay or prepay all or any part of the Loan except
at the times and in the manner expressly provided in this Agreement and shall
not be entitled to reborrow any such amount of the Loan repaid or prepaid.
11.8 Any notice of prepayment given by the Borrower pursuant to Clause 11.1
shall be irrevocable and shall specify the date upon which such prepayment is to
be made and the amount of such prepayment and shall oblige the Borrower to make
such prepayment on such date.
11.9 Nothing in this Clause 11 will permit any Group Entity to make any
disposal, sale, lease or transfer or undertake any other transaction not
otherwise permitted in accordance with the Facility
Documents.
11.10 The rate of interest payable on any amounts held pursuant to Clause 11.3
pending application shall be the rate of interest then payable by the Agent to
its similar customers for deposits of similar amounts and duration.
12. Intentionally left blank
Part 6
CHANGES IN CIRCUMSTANCES
13. Taxes
13.1 All payments to be made by the Borrower to any person hereunder shall be
made free and clear of and without deduction for or on account of Tax except to
the extent that the Borrower is required to make such a payment subject to the
deduction or withholding of Tax. If the Borrower is required to make any
payment to any person hereunder subject to any deduction or withholding on
account of any Relevant Tax then the sum payable by the Borrower in respect of
which such deduction or withholding is required to be made shall be increased to
the extent necessary to ensure that, after the making of the required deduction
or withholding, such person receives and retains (free from any liability in
respect of any such deduction or withholding) a net sum equal to the sum which
it would have received and so retained had no such deduction or withholding been
made or required to be made Provided that the Borrower shall not be obliged to
increase any payment under this Clause 13.1 to any Bank not being or ceasing to
be a Qualifying Bank unless (i) the requirement to deduct or withhold would have
applied had such Bank been or continued to be a Qualifying Bank (in which case
the amount payable will not exceed the amount which would have been payable to a
Qualifying Bank) or (ii) such Bank is not or ceases to be a Qualifying Bank as a
result of a change of law or application of a double taxation treaty or
generally applied practice of the tax authorities in Germany required to make
such deduction or withholding.
13.2 Without prejudice to the provisions of Clause 13.1, if any person or the
Agent on its behalf is required to make any payment on account of Tax (not being
a tax imposed on the net income of its Facility Office by the jurisdiction in
which it is incorporated or in which its Facility Office is located) or
otherwise on or in relation to any sum received or receivable hereunder by such
person or the Agent on its behalf (including, without limitation, any sum
received or receivable under this Clause 13) or any liability in respect of any
such payment is asserted, imposed, levied or assessed against such person or the
Agent on its behalf, the Borrower shall, upon demand of the Agent, promptly
indemnify such person against such payment or liability, together with any
interest, penalties and expenses payable or incurred in connection therewith.
13.3 A Bank intending to make a claim pursuant to Clause 13.2 shall notify the
Agent of the event by reason of which it is entitled to do so, whereupon the
Agent shall notify the Borrower thereof showing reasonably detailed calculations
of such claim Provided that nothing herein shall require such Bank to disclose
any confidential information relating to the organisation of its affairs.
13.4 Each Bank confirms that it is not its intention to require any support or
securities from any foreign shareholder of the Borrower or any related party of
any such shareholder (other than the Borrower itself and its affiliates) other
than where such support arises by operation of applicable law and confirms that,
to the best of its knowledge and belief as at the date hereof, it has not
required any such support or securities Provided that, if any such support or
securities are deemed to have been provided and this gives rise to a liability
for any member of the Group or any shareholder of any such member or any related
party, notwithstanding this expression of intention, no Bank shall be liable in
respect thereof and the Borrower agrees that it will not assert any claim
against any Bank in respect of any such liability.
13.5 Each Bank confirms that, upon request from the Borrower, it will take such
steps as may be reasonable and practical in all the circumstances to support the
Borrower in providing evidence to the German tax authorities that no such
support or securities have been provided by any such foreign shareholders or
related parties, provided that no Bank shall be under any obligation to do
anything which would or might have an adverse effect upon its business,
operations or financial condition or the management of its Tax affairs and
provided further that nothing herein shall require any Bank to disclose any
confidential information relating to the organisation of its affairs.
14. Tax Credits
14.1 If, following any increase in any sum payable under this Agreement under
Clause 13.1, any Beneficiary shall receive or be granted a credit against or
remission for any Tax payable by it, that Beneficiary shall, subject to the
Borrower having made any increased payment in accordance with Clause 30.1 and to
the extent that such Beneficiary can do so in its sole opinion without
prejudicing the retention of the amount of such credit or remission and without
prejudice to its right to obtain any other relief or allowance which may be
available to it and to conduct its own tax affairs as it thinks fit, reimburse
such amount as that Beneficiary shall in its absolute discretion certify to be
the proportion of such credit or remission as will leave that Beneficiary (after
such reimbursement) in no worse position than it would have been in had no
increase been required under Clause 30.1.
14.2 Nothing contained in this Agreement or any of the Facility Documents shall
oblige any Beneficiary to rearrange its tax affairs or to disclose any
information regarding its tax affairs and computations.
15. Tax Receipts
15.1 If, at any time, the Borrower is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there is any
change in the rates at which or the manner in which such deductions or
withholdings are calculated), the Borrower shall promptly notify the Agent.
15.2 If the Borrower makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full amount
required to be deducted or withheld to the relevant taxation or other authority
within the time allowed for such payment under applicable law and shall deliver
to the Agent for each Bank, within thirty days after it has made such payment to
the applicable authority, an original receipt (or a certified copy thereof)
issued by such authority evidencing the payment to such authority of all amounts
so required to be deducted or withheld in respect of that Bank's share of such
payment (or, if no such receipt is issued, evidence of such payment in form and
substance satisfactory to the Agent (acting reasonably)).
16. Increased Costs
16.1 If, by reason of (i) any change in law after the date hereof or in its
interpretation or administration and/or (ii) compliance with any request from or
requirement of any central bank or other fiscal, monetary or other authority
after the date hereof (including, without limitation, a request or requirement
which affects the manner in which a Bank or any holding company of such Bank is
required to or does maintain capital resources having regard to such Bank's
obligations hereunder and to amounts owing to it hereunder) which, in either
case, affects banks such as the relevant Bank
generally and with which it is customary for banks such as the relevant Bank to
comply:
(a) a Bank or any holding company of such Bank incurs a cost as a result
of such Bank's having entered into and/or performing its obligations
under the Facility Documents and/or assuming or maintaining a
commitment under the Facility Documents and/or making one or more
Advances hereunder;
(b) a Bank or any holding company of such Bank is unable to obtain the
rate of return on its overall capital which it would have been able to
obtain but for such Bank's having entered into and/or performing its
obligations and/or assuming or maintaining a commitment under this
Agreement;
(c) there is any increase in the cost to a Bank or any holding company of
such Bank of funding or maintaining all or any of the Advances
comprised in a class of Advances formed by or including the Advances
made or to be made by such Bank hereunder; or
(d) a Bank or any holding company of such Bank becomes liable to make any
payment on account of tax (not being a tax imposed on the net income
of such Bank's Facility Office by the jurisdiction in which it is
incorporated or in which its Facility Office is located) or otherwise
on or calculated by reference to the amount of the Advances made or to
be made by such Bank hereunder and/or to any sum received or
receivable by it hereunder;
then the Borrower shall, from time to time on demand of the Agent, promptly pay
to the Agent for the account of that Bank amounts sufficient to indemnify that
Bank or any such holding company against, as the case may be, (1) such cost, (2)
such reduction in such rate of return (or such proportion of such reduction as
is, in the opinion of that Bank, attributable to its obligations hereunder), (3)
such increased cost (or such proportion of such increased cost as is, in the
opinion of that Bank, attributable to its funding or maintaining Advances
hereunder) or (4) such liability.
16.2 Clause 16.1 shall not apply so as to oblige the Borrower to compensate or
indemnify the Agent or any Bank for any cost, interest cost, liability or
reduction:
(i) resulting from the introduction of or any change in or in the
interpretation or application by any relevant authority of, any law,
regulation, directive or request relating to the deduction,
withholding, payment or other imposition of any tax to which the
provisions of Clause 13.1 and/or 13.2 apply; or
(ii) resulting from any change, request or requirement relating to tax
imposed on the overall net income of the Agent or any Bank by the
jurisdiction in which it is incorporated or in which its Facility
Office is located.
16.3 A Bank intending to make a claim pursuant to Clause 16.1 shall notify the
Agent of the event by reason of which it is entitled to do so, whereupon the
Agent shall notify the Borrower thereof showing reasonably detailed calculations
of such claim Provided that nothing herein shall require such Bank to disclose
any confidential information relating to the organisation of its affairs.
17. Illegality
If, at any time after the date hereof, it is or becomes unlawful or contrary to
any request from or requirement of any applicable fiscal, monetary or other
authority which it is customary for banks to comply with for a Bank to make,
fund or allow to remain outstanding all or any of the Advances made or to be
made by it hereunder, then that Bank shall, promptly after becoming aware of the
same, deliver through the Agent to the Borrower a certificate to that effect
and, unless such illegality is avoided in accordance with Clause 18:
(a) such Bank shall not thereafter be obliged to participate in any
Advances and the amount (if any) of its Commitment shall be reduced
to zero on the earliest date required by law; and
(b) if the Agent on behalf of such Bank so requires, the Borrower shall
on the earliest date required by law or, if earlier, the last day of
the current Interest Period thereof, repay such Bank's share of any
such outstanding Advances together with accrued interest thereon and
all other amounts owing to such Bank.
18. Mitigation
If circumstances arise in respect of the Agent or any Bank which would, or would
upon the giving of notice, result in:
(i) the reduction of its Commitment to zero pursuant to Clause 17;
(ii) the prepayment of its share of the Advances pursuant to Clause 17;
(iii) an increase in the amount of any payment to be made to it for its
account pursuant to Clause 13.1; or
(iv) a claim for indemnification pursuant to Clause 13.2 or 16.1
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under Clauses 13 to 17 inclusive, the Agent or such
Bank (as the case may be) shall, upon written request from the Borrower take
such steps as may be reasonable and practical in all the circumstances to
mitigate the effects of those circumstances including (without limitation)
submitting all forms required by a national taxation authority in connection
with the payment of gross sums under any applicable double tax treaty, the
transfer of its lending office to another jurisdiction or the assignment of all
its rights hereunder to and assumption of all its obligations hereunder by
another bank or financial institution acceptable to the Borrower (acting
reasonably) which is willing to participate in the Facility in its place,
provided that neither the Agent nor the Bank shall be under an obligation to
submit any such forms or to make any such transfer or assignment and transfer
if, in its reasonable opinion, it would or might have an adverse effect upon its
business, operations or financial condition or the management of its Tax
affairs.
Part 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
19. Representations
19.1 Subject to the provisions of the Disclosure Letter, the Borrower hereby
represents to each of the Beneficiaries in respect of itself and in respect of
each other Group Entity (but in relation to any such other Group Entity to the
best of the Borrower's knowledge and belief (having made all due enquiries))
and, in the case of Clauses 19.1(i) to (iv) inclusive, Clauses 19.1(ix) to (xi)
inclusive, Clause 19.1(xiii) (but only in relation to the Facility Documents),
and Clause 19.1(xvi), IFCO Europe represents in respect of itself that:
(i) it is a corporation duly incorporated, validly existing and
registered under the laws of the jurisdiction in which it is
incorporated, capable of being sued in its own right and not subject
to any immunity from any proceedings and has the power and all
necessary governmental and other material consents, approvals,
licences and authorisations under any applicable jurisdiction to own
its property and assets and to carry on its business substantially as
currently conducted;
(ii) subject to the Reservations it has the power to enter into and
perform its obligations under each of the Facility Documents to which
it is a party and has taken all necessary corporate and other action
to authorise the execution, delivery and performance of each of the
Facility Documents, to which it is a party;
(iii) (subject to the Reservations) no limit on its powers will be exceeded
as a result of the borrowings, granting of security or giving of
guarantees contemplated by the Facility Documents to which it is a
party and (subject to the Reservations) those documents constitute
its legal, valid and binding and enforceable obligations;
(iv) the execution by it of each of the Facility Documents to which it is
a party and the exercise by it of its rights and the performance of
its obligations thereunder including, without limit, borrowing
hereunder, granting any security or giving guarantees contemplated by
the Facility Documents will not (a) result in the existence or
imposition of nor oblige it or any Group Entity to create any
Encumbrance (other than any Permitted Encumbrance) in favour of any
person over all or any of its present or future revenues or assets
(b) conflict in any material respect with any agreement, mortgage,
bond or other instrument to which it is a party or which is binding
upon it or any of its assets (c) conflict with its constitutive
documents and rules and regulations or (d) (subject to the
Reservations) conflict with any existing applicable law, regulation
or official or judicial order in its jurisdiction of incorporation;
(v) no litigation, arbitration, administrative proceedings, or
governmental or regulatory investigations, proceedings or disputes
have been commenced or, to the best of its knowledge and belief
(having made all due enquiries), threatened against any Group Entity
or its respective assets or revenues nor, to its knowledge, are there
any circumstances likely to give rise to any such litigation,
arbitration, administrative
proceedings, or governmental or regulatory investigations,
proceedings or disputes which in any such case might reasonably be
expected to have a Material Adverse Effect;
(vi) neither it nor any member of the Group has any Financial
Indebtedness (other than (i) Existing Indebtedness which will be
repaid on the date on which the first Advance is made hereunder or
(ii) Permitted Indebtedness) and no Encumbrances (other than
Permitted Encumbrances) existing over all or any of its or their
present or future revenues, undertakings or assets;
(vii) to the best of its knowledge and belief (having made all due
enquiry) no Event of Default has occurred which has not been either
remedied (or otherwise ceased to be continuing) or expressly waived
in writing;
(viii) the Information Memorandum, the Business Plan and any lists or other
reports prepared by the Borrower and supplied to the Agent in
connection herewith have been prepared after due and careful
consideration and, to the best of its knowledge and belief (having
made all due enquiry)
(a) it is not aware of any material inaccuracy as to factual matters
relating to the Group in the Reports, the Information Memorandum
or the Business Plan;
(b) it does not (as at the date thereof) disagree with nor regard as
unreasonable or unattainable any of the forecasts or projections
set out in the Reports, the Information Memorandum or the
Business Plan;
(c) the assumptions upon which the forecasts and projections
contained in the Reports, the Information Memorandum and the
Business Plan are based are in its opinion (having made all
reasonable enquiries) fair and reasonable;
(d) it is not aware of any significant facts or matters not stated
in the Reports the Information Memorandum or the Business Plan,
the omission of which in its reasonable opinion might make any
statements contained therein misleading in any material respect;
and
(e) it has made full disclosure of all requested information
relevant to the preparation of the Reports and the Information
Memorandum to all the persons responsible for or involved in
preparing the Reports and the Information Memorandum;
(ix) the Original Financial Statements and the latest Financial
Statements delivered hereunder were prepared in accordance with the
Accounting Principles and give (in conjunction with the notes
thereto) a true and fair view of the financial condition of the
Group at the date as of which they were prepared and the results of
the Group's operations during the Accounting Reference Period then
ended and any other accounts delivered under this Agreement fairly
represent (or in the case of any management accounts the Borrower
believes, acting reasonably, that they fairly represent) the
financial condition of the Group at the date at which they were
prepared and the results of the Group's operations during the period
to which such accounts relate;
(x) to the best of its knowledge and belief (having made all due
enquiry) neither it nor any Group Entity, as at the date as of which
any Financial Statements were prepared, failed to disclose or
reserve against any liabilities (contingent or otherwise) material
in relation to the Group as a whole nor any material unrealised
anticipated losses of the Group (which were material to the Group as
a whole) arising from commitments entered into by it which, in
accordance with the Accounting Principles, it should have disclosed
or reserved against;
(xi) there has been no material adverse change in the financial condition
or business of the Group since 30 September 1997;
(xii) to the best of its knowledge and belief (having made all due
enquiry), (a) it is and has been in full compliance in all material
respects with all applicable Environmental Laws and (b) it has been
and is in all material respects in compliance with the terms of all
Environmental Approvals necessary for the ownership and operation of
its facilities and businesses as presently owned and operated and as
presently proposed to be owned and operated the failure to comply
with which might reasonably be expected to have a Material Adverse
Effect;
(xiii) all necessary consents to the transactions constituted by the
Investment, the Facility Documents and the Senior Facility Documents
have been obtained where failure to obtain them might reasonably be
expected to have any significant effect on the rights or
entitlements of the Beneficiaries under this Agreement or the
commercial value of the security granted pursuant to the Senior
Subordinated Security Documents;
(xiv) to the best of its knowledge and belief (and in reliance upon
information supplied by GE), all necessary consents, licences and
other things (other than any necessary corporate action on the part
of GE) have been obtained or carried out to enable GE to own
(beneficially as well as legally) up to and including 100% of the
shares in IFCO Europe;
(xv) to the best of its knowledge, information and belief the Material
Group Entities have complied in all material respects with all
Taxation laws in the jurisdiction of their incorporation and where
they carry on their business;
(xvi) the claims of the Beneficiaries against it under any of the Facility
Documents to which it is a party will rank at least pari passu with
the claims of all its other unsecured and unsubordinated creditors
save, in either case, those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation, merger or other similar laws of
general application;
(xvii) to the best of its knowledge and belief having made all due
enquiries it is not in breach of or in default under any agreement
to which it is a party or which is binding on it or any of its
assets to an extent or in a manner which might reasonably be
expected to have a Material Adverse Effect;
(xviii) it is not aware of any matter which would materially affect the
validity, subsistence or use of any of the Material Intellectual
Property;
(xix) it has and each Group Entity has good title to or valid leases or
licences of all of its assets necessary to carry on its business
as presently conducted, the absence of which might reasonably be
expected to have a Material Adverse Effect;
(xx) the Material Intellectual Property is, in the case of the
Material Intellectual Property set out in the Ninth Schedule,
owned by the Group Entity disclosed as the owner of such Material
Intellectual Property in such Schedule, and in the case of any
other Material Intellectual Property owned by the Borrower or
such other Group Entity as has been disclosed in writing to the
Agent;
(xxi) GBL has no creditors other than the Borrower and SPI and SPI is a
creditor of GBL only to the extent of that part of the purchase
price for the Patent which remains unpaid;
(xxii) there has been no significant amendment, variation or waiver of
the terms of the Investment Agreement or the Supply Agreement
save as approved in writing by the Agent and it is acknowledged
that, for the avoidance of doubt, any amendment having the effect
(in the opinion of the Banks) of reducing the extent of the
rights and obligations of either GE or General Electric Capital
Corporation under the Investment Agreement shall be considered to
be significant;
(xxiii) it is not aware that any of the representations and warranties
made in favour of General Electric Capital Corporation contained
in the Investment Agreement were incorrect or untrue in any
material respect when made;
(xxiv) all crate rental contracts entered into by the Borrower with
growers are expressly governed by German law and all arrangements
entered into by the Borrower with its subsidiaries in relation to
crates are governed by German law;
(xxv) the chart showing the structure of the Group and set out in the
Seventh Schedule is true, correct and accurate in all material
respects;
(xxvi) the Existing Indebtedness is as set out in the Eighth Schedule
and the definition of Leasing Facilities;
(xxvii) Apollo is a dormant company, has no assets and is not trading;
and
(xxviii) at the date of this Agreement, the aggregate amount of all
receivables owed to the Borrower is at least 70% of the aggregate
amount of all receivables owed to the Group.
19.2 The representations and warranties in Clause 19.1 and the Disclosure
Letter shall survive the execution hereof and the making of each Advance under
this Agreement and (save for the representation at Clause 19.1(xxviii)) shall be
repeated in the notification made by the Borrower to the Agent pursuant to
Clause 7.2 and (save for the representations contained in sub-clause (viii) of
Clause 19.1 (which shall only be repeated upon each date that any update of the
Information Memorandum is agreed with the Agent pursuant to Clause 22.10 and
then only in respect of such updated information)) on the first day of each
Interest Period and at the end of each successive period of six months ending
during an Interest Period, by reference to the facts and circumstances then
existing.
20. Financial Information
20.1 So long as any of the Beneficiaries have any amounts outstanding to them
or are under any commitment, obligation or liability (whether actual or
contingent) to make Advances or provide other financial accommodation to the
Borrower under or pursuant to this Agreement or any other Facility Document the
Borrower shall:
(i) as soon as the same become available, but in any event within 120
days after the end of each of its financial years deliver to the
Agent:
(a) the audited consolidated financial statements (including
balance sheet (Bilanz), profit and loss (Gewinn-und
Verlustrechnung) and cash flow statements (Lagebericht
including Vermogens-und Finanzlange and KapitalfluBrechnung)
of IFCO Europe for such financial year Provided that if, at any
time, the difference between the consolidated financial
statements of IFCO Europe and the consolidated financial
statements of the Group (if such had been prepared at such
time) would represent something other than solely the capital
value of IFCO Europe at such time and its investment (if any)
in MTS or if the Agent (acting reasonably) requires, the
Borrower shall provide the audited consolidated financial
statements of the Group;
(b) the unconsolidated financial statements (including balance
sheet (Bilanz) and profit and loss (Gewinn-und verlustrechung))
of each Group Entity for such financial year (which shall be
audited where such financial statements are, in accordance with
applicable law, required to be audited);
(c) a certificate from a Duly Authorised Officer of the Borrower
(confirmed by a certificate from the Auditors) setting out in
reasonable detail the Excess Cash Flow calculation for such
financial year, together with a list of the then Material Group
Entities;
(d) a compliance certificate in a form reasonably acceptable to the
Agent issued by the Auditors certifying whether or not the
financial covenants in Clause 21 have been observed, supported
by reasonably detailed calculations and confirming that VAT has
been correctly treated by the Group during the financial year
to which such certification relates (the first such compliance
certificate to be provided in relation to the audited financial
statements for the Accounting Reference Period ending 31
December 1998);
(e) a certificate of an Authorised Signatory of the Borrower
certifying that as of the date thereof and to the best of
his/her knowledge and belief (having made all due enquiry) no
Event of Default has occurred or, if it has occurred, a
description thereof and the action taken or proposed to be
taken to remedy it; and
(f) a comparison against the Budget for such period;
(ii) as soon as the same become available, but in any event within (x) in
the case of each Financial Quarter falling before the first
anniversary hereof, 60 days and (y) in any other case 45 days after
the end of each Financial Quarter deliver to the Agent:
(a) the unaudited consolidated financial statements of the Group
for such period, including consolidated balance sheet (Bilanz),
consolidated profit and loss accounts (Gewinn-und
Verlustrechnung) and cash flow statements (Lagebericht and
Vermogens-und Finanzlange including Kapitalflussrechnung), and
a report on the business comprising a consolidated statement of
the revenues and expenditures of the Group, all such financial
statements to be in a format acceptable to the Agent;
(b) a compliance certificate in a form reasonably acceptable to the
Agent given on behalf of the Borrower by a Duly Authorised
Officer certifying whether or not the financial covenants in
Clause 21 have been observed supported by reasonably detailed
calculations;
(c) a written report of a Duly Authorised Officer of the Borrower
explaining in reasonable detail any material differences
between the actual performance of the Group during such
Financial Quarter and the performance of the Group forecast in
the budget for such period and providing a forecast of the
performance of the Group for the next twelve months; and
(d) a written report of a Duly Authorised Officer of the Borrower
setting out, in reasonable detail, an analysis of the status of
the crates over the previous four Financial Quarters including
details of crate breakages and the rate of turnover per crate
(including the number of cycles per crate for such Relevant
Period).
(iii) as soon as the same become available, but in any event within (x) in
the case of each calendar month falling on or after 31 January 1998
but before the first anniversary of the date hereof, 45 days and (y)
in any other case 30 days after the end of each calendar month,
deliver to the Agent:
(a) the management accounts of the Group (on a consolidated and
unconsolidated basis) for such calendar month (on a month-to-
month and cumulative basis and in a form reasonably acceptable
to the Agent) and providing a management commentary thereon as
to, inter alia, the Group's performance during such calendar
month and any material developments or proposals affecting the
Group or its business; and
(b) a report containing sufficiently detailed information regarding
the extent (both as to volume and amount) of leasing which each
Group Entity (on a subsidiary by subsidiary basis) enters into
as principal with growers and the amount of receivables owing
to each such Group Entity; and
(iv) from time to time on the request of the Agent, furnish the Agent
with such information about the business, operations, performance,
prospects and financial condition of the Group or any Group Entity
or any other information as the Agent or any Bank through the Agent
may reasonably require, in particular all information and documents
as may be required under Sections 13, 13(a) and 18 of the German
Banking Act (Gesetz uber das Kreditwesen).
20.2 The Borrower shall, as soon as the same become available, and in any event
not later than 30 days before the beginning of any Accounting Reference Period
commencing with the financial year beginning 1 January 1999, deliver to the
Agent in sufficient copies for the Banks an annual Budget prepared by reference
to each month in respect of such financial year of the Group including:
(i) forecasts of projected disposals (including timing and amount
thereof) of the Group for such Accounting Reference Period and for
the next two succeeding Accounting Reference Periods;
(ii) projected annual profit and loss accounts for, and projected balance
sheets and cash flow statements on a monthly basis for, such
Accounting Reference Period and for the next two succeeding
Accounting Reference Periods on a consolidated basis for the Group
including a detailed working capital plan with an explanation of the
assumptions made with respect to the Group's working capital
requirements;
(iii) a qualitative analysis and commentary from the management on its
proposed activities for such Accounting Reference Period and for the
next two succeeding Accounting Reference Periods and such financial
years;
(iv) projections of Capital Expenditure; and
(v) targets for the turnover rate of the container pool and the average
annual breakage rate
and the Borrower shall forthwith provide the Agent with details of any material
changes in the projections delivered under Clause 20.2 as soon as it becomes
aware of any such change.
20.3 The Borrower shall ensure that:
(i) each set of financial statements delivered by it pursuant to Clause
20.1 and 20.2 is prepared in accordance with the Accounting
Principles and (other than changes to the basis in order to accord
with the Accounting Principles where an appropriate agreement has
been reached in accordance with Clause 20.4) on the same basis as is
used in the preparation of the Original Financial Statements
together with an appropriate reconciliation statement in relation to
financial statements not prepared in
accordance with the Accounting Principles and that each statement
in respect of the Group is prepared on a consolidated and
consolidating basis;
(ii) each set of financial statements delivered by it pursuant to Clause
20.1(i), (ii) or (iii) is certified on behalf of the Borrower by an
Authorised Signatory of the Borrower (a) (in the case of each set
of financial statements delivered by it under Clause 20.1(i)) as
giving (where such financial statements are audited) a true and
fair view of the financial condition of the Group and each Group
Entity as at the end of the period to which those financial
statements related and of the results of its operations during such
period or (where such financial statements are not audited) fairly
represent the financial condition of the Group and each Group
Entity as at the end of the period to which those financial
statements related and of the results of its operations during such
period and (b) (in the case of each set of financial statements
delivered by it under Clause 20.1(ii) and (iii)) as being (to the
best of his/her knowledge and belief) accurate in all material
respects; and
(iii) each set of financial statements delivered by it pursuant to Clause
20.1(i)(a) has been audited by the Auditors.
20.4 Without prejudice to the obligations contained in Clause 20.3(i), if any
accounts to be delivered under Clause 20.1 are prepared on a basis not
contemplated by Clause 20.3(i) or the Accounting Principles in effect on the
date as of which the Original Financial Statements were prepared (as
appropriate) change in a way that affects the financial covenants contained in
Clause 21 or the calculation of Excess Cash Flow:
(i) the Agent (acting on the instructions of an Instructing Group) and
the Borrower shall, at the Agent's request, negotiate in good faith
with a view to agreeing such amendments to the financial covenants
in Clause 21 or the calculation of Excess Cash Flow and/or the
definitions used therein as may be necessary to grant to the Banks
protection comparable to that granted on the date hereof, and any
amendments as agreed will have effect on the date agreed between
the Agent and the Borrower; and
(iii) if no such agreement is reached within 30 days of the Agent's
request, the Agent shall (if so requested by an Instructing Group)
instruct independent accountants to determine any amendments to
Clause 21 or the calculation of Excess Cash Flow which those
accountants (acting as experts and not as arbitrators) consider
appropriate to grant to the Banks protection comparable to that
granted on the date hereof, which amendments shall be binding and
shall take effect when so determined by those accountants. The
reasonable cost and expenses of those accountants shall be for the
account of the Borrower.
20.5 Each set of accounts, financial reports and other documents delivered to
the Agent under Clause 20 shall be delivered in sufficient copies for each Bank.
20.6 The Borrower shall promptly on the appointment of any replacement Auditors
execute and deliver a letter in the agreed form to authorise the Auditors to
confirm to and discuss with the Agent (upon or after the occurrence of an Event
of Default which is continuing unremedied and unwaived and having given the
Borrower an opportunity to attend such discussions) the factual accuracy of
information related to or arising out of the annual audit of the Group by the
Auditors and the due application of the Accounting Principles to the audit
process and shall procure that the Auditors acknowledge such authorisation.
Under conditions that normally apply to audits in accordance with generally
accepted audit standards, the Borrower shall provide the Auditors with
unrestricted access to all and any information available to or in the possession
of the Borrower or any other Group Entity in this regard and shall otherwise
ensure that full co-operation is afforded to the Auditors.
20.7 The Borrower hereby undertakes to provide to the Agent on a monthly basis
(in sufficient copies for the Banks) information (in such form and containing
such details as the Agent may reasonably require) regarding the installation of
information technology systems within the Group and regarding the appointment of
a Chief Operations Co-ordinator for the Group and a Financial Controller for the
Group and, in any case, to ensure that a Chief Operations Co-ordinator for the
Group and a Financial Controller of the Group (in each case acceptable to IFCO
Europe) is appointed within three months of the date hereof and to ensure that
the information technology systems are installed in a timely fashion and in
accordance with the timetable set out in the IT Schedule.
20.8 The Borrower shall supply to the Agent in sufficient copies for the
Banks:
(i) all documents despatched to the shareholders of the Borrower which
are required to be sent to such shareholders by law without their
specific request; and
(ii) all documents despatched by or on behalf of the Borrower to its
creditors generally in their capacity as such,
in all cases at the same time as such documents are despatched.
20.9 The Borrower shall provide to the Agent, in sufficient copies for the
Banks, the annual Budget for 1998 prepared by reference to each month in respect
of the financial year of the Group ending on 31 December 1998 and containing all
of the information set out in Clauses 20.2 (i) to (v) inclusive by no later than
31 March 1988.
21. Financial Condition
21.1 The Borrower shall ensure that:
(i) Senior Interest Cover Ratio
(a) the ratio of EBITA to Senior Interest Expense, calculated on an
Adjusted Rolling Basis, shall not, in respect of any Adjusted
Relevant Period ending on each Financial Quarter set out below be
less than the ratio set out below as applicable in relation to that
Financial Quarter:
Financial Quarter Ending Ratio
31 March 1998 1.7:1
30 June 1998 2.3:1
30 September 1998 2.6:1
and
(b) the ratio of EBITA to Senior Interest Expense, calculated on a
Rolling Basis, shall not in respect of any Relevant Period ending on
each Financial Quarter be less than the ratio set out below as
applicable in relation to that Financial Quarter:
Financial Quarter Ending Ratio
31 December 1998 3.0:1
31 March 1999 3.5:1
30 June 1999 4.0:1
30 September 1999 4.5:1
31 December 1999 4.7:1
30 March 2000 5:1
and
(c) the ratio of EBITA to Senior Interest Expense, calculated on a
Rolling Basis, shall not, in respect of any Relevant Period ending in
each Financial Quarter beginning after 30 March 2000 be less than
5:1;]
(ii) Total Interest Cover
(a) the ratio of EBITA to Total Interest Expense, calculated on an
Adjusted Rolling Basis, shall not, in respect of any Adjusted
Relevant Period ending on the last day of each Financial Quarter set
out below be less than the ratio set out below as applicable in
relation to that Financial Quarter:
Financial Quarter Ending Ratio
31 March 1998 1.2:1
30 June 1998 1.7:1
30 September 1998 1.9:1
and
(b) the ratio of EBITA to Total Interest Expense, calculated on a Rolling
Basis, shall not, in respect of any Relevant Period ending on the
last day of each Financial Quarter be less than the ratio set out
below as applicable in relation to that Financial Quarter:
Financial Quarter Ending Ratio
31 December 1998 2.1:1
31 March 1999 2.5:1
30 June 1999 2.8:1
30 September 1999 3:1
31 December 1999 3:1
30 March 2000 4:1
30 June 2000 4:1
30 September 2000 4:1
31 December 2000 4:1
31 March 2001 4:1
30 June 2001 4:1
30 September 2001 4:1
31 December 2001 4:1
31 March 2002 4:1
30 June 2002 4:1
30 September 2002 4:1
31 December 2002 4:1
31 March 2003 4:1
30 June 2003 4:1
30 September 2003 4:1
31 December 2003 4:1
31 March 2004 4:1
30 June 2004 4:1
30 September 2004 4:1
31 December 2004 4:1
31 March 2005 4:1
30 June 2005 4:1
30 September 2005 4:1
(iii) Total Cash Cover
(a) the ratio of Cash Flow in respect of any Adjusted Relevant Period to
Total Debt Service shall not be less than 1.1:1.
and
(b) the ratio of Cash Flow in respect of any Relevant Period to Total
Debt Service shall not be less than the amount set out below
alongside such period:
Financial Quarter Ending Ratio
31 December 1998 1.1:1
31 March 1999 1.1:1
30 June 1999 1.1:1
30 September 1999 1.1:1
31 December 1999 1.1:1
30 March 2000 1.1:1
30 June 2000 1.1:1
30 September 2000 1.1:1
31 December 2000 1.1:1
31 March 2001 1.1:1
30 June 2001 1.1:1
30 September 2001 1.1:1
31 December 2001 1.1:1
31 March 2002 1.1:1
30 June 2002 1.1:1
30 September 2002 1.1:1
31 December 2002 1.1:1
31 March 2003 1.1:1
30 June 2003 1.1:1
30 September 2003 1.1:1
31 December 2003 1.1:1
31 March 2004 1.1:1
30 June 2004 1.1:1
30 September 2004 1.1:1
31 December 2004 1.1:1
31 March 2005 1.1:1
30 June 2005 1.1:1
30 September 2005 1.1:1
(iv) Net Worth
the Net Worth of the Group shall not at any time during any period
specified below be less than the amount set out below alongside such
period:
Financial Quarter Ending Amount (DM,000,000)
31 March 1998 63.8
30 June 1998 64.4
30 September 1998 65.3
31 December 1998 66.5
31 March 1999 67.6
30 June 1999 69.0
30 September 1999 70.7
31 December 1999 72.3
30 March 2000 74.0
30 June 2000 75.0
30 September 2000 76.0
31 December 2000 77.5
31 March 2001 78.0
30 June 2001 79.0
30 September 2001 80.0
31 December 2001 80.0
31 March 2002 85.0
30 June 2002 90.0
30 September 2002 95.0
31 December 2002 100.0
31 March 2003 105.0
30 June 2003 110.0
30 September 2003 115.0
31 December 2003 120.0
31 March 2004 130.0
30 June 2004 140.0
30 September 2004 160.0
31 December 2004 170.0
31 March 2005 180.0
30 June 2005 190.0
30 September 2005 200.0
(v) Leverage
(a) the ratio of Total Debt on the last day of the Financial Quarter set
out below to Annualised Adjusted EBITDA for the Adjusted Relevant
Period shall not exceed the ratio set out below as applicable for that
Financial Quarter;
Financial Quarter Ending Ratio
31 March 1998 6.5:1
30 June 1998 5.8:1
30 September 1998 5.3:1
and
(b) subject to clause 28.2 the ratio of Total Debt on the last day of the
Financial Quarter set out below to Adjusted EBITDA for the Relevant
Period shall not exceed the ratio set out below as applicable for that
Financial Quarter;
Financial Quarter Ending Ratio
31 December 1998 5.3:1
31 March 1999 4.7:1
30 June 1999 4.4:1
30 September 1999 4:1
31 December 1999 4:1
30 March 2000 3.7:1
30 June 2000 3.5:1
30 September 2000 3.4:1
31 December 2000 3.3:1
31 March 2001 3.1:1
30 June 2001 2.7:1
30 September 2001 2.6:1
31 December 2001 2.5:1
31 March 2002 2.5:1
30 June 2002 2.5:1
30 September 2002 2.5:1
31 December 2002 2.5:1
31 March 2003 2.5:1
30 June 2003 2.5:1
30 September 2003 2.5:1
31 December 2003 2.5:1
31 March 2004 2.5:1
30 June 2004 2.5:1
30 September 2004 2.5:1
31 December 2004 2.5:1
31 March 2005 2.5:1
30 June 2005 2.5:1
30 September 2005 2.5:1
21. If either:
(a) at the end of any Financial Quarter referred to below the number of
CrateTurns Per Year calculated on a Rolling Basis exceeds, by ten per
cent or more, the figure set out for such Financial Quarter in the
Business Plan; or
(b) at the end of any Financial Quarter referred to below, the Breakage
Rate set out in the Business Plan exceeds the actual Breakage Rate by
ten per cent or more (calculated on a Rolling Basis), for such
Financial Quarter;
and, in either case,
(c) Adjusted EBITDA for the Relevant Period is greater than ten per cent
of the Adjusted EBITDA for such Relevant Period set out in the
Business Plan,
then the ratio for the relevant Financial Quarter set out in Clause 21.1(v)(b)
shall be adjusted so that the Borrower shall ensure that the ratio of Total Debt
on the last day of the Financial Quarter set out below during which the
conditions set out above have been met shall not exceed the ratio set out below
as applicable thereto:
Financial Quarter Ending Ratio
30 June 1999 4.6:1
30 September 1999 4.5:1
31 December 1999 4.3:1
30 March 2000 4.0:1
30 June 2000 3.7:1
30 September 2000 3.5:1
21.3 (i) The covenants contained in Clauses 21.1(i), (ii), (iii) and (v) will
be tested as of the dates specified in those Clauses, by reference to
the quarterly accounts delivered pursuant to Clause 20.1(ii) and by
reference to the audited accounts delivered pursuant to Clause
20.1(i).
(ii) The covenant contained in Clause 21.1(iv) shall be complied with at
all times and for this purpose Net Worth shall be subject to
adjustment on a continuing basis by any losses or profits demonstrated
by the monthly accounts delivered pursuant to Clause 20.1(iii), the
quarterly accounts delivered pursuant to Clause 21.1(ii) and the
audited accounts delivered pursuant to Clause 20.1(i).
21.4 If, at any time the covenants contained in Clauses 21.1 are breached, the
Borrower shall ensure that no Capital Expenditure shall be made by any member of
the Group for so long as the covenants contained in those clauses (or any of
them) are not met and the Borrower shall provide a proposal to remedy such
breach in form and substance satisfactory to an Instructing Group.
21.5 The expressions used in Clause 20, this Clause 21 and in the definition of
Excess Cash Flow shall, subject as provided herein, be calculated by reference
to the Group and be construed in accordance with the Accounting Principles but
so that the capitalised terms used in such Clauses and in such definitions
shall, for the purposes of those Clauses and definitions have the following
meanings:
(i) "Adjusted EBITDA" means, in relation to any Relevant Period (or,
where appropriate, Adjusted Relevant Period), EBITDA for such period
plus the amount of rentals under Finance Leases during such Relevant
Period less any Replacement Capital Expenditure made in that period;
(ii) "Adjusted Relevant Period" means, (a) in respect of the First
Financial Quarter ending in 1998, such Financial Quarter, (b) in
respect of the Second Financial Quarter ending in 1998, the period
from 1 January 1998 to 30 June 1998 and (c) in respect of the third
Financial Quarter ending in 1998, the period from 1 January 1998 to
30 September 1998;
(iii) "Adjusted Rolling Basis" refers to any calculation of a ratio or an
amount made at the end of a Financial Quarter in respect of that
Financial Quarter, or, where the relevant Financial Quarter is not
the first Financial Quarter of 1998:
(a) where the calculation is made in relation to the second
Financial Quarter of 1998, that Financial Quarter and the
previous Financial Quarter; and
(b) where the calculation is made in relation to the third
Financial Quarter of 1998, that Financial Quarter and the
previous two Financial Quarters;
(iv) "Annualised Adjusted EBITDA" means:
(a) in relation to the Financial Quarter ending on 31 March 1998,
Adjusted EBITDA for such period multiplied by four;
(b) in relation to the Financial Quarter ending on 30 June 1998,
the sum of Adjusted EBITDA for such period divided by two and
multiplied by four; and
(c) in relation to the Financial Quarter ending on 30 September
1998, the sum of Adjusted EBITDA for such period divided by
three and multiplied by four;
(v) "Breakage Rate" means, in respect of any Relevant Period, the
average number of crates which have been leased by any Group Entity
to growers which are broken during a crate cycle expressed as a
percentage of the number of completed crate cycles during such
Relevant Period;
(vi) "Capital Expenditure" means, in respect of any Relevant Period (or,
where appropriate, Adjusted Relevant Period), Replacement Capital
Expenditure, Growth Capital Expenditure and any other capital
expenditure;
(vii) "Cash Flow" means, in respect of any Relevant Period or, where
applicable, any Adjusted Relevant Period, EBITDA for such period
adjusted as follows:
(a) deducting taxes paid during the relevant Accounting Reference
Period;
(b) deducting increases (or adding decreases) in Working Capital
over the relevant Accounting Reference Period;
(c) deducting Capital Expenditure;
(d) deducting the actual cash effect of extraordinary charges and
adding the actual cash effect of extraordinary income under
the Accounting Principles during the relevant Account
Reference Period;
(e) deducting the actual cash effect of currency losses and adding
the actual cash effect of currency gains during the relevant
Accounting Reference Period;
(f) adding the actual cash effect of disposals (deducting any
profit element and/or adding any loss made on) of any asset
made during the relevant Accounting Reference Period permitted
hereunder; and
(f) plus any net increase or minus any net decrease in the capital
element of any Permitted External Leasing entered into during
such Accounting Reference Period;
(viii) "Crate Turns Per Year" means, in respect of any Relevant Period,
the average number of income generating completed crate cycles made
by all crates owned by or leased to all Group Entities during such
Relevant Period;
(ix) "Current Assets" means at any time the sum of Inventory, trade
receivables, receivables from affiliates and other receivables,
marketable securities and prepaid expenses, in each case as set out
in sections 266(2)B and C of the Commercial Code (HGB), but
excluding cash at bank and in hand;
(x) "EBIT" means for any Relevant Period (or, where appropriate,
Adjusted Relevant Period), the consolidated earnings of the Group
for such Relevant Period (or, where appropriate, Adjusted Relevant
Period) before (or, if already taken into account in calculating
the consolidated earnings of the Group, after adding back):
(a) any expense or income on account of income taxes and deferred
taxation;
(b) any interest (excluding the amount of rentals under Finance
Leases), commissions, discounts and other fees incurred by any
Group Entity in respect
of Financial Indebtedness and of the costs relating to hedging
permitted under the Permitted Treasury Transactions;
(c) any interest earned by any Group Entity; and
(d) items treated as extraordinary income or charges under the
Accounting Principles;
(xi) "EBITA" means, in respect of any Relevant Period (or, where
appropriate, Adjusted Relevant Period), EBIT for such Relevant
Period (or, where appropriate, Adjusted Relevant Period) plus
amortisation;
(xii) "EBITDA" means in respect of any Relevant Period (or, where
appropriate, Adjusted Relevant Period), EBIT for such Relevant
Period (or, where appropriate, Adjusted Relevant Period) plus
depreciation and amortisation;
(xiii) "Financial Quarter" means each of those periods of approximately
three calendar months in any financial year of the Group ending on
any Quarter Date;
(xiv) "Growth Capital Expenditure" means, in respect of any Relevant
Period (or, where appropriate, Adjusted Relevant Period),
expenditure by a Group Entity in financing the purchase of crates
which results in an increase in the number of crates owned by or
leased to the Group;
(xv) "Liabilities" means at any time the sum of all liabilities
(including trade creditors, accruals, amounts payable to affiliates
and pension provisions and other provisions and liabilities
(including, for the avoidance of doubt, any provisions made in
respect of amounts representing deposits for crate rentals which
are expected to be returned) and excluding any Financial
Indebtedness) and prepayments and deferred income;
(xvi) "Net Worth" means the equity of the Borrower (including its
subscribed capital, capital reserves, earnings reserves, profit or
loss carried forward and annual surplus or deficit) in each case as
set out in section 266(3)A of the Commercial Code (HGB) and as
shown in the Borrower's consolidated balance sheet:
(a) less any dividend or other distribution declared, recommended
or made by any Group Entity to the extent such distribution is
not provided for in such accounts;
(b) less the cumulative amount of any writing up of the book value
of any assets of any Group Entity;
(c) less or plus (as the case may be) any amount attributable to
minority interests;
(d) not making any adjustments for any amounts positive or
negative attributable to goodwill or amortisation;
(xvii) "Relevant Period" means the period of four Financial Quarters
ending on the date on
which the relevant calculation falls to be made;
(xviii) "Replacement Capital Expenditure" means, in respect of any
Relevant Period, expenditure by a Group Entity on the improvement
or replacement of crates (together with costs properly incurred
in connection therewith) (which are necessary in order to
maintain the total number of crates within the Group);
(xix) "Rolling Basis" refers to the calculation of a ratio or an amount
made at the end of a Financial Quarter in respect of that
Financial Quarter and the preceding three Financial Quarters;
(xx) "Senior Interest Expense" means, in respect of any Relevant
Period, Total Interest Expense less such part of Total Interest
Expense as is incurred in connection with the Senior Subordinated
Facility Documents plus amounts paid and/or costs charged during
----
the Relevant Period (or, where appropriate, Adjusted Relevant
Period) relating to hedging arrangements entered into in
connection with the obligations under the Facility Documents;
(xxi) "Total Debt" means, at any time, the aggregate of all Financial
Indebtedness of the Group Entities at such time incurred under or
pursuant to this Agreement, the Senior Facility Agreement or any
Permitted External Leasing;
(xxii) "Total Debt Service" means in respect of any Relevant Period (or,
where appropriate, Adjusted Relevant Period), the aggregate of:
(a) Total Interest Expense (excluding capitalised interest); and
(b) the aggregate of the scheduled repayments, prepayments or
other payments of principal hereunder; and
(c) any dividends on shares or similar payments made to
warrantholders by the Borrower (which for the avoidance of
doubt, is prohibited pursuant to Clause 22); and
(xxiii) "Total Interest Expense" means in respect of any Relevant Period
(or, where appropriate, Adjusted Relevant Period), the aggregate
(on a consolidated basis) of all interest, commission, fees and
other charges incurred by all Group Entities in respect of
Financial Indebtedness (other than Financial Indebtedness
incurred pursuant to Permitted Leasing facilities and Financial
Indebtedness incurred pursuant to Permitted Factoring) accruing
or paid in the Relevant Period or Adjusted Relevant Period (as
appropriate):
(a) less amounts received pursuant to interest hedging
arrangements entered into in connection with the obligations
under the Facility Documents and permitted as Permitted
Treasury Transactions; and
(b) plus amounts paid and/or costs charged during the relevant
period relating to hedging arrangements entered into in
connection with the obligations under
the Facility Documents,
(xxiv) "Working Capital" means on any date:
(a) Current Assets of the Group; less
(b) Liabilities of the Group.
22. Covenants
22.1 The Borrower and (in the case of Clauses 22.1(i), (ii), (v), (xiv), (xvii)
and (xviii) only) IFCO Europe shall itself and (in the case of the Borrower)
shall (to the extent legally possible) procure that each Group Entity shall
(except as may be otherwise agreed in writing by an Instructing Group):
(i) do all such things as are necessary to maintain its existence as a
legal person save for ceasing to exist by virtue of a solvent
reorganisation which has previously been consented to by the Agent
and the Banks;
(ii) obtain, comply with the terms of, promptly renew from time to time
and do all that is necessary to maintain in full force and effect
all authorisations, approvals, licences, consents and exemptions
available and required under or by any applicable law or regulation
to enable it to lawfully enter into and perform its obligations
under the Facility Documents to which it is expressed to be party
or, so far as it is possible to do so, to ensure the legality,
validity or admissibility in evidence of such Facility Documents
and, on request of the Agent, supply copies (certified by a director
of the Borrower, IFCO Europe or relevant Group Entity (as
appropriate) as true, complete and up to date), of any such
authorisations, approvals, licences, consents and exemptions;
(iii) effect and maintain insurances on and in relation to its business,
assets and rights of an insurable nature (against loss or damage by
fire, storm, explosion and other consequential losses) and in
relation to product and third party liability and for such amounts
as a reasonably prudent person carrying on a similar business to
that Group Entity might be expected to maintain and as may from time
to time be required by the Agent (acting reasonably). The relevant
Group Entity shall (if so requested in writing) supply the Agent
with copies of all such insurance policies or certificates of
insurance in respect thereof or such other evidence of the existence
of such policies as may be reasonably acceptable to the Agent and
shall, in any event, notify the Agent of any material changes to its
insurance cover made from time to time. The Borrower shall certify
(by way of a Certificate from a Duly Authorised Officer) within 30
days of the end of each Accounting Reference Period that all
insurance premiums for the Group have been paid in respect of such
Accounting Reference Period and that all insurances for the Group
are up to date;
(iv) promptly inform the Agent of the occurrence of any Event of Default
or Potential Event of Default upon becoming aware of the same and,
upon receipt of a written request to that effect from the Agent,
confirm to the Agent that, save as previously notified to the Agent
or as notified in such confirmation, no Event of Default or
Potential Event of Default has occurred and is continuing;
(v) ensure that, to the extent such action is legally possible, at all
times the claims of the Beneficiaries against it under any of the
Facility Documents to which it is expressed to be a party rank at
least pari passu with the claims of all its other unsecured and
unsubordinated creditors save, in each case, those whose claims are
preferred by any bankruptcy, insolvency, liquidation or other
similar laws of general application;
(vi) comply with all applicable laws, rules, regulations and orders and
obtain and maintain all governmental and regulatory consents and
approvals the failure to comply with which might reasonably be
expected to have a Material Adverse Effect;
(vii) ensure that it has the right and is duly qualified to conduct its
business as it is conducted from time to time in all applicable
jurisdictions and does all things necessary to obtain, preserve and
keep in full force and effect all rights including, without
limitation, all rights which are necessary for the conduct of its
business, the absence of which might reasonably be expected to have
a Material Adverse Effect;
(viii) duly and punctually pay and discharge (a) prior to the imposition of
any material penalties in respect thereof, all Taxes, assessments
and governmental charges imposed upon it or its assets and (b) all
lawful claims which, if unpaid, would by law become Encumbrances
upon its assets save to the extent payment thereof is being
contested in good faith by the relevant Group Entity and where
payment thereof can be lawfully withheld;
(ix) maintain and preserve all of its assets that are used or useful in
the conduct of its business in good working order and condition,
ordinary wear and tear excepted, where the failure to maintain or
preserve might reasonably be expected to have a Material Adverse
Effect;
(x) comply with all Environmental Laws and maintain and comply with the
terms and conditions of all Environmental Approvals, in each case as
may be necessary for the conduct of its business, the failure to
comply with which might reasonably be expected to have a Material
Adverse Effect;
(xi) maintain and preserve all of the Material Intellectual Property and
use reasonable endeavours to maintain and preserve all other
Intellectual Property which a prudent person carrying on a similar
business to the Group would use;
(xii) procure that the Material Intellectual Property is registered with
all appropriate registries and authorities (including, in the case
of any patents) at the European and International Patent offices or
other appropriate local registries in the name of the owner of such
intellectual property and, in particular but without limiting the
generality of the foregoing, the Borrower shall, within four weeks
of the date of this Agreement, submit all applications for
registration and other documents or forms necessary to ensure that
the Patent is registered in the name of GBL at Patent Offices in
Germany, Austria, France, Switzerland, Denmark, Spain, the United
Kingdom and Italy (and shall provide the Agent with confirmation
of the submission of such applications and shall not withdraw any
such applications) and shall do all things necessary, recommended
or required (including, without limitation, co-operating to the
fullest extent possible with such patent offices, answering all
requisitions, paying all fees and submitting all documents
required or requested) to ensure that the registrations are
completed in a timely fashion and shall maintain or procure the
maintenance of all such registrations and pay all fees and do all
such other things as may be required to ensure the protection of
such registrations;
(xiii) promptly notify the Agent upon the creation or acquisition of
Material Intellectual Property and, at the request of the Agent,
grant security in favour of the Security Trustee over all such
Material Intellectual Property;
(xiv) at its own expense, take all such action as the Agent, or the
Security Trustee, may require for the purpose of perfecting or
protecting the Agent's and the pledgees' or Security Trustee's
rights under and preserving the security interests intended to be
created by any of the Facility Documents or for facilitating the
realisation of any such security or any part thereof;
(xv) advise the Agent forthwith of the details of each litigation,
arbitration or administrative proceeding pending or (to its
knowledge) threatened against any Group Entity which may (together
with any legal or other costs in connection therewith) result in a
liability of such Group Entity in an amount in excess of
DM1,000,000 or its equivalent;
(xvi) ensure that any one or more authorised representatives of the
Agent will be allowed to have access to the assets, books and
records of each Group Entity and to inspect the same at any time
upon or after the occurrence of an Event of Default which is
continuing unremedied and unwaived on the giving of reasonable
notice;
(xvii) to the extent legally possible and as required by the Agent
(acting on the instructions of an Instructing Group) and at the
Borrower's expense (which, for the avoidance of doubt, may include
the cost of obtaining legal opinions regarding such security in
accordance with the requirements of the Agent or the terms of any
Facility Document) from time to time (and, in the case of any
shares in MTS, within five business days of acquiring the same
(unless otherwise such requirement is waived by the Agent acting
on the instructions of an Instructing Group)), create or procure
the creation of such security over the shares or assets of MTS or
any Group Entity in favour of the Beneficiaries where such company
becomes a Group Entity or where it becomes necessary to replace
any security which secured all or any of the obligations of the
Borrower under the Facility Documents which has lapsed or become
unenforceable;
(xviii) at its own expense, take all such action as the Agent or the
Security Trustee (each acting on the instructions of an
Instructing Group) may reasonably require for the purpose of
perfecting or protecting the Beneficiaries' rights under, and
preserving the
security interests intended to be created by, any of this
Agreement and the Senior Subordinated Security Documents
(including, where necessary, the provision of security over the
shares of IFCO Contenedores S.A. or other Group Entities to secure
the obligations of the Borrower under any Hedging Agreements not
otherwise secured) or for facilitating the realisation of any such
security or any part thereof Provided that this does not restrict
the ability of the Borrower or any member of the Group to conduct
its business or assets so pledged prior to an Event of Default in
the ordinary course of business;
(xix) where any report provided pursuant to Clause 20.1(iii)(b) shows
that the amount of receivables owing to the Borrower are less than
70% of all receivables owing to the Group, provide or procure the
provision to the Security Trustee on behalf of all the
Beneficiaries at the Borrower's expense (which, for the avoidance
of doubt, may include the cost of obtaining any legal opinions
required by the Agent or pursuant to the Finance Documents) such
additional security (including security over the receivables or
other assets of individual Group Entities) as the Agent may
specify;
(xx) ensure adequate contributions are made to pension schemes in
respect of employees of the Group where such pension schemes are
required in the Relevant Jurisdiction of such Group Entity; and
(xxi) promptly notify the Agent of any termination before the end of its
usual contractual term of the Supply Agreement or any material
adverse change to the Supply Agreement.
22.2 The Borrower shall not and shall procure that no Group Entity shall,
without the prior written consent of an Instructing Group (and, in the case of
Clauses 22.2(iv) and 22.2(v) only, IFCO Europe shall procure that the Borrower
shall not, without the prior written consent of an Instructing Group):
(i) create (or agree to create) or permit to subsist any Encumbrance
over all or any of its present or future revenues or assets or
undertaking other than a Permitted Encumbrance;
(ii) save for Permitted Transactions and Permitted Loans, make or
provide any loans or give any guarantees or grant any credit or
other financial accommodation to or for the benefit of any person
(or agree so to do) whether or not such person is a Group Entity
other than (a) trade credit granted in the ordinary course of
trading provided that such trade credit is on arm's-length terms
and upon terms usual for such trade or (b) loans made to IFCO
Europe Provided that the amount of such loans does not exceed, in
aggregate DM500,000 (or its equivalent);
(iii) incur, create or permit to subsist or have outstanding any
Financial Indebtedness other than Permitted Indebtedness;
(iv) pay, make or declare any dividend, return on capital, repayment of
capital contributions or other distribution or make any
distribution of assets or any payment in respect of interest or
principal or other payment whatsoever whether directly or
indirectly to any warrantholder;
(v) agree any amendment to or variation of any document delivered to
the Agent pursuant to Clause 4 or waive any right thereunder nor
alter any rights attaching to the authorised and issued share
capital of any Group Entity which, in any such case, (in the
opinion of the Banks) might reasonably be expected materially and
adversely to affect the interests of the Banks (for avoidance of
doubt, nothing in this Clause 22.2 (v) shall prevent GE or General
Electric Capital Corporation from exercising any of its rights to
increase its shareholding in IFCO Europe under the Investment
Agreement in accordance with its terms);
(vi) enter into any receivables purchase, factoring or discounting
arrangements other than Permitted Factoring;
(vii) enter into any Treasury Transactions other than Permitted Treasury
Transactions;
(viii) incur any Replacement Capital Expenditure other than Permitted
Expenditure;
(ix) enter into any Finance Leases with any Non-Group Entity other than
Permitted External Leasing.
22.3 The Borrower undertakes that it shall itself and shall procure that each
Group Entity shall ensure that without prejudice to any other restriction
contained in any of the Facility Documents and save as permitted by an
Instructing Group:
(i) no account of any Non-Group Entity shall be included in any profit
and loss pooling arrangements (Ergebnisabfuhrungs-und
Beherrschungsvertag) or arrangements whereby credit or debit
balances on accounts of one or more Group Entity may be netted
against debit or credit balances on accounts in the name of other
Group Entities;
(ii) no payment of principal or interest, charges, fees or other amounts
on any loan or other financial accommodation made by any Non-Group
Entity to any Group Entity shall be made other than such payments
made in relation to Permitted Indebtedness Provided that, for the
avoidance of doubt, payments of trade credit otherwise permitted
hereunder by any Group Entity to Schoeller Plast Industries GmbH
made pursuant to any arrangements for deferred payment or any such
payments where the proceeds of such payment are immediately used
(directly or indirectly) in the repayment of Existing Indebtedness
which is required to be repaid pursuant to this Agreement may be
made;
(iii) all arrangements made by any Group Entity with any other person
(whether or not such person is a Group Entity) shall be on arm's
length terms (and the Auditors shall confirm to the Agent annually
that any such arrangements made during the year to which the
relevant confirmation relates were made on arm's length terms).
22.4 (i) The Borrower shall, within ninety (90) days of the date hereof
enter into the Treasury Transactions envisaged by the Hedging
Strategy Letter.
(ii) The Borrower agrees and each Hedge Counterparty agrees that:
(a) any Hedging Agreement to which it is at any time party
governing the terms of a hedging transaction will be in the
form of either the German Framework Contract for Financial
Markets (Rahmenvertrag fur Finanztermingeschafte) or the ISDA
1992 Master Agreement and will provide for "two way payments"
in the event of a termination of that hedging transaction
entered into under such Hedging Agreement whether upon a
termination event or an Event of Default (as defined herein),
meaning that the defaulting party under that Hedging Agreement
will be entitled to receive payment under the relevant
termination provisions if the net replacement value of all
terminated transactions effected under that Hedging Agreement
is in its favour;
(b) if on termination of any hedging transaction under any Hedging
Agreement to which it is party a settlement amount or other
amount falls due from the Hedge Counterparty to the Borrower
then, if the security constituted by the Senior Subordinated
Security Documents has become enforceable, that amount shall be
paid by such Hedge Counterparty to the Security Trustee and
treated as proceeds of enforcement of the security conferred by
the Senior Subordinated Security Documents for application in
the order prescribed in the Security Trust Agreement and
Intercreditor Agreement;
(c) until service of a notice by the Agent under Clause 30.1, no
Hedge Counterparty will exercise any right it might otherwise
have pursuant to any Hedging Agreement to terminate any hedging
transactions under such Hedging Agreement or to refuse to make
any payment due from it thereunder; and
(d) each Hedge Counterparty shall, promptly after the Agent has
served a notice under Clause 23.1, exercise any and all rights
it may have to terminate the hedging transactions under each
Hedging Agreement to which it is party, unless the Agent
(acting on the instructions of an Instructing Group) otherwise
agrees or requires.
22.5 The Borrower shall give the Agent not less than 25 business days' prior
written notice of the intention of it or of its subsidiaries to:
(i) change its accounting reference date or financial year end;
(ii) pay, make or declare any dividend, return on capital, repayment of
capital contributions or other distribution or make any
distribution of assets or any payment in respect of interest or
principal or other payment whatsoever (each such payment referred
to herein as a "distribution") whether directly or indirectly to
any shareholder save for Permitted Transactions or otherwise where
the proceeds of such distribution are to be immediately utilised in
the repayment of Existing Indebtedness which is intended to be
repaid pursuant to the terms hereof or a prepayment hereunder;
(iii) (a) issue or redeem or repurchase, purchase, defease or retire any
shares other than pursuant to any Flotation of such shares or (b)
alter any rights attaching to its issued shares in existence
(including preference shares) at the date hereof which would
increase amounts payable in respect of those shares or materially
adversely affect the rights and interests of the Beneficiaries;
(iv) dispose of, by one or more transactions or series of transactions
(whether related or not and whether involuntarily or voluntarily),
the whole or any part of or any interest in its revenues, assets,
business or undertaking other than Permitted Disposals;
(v) make any material changes to the general nature of the business of
the Borrower or the Group on the date hereof, or carry on any other
business which results in any change to the nature of such
business.
22.6 The Agent shall be entitled within 10 business days of receipt of the
Borrower's notice under Clause 22.5 to request the Borrower to supply to the
Agent in sufficient copies for the Banks any relevant information in connection
with the proposed action or steps referred to in such notice.
22.7 The Agent shall notify the Borrower, within 10 business days of receipt of
the Borrower's notice under Clause 22.5, or if additional information has been
requested by the Agent within the prescribed time, within 10 business days of
receipt of such information, whether the proposed action or steps under Clause
22.5 is or is, in the reasonable opinion of the Agent, acting on the
instructions of an Instructing Group, likely to have a Material Adverse Effect.
22.8 If the proposed action or steps under Clause 22.5 is so considered by the
Agent to have a Material Adverse Effect and the relevant member of the Group
nevertheless takes such action or steps under Clause 22.5, the Agent shall be
entitled to make (and, if so instructed by an Instructing Group, shall make) the
declaration, request and/or instruction set out in Clause 23.1 and call for
repayment of the Advances and exercise the other rights in accordance with
Clause 23.2.
22.9 IFCO Europe hereby undertakes that it shall procure that so long as any
amount remains outstanding under any of the Facility Documents or the Senior
Facility Documents, MTS shall not utilise any Intellectual Property or other
property or assets owned, leased, licensed or otherwise made available to any
Group Entity.
22.10 The Borrower hereby undertakes to provide the Agent and the Arranger with
any information or other assistance they may require in updating the Information
Memorandum with a view to undertaking a Syndication of the Facility.
22.11 The Borrower shall, promptly upon becoming aware of the same, notify the
Agent (and provide the Agent with reasonable details) of any claims which are
made or any breach alleged pursuant to or in respect of any warranties and
indemnities contained in the Investment Agreement where the potential claim
exceeds DM1,000,000 (or its equivalent).
22.12 The Borrower shall not and shall procure that no Group Entity shall,
except with the prior written consent of the Banks:
(i) (a) purchase, subscribe for or otherwise acquire any shares (or
other securities or any
interest therein) in, or incorporate, any other company or agree to
do any of the foregoing, (b) purchase or otherwise acquire any
assets (other than in the ordinary course of trading) or revenues
or (without limitation to any of the foregoing) acquire any
business or interest therein or (c) form or enter into any
partnership, consortium, joint venture or other like arrangement or
agree to do so; or
(ii) enter into any merger or consolidation with any other person other
than as permitted pursuant to Clause 22.12(i),
and it is hereby acknowledged and agreed that where the Borrower makes any
request for consent pursuant to this Clause 22.12, the Banks and the Borrower
shall consult in good faith.
22.13 The Borrower shall procure that any Encumbrance created pursuant to the
agreement dated 4 July/12 July 1996 between the Borrower and Rewe-Zentral AG,
Koln, Cologne is released or discharged on or before the date falling six months
after the date hereof and that all assets subject to such Encumbrances are,
forthwith upon their release from such Encumbrance, secured in favour of the
Beneficiaries to the satisfaction of the Agent.
22.14 The Borrower shall ensure that any member of the Group which has any
interest in any crates or in any leasing or ancillary transactions relating to
crates shall provide effective security over such interest in favour of the
Security Trustee to the satisfaction of the Agent and shall notify the Agent
forthwith upon taking delivery of any New Crates or purchasing any crates from
any lessors (such notification to contain details as to the number, type and
identification of such crates or any other information the Agent may reasonably
require).
22.15 IFCO Europe shall procure that at least DM1,000,000 of additional capital
is invested by way of equity into the Borrower no later than 31 March 1998.
22.16 The Borrower shall procure that the only creditors of GBL remain, at all
times, the Borrower and SPI and, in the case of SPI, such company is a creditor
of GBL only to the extent of that part of the purchase price for the Patent
which remains unpaid at such time.
22.17 The Borrower shall provide security, in form and substance satisfactory to
the Security Trustee over any shares acquired by it in Gelog AG after the date
hereof and shall procure that any shares acquired by any of the directors of
Gelog AG are so secured in favour of the Security Trustee.
23. Events of Default
23.1 If:
(i) the Borrower fails to pay any sum due from it under this Agreement
at the time (or within three business days of the due date for
payments therefor where such failure is due to a technical or
administrative difficulty in payment of funds) and in the manner
specified therein; or
(ii) any representation, warranty or statement made or repeated by
either the Borrower, IFCO Europe or any other person granting
security pursuant to the Facility Documents in any of the Facility
Documents to which it is a party or in any notice or other
document, certificate or statement delivered by it pursuant thereto
or in connection therewith is or proves to have been incorrect or
misleading in any material respect when made or repeated and it is
not remedied (if capable of being remedied) within 10 business days
of the earlier of the Borrower's knowledge that such
representation, warranty or statement was inaccurate or notice
thereof to the Borrower by the Agent; or
(iii) the Borrower fails to perform or comply with any of the obligations
expressed to be assumed by it in Clause 21; or
(iv) either the Borrower, IFCO Europe or any other person granting
security pursuant to the Facility Documents fails duly to perform
or comply with any other obligation expressed to be assumed by it
in any of the Facility Documents to which it is a party and such
failure is not remedied (if capable of being remedied) within 10
business days of the earlier of the Borrower's knowledge of such
failure or notice thereof to the Borrower by the Agent; or
(v) at any time the Borrower, IFCO Europe or any other person granting
security pursuant to the Facility Documents no longer has the legal
power to perform its obligations under the Facility Documents to
which it is a party or to own its assets or to carry on its
business substantially as presently conducted or at any time it is
or becomes unlawful for either the Borrower, IFCO Europe or any
other person granting security pursuant to the Facility Documents
to conform or comply with any or all of its obligations under any
Facility Document to which it is a party or any of the obligations
of either of the Borrower, IFCO Europe or any other person granting
security pursuant to the Facility Documents thereunder are not or
cease to be legal, valid and binding and enforceable; or
(vi) any Financial Indebtedness (not being Financial Indebtedness owed
solely by one Group Entity to another Group Entity) of IFCO Europe
or any Group Entity or Group Entities in an amount in aggregate
exceeding DM5,000,000 or its equivalent is not paid when due (or
within any grace period originally provided), or is declared to be
or otherwise becomes due and payable prior to its specified
maturity or any creditor or creditors of IFCO Europe or any Group
Entity or Group Entities become entitled to declare any such
Financial Indebtedness due and payable prior to its specified
maturity; or
(vii) any Material Group Entity shall cease or suspend or threaten to
cease or suspend all or a material part of its operations or
business; or
(viii) any Material Group Entity or IFCO Europe ceases or suspends
generally payment of its debts or announces an intention so to do
or is (or is deemed for the purposes of any law applicable to it to
be) unable to pay its debts as they fall due, commences
negotiations with any one or more of its creditors with a view to a
general readjustment or rescheduling of its indebtedness or makes a
general assignment for the benefit of or a composition with its
creditors or a moratorium is declared in respect of any of the
indebtedness of any Material Group Entity; or
(ix) any Material Group Entity takes any corporate action or legal
proceedings (which proceedings are not discharged of within 14 days
provided such proceedings are contested in good faith) are started
for its winding-up, dissolution or administration (or its
equivalent in any other applicable jurisdiction) (other than
pursuant to a solvent reorganisation previously approved in writing
by an Instructing Group) or for the appointment of a liquidator,
receiver, administrator, administrative receiver, trustee or
similar officer of it or of any or all of its revenues and assets
or any application is made or petition is lodged for the making of
an administration order in relation to any Material Group Entity
and not discharged within 14 days (provided such proceedings are
contested in good faith) or any analogous proceedings shall be
commenced against any Material Group Entity under the laws of any
jurisdiction; or
(x) any execution or distress is levied against, or encumbrancer takes
possession of the whole or any part of, the property, undertaking
or assets of any Material Group Entity or any analogous proceedings
shall be commenced against any Material Group Entity under the laws
of any jurisdiction and not discharged within 14 days provided such
proceedings are contested in good faith where such execution or
distress has a Material Adverse Effect; or
(xi) any event occurs or proceedings are taken with respect to any
Material Group Entity in any jurisdiction to which it is subject or
in which it has assets which has an effect similar to or equivalent
to any one of the events mentioned in sub-clauses (viii) to (x)
inclusive to this Clause 23.1; or
(xii) the security created by any Encumbrance created by any Material
Group Entity becomes enforceable and any steps are taken by the
beneficiary of such Encumbrance to enforce the same; or
(xiii) all or a majority of the issued shares of any Material Group Entity
or the whole or any part (not being a wholly immaterial part) of
its revenues or assets is seized, nationalised, expropriated or
compulsorily acquired; or
(xiv) GE ceases to hold at least 24% of the shares of IFCO Europe or, at
any time, the level of control which GE holds in IFCO Europe is
decreased or the shareholding which it holds in IFCO Europe at such
time is decreased (other than where there is a dilution in the
shareholding which GE has in IFCO Europe at any time which is less
than five per cent of the total share capital issued by IFCO Europe
at such time and (a) GE continues to hold at least 20% of the
shares of IFCO Europe; (b) such dilution (in the opinion of an
Instructing Group) does not reduce GE's rights and obligations
under the Investment Agreement; (c) none of the obligations of any
person under any of the Facility Documents would be affected by
such dilution; (d) no previous dilution in GE's investment in IFCO
Europe has occurred; and (e) the Borrower has given to the Agent at
least ten business days' prior notice of such dilution and the
Agent (acting on the instructions of an Instructing Group (acting
reasonably)) has not informed the Borrower that it does not agree
to such dilution; or
(xv) GE ceases to be a wholly-owned subsidiary of General Electric
Capital Corporation; or
(xvi) the Borrower is no longer a wholly-owned subsidiary of IFCO Europe;
or
(xvii) any Facility Document or the security intended to be constituted by
any of the Facility Documents is repudiated or the validity or
applicability thereof to any sums due or to become due thereunder
is disaffirmed by or on behalf of any party thereto; or
(xviii) the Borrower's auditors qualify their annual audited report to the
consolidated accounts of the Group in a manner which is, in the
reasonable opinion of an Instructing Group, material in the context
of the Facility; or
(xix) any Group Entity breaches any Environmental Law or any
Environmental Claim is made or threatened against any Group Entity
which, in either case, might reasonably be expected to have a
Material Adverse Effect; or
(xx) any litigation, arbitration, administrative proceedings or
governmental or regulatory investigations, proceedings or disputes
are commenced or threatened against any Group Entity or its
respective assets or revenues or there are any circumstances likely
to give rise to any such litigation, arbitration, administrative
proceedings or governmental or regulatory investigations,
proceedings or disputes which is likely to be adversely determined
and, if adversely determined, would be reasonably likely to have a
Material Adverse Effect; or
(xxi) any circumstances occur or exist which (in the reasonable opinion
of an Instructing Group) have a Material Adverse Effect; or
(xxii) any of the pledges over the shares or other security over MTS or
any Group Entity forming part of the Senior Subordinated Security
Documents ceases to be legal, valid and binding and this has not
been remedied to the satisfaction of an Instructing Group within 10
business days of the earlier of the Borrower's board of directors
knowledge thereof or notice thereof to the Borrower by the Agent;
or
(xxiii) the average price of crates supplied pursuant to the Supply
Agreement increases above the level of DM6.10 or there is any other
alteration to the Supply Agreement where such alteration is, in the
opinion of an Instructing Group, likely to have a Material Adverse
Effect; or
(xxiv) there is a reduction in the level of shareholding (if any) which
IFCO Europe has in MTS; or
(xxv) any Material Leasing Agreement is terminated by reason of a default
(howsoever described) on the part of a Group Entity and such
termination, in the opinion of an Instructing Group, has a Material
Adverse Effect,
then, subject to the provisions of the Disclosure Letter and in any such case
and at any time thereafter the Agent may (and, if so instructed by an
Instructing Group, shall) by written notice to the Borrower:
(a) declare that the Total Commitments shall be cancelled whereupon the
same shall be cancelled and the Commitment of each Bank shall be
reduced to zero; and/or
(b) declare the Advances to be immediately due and payable (whereupon
the same shall become so payable together with accrued interest
thereon and any other sums then owed by the Borrower hereunder) or
declare the Advances to be due and payable on demand of the Agent;
and/or
(c) subject to the provisions of the Intercreditor Agreement, exercise
or direct the Security Trustee to exercise all rights and remedies
of a mortgagee or a secured party at such time, whether or not
applicable to the affected assets subject to the Senior
Subordinated Security Documents, and otherwise the right to
foreclose the Encumbrances granted herein or in any of the Senior
Subordinated Security Documents by any available judicial procedure
and/or to take possession of any or all of the assets subject to
the Senior Subordinated Security Documents, the other security for
the Advances and the books and records relating thereto, with or
without judicial process. For the purposes of the preceding
sentence, the Security Trustee may enter upon any or all of the
premises where any of the assets subject to the Senior Subordinated
Security Documents, such other security or books or records may be
situated and take possession and remove the same therefrom.
23.2 If, pursuant to Clause 23.1, the Agent declares the Advances and/or any
other amount to be due and payable on demand of the Agent, then, and at any time
thereafter, the Agent may (and, if so instructed by an Instructing Group, shall)
by written notice to the Borrower:
(i) call for payment or repayment of the Advances and/or any other
amount owing by the Borrower hereunder on such date as it may
specify in such notice (whereupon the same shall become due and
payable on such date together with accrued interest thereon) or
withdraw its declaration with effect from such date as it may
specify in such notice; and/or
(ii) select as the duration of any Interest Period which begins whilst
such declaration remains in effect a period of six months or less;
and/or
(iii) declare that the Senior Subordinated Security Documents (or any
other them) shall have become enforceable subject to and in
accordance with the provisions thereof.
Part 8
DEFAULT INTEREST AND INDEMNITY
24. Default Interest and Indemnity
24.1 If any sum due and payable by the Borrower under the Facility Documents is
not paid on the due date therefor in accordance with the provisions of Clause 26
or if any sum due and payable by the Borrower under any judgment of any court in
connection therewith 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 the Borrower to pay such sum
(the balance thereof for the time being unpaid being herein referred to as an
"unpaid 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 24) be selected by the Agent having regard to when such unpaid sum
is likely to be paid.
24.2 During each such period relating thereto as is mentioned in Clause 24.1 an
unpaid sum shall bear interest or, insofar as it relates to unpaid interest,
shall give rise to a claim for lump sum damages, at the rate per annum which is
the sum from time to time of three per cent. per annum and FIBOR on the
Quotation Date therefor Provided that:
(i) if, for any such period, FIBOR cannot be determined, the rate of
interest or, as the case may be, lump sum damages applicable to
each Bank's portion of such unpaid sum shall be the rate per annum
which is the sum of three per cent. per annum and the rate per
annum notified to the Agent by such Bank as soon as practicable
after the beginning of such period as being that which expresses as
a percentage rate per annum the cost to such Bank of funding from
whatever source it may select its portion of such unpaid sum for
such period; and
(iii) if such unpaid sum is all or part of an Advance which became due
and payable on a day other than the last day of the Interest Period
in respect thereof (as the case may be), the first such period
applicable thereto shall be of a duration equal to the unexpired
portion of that Interest Period (as the case may be) and the rate
of interest or, as the case may be, lump sum damages applicable
thereto from time to time during such period shall be that which
would have been applicable to it had it not so fallen due plus such
rate as is necessary to increase the Margin that would be otherwise
payable on such amount to three per cent. per annum.
24.3 Any interest or lump sum damages which shall have accrued under Clause
24.2 in respect of an unpaid sum shall be due and payable and shall be paid by
the Borrower at the end of the period by reference to which it is calculated or
on such other date or dates as the Agent may specify by written notice to the
Borrower.
24.4 If any Bank or the Agent on its behalf receives or recovers all or any
part of such Bank's share of an Advance otherwise than on the last day of the
Interest Period in respect thereof, the Borrower shall pay to the Agent on
demand for account of such Bank an amount equal to the amount (if any) by which
(i) the additional interest (excluding the Margin) which would have been payable
on the amount so received or recovered had it been received or recovered on the
last day of the Interest Period in
respect thereof exceeds (ii) the amount of interest which in the opinion of the
Agent would have been payable to the Agent on the last day of the Interest
Period in respect thereof on the basis of the rate determined by the Agent to be
the arithmetic mean (rounded to four decimal places) of the rates specified by
each Reference Bank to the Agent at which each of the Reference Banks was
offering to prime banks in the Frankfurt Interbank Market deposits in the
currency of the amount so received or recovered equal to the amount so received
or recovered for a period starting on the third business day following the date
of such receipt or recovery and ending on the last day of the Interest Period in
respect thereof.
24.5 The Borrower undertakes to indemnify (to the extent that such indemnity
does not in any relevant jurisdiction contravene any law which restricts the
incurring of any obligation or liability by the Borrower in connection with the
Investment):
(i) each of the Beneficiaries against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT thereon,
which any of them may sustain or incur as a consequence of the
occurrence of any Event of Default or any default by the Borrower,
IFCO Europe or any member of the Group or any of them in the
performance of any of the obligations expressed to be assumed by
them in any of the Facility Documents;
(ii) the Agent against any cost or loss it may suffer or incur as a
result of its entering into or performing any foreign exchange
contract for the purposes hereof; and
(iii) each Bank against any loss it may suffer as a result of its funding
its portion of an Advance requested by any Borrower hereunder but
not made available by reason of the operation of any one or more of
the provisions hereof.
24.6 Any unpaid sum shall (for the purposes of this Clause 24 and Clause 16.1)
be treated as an advance and accordingly in this Clause 24 the term "Advance"
includes any unpaid sum and "Interest Period", in relation to an unpaid sum,
includes each such period relating thereto as is mentioned in Clause 24.1.
Part 9
PAYMENTS
25. Currency of Account and Payment
25.1 Deutsche Mark is the currency of account and payment for each and every
sum at any time due from the Borrower hereunder Provided that:
(i) each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred;
(ii) each payment pursuant to Clause 13.2 or Clause 16.1 shall be made in
the currency specified by the party claiming thereunder; and
(iii) any amount expressed to be payable in a currency other than Deutsche
Mark shall be paid in that other currency.
25.2 If any sum due from the Borrower under any of the Facility Documents or
any order or judgment given or made in relation thereto has to be converted from
the currency (the "first currency") in which the same is payable thereunder or
under such order or judgment into another currency (the "second currency") for
the purpose of (i) making or filing a claim or proof against the Borrower, (ii)
obtaining an order or judgment in any court or other tribunal or (iii) enforcing
any order or judgment given or made in relation hereto, the Borrower shall
indemnify and hold harmless each of the persons to whom such sum is due from and
against any loss suffered as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert the sum in question from the first
currency into the second currency and (b) the rate or rates of exchange at which
such person may in the ordinary course of business purchase the first currency
with the second currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
26. Payments
26.1 On each date on which this Agreement requires an amount to be paid by the
Borrower or any of the Banks hereunder, the Borrower or, as the case may be,
such Bank shall make the same available to the Agent by payment in Deutsche Mark
(or, where applicable, Euro) in immediately available, freely transferable,
cleared funds to such account with such bank as the Agent shall have specified
for this purpose.
26.2 If, at any time, it shall become impracticable (by reason of any action of
any governmental authority or any change in law, exchange control regulations or
any similar event) for the Borrower to make any payments hereunder in the manner
specified in Clause 26.1, then the Borrower may agree with each or any of the
Banks alternative arrangements for the payment direct to such Bank of amounts
due to such Bank hereunder Provided that, in the absence of any such agreement
with any Bank, the Borrower shall be obliged to make all payments due to such
Bank in the manner specified herein. Upon reaching such agreement the Borrower
and such Bank shall immediately notify the Agent thereof and shall thereafter
promptly notify the Agent of all payments made direct to such Bank.
26.3 Save as otherwise provided herein, each payment received by the Agent for
the account of
another person pursuant to Clause 26.1 shall be made available by the Agent to
the person for whose account such payment was received (in the case of a Bank,
for the account of the Facility Office) for value the same day by transfer to
such account of such person with such bank in the principal financial centre of
the country of the currency of such payment as such person shall have previously
notified to the Agent.
26.4 All payments required to be made by the Borrower hereunder shall be
calculated without reference to any set-off or counterclaim and shall be made
free and clear of and without any deduction for or on account of any set-off or
counterclaim.
26.5 Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to that other
person or to enter into or perform any exchange contract in connection therewith
until it has been able to establish to its satisfaction that it has actually
received such sum, but if it does so and it proves to be the case that it had
not actually received such sum, then the person to whom such sum or the proceeds
of such exchange contract was so made available shall on request refund the same
to the Agent together with an amount sufficient to indemnify the Agent against
any cost or loss it may have suffered or incurred by reason of its having paid
out such sum or the proceeds of such exchange contract prior to its having
received such sum.
27. Set-Off
The Borrower authorises each Bank for so long as an Event of Default is
continuing to apply any credit balance to which the Borrower is entitled on any
account with that Bank in satisfaction of any sum due and payable from the
Borrower to such Bank hereunder but unpaid; for this purpose, each Bank is
authorised to purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect such application.
No Bank shall be obliged to exercise any right given to it by this Clause 27.
28. Redistribution of Payments
28.1 If, at any time, the proportion which any Bank (a "Recovering Bank") has
received or recovered (whether by payment, the exercise of a right of set-off or
combination of accounts or otherwise) in respect of its portion of any payment
(a "relevant payment") to be made under this Agreement by the Borrower for
account of such Recovering Bank and one or more other Banks is greater (the
portion of such receipt or recovery giving rise to such excess proportion being
herein called an "excess amount") than the proportion thereof so received or
recovered by the Bank or Banks so receiving or recovering the smallest
proportion thereof, then:
(i) such Recovering Bank shall pay to the Agent an amount equal to such
excess amount;
(ii) there shall thereupon fall due from the Borrower to such Recovering
Bank an amount equal to the amount paid out by such Recovering Bank
pursuant to paragraph (i) above, the amount so due being, for the
purposes hereof, treated as if it were an unpaid part of such
Recovering Bank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering
Bank pursuant to paragraph (i) above as if such amount had been
received by it from the Borrower in respect of such relevant payment
and shall pay the same to the persons entitled thereto
(including such Recovering Bank) pro rata to their respective
entitlements thereto.
28.2 If any sum (a "relevant sum") received or recovered by a Recovering Bank
in respect of any amount owing to it by the Borrower becomes repayable and is
repaid by such Recovering Bank, then:
(i) each Bank which has received a share of such relevant sum by reason
of the implementation of Clause 28.1 shall, upon request of the
Agent, pay to the Agent for account of such Recovering Bank an
amount equal to its share of such relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Bank
an amount equal to the amount paid out by it pursuant to paragraph
(i) above, the amount so due being, for the purposes hereof, treated
as if it were the sum payable to such Bank against which such Bank's
share of such relevant sum was applied.
28.3 If any Bank shall commence any action or proceeding in any court to enforce
its rights hereunder and, as a result thereof or in connection therewith, shall
receive any excess amount (as defined in Clause 28.1), then such Bank shall not
be required to share any portion of such excess amount with any Bank which has
the legal right to, but does not, join in such action or proceeding or commence
and diligently prosecute a separate action or proceeding to enforce its rights
in another court.
Part 10
FEES, COSTS AND EXPENSES
29. Fees
29.1 The Borrower shall pay to the Arranger on the date hereof the underwriting
and arrangement fees specified in the letter dated the date hereof from the
Arranger to the Borrower at the times, and in the amounts, agreed in such
letter.
29.2 The Borrower shall pay to the Agent for its own account the agency fees
specified in the letter of even date herewith from the Agent to the Borrower at
the times, and in the amounts, agreed in such letter.
30. Costs and Expenses
30.1 The Borrower shall pay to the Agent at the time and in the manner and
amount specified in the letter of even date herewith from the Agent to the
Borrower the amounts payable by it in respect of legal and other expenses
(including disbursements and printing costs) together with any VAT thereon
incurred by it in connection with the negotiation, preparation and execution of
the Facility Documents and the completion of the transactions herein and therein
contemplated.
30.2 The Borrower shall, from time to time on demand of the Agent, reimburse
the Beneficiaries for all reasonable costs and expenses (including legal fees)
together with any VAT thereon incurred in or in connection with any actual or
proposed amendment, waiver or restructuring of the Facility, or with the
preservation and/or enforcement of any of the rights of the Beneficiaries under
the Facility Documents or any of the documents referred to therein in any
jurisdiction.
30.3 The Borrower shall pay all stamp, registration and other taxes to which
the Facility Documents or any judgment given in connection herewith is or at any
time may be subject and shall, from time to time on demand in writing of the
Agent, indemnify the Beneficiaries against any liabilities, costs, claims and
expenses resulting from any failure to pay or any delay in paying any such tax.
30.4 The Borrower shall, from time to time on demand of the Agent (and without
prejudice to the provisions of Clause 30.2) compensate the Agent for the time
and expenditure, all costs and expenses (including telephone, fax, copying,
travel and personnel costs) reasonably incurred by the Agent in connection with
its taking such action as it may deem appropriate or in complying with any
instructions from an Instructing Group or any request by the Borrower or IFCO
Europe in connection with:
(a) the granting or proposed granting of any waiver or consent requested
hereunder by the Borrower or IFCO Europe;
(b) any actual, potential or suspected breach by the Borrower or IFCO
Europe of its obligations hereunder;
(c) the occurrence of any event which is an Event of Default or a
Potential Event of Default; or
(d) any amendment or proposed amendment hereto requested by the Borrower
or IFCO Europe.
30.5 If the Borrower fails to perform any of its obligations under this Clause
30, each Bank shall, in its Proportion, indemnify each of the Beneficiaries
against any loss incurred by any of them as a result of such failure and the
Borrower shall forthwith reimburse each Bank for any payment duly made by it
pursuant to this Clause 30.5.
Part 11
AGENCY PROVISIONS
31. The Agent, the Arranger and the Banks
31.1 The Arranger and each Bank hereby appoints the Agent to act as its agent
in connection with the Facility Documents and to exercise such rights, powers,
authorities and discretions as are specifically delegated to the Agent by the
terms of the Facility Documents together with all such rights, powers,
authorities and discretions as are reasonably incidental thereto Provided that
the Agent shall not be authorised to commence any legal actions or proceedings
on behalf of any Bank without such Bank's written consent. The Agent shall be
released from the restrictions set out in Section 181 of the German Civil Code.
The Agent can grant substitute powers of attorney and release any sub-agent from
such restrictions and revoke such substitute powers of attorney.
31.2 For the purposes of Part 11: "Agent's Liabilities" means all liabilities
(including any liability in respect of tax), costs, fees, charges, damages,
losses and expenses (including legal fees and expenses and, in each case, VAT or
any similar tax charged or chargeable in respect thereof):
(i) to which the Agent becomes subject by reason of it acting as agent
under the Facility Documents; and
(ii) incurred by the Agent or any attorney, agent, delegate or other
person appointed by the Agent under any Facility Document in
relation to or arising out of the taking or holding of any of the
security given or created by or pursuant to any of the Facility
Documents or in the execution or purported execution of the rights,
trust, powers, authorities, discretions and obligations vested in
it,
in each case under the Facility Documents or by law, including but not
limited to those relating to all actions, proceedings, claims and demands
in respect of any matter or thing done or omitted in any way relating to
the Facility Documents and all amounts due to the Agent by way of
remuneration for acting as agent or trustee (as the case may be) under any
of the Facility Documents.
31. The Agent may:
(i) assume that:
(a) any representation made by the Borrower or IFCO Europe or any
Group Entity in connection herewith or in connection with any
other Facility Document is true;
(b) no Event of Default or Potential Event of Default has occurred;
(c) neither the Borrower nor IFCO Europe nor any Group Entity is in
breach of or default under its obligations hereunder or under
any other Facility Document; and
(d) any right, power, authority or discretion vested herein or in
any other Facility Document upon an Instructing Group, the
Banks or any other person or group of persons has not been
exercised,
unless it has, in its capacity as agent for the Banks, received
notice to the contrary from any other party hereto;
(ii) assume that the Facility Office of each Bank is that identified with
its signature below (or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as Transferee) until
it has received from such Bank a notice designating some other
office of such Bank to replace its Facility Office and act upon any
such notice until the same is superseded by a further such notice;
(iii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may
to it seem necessary, expedient or desirable and rely upon any
advice so obtained;
(iv) rely as to any matters of fact which might reasonably be expected to
be within the knowledge of the Borrower upon a certificate signed by
or on behalf of the Borrower;
(v) rely upon any communication or document believed by it to be
genuine;
(vi) refrain from exercising any right, power or discretion vested in it
as agent hereunder unless and until instructed by an Instructing
Group as to whether or not such right, power or discretion is to be
exercised and, if it is to be exercised, as to the manner in which
it should be exercised; and
(vii) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with any of the Facility Documents until it
shall have received such security as it may require (whether by way
of payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying with
such instructions.
31.4 The Agent shall:
(i) promptly inform each Bank of the contents of any written notice or
document received by it in its capacity as Agent from either of the
Borrower or IFCO Europe or any Group Entity under any Facility
Document;
(ii) promptly notify each Bank of the occurrence of any Event of Default
or any default by either of the Borrower or IFCO Europe or any Group
Entity in the due performance of or compliance with its obligations
under any Facility Document of which the Agent has written notice
from any other party hereto;
(iii) save as otherwise provided herein, act as agent under the Facility
Documents in accordance with any instructions given to it by an
Instructing Group, which instructions shall be binding on the
Beneficiaries; and
(iv) if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as agent under the
Facility Documents.
31.5 Notwithstanding anything to the contrary expressed or implied herein
neither the Agent nor the Arranger shall:
(i) be bound to enquire as to:
(a) whether or not any representation made by either of the
Borrower or IFCO Europe or any Group Entity in connection with
any Facility Document is true;
(b) the occurrence or otherwise of any Event of Default or
Potential Event of Default;
(c) the performance by either of the Borrower or IFCO Europe or any
Group Entity of its obligations under any Facility Document; or
(d) any breach of or default by either of the Borrower or IFCO
Europe or any Group Entity of or under its obligations under
any of the Facility Documents;
(ii) be bound to account to any Bank for any sum or the profit element of
any sum received by it for its own account;
(iii) be bound to disclose to any other person any information relating to
any Group Entity if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person;
(iv) be under any obligations other than those for which express
provision is made herein.
31.6 Each Bank shall, from time to time on demand by the Agent, indemnify the
Agent, in its Proportion, against any and all costs, claims, losses, expenses
(including legal fees) and liabilities together with any VAT thereon which the
Agent may incur, otherwise than by reason of its own gross negligence or wilful
misconduct, in acting in its capacity as agent under any of the Facility
Documents.
31.7 Neither the Agent nor the Arranger accepts any responsibility for the
accuracy and/or completeness of the Reports, the Information Memorandum or the
Business Plan or any other information supplied by either of the Borrower or
IFCO Europe or any Group Entity in connection with any of the Facility Documents
(whether on, before or after the date hereof) or for the legality, validity,
effectiveness, adequacy or enforceability of the Facility Documents and neither
the Agent nor the Arranger shall be under any liability as a result of taking or
omitting to take any action (whether on, before or after the date hereof) in
relation to any of the Facility Documents, save in the case of its gross
negligence or wilful misconduct.
31.8 Each of the Banks agrees that it will not assert or seek to assert against
any director, officer or employee of the Agent or the Arranger any claim it
might have against any of them in respect of the matters referred to in Clause
31.7.
31.9 Each of the Banks agrees that the liability of the Agent in performing
its duties hereunder shall be limited only to claims arising out of the Agent's
own gross negligence or wilful misconduct; further, with respect to any claim,
the Agent shall not be liable for any indirect or consequential loss or damage
suffered by any person.
31.10 The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any Group Entity.
31.11 The Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days' prior written
notice to that effect to each of the other parties hereto Provided that no such
resignation shall be effective until a successor for the Agent is appointed in
accordance with the succeeding provisions of this Clause 31.
31.12 If the Agent gives notice of its resignation pursuant to Clause 31.11,
then any reputable and experienced bank or other financial institution may after
consultation with the Borrower be appointed as a successor to such Agent by an
Instructing Group during the period of such notice but, if no such successor is
so appointed, the Agent may appoint such a successor itself.
31.13 If a successor to the Agent is appointed under the provisions of Clause
31.12, then (i) the retiring Agent shall be discharged from any further
obligation hereunder but shall remain entitled to the benefit of the provisions
of this Clause 31 and (ii) its successor and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they would have
had if such successor had been a party hereto.
31.14 It is understood and agreed by each Bank that it has itself been, and
will continue to be, solely responsible for making its own independent appraisal
of and investigations into the financial condition, creditworthiness, condition,
affairs, status and nature of IFCO Europe and each Group Entity and,
accordingly, each Bank warrants to the Agent and the Arranger that it has not
relied on and will not hereafter rely on the Agent and the Arranger nor either
of them:
(i) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by either of the Borrower
or IFCO Europe or any Group Entity in connection with any of the
Facility Documents or the transactions therein contemplated (whether
or not such information has been or is hereafter circulated to such
Bank by the Agent and/or the Arranger); or
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of
IFCO Europe or any Group Entity.
31.15 In acting as Agent for the Banks, the Agent's agency divisions shall be
treated as a separate entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 31, in the event that
the Agent should act for IFCO Europe or any Group Entity in any capacity in
relation to any other matter, any information given by IFCO Europe or such Group
Entity to the Agent in such other capacity may be treated as confidential by the
Agent.
31.16 Notwithstanding anything to the contrary expressed or implied herein and
without prejudice to the provisions of Clause 31.15 the Agent shall not as
between itself and the Banks be bound to disclose to any Bank or other person
any information which is supplied by IFCO Europe or any Group Entity to the
Agent in its capacity as agent hereunder for the Banks and which is identified
by IFCO Europe or such Group Entity at the time it is so supplied as being
confidential information Provided that the consent of IFCO Europe or the
relevant Group Entity to such disclosure shall not be required in relation to
any information which in the opinion of the Agent relates to an Event of Default
or Potential Event of Default or in respect of which the Banks have given a
confidentiality undertaking in a form satisfactory to the Agent and IFCO Europe
or the relevant Group Entity.
31.17 To the extent that the Agent or the Security Trustee receives or recovers
monies following the service of a notice in accordance with Clause 23.1 or 23.2
pursuant to or as a result of any breach of any Facility Document to be applied
in discharging any obligation (whether actual or contingent, present or future)
of the Borrower under any Facility Document and subject always to the terms of
the Intercreditor Agreement, such monies shall (without prejudice to the
respective rights of the Agent or the Security Trustee pursuant to any Facility
Document to credit any monies received by it to any suspense account) be applied
as between the Beneficiaries:
(a) first, in or towards payment of all costs and expenses incurred by
the Agent and the Security Trustee in acting in those capacities
under the Facility Documents;
(b) secondly, in or towards payment of any amounts which are due and
payable at such time by the Borrower to any Beneficiary under any of
the Facility Documents in respect of interest, guarantee commission,
commitment commission and other fees pro rata to the respective
entitlements of such Beneficiaries;
(c) thirdly, in or towards payment of any amounts which are due and
payable at such time by the Borrower to any Beneficiary under any of
the Facility Documents in respect of principal pro rata to the
respective entitlements of such Beneficiaries;
(d) fourthly, in or towards payment of any other sums whatsoever then
due and payable to the Beneficiaries pursuant to the Facility
Documents pro rata to their respective entitlements;
(e) fifthly, if the Borrower is under no further actual or contingent
liability hereunder, in payment to any person to whom the Security
Trustee is obliged to pay in priority to the Borrower otherwise
entitled thereto, to the extent it is so obliged; and
(f) sixthly, thereafter, in payment to the Borrower.
Part 12
ASSIGNMENTS AND TRANSFERS
32. Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of each party
hereto and its or any subsequent successors, Transferees and assigns.
33. Assignments and Transfers by the Borrower
The Borrower shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations under any of the Facility Documents.
34. Assignments and Transfers by Banks
34.1 Any Bank may at any time assign all or any of its rights and benefits
under the Facility Documents or assign and transfer in accordance with Clause
34.3 all or any of its rights, benefits and obligations to any Qualifying Bank
with (subject to Clause 34.7) the prior written consent of the Borrower (such
consent not to be unreasonably withheld).
34.2 If any Bank assigns all or any of its rights and benefits under the
Facility Documents in accordance with Clause 34.1 (but otherwise than in
accordance with Clause 34.3), then, unless and until the assignee has agreed
with the Agent and the other Banks that it shall be under the same obligations
towards each of them as it would have been under if it had been an original
party hereto or thereto as a Bank, the other Beneficiaries shall not be obliged
to recognise such assignee as having the rights against each of them which it
would have had if it had been such a party thereto.
34.3 If any Bank wishes to assign and transfer all or any of its rights and
benefits under any of the Facility Documents as contemplated in Clause 34.1,
then such assignment and transfer may (subject to the proviso to Clause 34.1) be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fourth business day after (or such earlier
business day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of execution of such Transfer Certificate by the Agent:
(i) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer any of its obligations hereunder and/or
under or in respect of the other Facility Documents, the Borrower,
IFCO Europe and such Bank shall be released from further
obligations towards one another hereunder and/or under or in
respect of the other Facility Documents to such extent and their
respective rights against one another shall to that extent be
cancelled (such rights, benefits and obligations being referred to
in this Clause as "discharged rights and obligations");
(ii) to the extent that in such Transfer Certificate the Bank party
thereto seeks to assign any of its rights and benefits hereunder
and/or under or in respect of the other Facility Documents, they
shall be so assigned and each of the Borrower and IFCO Europe
agrees (subject to, in relation to the proposed transfer of the
benefit of the Senior Subordinated Security Documents in such
Transfer Certificate, compliance with relevant laws) that it is an
effective assignment of such rights and benefits;
(iii) each of the Borrower, IFCO Europe and the Transferee party thereto
shall assume obligations towards one another and/or acquire rights
and benefits against one another which differ from such discharged
rights and obligations only insofar as the Borrower, IFCO Europe
and such Transferee have assumed and/or acquired the same in place
of the Borrower, IFCO Europe and such Bank; and
(iv) the Beneficiaries shall acquire the same rights and benefits and
assume the same obligations between themselves as they would have
acquired and assumed had such Transferee been an original party
hereto as a Bank with the rights, benefits and/or obligations
acquired or assumed by it as a result of such transfer.
34.4 On the date upon which a transfer takes effect pursuant to Clause 34.3,
other than pursuant to the Syndication, the Transferee in respect of such
transfer shall pay to the Agent for its own account a transfer fee of DM3,000.
34.5 The Borrower shall from time to time at the request of the Agent promptly
execute any accession agreement to any of the Senior Subordinated Security
Documents and do any other act or thing or execute such further documents as
directed by the Agent in connection with the transfer of rights and benefits
under Clause 34.1.
34.6 Any transfer pursuant to Clause 34.3 of part of a Bank's Commitment shall
be in a minimum amount of DM5,000,000.
34.7 Any consent required to be given by a party under Clause 34.1 shall be
deemed to have been given unless such party shall have notified the requesting
party to the contrary within five business days of the request for such consent.
35. Disclosure and Syndication
35.1 Any Bank may disclose to any person:-
(a) to (or through) whom such Bank assigns or transfer (or may
potentially assign or transfer) all or any of its rights, benefits
and obligations hereunder;
(b) with (or through) whom such Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to, the
Facility Documents, the Borrower or IFCO Europe; or
(c) to whom information may be required to be disclosed by any applicable
law or regulation,
such information about the Borrower, IFCO Europe the Group and as such Bank
shall consider appropriate, provided that (in the case of (a) and (b) only) the
person to whom such information is to be given has entered into a
Confidentiality Undertaking. If requested to do so by the Borrower, a Bank
shall inform the Borrower as to the identity of any person to whom it has given
such information.
35.2 The Borrower acknowledges that syndication of the Facility in accordance
with this Clause 35.2 may take place and undertakes to assist and co-operate
with the Arranger in such Syndication by, inter alia:
(i) expediting site visits at reasonable times upon reasonable notice
by the Agent and persons who have been invited by the Arranger to
participate in the Facility ("Invitees");
(ii) participating at reasonable times upon reasonable notice in
presentations to the Banks and the Invitees concerning the
Borrower, the Group Entities and their activities;
(iii) using all reasonable efforts (if necessary) to obtain appropriate
authorisations from the Auditors, other accountants, consultants
and professional advisers to release to the Banks and the Invitees
any information, including the Reports;
(iv) refraining from making any statement, announcement or publication
or doing any act or thing calculated to obstruct syndication of the
Facility in any way other than as required by applicable law or
good commercial practice; and
(v) if so requested by the Arranger, procuring the assistance of its
directors and other officers in the updating of the Information
Memorandum.
35.3 Each Bank confirms in favour of the Agent (on the date hereof, or, in the
case of a Bank which becomes a party hereto pursuant to a transfer or
assignment, on the date on which the relevant transfer or assignment becomes
effective) that either:
(a) it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to the Loan and the interest thereon; or
(b) it is a bank as defined for the purposes of Section 349 of ICTA and
is beneficially entitled to the Loan and the interest thereon,
and each Bank in favour of the Agent agrees to notify the Agent if there is any
change in its position from that set out above.
Part 13
MISCELLANEOUS
36. Calculations and Evidence of Debt
36.1 Interest and fees shall accrue from day to day and shall be calculated on
the basis of a year of 360 days (or, in any case where market practice differs,
in accordance with market practice) and the actual number of days elapsed.
36.2 If on any occasion a Reference Bank or Bank fails to supply the Agent with
a quotation required of it under the foregoing provisions of this Agreement, the
rate for which such quotation was required shall be determined from those
quotations which are supplied to the Agent.
36.3 Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it hereunder.
36.4 The Agent shall maintain on its books a control account or accounts in
which shall be recorded (i) the amount of any Advance made or arising hereunder
and each Bank's share therein, (ii) the amount of all principal, interest and
other sums due or to become due from the Borrower to any of the Banks hereunder
and each Bank's share therein and (iii) the amount of any sum received or
recovered by the Agent hereunder and each Bank's share therein.
36.5 In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to Clauses
36.3 and 36.4 shall, in the absence of manifest error, be conclusive evidence of
the existence and amounts of the obligations of the Borrower therein recorded.
36.6 A certificate of a Bank as to (i) the amount by which a sum payable to it
hereunder is to be increased under Clause 13.1 or (ii) the amount for the time
being required to indemnify it against any such cost, payment or liability as is
mentioned in Clause 13.2 or 16.1 shall, if supported by relevant documentation,
be conclusive for the purposes of this Agreement.
37. Remedies, Waivers, Amendments and Consents
37.1 No failure to exercise, nor any delay in exercising, on the part of the
Agent and the Banks or any of them, any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies herein provided are cumulative
and not exclusive of any rights or remedies provided by law.
37.2 The Agent may agree with the Borrower any amendment to or the modification
of the provisions of any of the Facility Documents or any schedule thereto,
which is necessary to correct a manifest error.
37.3 Subject to Clause 37.4, the Agent (acting on the instructions of an
Instructing Group) may agree with the Borrower any amendment to or modification
of the provisions of any of the Facility Documents or any schedule thereto, or
grant any waiver or consent in relation thereto.
37.4 (a) Any amendment, modification, waiver, variation or consent which
relates to:
(i) the definitions of "Final Maturity Date", "Instructing Group"
or "Margin" in Clause 1.1;
(ii) Clauses 3, 34, 30, 11 or 8;
(iii) this Clause 37;
(iv) any extension of the date of payment for or a decrease in the
amount of, or a change in the currency of, any sum payable to
a Beneficiary under any of the Facility Documents;
(v) the priority of liabilities under the Facility Documents or
the order or manner in which liabilities are reduced
thereunder;
(vi) an amendment to any Senior Subordinated Security Document
which is, in the opinion of the Security Trustee and the
Agent, material;
(vii) the release of any asset which is the subject of the security
granted in favour of the Beneficiaries;
(viii) any increase in the Total Commitment of any Bank;
(ix) any provision which expressly contemplates the need for the
consent or approval of all the Banks,
may be effected with (and only with) the consent of all the Banks.
(b) Any amendment, modification, waiver, variation or consent which
relates to any provision of this Clause 37, Clause 33 or Part 11 or
would otherwise affect any of the Agent's or the Security Trustee's
rights hereunder or subject the Agent or the Security Trustee to any
additional obligations hereunder may be affected with (and only with)
the consent of the Agent and/or the Security Trustee (as applicable).
38. Partial Invalidity
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby and the
relevant provision shall be replaced with a new provision reflecting the same
commercial intent of the parties, which provision shall be legal, valid and
enforceable under the law of the relevant jurisdiction.
39. Notices
39.1 Each communication to be made under any of the Facility Documents shall be
made in writing
but, unless otherwise stated, may be made by telex, facsimile or letter.
39.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has by
fifteen days' written notice to the Agent specified another address) be made or
delivered to that other person at the address telex or facsimile identified with
its signature below (or, in the case of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee) and shall be deemed to have
been made or delivered when despatched, with appropriate answerback received (in
the case of any communication made by telex), when received (in the case of any
communications made by facsimile) or (in the case of any communication made by
letter) when left at that address or (as the case may be) ten days after being
deposited in the post postage prepaid in an envelope addressed to it at that
address Provided that any communication or document to be made or delivered to
the Agent shall be effective only if the same is expressly marked for the
attention of the department or officer identified with the Agent's signature
below (or such other department or officer as the Agent shall from time to time
specify for this purpose).
39.3 Save where the Agent agrees otherwise each communication and document made
or delivered by one party to another pursuant to this Agreement shall be in the
English language or accompanied by a translation thereof into English certified
(by an officer of the person making or delivering the same) as being a true and
accurate translation thereof.
40. European Monetary Union
40.1 The European Economic and Monetary Union (EMU) provides for the
introduction of a single currency (Euro) and the substitution of the national
currencies of the Member States participating in EMU.
40.2 On the date of the introduction of the single currency (Euro) for the
Federal Republic of Germany, the currency specified in this Agreement and the
currency specified for payments under this Agreement shall be substituted by the
single currency and the changeover into the single currency (Euro) shall take
place. Conversions shall be based on the officially fixed conversion rate.
40.3 Neither the introduction of the single currency (Euro) nor the
substitution of the national currencies of the Member States participating in
the EMU nor the fixing of the official conversion rate for replacement nor any
economic consequences that arise from any of the aforementioned events or in
connection with the EMU shall give rise to any right to prematurely terminate,
contest, cancel, rescind, modify or renegotiate this Agreement or any of its
provisions or to raise any other objections and/or exceptions or to assert any
claims for compensation. The Agreement and all its provisions shall be continued
unchanged.
41. Intercreditor and Security Trust Agreement Acknowledgements and
Undertakings
41.1 The Borrower and IFCO Europe hereby expressly authorise the Security
Trustee to enforce the security constituted by the Senior Subordinated Security
Documents in the manner provided for in the Facility Documents and irrevocably
waive any rights (and shall procure that each Group Entity providing security
hereunder shall waive such rights) which they may now or in the future have to
challenge or have set aside any arrangements relating to:
(a) the placing of the proceeds of the enforcement of any security in a
suspense account bearing interest at the applicable interest rate
from time to time of the Security Trustee; or
(b) any other matter or thing regarding the order of enforcement of
security and the priority of the application of the proceeds of such
enforcement in accordance with the provisions of the Facility
Documents.
41.2 The Borrower and IFCO Europe acknowledge and agree (and shall procure the
agreement of each Group Entity providing security hereunder) that, except as
otherwise provided in the Facility Documents, they shall have no right to be
consulted in relation to or to object to any enforcement or other action by the
Beneficiaries in relation to the Facility Documents and, for the avoidance of
doubt, none of the Beneficiaries shall incur any liability to IFCO Europe or any
Group Entity in relation to such action in the absence of fraud, wilful
misconduct or the failure by the Beneficiaries to comply with the standard of
care which could reasonably be expected to be given by any similar person in
similar circumstances.
41.3 The Borrower acknowledges each of the terms of the Intercreditor Agreement
and the Security Trust Agreement and undertakes and agrees to be bound by their
terms.
41.4 The Borrower and IFCO Europe hereby agree and acknowledges that the Senior
Liabilities (other than the Postponed Senior Liabilities) shall rank pari passu
between themselves and, whether secured or unsecured, shall rank in priority to
the Senior Subordinated Liabilities and that the Senior Subordinated Liabilities
shall rank in priority to the Postponed Senior Liabilities.
41.5 The Borrower undertakes that prior to the Senior Discharge Date it will
not, unless the Majority Lenders otherwise previously consent in writing:
(i) pay, prepay, redeem, purchase or otherwise acquire or satisfy in
any manner (including by set-off or combination of accounts) the
whole or any part of the Senior Subordinated Liabilities otherwise
than pursuant to the terms of the Intercreditor Agreement;
(ii) (other than those created pursuant to the Senior Subordinated
Facility Documents (as the same are in force at the date hereof) or
otherwise permitted pursuant to the terms of the Intercreditor
Agreement) create or permit to subsist any security interest over
any of its assets for, or any guarantee, indemnity or other
assurance against financial loss in respect of, any of the Senior
Subordinated Liabilities;
(iii) make any Material Variation to any term of the Senior Subordinated
Facility Documents (other than an extension to, or postponement of,
a date for payment of any amount thereunder);
(iv) exercise any right or take any other action which would cause any
amount (other than amounts referred to in Clause 9.1 of the
Intercreditor Agreement) to become due and payable in connection
with any of the Senior Subordinated Facility Documents or the
Senior Subordinated Liabilities; or
(v) take or omit to take any action whereby the subordination
contemplated by the Intercreditor Agreement may be impaired.
41.6 The Borrower and IFCO Europe hereby consent, so long as any of the
Facility Documents remain subsisting, to the disclosure by any of the Agent, the
Senior Agent, the Security Trustee and the Lenders to each other of such
information concerning IFCO Europe or any member of the Group to such extent as
such persons see fit.
41.7 The Borrower agrees that, if the Senior Discharge Date would have occurred
on any date but for the fact that the Hedging Liabilities remain outstanding,
all outstanding Hedging Agreements in relation to any Hedge Counterparty shall
automatically terminate on that date unless the Agent agrees to the contrary.
41.8 Any capitalised term used in this Clause 41 and not defined herein shall
bear the meaning ascribed to it in the Intercreditor Agreement.
Part 14
LAW AND JURISDICTION
42. Law
This Agreement shall be governed by, and shall be construed in accordance with,
German law.
43. Jurisdiction
43.1 Each of the Borrower and IFCO Europe hereby irrevocably agrees for the
benefit of each of the Beneficiaries that the District Court (Landgericht) of
Frankfurt am Main shall have jurisdiction to hear and determine any suit, action
or proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and, for such purposes, irrevocably submits to
the jurisdiction of such courts.
43.2 Each of the Borrower and IFCO Europe irrevocably waives any objection
which it might now or hereafter have to the courts referred to in Clause 43.1
being nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in connection
with this Agreement and agrees not to claim that any such court is not a
convenient or appropriate forum.
43.3 The submission to the jurisdiction of the courts referred to in Clause
43.1 shall not (and shall not be construed so as to) limit the right of the
Beneficiaries or any of them to take proceedings against either of the Borrower
or IFCO Europe in any other court of competent jurisdiction nor shall the taking
of proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction (whether concurrently or not) if and to
the extent permitted by applicable law.
43.4 Each of the parties hereto hereby waives trial by jury in any judicial
proceeding involving, directly or indirectly, any matter (whether sounding in
tort, contract or otherwise) in any way arising out of, related to, or connected
with any of the Facility Documents or the relationships established hereunder
and whether arising or asserted before or after the date hereof or before or
after the payment, observance and performance in full of such party's
obligations hereunder.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
THE FIRST SCHEDULE
The Banks and their Commitments
The Banks Commitment (DM)
Barclays Bank PLC 35,000,000
THE SECOND SCHEDULE
Form of Transfer Certificate
To: Barclays Bank PLC
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ] whereby a
DM35,000,000 term loan facility was made available to IFCO International Food
Container Organisation GmbH as Borrower by a bank or group of banks on whose
behalf Barclays Bank PLC acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee, Bank's
Participation and Amount Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the Bank's Participation is an accurate summary
of its participation in the Facility Agreement and (ii) requests the Transferee
to accept and procure the assignment and transfer to the Transferee of a
percentage of the Bank's Participation (equal to the percentage that the Amount
Transferred is of the aggregate of the component amounts (as set out in the
schedule hereto) of the Bank's Participation) by counter-signing and delivering
this Transfer Certificate to the Agent at its address for the service of notices
specified in the Facility Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the purposes of
Clause 34.3 of the Facility Agreement and the Bank hereby assigns its rights
under the Facility Documents (including the security pursuant to the Senior
Subordinated Security Documents) and transfers its obligations thereunder to the
extent set out in the schedule hereto so as to take effect in accordance with
the terms of the Facility Agreement thereof on the Transfer Date or on such
later date as may be determined in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facility
Documents together with such other information as it has required in connection
with this transaction and that it has not relied and will not hereafter rely on
the Bank to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such information and
further agrees that it has not relied and will not rely on the Bank to assess or
keep under review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Borrower or IFCO Europe or any Group
Entity.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Facility Agreement that it will perform in accordance with their
terms all those obligations which by the terms of the Facility Documents will be
assumed by it after delivery of this Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
7. The Bank makes no representation or warranty and assumes no responsibility
with respect to
the legality, validity, effectiveness, adequacy or enforceability of the
Facility Documents or any document relating thereto and assumes no
responsibility for the financial condition of the Borrower or IFCO Europe or any
Group Entity or for the performance and observance by the Borrower, IFCO Europe
or any Group Entity of any of their obligations under the Facility Documents or
any document relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby excluded.
8. The Bank hereby gives notice that nothing herein or in the Facility
Documents (or any document relating thereto) shall oblige the Bank to (i) accept
a re-assignment or re-transfer from the Transferee of the whole or any part of
its rights, benefits and/or obligations under the Facility Documents transferred
pursuant hereto or (ii) support any losses directly or indirectly sustained or
incurred by the Transferee for any reason whatsoever including, without
limitation, the non-performance by the Borrower or IFCO Europe or any other
party to the Facility Documents (or any document relating thereto) of its
obligations under any such document. The Transferee hereby acknowledges the
absence of any such obligation as is referred to in (i) or (ii) above.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with German law.
10. The benefit of the Senior Subordinated Security Documents (subject to
compliance with applicable law) shall in respect of the Facility pass
automatically to the Transferee to the extent of the Amount Transferred in
respect thereof and the security granted thereby will be kept and administered
by the Agent for the benefit of the Transferee.
The Schedule
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation:
Commitment: [ ]
Bank's Commitment Bank's Portion of the Total Loan
5. Amount Transferred:
Commitment Transferred Loan Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
Administrative Details of Transferee
Address:
Contact Name:
Account(s) for Payments:
Telex:
Facsimile:
Telephone:
* The Transferee must also accede to the Intercreditor Agreement, the
Security Trust Agreement and certain of the Senior Subordinated Security
Documents by execution of relevant accession agreements.
THE THIRD SCHEDULE
Conditions Precedent
A. Corporate Documents
1. In relation to each of SPI, MTS, the Borrower, IFCO Europe and each member
of the Group (a "Member") which is party to a Facility Document:
(a) copies, certified by a director of each such company as being true,
complete and up to date, of the constitutional documents including the
certificate of incorporation or officially certified recent excerpts
from the Commercial Register (Handelsregisterauszug) and articles of
association of such company (or its equivalent in the relevant
jurisdiction);
(b) copies, certified by a director of each of the Borrower, IFCO Europe
and each such company or Member as being true, complete and up to
date, of the necessary resolutions by the shareholders authorising the
execution, delivery and performance of the Facility Documents and the
terms and conditions thereof and authorising a named person or persons
to sign each Facility Document and any documents to be delivered by
the Borrower, IFCO Europe, SPI, MTS or Member (as the case may be)
pursuant thereto; and
(c) a certificate of a duly authorised officer of the Borrower, IFCO
Europe and each such Member or other company, setting out the names
and signatures of the persons authorised to sign, on behalf of such
person each Facility Document to which it is or is to be party and any
document to be delivered by such person pursuant thereto.
2. A copy, certified a true copy by the Borrower on behalf of the Borrower,
IFCO Europe, SPI, MTS and each Group Entity of each such law, decree,
material consent, licence, approval and authorisation as is necessary to
render the Facility Documents legal, valid and binding, to make the
Facility Documents admissible in evidence in its jurisdiction of
incorporation and to enable each of the Borrower, IFCO Europe, SPI, MTS and
the members of the Group to perform its obligations thereunder, and a copy
of each such law, decree, material consent, licence, approval and other
authorisation (other than any corporate authorisations) required to permit
GE to own (beneficially as well as legally) 100% of the shares of IFCO
Europe.
B. Business Plan, Accounts, Supply Agreement and Reports
1. The Business Plan in the agreed form.
2. The Reports.
3. The Supply Agreement together with all annexes thereto showing, inter alia,
that (a) the maximum average price per crate will not, during the time at
which any amount is outstanding hereunder, exceed DM6.10 and (b) the
Borrower has purchased or has an option to purchase the crate manufacturing
tools at a total price not exceeding their current market value.
4. Where any of the Reports are not addressed to the Agent or any Arranger for
and on behalf of the Beneficiaries from time to time, in each case a
reliance letter from the person who prepared such Report in an agreed form
in favour of the Agent on behalf of the Beneficiaries from time to time.
5. Original Financial Statements, the Financial Statements of the Group for
the Financial Quarter ended 30 September 1997 and the Financial Statements
of the Group for the eleven months ending 30 November 1997, in each case
certified by a Duly Authorised Officer of the Borrower (such certification
to include a confirmation that no material adverse change in the financial
position or operating results of the Group during the period to which those
financial statements relate).
C. Investment Agreement and Related Matters
1. A photocopy of an executed copy, certified by a director of the Borrower
and a duly authorised officer of General Electric Capital Corporation as
true, complete and up to date of the Investment Agreement and the
Contribution Contract.
2. Evidence (in the form of a confirmation from the Borrower and GE) that all
conditions to the Investment have been satisfied without waiver, amendment,
variation or modification.
3. Confirmation from the Borrower and GE in the agreed terms, addressed to the
Agent (on behalf of the Banks) that the Investment has been completed in
accordance with the terms of the Investment Agreement and the Contribution
Contract and that no material right or entitlement of IFCO Europe or GE
(whether to receive documents or otherwise) thereunder has been waived or
modified except with the written consent of the Agent.
4. A certificate from a director of the Borrower certifying that no amendment
(save as previously approved in writing by the Agent) has been made to the
Investment Agreement, the Supply Agreement or the Contribution Contract and
that such documents contain the full agreement of the parties thereto as to
the matters set out therein relating to the Group.
5. A certificate from an Authorised Signatory of the Borrower and each person
granting an Encumbrance hereunder confirming that the constitutional
documents of each of their subsidiaries whose shares are to be pledged
pursuant to the Senior Subordinated Security Documents:
either:
(i) do not contain any provisions allowing the Board of Directors or
shareholders of the relevant subsidiary to refuse the transfer to and
approval and registration of; and
(ii) do not contain any pre-emption rights or other need for approvals of
the transfer to,
any persons as shareholders of the relevant subsidiary pursuant to any
enforcement by the Security Trustee (acting on behalf of the Beneficiaries)
of the security created by the relevant Senior Subordinated Security
Document,
or
that the relevant shareholders resolutions, consents and approvals have
been obtained to the granting and enforcement of the Encumbrances (and that
no corporate bar therefore exists to the enforcement of the Encumbrances).
6. Confirmation from the Borrowers auditors that at least DM45,000,000 (less
DM300,000 applied in respect of fees incurred in relation to the
Investment) have been invested by GE into IFCO Europe in accordance with
the Investment Agreement and that an amount of at least DM43,700,000 of
such funds so invested by GE has been invested in the Borrower by IFCO
Europe as an additional capital contribution into the capital reserves
(Kapitalrucklage) of the Borrower.
D. Senior Financing Documents
1. Evidence that the aggregate of fully paid in equity capital of the Borrower
is at least DM45,000,000 and that an advance will be made to the Borrower
of DM76,000,000 on the date on which the first Advance will be made
hereunder under the Senior Facility.
2. A certified true, complete copy of the Senior Facility Documents duly
executed by the parties hereto.
E. Security and Priority Documents
1. The following security documents, together with all documents to be
delivered pursuant thereto:
(a) a pledge agreement pledging all shares in the Borrower dated on or
about the date hereof by IFCO Europe;
(b) a pledge agreement (or other similar agreement) by each member of the
Group of all of such member's shares in its subsidiaries (and the
delivery (where appropriate) of Share Certificates for all shares in
such subsidiary endorsed (where necessary) by the relevant Group
Entity in blank to the Agent or an undertaking to deliver such Share
Certificates forthwith to the Agent following their issue) and all
documents ancillary thereto;
(c) a pledge agreement by Mr. Luitpold Roever in favour of the Security
Trustee pledging all shares owned by him in GISO Verwaltungs
Gesellschaft mbH and any other documents ancillary thereto;
(d) a share pledge from each of Mr T Maurer and Mr W Zingg in favour of
the Security Trustee, pledging all shares owned by them in IFCO
(Schweiz) A.G. and the delivery of all relevant share certificates to
the Security Trustee and any other documents ancillary thereto;
(e) a share pledge from MTS Okologiskik GmbH in favour of the Security
Trustee
pledging all shares owned by it in IFCO International Food Container
Organisation S.r.l (and the delivery (if the Security Trustee
requires) of all share certificates held by it) any other documents
ancillary thereto;
(f) a share pledge from Schoeller Plast Industries GmbH in favour of the
Security Trustee pledging all shares owned by it in IFCO International
Food Container Organisation S.A.S. and the delivery (if the Security
Trustee requires) of all Share Certificates in such company held by it
or on its behalf any other documents ancillary thereto;
(g) an assignment of receivables (including an assignment of all factoring
agreements and leasing agreements) by the Borrower and any other
member of the Group specified by the Agent in accordance with normal
German practice in the form of a Globalzession any other documents
ancillary thereto;
(h) an agreement between SPI, GBL, the Borrower and the Security Trustee
relating to licences granted in relation to the Patent and other
ancillary items.
2. Security in form and substance satisfactory to the Agent over all crates
(including New Crates and any Existing Crates currently encumbered which
are, pursuant to the terms hereof, to be released from such Encumbrance)
owned by the Group (including security in respect of crates held at
depots), the Material Intellectual Property and the Supply Agreement.
3. The Intercreditor Agreement
4. The Security Trust Agreement.
5. Evidence that all existing Encumbrances over the assets or undertakings of
each Group Entity other than Permitted Encumbrances have been released or
discharged (or will be released or discharged on the making of the first
Advance hereunder) and/or transferred to the Security Trustee.
F. Legal Opinions
Legal Opinions of:
(a) lawyers acceptable to the Arranger in relation to the Borrower, IFCO
Europe and each company providing security hereunder.
(b) Clifford Chance in relation to the laws of the Federal Republic of
Germany addressed to the Agent on behalf of the Banks.
G. Miscellaneous
1. Evidence that all fees and reimburseable expenses payable to the Agent, the
Security Trustee, the Arranger and/or the Banks in connection herewith
shall be made out of the first Advance and that all costs in connection
with the Investment have been paid or will be paid out of the proceeds of
the first Advance.
2. The Hedging Strategy Letter.
3. The fee letters referred to in Clauses 12, 29.1, 29.2 and 30.1.
4. Estimated details of all Transaction Costs certified by a Duly Authorised
Officer of the Borrower.
5. Certified true copies of all of the Services Agreements (or similar
agreement) of Messrs Gerland, Tofflinger and Benz.
6. Information in the form of an update of the report prepared by General
Electric Capital Corporation regarding the installation of Information
Technology Systems within the Group including details of their current
status and the IT Schedule.
7. Evidence that the Existing Indebtedness (other than indebtedness under the
Leasing Agreements) has been cancelled and/or repaid (or will, upon the
making of the first Advance hereunder and under the Senior Facility be
repaid).
8. A letter from the Borrower addressed to the Auditors instructing them to
co-operate with the Agent where the Agent approaches the Auditors for
information regarding any Group Entity following the occurrence of an Event
of Default which is continuing unremedied and unwaived and with the
Borrower having been offered an opportunity to attend any such discussions
and a letter from the Auditors addressed to the Borrower and the Agent
confirming their acceptance of such instructions.
9. A budget showing the forecast monthly profit and loss account for the
financial year beginning 1 January 1998 including confirmation that VAT
treatment is consistent with the advice set out in the Tax Report.
10. A letter from GE Capital Corporation regarding the utilisation of any
payments received by it relating to claims made by it following a breach of
warranty or misrepresentation pursuant to the Investment Agreement in the
prepayment of the Facility.
11. Copies of each of the Material Leasing Agreements.
12. A confirmation letter confirming, inter alia, the extent of External
Finance Leases and that no objections to the European Commission's decision
not to take anti-trust action against the Borrower have been received.
THE FOURTH SCHEDULE
Notice of Drawdown of Advances
From: IFCO International Food Container Organisation GmbH
To: Barclays Bank PLC
Dear Sirs
1. We refer to the agreement (as from time to time amended, varied, novated
or supplemented, the "Facility Agreement") between, amongst others, IFCO
International Food Container Organisation GmbH as Borrower and you as Agent
dated [ ] whereby a term facility of up to DM35,000,000 was made
available to the Borrower. Terms defined in the Facility Agreement shall have
the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement and
upon the terms and subject to the conditions contained therein, we wish an
Advance to be made to us as follows:
(i) Drawdown Date
(ii) Interest Period.
3. We confirm that subject to the provisions of the Disclosure Letter, at
the date hereof, the representations set out in Clause 19.1 (other than the
representations not required to be repeated pursuant to Clause 19.2) are true in
all material respects and no Event of Default or Potential Event of Default has
occurred and is continuing and has not been waived or would result from the
making of such Advance.
4. The proceeds of this drawdown should be credited to the account of
[ ] numbered [ ] with [ ].
Yours faithfully
...............................
for and on behalf of
IFCO International Food Container Organisation GmbH
THE FIFTH SCHEDULE
Group Structure Chart
THE SIXTH SCHEDULE
Existing Indebtedness
Description Amount outstanding as at
19 February 1998
(DM)
*A Pool Indebtedness
Payable to:
*DG Bank Deutsche
Genossenschaftsbank 30,000,000
*Deutsche Bank
Aktiengesellschaft, Munich Branch
24,500,000
*Oldenburgische Landesbank 17,000,000
*Norddeutsche Hypotheken-und
Wechsellbank AG 17,000,000
*B SPS Shareholder Loan
Payable to SPS 37,500,000
C Bardusch Loan
Payable to Bardusch 3,400,000
D Hanover Finanz Loan
Payable to Hanover Finanz 5,000,000
*E Schroder Loan
Payable to:
Schroder, Munchmyer,
Hugst & Co 500,000
----------------
Total: 134,900,000
- --------------------------------------------------------------------------------
* This Indebtedness is to be repaid on the date of the making of the first
Advance hereunder.
THE SEVENTH SCHEDULE
Material Intellectual Property
Description of Property Owner of Intellectual Property
1. European Patent entitled "Plastic GBL
Container, especially a vegetable
container with hinged sides".
Patent No: 0575594 (Europe).
(European patent application no.
EP93902215 which has now been
granted).
Registered in: Austria, Belgium,
Switzerland, Germany, Denmark,
Sweden, Spain, France, Great
Britain, Greece, Italy, The
Netherlands.
Expiry: 2013
2. International Patent No. GBL
International Patent
PCT/EP93/00091 Registered in
Norway (registered on
02.07.1997), Poland (registered
on 02.08.1996), Russia
(registered on 27.06.1997),
Czech Republic (registered on
18.02.1997) with pending
applications in Slovakian
Republic, Hungary and Ukraine.
Expiry: 2013
3. German Patent Application No. GBL
P4201145.0 (pending)
4. Utility Model (Gebrauchsmuster) GBL
Number: G9321234
Expiry: 17.01.2002 (prolongation
possible)
Country: Germany
5. Utility Model (Gebrauchsmuster) GBL
Number: G92189776
Expiry: 17.01.2000 (prolongation
possible)
Country: Germany
6. Design Protection (Geschmacksmuster) GBL
Number: M92086764
Expiry: 16.11.2002
Country: Germany
7. Trademarks GBL
IFCO
Registered in Benelux, Denmark,
Germany, Finland, France,
Greece, Great Britain, The
Netherlands, Norway, Austria,
Sweden, Switzerland and Spain
EXECUTION PAGES
As Borrower
IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH
By: /s/ GUNTER GERLAND /s/ DR. FRANK TOFFLINGER
Address: Zugspitzstrasse 15
D-8209 Pullach
Germany
Telephone: +49 89 744 91240
Facsimile: +49 89 744 91239
Attention: Dr Frank Tofflinger
Copy Notices: Martin and Christoph Schoeller (Fax No: +4989 744 91298)
As IFCO Europe
IFCO EUROPE BETEILIGUNGS-GmbH
By: /s/ MARTIN SCHOELLER
Address: Zugspitzstrasse 15
D-8209 Pullach
Germany
Telephone: +49 89 744 91240
Facsimile: +49 89 744 91239
Attention: Dr Frank Tofflinger
Copy Notices: Martin and Christoph Schoeller (Fax No: +4989 744 91298)
The Security Trustee
BHF BANK AKTIENGESELLSCHAFT
By: /s/ GERD P. BIEDING /s/ SIBYLLE BACH
Address: Berliner Handels und Frankurter Bank
Bockenheimer Landstrasse 10
60323 Frankfurt am Main
Germany
Telephone: +49 69 718 2644
Facsimile: +49 69 718 4480
Attention: Dr P Koch
The Agent
BARCLAYS BANK PLC
By: /s/ TIM TAYLOR
Address: Bockenheimer Landstrasse 38-40
60323 Frankfurt am Main
Telephone: + 4969 7161 1862
Facsimile: + 4969 7161 1889
Attention: Rolf-Peter Ruoff/Diva Cortellini
The Arranger
BARCLAYS CAPITAL
By: /s/ TIM TAYLOR
Address: 5 The North Colonnade
Canary Wharf
London E14 4BB
Telephone: +44 171 773 2358
Facsimile: +44 171 773 4894
Attention: Tim Taylor
The Banks
BARCLAYS BANK PLC
By: /s/ TIM TAYLOR
Address: Bockenheimer Landstrasse 38-40
60323 Frankfurt am Main
Telephone: + 4969 7161 1862
Facsimile: + 4969 7161 1889
Attention: Rolf-Peter Ruoff/Diva Cortellini