Exhibit 4.8
Unofficial English Translation of:
---------------------------------------------------------
GUARANTEE AGREEMENT
---------------------------------------------------------
concluded on
__________________ 2002
between
E.ON AG
DEUTSCHE BANK LUXEMBOURG S.A.
and
MORGAN STANLEY SENIOR FUNDING, INC.
1/8
Guarantee Agreement between
1. E.ON AG, having its registered office in Dusseldorf, Germany, and being
registered under Registration No. HRB 22315 in the Commercial Register
of the District Court (Amtsgericht), Dusseldorf, Germany,
- hereinafter referred to as the "SURETY" -
2. DEUTSCHE BANK LUXEMBOURG S.A.,
- hereinafter also referred to as the "SECURITIES MANAGER" -
and
3. MORGAN STANLEY SENIOR FUNDING, INC.,
- - the parties named in paragraphs 2 and 3 above, and the financial service
providers who, subsequent to the conclusion of the Loan Agreement and this
Guarantee Agreement, will join said Loan Agreement and Guarantee Agreement by
concluding a Transfer and Assumption Agreement as per Schedule 9 of the Loan
Agreement and who by said Transfer and Assumption Agreement will gain the
protection of the guarantee,
hereinafter referred to collectively as the "BANKS" -
2/8
RECITAL
A. The Banks and RAG Beteiligungs-GmbH, registered in the Commercial
Register in Essen, Germany, under Registration No. HRB 5398
(hereinafter referred to as "BG"), on___________ 2002 entered into an
agreement (the "LOAN AGREEMENT"), pursuant to which the Banks agree to
grant BG a loan of up to EUR 2 billion. The Loan Agreement is attached
as a SCHEDULE to this Guarantee Agreement. The loan will provide part
of the financing required for the acquisition by RAG
Projektgesellschaft mbH, registered in the Commercial Register in
Essen, Germany, under Registration No. HRB 16415 (hereinafter referred
to as the "OFFERER"), of a 50.1% stake in Degussa AG, registered in the
Commercial Register in Dusseldorf, Germany, under Registration No. HRB
39635 (hereinafter referred to as "DEGUSSA").
B. To secure the debts owed to the Banks under the Loan Agreement, the
Offerer transfers as collateral to the Securities Manager those Degussa
shares which the Offerer acquires using the loan funds. In an Option
Contract entered into by the Surety and the Securities Manager, the
Surety has offered to buy from the Securities Manager the Degussa
shares which the Offerer transfers to the Securities Manager as
collateral. BG pledges to the Banks its right, enforceable against the
Securities Manager, to receive payment of the credit balance in Account
No. [_________] (hereinafter referred to as the "PLEDGED ACCOUNT") held
at Deutsche Bank Luxembourg S.A. (the Securities Manager).
NOW, THEREFORE, in consideration of the above provisions, parties identified
herein above agree as follows:
1. DEFINITIONS
In this Guarantee Agreement, the words listed hereunder on the left shall have
the meanings opposite them on the right unless some other meaning is apparent
from the context of said contract:
"Option Contract" means the option contract between the Surety and the
Banks, entered into on ________ 2002.
3/8
"Collateral Shares" means all the Degussa shares held as security
by the Securities Manager as at the time when the
Banks become entitled to realize them, in accordance
with the Security Transfer Agreement and clause
10.2.7 of the Loan Agreement.
"Security Transfer means the contract, entered into by the Offerer and
Agreement" the Securities Manager on ____________ 2002, by which
the Offerer transfers to the Securities Manager as
security for the Banks' claims arising from the Loan
Agreement the Degussa shares which the Offerer
acquires using the loan funds.
"Realization Event" refers to the time at which the Banks, in accordance
with the Security Transfer Agreement, become entitled
to realize the Collateral Shares held by the
Securities Manager.
2. GUARANTEE
2.1. The Surety hereby grants in favor of the Banks a guarantee pursuant to
which it assumes primary liability for the present, future, contingent
and term-limited debts owed to the Banks arising out of or in relation
to the Loan Agreement (the "GUARANTEED DEBTS").
2.2. Notwithstanding anything in clause 2.5 hereof, the guarantee shall be
limited as to amount as follows:
(a) - If the Securities Manager exercises the put option granted
to it under the Option Contract, then the guarantee amount
shall be limited to the amount of the Guaranteed Debts due and
payable at the time when the guarantee is enforced less the
purchase price paid pursuant to clause 2.1 (b) of the Option
Contract and less the credit balance in the Pledged Account,
or
(b) - If the Securities Manager within three months following the
Realization Event realizes the Collateral Shares by means
other than exercising its put
4/8
option, then the guarantee amount shall be limited to the
amount of the Guaranteed Debts due and payable at the time
when the guarantee is enforced less the proceeds due to the
Securities Manager from the realization of the collateral
shares and less the credit balance in the Pledged Account,
provided, however, that the total amount thus deducted shall
not be less than the (notional) purchase price calculated
pursuant to clause 2.1 (b) of the Option Contract as at the
time when the collateral shares are realized.
2.3. In the circumstances described in clause 2.2 (a) hereof, the guarantee
amount shall be calculated, due and payable on the sixth bank working
day following the Security Manager's exercise of its put option and the
extinguishment of the last of any rights to withhold payment that E.ON
may have against the Securities Manager.
2.4. The Surety shall not be liable under the Guarantee if the Securities
Manager does not within three months following the Realization Event
either sell the Collateral Shares to the Surety or realize them by
other means.
2.5. The amount of the Surety's liability under the Guarantee shall be
unlimited if the Surety is insolvent; if a petition for insolvency
proceedings is filed against the Surety pursuant to Sections 17 though
19 of the German Insolvency Regulations (InsO)--except in cases where
the petition for insolvency proceedings is vexatious or patently
unfounded; if the Surety's Board of Management is required by law to
file insolvency proceedings pursuant to Sections 17 through 19 of the
German Insolvency Regulations (InsO), or if the competent court of
jurisdiction orders interim safeguard measures of the type defined by
Section 21 of the German Insolvency Regulations (InsO).
2.6. The Banks may enforce their claims against the Surety under this
Guarantee Agreement only as individual creditors; that is, the Surety
shall only be liable to each Bank pro rata that Bank's share of the
syndicated loan pursuant to the Loan Agreement.
5/8
3. WAIVER OF SURETY'S DEFENSES
The Surety shall remain liable under the Guarantee Agreement even if
the Offerer is able to challenge or avoid the transaction underlying
the Surety's liability (waiver of the defense of voidability of the
underlying transaction pursuant to Section 770(1) of the German Civil
Code (BGB)). Furthermore, the Surety is barred from raising the defense
that the (Banks can satisfy their claims by offsetting them against a
debt they owe to BG if said debt is due and either unchallenged or
finally and unappealably proven (waiver of the defense of offset
pursuant to Section 770(2) of the German Civil Code (BGB)).
4. TRANSFERS OF THE BANKS' RIGHTS AND OBLIGATIONS
Each Bank is entitled to transfer to a third party its rights and
obligations hereunder and its rights and obligations under the Loan
Agreement according to the terms of said Loan Agreement. All parties to
this Contact of Guarantee apart from the Securities Manager hereby
authorize the Securities Manager to consent on their behalf to this
transfer and assumption of contractual rights and obligations. To this
end, the Securities Manager is exempt from the restrictions imposed by
Section 181 of the German Civil Code (BGB).
5. NOTIFICATIONS
All notifications relating to this Guarantee Agreement shall be in
writing. To this end, the Banks hereby appoint the Securities Manager
as their common authorized receiving agent. Notifications must be
delivered in person, or sent via mail or fax either to the addresses
listed below or to such alternative addresses as the Parties
subsequently indicate by written notice:
The Surety: - Rechtsbereich -
E.ON-Platz 1
6/8
40479 Dusseldorf, Germany
Fax: +49-211-45 79 588
The Securities Manager : Deutsche Bank Luxembourg S.A. - International
Loans and Agency Services -
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Fax: +352-4 21 22-287
6. FINAL PROVISIONS
6.1. If any provision of this Guarantee Agreement should be or becomes
invalid or unenforceable, then it shall be severed and the remaining
provisions shall remain valid and enforceable. The parties shall cure
any invalid or unenforceable provision by substituting in its place a
valid and enforceable provision which as nearly as possible
approximates the spirit and intent underlying the invalid or
unenforceable provision. The same shall apply mutatis mutandis in
respect of gaps in this Guarantee Agreement.
6.2. Any amendments or additions to this Guarantee Agreement--including
amendments and changes to this clause--must be in writing.
6.3. This Guarantee Agreement is governed by the laws of the Federal
Republic of Germany. The non-exclusive legal venue is Dusseldorf,
Germany.
7/8
For E.ON AG:
Done at_____________, on this day________________ 2002
- -------------------------------------
(Name)
For DEUTSCHE BANK LUXEMBOURG S.A.:
Done at_____________, on this day________________ 2002
- -------------------------------------
(Name)
For MORGAN STANLEY SENIOR FUNDING, INC.:
Done at_____________, on this day________________ 2002
- -------------------------------------
(Name)
8/8