Sample Contracts - Senior Facility Agreement - IFCO Europe Beteiligungs-GmbH

Sample Business Contracts

CONFORMED COPY SENIOR FACILITY AGREEMENT between IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH as Borrower and IFCO EUROPE BETEILIGUNGS-GmbH as IFCO Europe BARCLAYS CAPITAL DG BANK DEUTSCHE GENOSSENSCHAFTSBANK and BHF BANK AKTIENGESELLSCHAFT as Joint Arrangers BARCLAYS BANK PLC BHF BANK AKTIENGESELLSCHAFT DG BANK DEUTSCHE GENOSSENSCHAFTSBANK CREDITANSTALT AG DEUTSCHE BANK AKTIENGESELLSCHAFT, Munich Branch NORDDEUTSCHE HYPOTHEKEN-UND WECHSELBANK AG and OLDENBURGISCHE LANDESBANK AG as Co-Arrangers BHF BANK AKTIENGESELLSCHAFT as Agent and Security Trustee Clifford Chance <PAGE> CONTENTS Clause Page No. Part 1 INTERPRETATION 1. Interpretation..................................................... 1 Part 2 THE FACILITIES 2. The Facilities..................................................... 26 3. Purpose............................................................ 26 4. Conditions Precedent............................................... 26 5. Nature of Banks' Rights and Obligations............................ 26 Part 3 UTILISATION OF THE FACILITIES 6. Utilisation of the Term Facility................................... 28 7. Utilisation of the Revolving Facility.............................. 29 8. Bank Guarantees.................................................... 30 9. Indemnity Relating to Bank Guarantees Issued by the Fronting Bank.. 32 10. Indemnity Relating to Bank Guarantees issued by the Agent on behalf of the Revolving Banks............................................. 36 11. Guarantee Commission and Fees...................................... 36 Part 4 INTEREST 12. Interest Periods (Term Advances)................................... 38 13. Interest Rate and Payment.......................................... 39 14. Market Disruption (Term Advances).................................. 40 15. Market Disruption (Cash Advances).................................. 41 Part 5 REPAYMENT, PREPAYMENT AND CANCELLATION 16. Repayment of Term Loan and Cash Advances........................... 43 17. Prepayment......................................................... 43 18. Reductions in Revolving Commitments................................ 45 19. Cancellation....................................................... 46 Part 6 CHANGES IN CIRCUMSTANCES 20. Taxes.............................................................. 47 21. Tax Credits........................................................ 48 22. Tax Receipts....................................................... 48 23. Increased Costs.................................................... 48 24. Illegality......................................................... 50 25. Mitigation......................................................... 51 Part 7 REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT 26. Representations.................................................... 52 27. Financial Information.............................................. 56 28. Financial Condition................................................ 60 29. Covenants.......................................................... 70 30. Events of Default.................................................. 78 Part 8 DEFAULT INTEREST AND INDEMNITY 31. Default Interest and Indemnity.................................... 83 Part 9 PAYMENTS 32. Currency of Account and Payment.................................... 85 33. Payments........................................................... 85 34. Set-Off............................................................ 86 35. Redistribution of Payments......................................... 86 <PAGE> Part 10 FEES, COSTS AND EXPENSES 36. Fees...................................................... 88 37. Costs and Expenses........................................ 88 Part 11 AGENCY PROVISIONS 38. The Agent, the Arrangers and the Banks.................... 90 Part 12 ASSIGNMENTS AND TRANSFERS 39. Benefit of Agreement...................................... 95 40. Assignments and Transfers by the Borrower................. 95 41. Assignments and Transfers by Banks........................ 95 42. Disclosure and Syndication................................ 96 Part 13 MISCELLANEOUS 43. Calculations and Evidence of Debt......................... 98 44. Remedies, Waivers, Amendments and Consents................ 98 45. Partial Invalidity........................................ 99 46. Notices................................................... 100 47. European Monetary Union................................... 100 48. Intercreditor and Security Trust Agreement Acknowledgements and Undertakings......................... 101 Part 14 LAW AND JURISDICTION 49. Law....................................................... 103 50. Jurisdiction.............................................. 103 <PAGE> THE FIRST SCHEDULE The Banks and their Commitments................................................ 104 THE SECOND SCHEDULE Form of Transfer Certificate................................................... 105 THE THIRD SCHEDULE Conditions Precedent........................................................... 108 THE FOURTH SCHEDULE Notice of Drawdown of Term Advances/Revolving Advances/Bank Guarantees................................................................ 113 THE FIFTH SCHEDULE Terms of Indemnity in relation to Bank Guarantees.............................. 114 THE SIXTH SCHEDULE PART I Form of Bank Guarantee to be issued by the Fronting Bank....................... 117 PART II Bank Guarantee to be issued by the Agent on behalf of the Banks................ 118 THE SEVENTH SCHEDULE Group Structure Chart.......................................................... 121 THE EIGHTH SCHEDULE Existing Indebtedness.......................................................... 122 THE NINTH SCHEDULE Material Intellectual Property................................................. 123 <PAGE> 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, DG BANK DEUTSCHE GENOSSENSCHAFTSBANK and BHF BANK AKTIENGESELLSCHAFT as joint arrangers of the Facilities (the "Joint Arrangers"); (4) BARCLAYS BANK PLC, BHF BANK AKTIENGESELLSCHAFT, DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, CREDITANSTALT AG, DEUTSCHE BANK AKTIENGESELLSCHAFT, Munich Branch, NORDDEUTSCHE HYPOTHEKEN-UND WECHSELBANK AG and OLDENBURGISCHE LANDESBANK AG as co-arrangers (together with the Joint Arrangers, the "Arrangers"); (5) BHF BANK AKTIENGESELLSCHAFT as security trustee for the Beneficiaries (the "Security Trustee"); (5) BHF BANK AKTIENGESELLSCHAFT as agent for the Banks (the "Agent"); (6) THE FINANCIAL INSTITUTIONS named in Part I of the First Schedule (the "Term Banks"); and (7) THE FINANCIAL INSTITUTIONS named in Part II of the First Schedule (the "Revolving 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 <PAGE> 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 28.5; "Advance" means, save as otherwise provided herein, an advance made or to be made by the Banks hereunder; "Apollo" means Apollo Verwaltungsgesellschaft mbH & Co.; "Applicable Fronting Bank Rate" means in relation to a Bank Guarantee: (i) where the original duration of such Bank Guarantee is equal to or less than one year, nought point two per cent. (0.2%) per annum; (ii) where the original duration of such Bank Guarantee is greater than one year but less than four years, nought point two five per cent. (0.25%) per annum; and (iii) where the original duration of such Bank Guarantee is equal to or greater than four years, nought point three per cent. (0.3%) per annum. "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 Revolving Facility" means, at any time, the aggregate from time to time of the Revolving Available Commitments of the Revolving Banks at such time, adjusted for the purposes of Clauses 7.1(iv), 7.1(v) and 7.1(vi) and a proposed Revolving Advance only, so as to take into account any reduction in the Revolving Commitment of a Revolving Bank which will occur prior to the commencement of or during the Term relating to such proposed Revolving <PAGE> Advance consequent upon a cancellation of the whole or any part of the relevant Revolving Commitment of such Revolving Bank pursuant to the terms hereof; "Available Term Facility" means, at any time, the aggregate amount of the Term Available Commitments of the Term Banks at such time; "Banks" means the Term Banks, the Fronting Bank, the Revolving Banks and the Hedging Counterparty and "Bank" means any of them (and, for the avoidance of doubt, defining any person as a "Bank" does not imply that such person is a bank for regulatory purposes); "Bank Guarantee" means a bank guarantee (Garantie or Burgschaft) issued or to be issued by the Agent on behalf of the Revolving Banks or by the Fronting Bank pursuant to the terms and subject to the conditions hereof substantially in the relevant form set out in the Sixth Schedule or in such other form as may be requested by the Borrower and which is acceptable to the Fronting Bank (where applicable), the Revolving Banks and the Agent; "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 Arrangers, 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 27.2; "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 Facilities 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 28.5; "Cash Advance" means a Revolving Advance made by way of cash advance (as from time to time reduced by payment or prepayment); "Cash Flow" shall have the meaning ascribed thereto in Clause 28.5; "Commission Payment Date" means each date upon which guarantee commission is payable pursuant to the terms of Clause 11.3; "Commitment" means, in relation to any Bank, the aggregate amount of such Bank's Term Commitment and such Bank's Revolving Commitment; "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 <PAGE> 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 28.5; "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 or, in relation to any Bank Guarantee, the proposed date for the issue of such Bank Guarantee; "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 28.5; "EBITDA" shall have the meaning ascribed thereto in Clause 28.5; "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; <PAGE> "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 30.1; "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 27.1; "Existing Crates" means crates which are in existence at the date hereof and which are the <PAGE> 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 Hannover 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; "Facilities" means the Term Facility, the Tranche A Revolving Facility and the Tranche B Revolving Facility and "Facility" shall mean any one of them; "Facility Documents" means this Agreement, the Intercreditor Agreement, each Bank Guarantee the Senior Security Documents, the Security Trust Agreement, the Hedging Agreements, the fee letters referred to in Clauses 36.2 and 36.3, 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, <PAGE> and, for the purposes of this definition, "specified period" means the Interest Period or Term 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 2004 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; <PAGE> (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 28.5; "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 27.1; "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; "Fronting Bank" means BHF Bank Aktiengesellschaft or such alternative Bank as may have agreed in writing with the Borrower and the Agent to issue any Bank Guarantee in accordance with the provisions of this Agreement; "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 and distributed by <PAGE> the Arrangers to certain banks or financial institutions during October and November 1997 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 or Bank Guarantees 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 or Bank Guarantee 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 Outstandings 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 Subordinated Agent and the Senior Subordinated Lenders; "Interest Period" means, in relation to the Term Advances, any of the periods determined pursuant to Clauses 12.1 to 12.4 (inclusive); "Investa" means Investa Projektentwicklungs-und Verwaltungs GmbH; "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; "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; <PAGE> "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 28.5; "LMA" means the Loan Market Association; "Margin" means one point seven five per cent. (1.75%) per annum or such lesser rate per annum as may be in effect from time to time in accordance with Clause 13.5; "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 <PAGE> 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 <PAGE> 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 28.5; "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 Part I of the Fourth Schedule; "Original Financial Statements" means the audited consolidated financial statements of the Group for its financial year ending 31 December 1996; "Outstandings" means, at any time, the aggregate of: (i) the amounts of each outstanding Revolving Advance; and (ii) the amounts of each outstanding Bank Guarantee (a Bank's share of the Outstandings in respect of a Bank Guarantee being the amount thereof allocated to such Bank pursuant to the provisions of Clause 8 as reduced pursuant to the terms hereof); and (iii) the amount of the Term Loans at such time; "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 PCT/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; <PAGE> "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; <PAGE> "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 Subordinated 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 Bank Guarantee; (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 (iv) any loan or other financial accommodation made by the Borrower to any of its <PAGE> 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; "Portion" means the participation of a Bank under or in respect of a Bank Guarantee as determined under Clause 7.2; "Potential Event of Default" means any event which would (but for the passage of any period of time provided for in Clause 30.1, 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 <PAGE> 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 BHF Bank Aktiengesellschaft, Barclays Bank PLC and DG Deutsche Genossenschaftsbank 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 28.5; "Relevant Ratio" shall have the meaning ascribed thereto in Clause 13.4; "Relevant Reduction" shall have the meaning ascribed thereto in Clause 13.4; "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, in relation to any Cash Advance, the last day of the Term thereof; "Replacement Capital Expenditure" shall have the meaning ascribed thereto in Clause 28.5; "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; "Revolving Advance" means, save as otherwise provided herein, a Tranche A Cash Advance <PAGE> or a Tranche B Cash Advance made or to be made and any Bank Guarantee issued or to be issued under the Revolving Facilities; "Revolving Available Commitment" means, in relation to a Revolving Bank at any time and save as otherwise provided herein, such Bank's Tranche A Revolving Commitment and Tranche B Revolving Commitment at such time less the aggregate of its portions of the Tranche A Revolving Advances and Tranche B Revolving Advances which are then outstanding Provided that such amount shall not be less than zero; "Revolving Commitment" means, in relation to a Revolving Bank at any time and save as otherwise provided herein, the aggregate of such Bank's Tranche A Revolving Commitment and Tranche B Revolving Commitment; "Revolving Facility" means each of the Tranche A Revolving Facility and the Tranche B Revolving Facility and "Revolving Facilities" means both of them; "Rolling Basis" shall have the meaning ascribed thereto in Clause 28.5; "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 Security Document has the meaning ascribed thereto in that Senior 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 Subordinated Agent and the Senior Subordinated Lenders; "Senior Interest Expense" shall have the meaning ascribed thereto in Clause 28.5; "Senior 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; "Senior Subordinated Agent" means the agent under the Senior Subordinated Facility Agreement or any refinancing thereof; "Senior Subordinated Debt" means at any time all amounts outstanding under the Senior Subordinated Facility Agreement at such time; "Senior Subordinated Facility" means the term loan facility in an amount of DM35,000,000 or any refinancing thereof made available to the Borrower by the Senior Subordinated Lenders; "Senior Subordinated Facility Agreement" means the agreement dated on or about the date hereof pursuant to which the Senior Subordinated Facility is made available to the Borrower or any refinancing thereof; <PAGE> "Senior Subordinated Facility Documents" means the Senior Subordinated 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 Subordinated Lenders" means Barclays Bank PLC and any bank becoming a party to the Senior Subordinated Facility Agreement pursuant to the provisions thereof or any lenders providing the refinancing thereof; "Senior Subordinated Loan" means at any time the amount outstanding in respect of principal under the Senior Subordinated Facility Agreement at such time; "Senior Subordinated Security Documents" has the meaning ascribed to that term in the Senior Subordinated Facility Agreement; "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 41.1 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; "Term" means, save as otherwise provided herein, in relation to any Cash Advance, the period for which such Cash Advance is borrowed as specified by the Borrower in the Notice of Drawdown relating thereto and, in relation to any Bank Guarantee, the period from the date on which such Bank Guarantee is issued until its expiry date (as specified in the Notice of Drawdown relating thereto); <PAGE> "Term Advance" means, save as otherwise provided herein, the advance made or to be made by the Term Banks under the Term Facility; "Term Available Commitment" means, in relation to a Term Bank at any time and save as otherwise provided herein, such Bank's Term Commitment at such time less the aggregate of its portion of the Term Loan at such time; "Term Commitment" means, in relation to any Term Bank at any time and save as otherwise provided herein, the amount set opposite its name under the heading "Term Commitment" in Part I of the First Schedule; "Term Facility" means the term loan facility granted by the Term Banks to the Borrower pursuant to Clause 2.1; "Term Loan" means the aggregate amount of the Term Advances for the time being outstanding under the Term Facility; "Term Repayment Dates" means each 31 March and 30 September falling on or during the period between the date upon which the first Term Advance is made hereunder and the Final Maturity Date and "Term Repayment Date" means any of them provided that if any such day is not a business day, such Term Repayment Date shall be the immediately preceding business day; "Termination Date" means 28 February 1998; "Total Debt" shall have the meaning ascribed thereto in Clause 28.5; "Total Commitments" means the aggregate for the time being of the Banks' Commitments; "Total Fixed Charges" shall have the meaning ascribed thereto in Clause 28.5; "Total Interest Expense" shall have the meaning ascribed thereto in Clause 28.5; "Total Loan" means the aggregate of the Term Loan and the Revolving Facility Outstandings; "Total Revolving Commitment" means the aggregate of each Bank's Revolving Commitment; "Total Tranche A Revolving Commitment" means the aggregate for the time being of the Revolving Banks' Tranche A Commitments; "Tranche A Available Revolving Facility" means, at any time, the aggregate at such time of the Tranche A Revolving Available Commitments of the Revolving Banks at such time adjusted, for the purposes of Clause 8.1(iv) and a proposed Tranche A Revolving Advance only, so as to take into account any reduction in the Tranche A Revolving Commitment of a Revolving Bank which will occur prior to the commencement of or during the Term relating to such proposed Tranche A Revolving Advance consequent upon a cancellation of the whole or any part of the Tranche A Revolving Commitment of such Revolving Bank pursuant to the terms hereof; <PAGE> "Tranche A Cash Advance" means an advance made by way of cash advance under the Tranche A Revolving Facility; "Tranche A Revolving Advance" means, save as otherwise provided herein, an advance made or to be made by the Revolving Banks under the Tranche A Revolving Facility; "Tranche A Revolving Available Commitment" means the aggregate of, in relation to a Revolving Bank at any time and save as otherwise provided herein, such Bank's Tranche A Revolving Commitment at such time less the aggregate of its portion of the Tranche A Revolving Outstandings at such time; "Tranche A Proportion" means, in relation to a Revolving Bank, at any time, the proportion borne at such time, by its Tranche A Revolving Commitment to the Total Tranche A Revolving Commitment (or, if the Total Tranche A Revolving Commitment is then zero, by its Tranche A Revolving Commitment to the Total Tranche A Revolving Commitment immediately prior to its reduction to zero); "Tranche A Revolving Commitment" means, in relation to a Revolving Bank at any time and save as otherwise provided herein, the amount opposite its name under the heading "Tranche A Revolving Commitment" in Part II of the First Schedule; "Tranche A Revolving Facility" means the revolving loan facility granted to the Borrower by the Revolving Banks pursuant to Clause 2.2; "Tranche A Revolving Facility Outstandings" means the aggregate Outstandings for the time being under the Tranche A Revolving Facility; "Tranche B Available Revolving Facility" means, at any time, the aggregate at such time of the Tranche B Revolving Available Commitments of the Revolving Banks adjusted, for the purposes of Clauses 7.1(v) and (vi) and a proposed Tranche B Revolving Advance only, so as to take into account any reduction in the Tranche B Revolving Commitment of a Revolving Bank which will occur prior to the commencement of or during the Term relating to such proposed Trance B Revolving Advance consequent upon a cancellation of the whole or any part of the Tranche B Revolving Commitment of such Revolving Bank pursuant to the terms hereof; "Tranche B Cash Advance" means an advance made by way of cash advance under the Tranche B Revolving Facility; "Tranche B Revolving Advance" means, save as otherwise provided herein, an advance made or to be made by the Revolving Banks under the Tranche B Revolving Facility; "Tranche B Revolving Available Commitment" means the aggregate of, in relation to a Revolving Bank at any time and save as otherwise provided herein, such Bank's Tranche B Revolving Commitment at such time less the aggregate of its portion of the Tranche B Revolving Facility Outstandings at such time; <PAGE> "Tranche B Revolving Commitment" means, in relation to a Revolving Bank at any time and save as otherwise provided herein, the amount opposite its name under the heading "Tranche B Revolving Commitment" in Part II of the First Schedule; "Tranche B Revolving Facility" means the revolving loan and guarantee facility granted to the Borrower by the Revolving Banks pursuant to Clause 2.3; "Tranche B Revolving Facility Outstandings" means the aggregate Outstandings for the time being under the Tranche B Revolving Facility; "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 Facilities, the Senior Subordinated 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 41; 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 41.3; "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 28.5. 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 <PAGE> 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 "Arrangers", 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; 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 <PAGE> 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 <PAGE> 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)). <PAGE> 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; (iv) a Bank Guarantee shall be "repaid" or "prepaid" by providing the Fronting Bank or the Agent on behalf of the Revolving Banks with cash cover in the currency in which that Bank Guarantee is denominated, by reducing, whether by partial cancellation or otherwise, (in accordance with the terms of this Agreement and the relevant Bank Guarantee) the amount that may be demanded under that Bank Guarantee (or by such amount automatically reducing in accordance with the terms of the relevant Bank Guarantee) or by cancelling that Bank Guarantee by returning the original to the Fronting Bank or the Agent on behalf of the Revolving Banks (as appropriate) together with written confirmation (in form and substance satisfactory to the Fronting Bank or the Agent on behalf of the Revolving Banks (as appropriate)) from the beneficiary that the Fronting Bank has (or, as the case may be, the Revolving Banks have) no further liability under that Bank Guarantee; (v) "cash cover" is provided, in whole or in part, in respect of a Bank Guarantee at any time by paying an amount, in the currency in which that Bank Guarantee is denominated, equal to the whole or a part of the outstanding amount of such Bank Guarantee at such time to the Fronting Bank (or, as the case may be, to the Agent on behalf of the Revolving Banks) and the Fronting Bank (or, as the case may be, the Agent) paying the amount so received by it into an account with it in the name of the Borrower from which the only withdrawals which may be made are withdrawals to pay the Fronting Bank (or, as the case may be, the Revolving Banks) amounts due and payable to it (or them) under this Agreement following any payment made by it (or, as the case may be, the Revolving Banks) under such Bank Guarantee and in respect of which account and all claims arising thereunder, the Borrower has granted to the Fronting Bank (or, as the case may be, to the Agent on behalf of the Revolving Banks) pursuant to agreed upon documentation, a first priority security interest in order to secure all amounts which may become payable by such Borrower in respect of such Bank Guarantee; and <PAGE> (vi) an amount "outstanding" at any time under or in respect of a Bank Guarantee is the maximum amount that may be demanded under that Bank Guarantee at that time in accordance with its express provisions less (i) the aggregate amount of cash cover held in relation to that Bank Guarantee at that time and (ii) (save to the extent that this is taken into account in the express provisions of that Bank Guarantee) the aggregate of all payments made by the Fronting Bank or the Revolving Banks pursuant to demands made under that Bank Guarantee on or prior to such time (save to the extent that the Fronting Bank or the Revolving Banks have not been reimbursed in respect of the same (unless the context otherwise requires)) and each provision of this Agreement which requires reference to the concept contained in this paragraph (vi) shall be construed accordingly. 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. <PAGE> Part 2 THE FACILITIES 2. The Facilities 2.1 The Term Banks grant to the Borrower, upon the terms and subject to the conditions hereof, an amortising term loan facility in an amount of DM76,000,000 (the "Term Facility"). 2.2 The Revolving Banks grant to the Borrower a revolving credit facility in an aggregate principal amount of DM45,000,000 (the "Tranche A Revolving Facility"). 2.3 The Revolving Banks grant to the Borrower upon the terms and subject to the conditions hereof a revolving advance and bank guarantee facility in an aggregate principal amount of DM25,000,000 (the "Tranche B Revolving Facility"). 3. Purpose 3.1 The Term 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 Term Facility accordingly. 3.2 The Tranche A Revolving Facility is intended for refinancing certain of the Existing Indebtedness (not including any Leasing Facilities) and financing the general corporate purposes of the Borrower and the Borrower shall apply amounts drawn under the Tranche A Revolving Facility accordingly. 3.3 The Tranche B Revolving Facility is intended for the purposes of providing guarantees to providers of finance under External Finance Leases with the Borrower and to fund Replacement Capital Expenditure and Growth Capital Expenditure of the Borrower and the Borrower shall apply amounts drawn under the Tranche B Revolving Facility accordingly. 3.4 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 Facilities 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 Joint Arrangers. 5. Nature of Banks' Rights and Obligations <PAGE> 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 Fronting Bank which is willing to participate in the Facilities 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). <PAGE> Part 3 UTILISATION OF THE FACILITIES 6. Utilisation of the Term Facility 6.1 Save as otherwise provided herein, a Term Advance under the Term Facility will be made by the Term 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 Term 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 Term Advance is a business day which is or precedes the Termination Date; (iii) none of the events described in Clause 14 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 Term Advance is equal to the amount of the Available Term 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 Term Advances; and (b) the representations set out in Clause 26.1 are true on and as of the proposed date for the making of such Term Advance in all material respects, or each of the Term Banks agrees (notwithstanding any matter mentioned at (a) or (b) above) to participate in the making of the Term Advance. 6.2 Each Term Bank participating in the Term Facility will participate in the Term Advance made pursuant to Clause 6.1 through its Facility Office in the proportion borne by its Term Available Commitment to the Available Term Facility immediately prior to the making of the Term Advance. 6.3 If a Bank's Term Available Commitment is reduced in accordance with the terms hereof after the Agent has received a Notice of Drawdown then the amount of the Term Advance shall be reduced accordingly. <PAGE> 6.4 Each Bank's Term Available Commitment shall be reduced to zero at the close of business on the day on which the Term Advance is made. 7. Utilisation of the Revolving Facility 7.1 Save as otherwise provided herein, a Cash Advance will be made by the Revolving Banks to the Borrower or a Bank Guarantee will be issued by the Fronting Bank or the Agent on behalf of the Banks if: (i) not more than ten business days nor later than 10.00 a.m. on the third business day before the proposed date for the making of such Cash Advance or the issuing of such Bank Guarantee, the Agent has received from the Borrower an irrevocable Notice of Drawdown therefor (such Notice of Drawdown in the case of a Bank Guarantee to include the additional information required by Clause 8.1) receipt of which shall oblige the Borrower to borrow the amount therein requested (or have the relevant Bank Guarantee issued), 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 such Cash Advance or the issuing of such Bank Guarantee is on or after the making of the Term Advance and is a business day falling one month or more before the Final Maturity Date; (iii) (in respect of Cash Advances) none of the events described in Clause 15 have occurred in such a way that would, in accordance with the provisions of that clause, prevent the Advance from being made; (iv) (in respect of Cash Advances to be made under the Tranche A Revolving Facility) the proposed amount of such Cash Advance is (a) a minimum amount of DM5,000,000 and an integral multiple of DM1,000,000 which is less than the amount of the Tranche A Available Revolving Facility or (b) equal to the amount of the Tranche A Available Revolving Facility; (v) (in respect of Cash Advances to be made under the Tranche B Revolving Facility), the proposed amount of such Cash Advance is (a) a minimum amount of DM5,000,000 and an integral multiple of DM1,000,000 which is less than the Tranche B Available Revolving Facility or (b) equal to the amount of the Tranche B Available Revolving Facility; (vi) (in respect of a Bank Guarantee) the proposed amount of such Bank Guarantee does not exceed the Tranche B Available Revolving Facility and is a minimum amount of DM1,000,000; (vii) (in respect of a Bank Guarantee) the issuing of the proposed Bank Guarantee would not result in more than six Bank Guarantees being outstanding; (viii) the proposed Term of such Revolving Advance is (if a Cash Advance) a <PAGE> period of one, three or six months (or such other period as may be previously agreed to by the Banks) or (if a Bank Guarantee) is for a period not exceeding one year or, if so required by the beneficiary of the relevant Bank Guarantee as a consequence of the duration of the relevant Finance Lease, such other period which is commensurate with the duration of the relevant Finance Lease and in any case such period ends on or before the Final Maturity Date; (ix) in the case of a Bank Guarantee, the Fronting Bank or the Revolving Banks (as appropriate) have approved the terms of the Bank Guarantee which is to be issued pursuant to the Notice of Drawdown (which, unless the Agent (acting on the instructions of all the Banks) otherwise agrees in writing, shall be substantially in the relevant form set out in the Sixth Schedule) and have approved the identity of the beneficiary of the Bank Guarantee to be issued pursuant to the Notice of Drawdown (which approval may only be withheld on legal grounds or on the grounds of the requirements of any applicable fiscal, monetary, regulatory or other authority); and (x) 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 such Revolving Advance; and (b) the representations set out in Clause 26.1 (save, in the case of any Revolving Advance made or (as the case may be) issued after the date hereof, for the representations which are not repeated pursuant to Clause 26.2) are true in all material respects or have been waived on and as of the proposed date for the making or (as the case may be) issuing of such Revolving Advance, or each of the Revolving Banks agrees (notwithstanding any matter mentioned at (a) or (b) above) to participate in the making of such Revolving Advance (if it is a Cash Advance) or each of the Banks agrees (notwithstanding any matter mentioned at (a) or (b) above) that such Revolving Advance may be issued (if it is a Bank Guarantee). 7.2 Each Revolving Bank participating in the Revolving Facility will participate in the Revolving Advance made pursuant to Clause 7.1 through its Facility Office in the proportion borne by its Revolving Available Commitment to the Available Revolving Facility immediately prior to the making of that Revolving Advance. 7.3 If a Bank's Revolving Commitment is reduced in accordance with the terms hereof after the Agent has received the Notice of Drawdown for a Revolving Advance (or is scheduled to be reduced during the period in which such Advance or Bank Guarantee is expected to be outstanding) and such reduction was not taken into account in determining the Available Revolving Facility for the purposes of Clause 7.1(iv), (v) or (vi), then the actual amount of that Revolving Advance shall be reduced accordingly. <PAGE> 8. Bank Guarantees 8.1 A Notice of Drawdown requesting the issue of a Bank Guarantee (in addition to complying with Clause 7.1) must specify in respect of the Bank Guarantee to be issued pursuant to such Notice of Drawdown: (i) the purpose of its issue; (ii) the issue date; (iii) the final expiry date as selected in accordance with Clause 7.1(vii); (iv) the beneficiary agreed in accordance with Clause 7.1(viii); (v) the currency of denomination of the proposed Bank Guarantee which shall be Deutsche Mark; (vi) its face value in accordance with Clause 7.1(vi); and (vii) whether the Bank Guarantee is to be issued by the Agent on behalf of the Revolving Banks or by the Fronting Bank. 8.2 Where the Tranche B Revolving Facility is to be drawn by way of the issue of a Bank Guarantee, such Bank Guarantee shall be made available either by the Fronting Bank which shall then act as the principal of any such guarantee given to a third party at the request of the Borrower or by the Agent on behalf of each of the Revolving Banks in which case each Revolving Bank shall be severally liable as the principal of any such guarantee up to the amount of its Portion in respect of such Bank Guarantee. 8.3 If the proposed issue of a Bank Guarantee to a proposed beneficiary is prohibited under any law, statute, regulation, order or decree to which a Bank (by or on behalf of which such Bank Guarantee is to be issued) or the Fronting Bank is subject or pursuant to any request from a requirement of any central bank or other fiscal, monetary or other authority to which a Bank or the Fronting Bank is subject, the Bank or the Fronting Bank shall notify the Agent thereof not later than two business days before the proposed date for the issuing of such Bank Guarantee and that Bank (or, where applicable) the Fronting Bank shall not be obliged to participate in the issue of such proposed Bank Guarantee. 8.4 The Agent is hereby authorised to issue any Bank Guarantee to be issued on behalf of the Banks pursuant hereto by: (i) completing the issue date and expiry date of such Bank Guarantee (which shall be a date falling no later than the Final Maturity Date); (ii) completing the schedule to such Bank Guarantee with the amount of each Revolving Bank's Portion calculated pursuant to Clauses 7.2 and 7.3; and (iii) executing and delivering such Bank Guarantee to the relevant recipient on the <PAGE> date upon which such Bank Guarantee is issued. 8.5 The Borrower (in respect of any Bank Guarantee issued at its request) hereby: (i) authorises the Agent, the Revolving Banks and the Fronting Bank to, and the Agent, the Revolving Banks and the Fronting Bank shall, make any payment and comply with any demand made by a third party in respect of a Bank Guarantee which is valid on its face, appears to comply with the terms thereof and which may be claimed from or made upon it without any reference to or further authority from the Borrower unless it has actual knowledge that any such demand is fraudulent; (ii) agrees that its authorisation under paragraph (i) above shall remain in full force and effect and shall not be discharged until such date as the Agent (acting on the instructions of all of the Banks) shall notify the Borrower that it is fully satisfied that the Revolving Banks or, as the case may be, the Fronting Bank remain under no liability (actual or contingent) in respect of any Bank Guarantee; (iii) agrees that each Bank Guarantee is issued subject to and with the benefit of the provisions of the Fifth Schedule; and (iv) agrees that it will at all times indemnify the Revolving Banks on demand of such Revolving Bank (or the Agent on its behalf) and keep each of the Revolving Banks indemnified on demand of such Revolving Bank (or the Agent on its behalf) from and against all actions, suits, proceedings, claims, demands, liabilities, damages, costs, expenses, losses and charges whatsoever in relation to or arising out of the issue of any Bank Guarantee, the payment of any claim made thereunder or arising out of each such Bank's obligations pursuant to Clause 9.1 Provided that the Borrower shall be entitled to finance a payment under such indemnity by utilising the Revolving Facility if it is then entitled to draw under the Revolving Facility in accordance with the terms of this Agreement. 8.6 The Agent shall notify the Borrower upon its receipt of a demand by a beneficiary under a Bank Guarantee issued hereunder and, where the Fronting Bank or, as the case may be, the Revolving Banks make a payment under any such Bank Guarantee, such payment shall be made no earlier than the third business day after the date on which the Fronting Bank (or, as the case may be, the Agent on behalf of the Revolving Banks) received such demand from such beneficiary (and, for the avoidance of doubt, it is expressly agreed that neither the Agent, the Revolving Banks nor the Fronting Bank shall be obliged to give any further notice to the Borrower before making such payment to such beneficiary). 8.7 The Agent shall provide each of the Revolving Banks on whose behalf a Bank Guarantee has been issued with a copy of such Bank Guarantee as soon as practicable after the same has been issued and where the Fronting Bank has issued a Bank Guarantee it shall, as soon as practicable after the same has been issued, provide each Revolving Bank with a copy of such Bank Guarantee. <PAGE> 9. Indemnity Relating to Bank Guarantees Issued by the Fronting Bank 9.1 In the event of any failure of the Borrower to perform its obligations under Clause 8.5(iv) or as set out in the Fifth Schedule or the Borrower revokes the authorisations given under Clause 8.5(i) or (ii), each Revolving Bank, in relation to any Bank Guarantee issued by the Fronting Bank pursuant hereto, hereby irrevocably and unconditionally: (i) EITHER: (a) guarantees to the Fronting Bank severally up to the amount of its Portion and as a primary obligation, the due and punctual observance and performance of all of the payment obligations of the Borrower in respect of any Bank Guarantee issued by the Fronting Bank in its capacity as such; OR (b) (if it is not permitted by its constitutive documents or any applicable law to grant guarantees), agrees that: (A) upon any failure of the Borrower to make timely payment of any amount due in respect of a Bank Guarantee issued by the Fronting Bank in its capacity as such, each such Revolving Bank, without any further action, shall be deemed to have taken, as of the date of issuance of each such outstanding Bank Guarantee, an undivided participating interest from the Fronting Bank in such Bank Guarantee outstanding at such time (and upon the occurrence of an Event of Default specified in Clause 30.1(viii), (ix), (x), (xi) or (xii) each Revolving Bank shall be deemed to have taken, as of the date of issuance by the Fronting Bank of each outstanding Bank Guarantee, an undivided participating interest from the Fronting Bank in each such Bank Guarantee outstanding at such time) in a proportion equal to such Revolving Bank's Portion and each such Revolving Bank agrees that it shall hold the Fronting Bank harmless and indemnify the Fronting Bank for such Revolving Bank's Portion of any drawing under any such Bank Guarantee in which it has taken such an undivided participating interest under this Clause 9.1; and <PAGE> (B) the obligation of each Revolving Bank to make payments to the Fronting Bank with respect to any Bank Guarantee issued by the Fronting Bank after having taken a portion thereof as provided above shall be irrevocable and shall not be subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including without limitation any of the following circumstances: (1) any lack of validity or enforceability of this Agreement, any of the Facility Documents, and all other documents and instruments executed by the Borrower or any of its affiliates and delivered to the Agent, the Fronting Bank or any other Bank in connection with or related to the Facilities, the Bank Guarantees or the assets subject to the Senior Security Documents, together with any and all amendments, extensions, renewals and modifications thereof; (2) the existence of any claim, set-off, defence or other right which the Borrower or any other person may have at any time against the beneficiary named in any Bank Guarantee or any transferee of any Bank Guarantee (or any person for whom any such transferee may be acting), the Agent, the Fronting Bank, any other Bank or any other person, whether in connection with this Agreement, such Bank Guarantee, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between the Borrower or any of its affiliates and the beneficiary named in such Bank Guarantee); (3) any demand presented under any Bank Guarantee proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (4) the surrender or impairment of any security for the performance or observance of any of the terms of any of this Agreement or any of the Facility Documents; or (5) the occurrence of any Potential Event of Default or Event of Default; <PAGE> AND (ii) agrees to pay to the Agent for the account of the Fronting Bank on demand made through the Agent and in the currency in which the relevant Bank Guarantee is denominated, its Portion of any and every sum or sums of money which the Borrower shall from time to time be liable to pay to the Fronting Bank in respect of a Bank Guarantee issued by the Fronting Bank; and (iii) agrees to pay to the Fronting Bank full cash cover for its Portion of the outstanding contingent liabilities at any time after the Fronting Bank has become entitled to demand an indemnity in respect thereof from the Borrower and which shall not have been paid at the time such demand is made. 9.2 Any payment made or to be made by a Revolving Bank pursuant to Clause 9.1 and any unreimbursed amount on the part of the Fronting Bank shall (for the purpose of calculating interest thereon which is due from the Borrower) be deemed to have been made available to the Borrower by way of cash advance pursuant to the Revolving Facility on the date such payment is made or is to be made (or unreimbursed) and accordingly is subject to the terms and conditions hereof as if it were a Cash Advance with an initial Term of one month but for all other purposes shall be immediately due and payable by the Borrower. 9.3 (i) The obligations of each Revolving Bank contained in Clause 9.1 shall constitute and be continuing obligations notwithstanding any settlement of account, Event of Default or other matter or thing whatsoever. (ii) As a separate and independent stipulation each Revolving Bank agrees that any sum or sums of money intended to be the subject of the guarantee in Clause 9.1 and subject to Clause 9.1(ii) shall be recoverable from each Revolving Bank (in their respective proportions) as sole principal debtor even if they would not be recoverable from the Borrower by reason of any legal limitation, disability or incapacity or liquidation or any other fact or circumstance (whether known to the Fronting Bank or not) but which would have been recoverable from such Revolving Bank if it were the sole or principal debtor in respect of such as liability in place of the Borrower. (iii) The obligation of each Revolving Bank contained in Clause 9.1 shall not be affected in any way by any time or indulgence granted to the Borrower or by any variation compromise or release of any its obligations to the Fronting Bank under the Revolving Facility. (iv) Any settlement or discharge between any Revolving Bank and the Fronting Bank shall be conditional upon no security or payment to the Fronting Bank by any Revolving Bank or any other person on behalf of any Revolving Bank being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency or liquidation for the time being in force and, if any such security or payment shall be avoided or reduced, the Fronting Bank shall <PAGE> be entitled to recover the value or amount of such security or payment from such Revolving Bank subsequently as if such settlement or discharge had not occurred. 9.4 The Fronting Bank shall not be obliged before requesting counter- indemnification from any Revolving Bank by this Agreement to: (i) obtain judgment in any court against the Borrower or any other Group Entity; (ii) make or file any claim or proof in a winding-up or dissolution of the Borrower or any other Group Entity; or (iii) enforce or seek to enforce any other security taken in respect of any of the obligations of the Borrower or any other Group Entity. 9.5 If a Revolving Bank (a "Defaulting Bank") fails to make payment on the due date therefor of any amount due from it for the account of the Fronting Bank pursuant to Clause 8.4 (the balance thereof for the time being unpaid being referred to in this Clause as an "overdue amount") then until the Fronting Bank (or the Agent on its behalf) has received payment of that amount in full (and without prejudice to any other rights or remedies of the Fronting Bank in respect of such failure): (i) the Fronting Bank shall be entitled to receive any remuneration which such Defaulting Bank would otherwise have been entitled to receive in respect of the Revolving Facility; and (ii) the overdue amount shall bear interest at the rate of one per cent. per annum over the Fronting Bank's cost of borrowing for the time being and any such interest which accrues shall be invoiced monthly. 10. Indemnity Relating to Bank Guarantees issued by the Agent on behalf of the Revolving Banks 10.1 If, at any time after the date hereof but prior to the expiry of a Bank Guarantee which is issued by the Agent on behalf of the Revolving Banks a demand for payment (the amount so demanded being herein referred to as the "Amount Demanded") is made under such Bank Guarantee the Agent shall: (i) promptly notify the Borrower of such demand and make demand of such Borrower for an amount equal to the Amount Demanded; and (ii) notify the Revolving Banks of the Amount Demanded and the date of payment therefor. 10.2 The Borrower shall, after receipt of the notice under Clause 10.1(i), no later than 11.00 a.m. on the second business day preceding the payment date therefor (calculated in accordance with Clause 8.6), pay to the Agent the amount demanded of it and, for the avoidance of doubt, the Borrower shall be entitled to finance such a payment by utilising the <PAGE> Revolving Facility if it is then entitled to draw under the Revolving Facility in accordance with the terms of this Agreement. 10.3 If the Agent has required the Borrower to pay an amount pursuant to Clause 10.1 and has not, by 11.00 a.m. on the second business day preceding the payment date therefor, received such amount in full from the Borrower; (i) the Agent shall make a demand of each Revolving Bank for payment to the Agent on the business day following the date of the Agent's demand of an amount equal to such Bank's Portion in relation to the relevant Bank Guarantee; and (ii) each Revolving Bank shall, on the business day following the date of the Agent's demand under (i) above, pay to the Agent the amount so demanded of such Bank. 10.4 The Agent shall pay amounts received by it pursuant to Clauses 10.2 or 10.3, to the beneficiary of such Bank Guarantee. 10.5 Each Bank accepts each Bank Guarantee issued by the Agent on its behalf for itself and the Agent, in its capacity as such, without power of attorney, accepts and issues each such Bank Guarantee for each Transferee. Each Transferee to whom a Bank has transferred or assigned any right or obligation in accordance with the terms of this Agreement ratifies the issuing of such Bank Guarantee on its behalf by accepting such transfer or assignment, thereby becoming a Bank. All parties to this Agreement hereby confirm that the validity of the Bank Guarantees shall not be affected by the Agent, in its capacity as such, acting as representative without power of attorney for each Transferee. 11. Guarantee Commission and Fees 11.1 The Borrower shall pay guarantee commission to the Agent for the account of the Revolving Banks (in their respective Portions) on the issue of any Bank Guarantee requested by it hereunder at a rate per annum equal to the Margin prevailing in respect of the Revolving Facility from time to time on the Fronting Bank's exposure under such Bank Guarantee from the date of issuance of such Bank Guarantee until such date as the Fronting Bank and the Revolving Banks have ceased to be under any liability (actual or contingent) in respect thereof. 11.2 Where a Bank Guarantee is issued by the Fronting Bank, the Borrower shall pay to the Fronting Bank for its own account a fronting fee on the issue of any Bank Guarantee for the account of the Borrower at the Applicable Fronting Bank Rate on the Fronting Bank's exposure under such Bank Guarantee calculated from the date of issuance of such Bank Guarantee until such date as the Fronting Bank has ceased to be under any liability (actual or contingent) in respect thereof. 11.3 The commission payable under Clause 11.1 above and the fronting fee payable under Clause 11.2 above shall be paid quarterly in advance during the continuance of the Revolving Facility (and if such day is not a business day, on the preceding business <PAGE> day) commencing on the date of issuance of the relevant Bank Guarantee. 11.4 For the avoidance of doubt, the Fronting Bank's Proportion of the commission at the rate and calculated in the manner specified in Clause 11.1 above shall be payable to the Fronting Bank in its capacity as a Revolving Bank, notwithstanding that it may not be legally capable of guaranteeing itself in its capacity as Fronting Bank. <PAGE> Part 4 INTEREST 12. Interest Periods (Term Advances) 12.1 The period for which each Term 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. 12.2 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 relevant Term 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 a Term Advance which would otherwise end during the month preceding, or extend beyond, a Term Repayment Date shall be of such duration that it shall end on such Term Repayment Date. 12.3 The Borrower may, by not less than three business days' prior notice to the Agent, direct that any Term 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 Term Advances having such amounts (in aggregate, equalling the amount of the Term 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 Term Advances; or (ii) any Term Advance thereby coming into existence would be in an amount of less than DM5,000,000 12.4 If following a direction under Clause 12.3 two or more Interest Periods in respect of a Term Advance made to the Borrower end at the same time, then, on the last day of those Interest Periods, the Term 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 Term Advance. <PAGE> 13. Interest Rate and Payment 13.1 On the last day of each Interest Period relating to a Term 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 Term Advance. 13.2 On the Repayment Date relating to each Cash Advance, the Borrower shall pay accrued interest on such Cash Advance. 13.3 The rate of interest on each Term Advance during each Interest Period relating thereto and on each Cash Advance during the Term relating thereto shall be the rate per annum which is the sum of the Margin and FIBOR on the Quotation Date therefor. 13.4 If the aggregate amount of the Term Loan and the Total Revolving Commitment has been permanently reduced by an amount at least equal to one of the amounts set out in Column 1 of Clause 13.5 (the "Relevant Reduction") and at the time of delivery to the Agent of the financial statements for any period (in this Clause 13, the "Relevant Time Period") pursuant to Clause 27.1(i)(a), Clause 27.1(ii)(a) or Clause 27.1(iii)(a), a Duly Authorised Officer of the Borrower certifies or (in the case of delivery of any audited financial statements) the Auditors certify to the Agent in the certificate provided by him or them (as the case may be) under Clause 27 in relation to such accounts that such financial statements show that the ratio of Total Debt to Adjusted EBITDA (in this Clause 13, the "Relevant Ratio") in respect of that Relevant Time Period falls within one of the ranges specified in column 2 of Clause 13.5, then (Provided that no Event of Default or Potential Event of Default has occurred and is continuing and subject to Clause 13.7) the Margin in respect of the Facilities for the period referred to in Clause 13.6 shall be the percentage in column 3 of Clause 13.5 set opposite the amount of such Relevant Reduction and the range into which that Relevant Ratio falls. 13.5 Column 1 Column 2 Column 3 Relevant Reduction Relevant Ratio Margin% (DM) 25,000,000 or more 3.00:1 or less 1.625 30,000,000 or more 2.75:1 or less 1.50 40,000,000 or more 2.50:1 or less 1.375 50,000,000 or more 2.25:1 or less 1.250 and, for the avoidance of doubt where the amount of the Relevant Reduction and the amount of the Relevant Ratio fall in different lines across the columns set out above then: (i) where the Relevant Reduction falls on a line which is above the line on which the Relevant Ratio appears, the Margin shall be the figure set out in the same line as the applicable Relevant Reduction; and <PAGE> (ii) where the Relevant Ratio falls on a line which is above the line on which the Relevant Reduction falls, the Margin shall be the figure set out in the same line as the applicable Relevant Ratio. 13.6 Any revised Margin provided for in Clause 13.5 in relation to each Advance will become effective on the first day of each Interest Period or Term commencing (or, in the case of a Bank Guarantee, the next Commission Payment Date occurring) immediately after the date on which the accounts for the Relevant Time Period are delivered to the Agent under Clause 27 together with the certificate relating to covenant performance referred to in Clause 27.1(i)(c), 27.1(ii)(c) or 27.1(iii)(b) (as applicable) but shall cease to be effective as from the first day of the Interest Period or Term commencing (or, in the case of a Bank Guarantee, the next Commission Payment Date occurring) after the Relevant Reduction and/or Relevant Ratio ceases to be achieved. 13.7 Any amendment to the Margin provided for in Clause 13.5 in relation to each Advance will cease for each Interest Period or Term on the first day of the Interest Period or Term commencing (or, in the case of a Bank Guarantee, on the next Commission Payment Date occurring), immediately after the date that any accounts of the Borrower or any certificates of a Duly Authorised Officer of the Borrower or the Auditors are due to be delivered under Clause 27 if not delivered by then and shall be suspended after the occurrence of any Event of Default and shall only be reinstated once such Event of Default has been remedied or waived specifically for the purpose of this Clause 13.7 and financial statements have been delivered for the relevant financial period after such remedy or waiver which show that the Relevant Reduction and Relevant Ratio have been (or continue to be) achieved in which case such amendment to the Margin shall commence on the first day of each Interest Period or Term beginning (or, in the case of a Bank Guarantee, on the next Commission Date occurring), after the financial statements showing that the Relevant Reduction and Relevant Ratio have been (or continue to be) achieved are delivered. 14. Market Disruption (Term Advances) 14.1 If, in relation to any Term 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 Term 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 Term Advance, the Agent has been notified by a Bank or each of a group of Term Banks to whom in aggregate fifty per cent or more of the Term Facility is (or, if a Term 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, 12 and 13: (a) the Agent shall promptly notify the Borrower and the Term Banks of such <PAGE> 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 Term Advance to be made, the Term Advance shall not be made; and (c) where paragraph (b) does not apply, such Term Advance shall be made; and (d) the rate of interest applicable to the Term 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 Term 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 Term Bank of funding from whatever sources it may select its portion of such Term 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 Term Advances and/or (2) upon which the Term 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. 14.2 Interest on a Term Advance during an Interest Period specified in Clause 12.1 shall be distributed by the Agent to the

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