Definitions and Interpretation

The Facility

Purpose

Conditions of Utilisation

Utilisation - Loans

Utilisation - Letters of Credit

Letters of Credit

Repayment

Prepayment and Cancellation

Interest

Interest Periods

Changes to the Calculation of Interest

Fees

Tax Gross Up and Indemnities

Increased Costs

Other Indemnities

Mitigation by the Lenders

Costs and Expenses

Guarantee and Indemnity

Representations

Information Undertakings

Financial Covenants

General Undertakings

Events of Default

Changes to the Lenders

Changes to the Obligors

Role of the Agent, the Arranger, The Issuing Bank and the Reference Banks

The Security Agent

Conduct of Business by the Finance Parties

Sharing among the Finance Parties

Payment Mechanics

Set-Off

Application of Proceeds

Notices

Calculations and Certificates

Partial Invalidity

Remedies and Waivers

Amendments and Waivers

Confidential Information

Confidentiality of Funding Rates

Governing Law

Enforcement

Conclusion of this Agreement (Vertragsschluss)

Schedule 1 The Original Parties

Part I The Original Obligors

Part II The Original Lenders

Schedule 2 Conditions Precedent

Part I Conditions Precedent to Initial Utilisation

Part II Conditions Precedent required to be delivered by an Additional Guarantor

Schedule 3 Utilisation Request

Schedule 4 Form of Transfer Certificate

Schedule 5 Form of Accession Letter

Schedule 6 Form of Resignation Letter

Schedule 7 Form of Compliance Certificate

Schedule 8 Existing Letters of Credit

Schedule 9 Existing Security

Schedule 10 Existing Indebtedness

Schedule 11 LMA Form of Confidentiality Undertaking

Schedule 12 Timetables

ZELLSTOFF- UND PAPIERFABRIK ROSENTHAL GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Hauptstrasse 16, 07366 Blankenstein, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 210443 (“ZPR”);

MERCER TIMBER PRODUCTS GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Federal Republic of Germany having its business address at Hauptsraße 16, 07366 Blankenstein, Federal Republic of Germany and is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Jena with registration number HRB 513236 (“MTP” and together with ZPR, the “Borrowers” and each a “Borrower”);

THE SUBSIDIARIES of the Ultimate Parent (as defined below) listed in Part I of Schedule 1 (The Original Parties) as original guarantors (the “Original Guarantors”);

UNICREDIT BANK AG as mandated lead arranger ( the “Arranger”);

THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as lenders (the “Original Lenders”);

UNICREDIT BANK AG as agent of the other Finance Parties (the “Agent”);

UNICREDIT BANK AG as Issuing Bank (as defined below);

UNICREDIT BANK AG as Hedging Bank (as defined below); and

UNICREDIT BANK AG as security agent for the Secured Parties (the “Security Agent”).

DEFINITIONS AND INTERPRETATION

Definitions

the amount of its participation in any outstanding Utilisations; and

in relation to any proposed Utilisation, the amount of its participation in any Utilisations that are due to be made on or before the proposed Utilisation Date,

the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

the Ultimate Parent ceases to Control the Parent;

the Ultimate Parent ceases to Control the Borrowers; or

any other person or group of persons acting in concert gains direct or indirect Control of the Ultimate Parent, the Parent and the Borrowers (or any of them),

cast, or control the casting of, 51 per cent. or more of the maximum number of votes that might be cast at a general meeting of such body corporate or another entity; or

appoint or remove all, or the majority, of the partners, directors, management board members, or other equivalent officers of such body corporate; and/or

in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Part II of Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement; and

in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,

any member of the Group or the Mercer Group or any of its advisers; or

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

information that:

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (Confidential Information); or

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

any Funding Rate.

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

from performing its payment obligations under the Finance Documents; or

from communicating with other Parties in accordance with the terms of the Finance Documents,

in respect of any loss or liability suffered or incurred by that person as a result of or in connection with any violation of Environmental Law; or

that arises as a result of or in connection with Environmental Contamination and that could give rise to any remedy or penalty (whether interim or final) that may be enforced or assessed by private or public legal action or administrative order or proceedings.

any release, discharge, emission, leakage or spillage of any Dangerous Substance at or from any site owned, leased, occupied or used by any member of the Group into any part of the Environment; or

any accident, fire, explosion or sudden event at any site owned, leased, occupied or used by any member of the Group which is directly or indirectly caused by or attributable to any Dangerous Substance; or

any other pollution of the Environment,

the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or

if no Screen Rate is available for the Interest Rate Period of that Loan, as otherwise determined pursuant to Clause 12.1 (Unavailability of Screen Rate),

sections 1471 to 1474 of the Code or any associated regulations;

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;

in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,

any letter or letters dated on or about the date of this Agreement between the Arranger, Agent or Security Agent and each of the Borrowers setting out any of the fees referred to in Clause 13 (Fees); and

any agreement setting out fees payable to a Finance Party referred to in Clause 13.4 (Fees payable in respect of Letters of Credit).

moneys borrowed;

any amount raised by acceptance under any acceptance credit facility;

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability (other than any liability in respect of a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease);

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;

any amount raised by the issue of shares redeemable by the holder of such shares prior to the expiry of the Termination Date; and

the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above.

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

any Original Lender; and

any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 25 (Changes to the Lenders),

the business, operations, property and financial condition of the Group taken as a whole;

the ability of any Borrower to perform any of its obligations under the Finance Documents; or

the validity or enforceability of the Finance Documents.

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

in relation to the Ultimate Parent, the audited consolidated financial statements of the Mercer Group for the financial year ended 2016; and

in relation to ZPR, its unaudited financial statements for its financial year ended 2016.

the Existing Security until it is discharged pursuant to the terms of the Release Agreement;

any lien arising by operation of law or in the ordinary course of trading;

any Security arising by operation of any retention of title agreement entered into in the ordinary course of trading;

any Security over assets in connection with lease agreements having an aggregate contract value of EUR 10,000,000 in respect of each Borrower at any time;

any Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if:

the Security was not created in contemplation of the acquisition of that asset by a member of the Group;

the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and

the Security is removed or discharged within 180 days of the date of acquisition of such asset;

any Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security is created prior to the date on which that company becomes a member of the Group, if:

the Security was not created in contemplation of the acquisition of that company;

the principal amount secured has not increased in contemplation of or since the acquisition of that company; and

the Security is removed or discharged within 180 days of that company becoming a member of the Group;

any security securing Hedging Agreements;

any liens for taxes or arising as a result of litigation or legal proceedings that are being contested in good faith by appropriate proceedings;

any Transaction Security;

any Security securing any Financial Indebtedness permitted in accordance with paragraph (e) of the definition of Permitted Indebtedness; and/or

other liens on assets that were not incurred in connection with Financial Indebtedness and that do not in the aggregate materially adversely affect the value of the said assets or materially impair their use in the ordinary course of business.

Existing Financial Indebtedness;

until the date on which each of the conditions specified in Clause 4.1 (Initial conditions precedent) have been satisfied or waived by the Agent, the Existing Revolving Facility;

Financial Indebtedness incurred under, or as expressly permitted by, the Transaction Documents;

Financial Indebtedness incurred under the hedging transactions contemplated and documented by the Hedging Agreements;

Financial Indebtedness incurred as Subordinated Debt by any Borrower, or if made available to any other Obligor than the Borrowers, to the extent on-lent or otherwise passed on to any Borrower, which is legally and structurally subordinated to any liabilities (including contingent liabilities) of the Borrowers and the relevant Obligor under the Finance Documents in accordance with the Shareholders’ Undertaking Agreement;

Financial Indebtedness incurred by the Borrowers (or any of them) in the ordinary course of business which does not exceed an aggregate amount in respect of the Borrowers (calculated on a combined basis) of EUR35,000,000 (or the equivalent in any other currency) at any time; and

any other Financial Indebtedness permitted by the Majority Lenders from time to time.

the Acquisition;

any transaction contemplated by the Domination Agreement (including the termination of the Domination Agreement);

transactions (other than the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of business (including with respect to affiliates on an arm’s length basis); and

any other disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security given, or other transaction arising, under the Finance Documents or as permitted by the Majority Lenders.

(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period; or

if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the Screen Rate are asked to submit to the relevant administrator.

the Original Jurisdiction of each Obligor and the jurisdiction of incorporation of each other member of the Group; and

the jurisdiction where any asset subject to or intended to be subject to the Transaction Security is situated.

made or to be made on the same day that (i) a maturing Loan is due to be repaid; or (ii) a demand by the Agent pursuant to a drawing in respect of a Letter of Credit is due to be met;

the aggregate amount of which is equal to or less than the amount of the maturing Loan or the relevant claim in respect of that Letter of Credit; and

made or to be made to the same Borrower for the purpose of : (i) refinancing that maturing Loan; or (ii) satisfying the relevant claim in respect of that Letter of Credit.

the ZPR Account Pledge Agreement;

the MTP Account Pledge Agreement,

the ZPR Assignment Agreement;

the MTP Assignment Agreement;

the ZPR Security Transfer Agreement;

the MTP Security Transfer Agreement;

the Hedging Pledge Agreement MTP;

the Hedging Pledge Agreement ZPR; and

any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents.

the shareholder loan agreement in the agreed form for the aggregate amount of EUR 34,000,000 entered into on or about March 27, 2017 between the Ultimate Parent as lender and MTP as the borrower; and

any other document, entered into on substantially the same terms as the Shareholder Loan Agreement and agreed to be a “Shareholder Loan Agreement” by both the Agent and a Borrower.

the proposed Transfer Date specified in the Transfer Certificate; and

the date on which the Agent executes the Transfer Certificate.

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

Construction

Unless a contrary indication appears any reference in this Agreement to:

the “Agent”, the “Arranger”, the “Security Agent”, any “Finance Party”, any “Issuing Bank”, any “Secured Party”, any “Lender”, any “Obligor” or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with this Agreement;

“assets” includes present and future properties, revenues and rights of every description;

“director” includes any statutory legal representative(s) (organschaftlicher Vertreter) of a person pursuant to the laws of its jurisdiction of incorporation, including but not limited to, in relation to a person incorporated or established in Germany, a managing director (Geschäftsführer) or member of the board of directors (Vorstand);

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated;

a “group of Lenders” includes all the Lenders;

“indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

the “Interest Period” of a Letter of Credit shall be construed as a reference to the Term of that Letter of Credit;

a Lender’s “participation” in relation to a Letter of Credit shall be construed as a reference to the relevant amount that is or may be payable by a Lender in relation to that Letter of Credit;

a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

a Utilisation made or to be made to a Borrower includes a Letter of Credit issued on its behalf;

a provision of law is a reference to that provision as amended or re-enacted; and

a time of day is a reference to Munich time.

The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

Section, Clause and Schedule headings are for ease of reference only.

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

Unless a contrary indication appears, when an obligation is stated to be an obligation of the Borrowers, each Borrower shall be jointly and severally (gesamtschuldnerisch) responsible for such obligation.

A Default or an Event of Default is “continuing” if it has not been remedied or waived.

A Borrower providing “cash cover” for a Letter of Credit means a Borrower paying an amount in the currency of the Letter of Credit to an interest-bearing account in the name of the Borrower and the following conditions being met:

the account is with the Issuing Bank for which that cash cover is to be provided;

until no amount is or may be outstanding under that Letter of Credit withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Letter of Credit ; and

the Borrower has executed a security document, in form and substance satisfactory to the Issuing Bank with which that account is held, creating a first ranking security interest over that account.

A Borrower “repaying” or “prepaying” a Letter of Credit means:

that Borrower providing cash cover for that Letter of Credit;

the maximum amount payable under the Letter of Credit being reduced or cancelled in accordance with its terms; or

the Issuing Bank being satisfied that it has no further liability under that Letter of Credit,

An amount borrowed includes any amount utilised by way of Letter of Credit.

A Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit.

Amounts outstanding under this Agreement include amounts outstanding under or in respect of any Letter of Credit.

An outstanding amount of a Letter of Credit at any time is the maximum amount that is or may be payable by the relevant Borrower in respect of that Letter of Credit at that time.

A Borrower’s obligation on Utilisations becoming “due and payable” includes the Borrower repaying any Letter of Credit in accordance with paragraph (h) above.

Subject to Clause 38.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

Nothing in this Agreement shall be construed so as to exclude (erlassen) the liability of any person for its own gross negligence (grobe Fahrlässigkeit) and/or wilful misconduct (Vorsatz).

Currency symbols and definitions

English language

Shareholder Distribution Accounts

the Shareholder Distribution Accounts shall not be subject to any Transaction Security from, by or under any Finance Document; and

nothing herein or in any Finance Document shall restrict, prohibit or otherwise limit any Borrower from paying, disbursing, transferring or transmitting all or parts of any moneys or assets in a Shareholder Distribution Account in its respective sole discretion from time to time and at any time.

THE FACILITY

The Facility

Finance Parties’ rights and obligations

The obligations of each Finance Party under the Finance Documents are several and do not constitute a joint obligation (Ausschluss der gesamtschuldnerischen Haftung). Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and do not constitute a joint creditorship (Ausschluss der Gesamtgläubigerschaft) and any debt arising under the Finance Documents to a Finance Party from an Obligor is, except as otherwise set out in this Agreement or any other Finance Document, a separate and independent debt (Ausschluss der gesamtschuldnerischen Haftung) in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

PURPOSE

Purpose

its general corporate and working capital purposes; and

financing of working capital purposes in relation to the Acquisition (including related Acquisition costs, fees and expenses in an amount of up to EUR 2,000,000) in an aggregate amount of up to EUR 10,000,000 in total for both Borrowers.

Monitoring

CONDITIONS OF UTILISATION

Initial conditions precedent

No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Borrowers and the Lenders promptly upon being so satisfied.

The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving the notice in paragraph (a) above. Without prejudice to paragraph (a) above, a Borrower may deliver a Utilisation Request prior to the receipt of a respective notice by the Agent, provided that such Utilisation Request shall only become effective upon the Agent delivering the notice in paragraph (a) above.

Further conditions precedent

in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

the Repeating Representations to be made by each Obligor are true in all material respects.

Maximum number of Loans

UTILISATION - LOANS

Delivery of a Utilisation Request

Completion of a Utilisation Request for Loans

Each Utilisation Request for a Loan is irrevocable and will not be regarded as having been duly completed unless:

the proposed Utilisation Date is a Business Day within the Availability Period;

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and

the proposed Interest Period complies with Clause 11 (Interest Periods).

Only one Loan may be requested in each Utilisation Request.

Currency and amount

The currency specified in a Utilisation Request must be euro.

The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of EUR 1,000,000 (or its equivalent) or if less, the Available Facility.

The aggregate amount of Loans outstanding and borrowed by MTP shall not exceed EUR 45,000,000 at any time.

Lenders’ participation

If the conditions set out in this Agreement have been met and subject to Clause 8 (Repayment), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan in each case by the Specified Time.

Cancellation of Commitment

The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.

UTILISATION - LETTERS OF CREDIT

The Facility

The Facility may be utilised by way of Letters of Credit.

Clause 5 (Utilisation - Loans) does not apply to Utilisations by way of Letters of Credit.

In determining the amount of the Available Facility and a proposed Letter of Credit for the purposes of this Agreement, the Available Commitment of a Lender will be calculated ignoring any cash cover provided for outstanding Letters of Credit.

Delivery of a Utilisation Request for Letters of Credit

Completion of a Utilisation Request for Letters of Credit

it specifies that it is for a Letter of Credit;

it identifies the Issuing Bank which is to issue the Letter of Credit;

the proposed Utilisation Date is a Business Day within the Availability Period;

the currency and amount of the Letter of Credit comply with Clause 6.4 (Currency and amount);

the Expiry Date of the Letter of Credit falls on or before the Termination Date;

the delivery instructions for the Letter of Credit are specified; and

the identity of the beneficiary and the purpose of the Letter of Credit are approved by the Agent and the Issuing Bank.

Currency and amount

The currency specified in a Utilisation Request must be euro.

The amount of the proposed Letter of Credit must be such that it is not higher than the Issuing Bank’s respective Available Commitment.

Issue of Letters of Credit

If the conditions set out in this Agreement have been met, the Issuing Bank shall issue the Letter of Credit on the Utilisation Date.

The Issuing Bank will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:

in the case of a Letter of Credit to be renewed in accordance with Clause 6.6 (Renewal of a Letter of Credit), no Event of Default is continuing or would result from the proposed Utilisation and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and

the Repeating Representations to be made by each Obligor are true in all material respects.

The amount of each Letter of Credit issued will reduce the Commitment of the Issuing Bank in its capacity as Lender until such Letter of Credit is repaid or discharged.

The Agent shall notify the Issuing Bank and each Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.

The Issuing Bank has no duty to enquire of any person whether or not any of the conditions set out in paragraph (b) above have been met. The Issuing Bank may assume that those conditions have been met unless it is expressly notified to the contrary by the Agent. The Issuing Bank will have no liability to any person for issuing a Letter of Credit based on such assumption.

The Issuing Bank is solely responsible for the form of the Letter of Credit that it issues. The Agent has no duty to monitor the form of that document.

Each of the Issuing Bank and the Agent shall provide the other with any information reasonably requested by the other that relates to a Letter of Credit and its issue.

The Issuing Bank may issue a Letter of Credit in the form of a SWIFT message or other form of communication customary in the relevant market but has no obligation to issue that Letter of Credit in any particular form of communication.

Deemed Issuance of Existing Letters of Credit

Renewal of a Letter of Credit

A Borrower may request that any Letter of Credit issued on behalf of that Borrower be renewed by delivery to the Agent of a Renewal Request in substantially similar form to a Utilisation Request for a Letter of Credit by the Specified Time.

The Finance Parties shall treat any Renewal Request in the same way as a Utilisation Request for a Letter of Credit.

The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:

its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and

its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

Subject to paragraph (e) below, if the conditions set out in this Agreement have been met, the Issuing Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.

Where a new Letter of Credit is to be issued to replace by way of renewal an existing Letter of Credit, the Issuing Bank is not required to issue that new Letter of Credit until the Letter of Credit being replaced has been returned to the Issuing Bank or the Issuing Bank is satisfied either that it will be returned to it or otherwise that no liability can arise under it.

Reduction or expiry of Letter of Credit

Appointment of additional Issuing Banks

LETTERS OF CREDIT

Immediately payable

Claims under a Letter of Credit

Each Borrower irrevocably and unconditionally authorises the Issuing Bank to pay any claim made or purported to be made under a Letter of Credit requested by it and which appears on its face to be in order (in this Clause 7, a “claim”).

The relevant Borrower shall immediately on, or if such payment is being funded by a Loan, shall, within five (5) Business Days of, demand pay to the Agent for the Issuing Bank an amount equal to the amount of any claim.

Each Borrower acknowledges that the Issuing Bank:

is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

The obligations of a Borrower under this Clause 7 will not be affected by:

the sufficiency, accuracy or genuineness of any claim or any other document; or

any incapacity of, or limitation on the powers of, any person signing a claim or other document.

If a Letter of Credit remains outstanding after the Termination Date but has on or before that date been repaid by way of provision of cash cover as set out in Clause 1.2(g) (Construction), that Letter of Credit shall be treated as being outstanding under a bilateral guarantee facility provided by the respective Issuing Bank, the terms of which (including the fee) are to be set out in a separate document between the respective Issuing Bank and the Borrower.

Indemnities

Each Borrower shall immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit requested by that Borrower.

The obligations of each Borrower under this Clause are continuing obligations and will extend to the ultimate balance of sums payable by the Borrowers in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.

The obligations of the Borrowers under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (whether or not known to it or any other person) including:

any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or any other person;

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Letter of Credit or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Letter of Credit or any other person;

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document, any Letter of Credit or any other document or security including, without limitation, any change in the purpose of, any extension of, or any increase in, any facility or the addition of any new facility under any Finance Document or other document;

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Letter of Credit or any other document or security; or

any insolvency or similar proceedings.

Rights of contribution

REPAYMENT

Each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.

Without prejudice to each Borrower’s obligation under paragraph (a) above, if:

one or more Loans are to be made available to a Borrower:

on the same day that a maturing Loan is due to be repaid by that Borrower; and

in whole or in part for the purpose of refinancing the maturing Loan; and

the proportion borne by each Lender’s participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans,

if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:

the relevant Borrower will only be required to make a payment under Clause 31.1(Payments to the Agent) in an amount in the relevant currency equal to that excess; and

each Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan and that Lender will not be required to make a payment under Clause 31.1 (Payments to the Agent) in respect of its participation in the new Loans; and

if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:

the relevant Borrower will not be required to make a payment under Clause 31.1 (Payments to the Agent); and

each Lender will be required to make a payment under Clause 31.1 (Payments to the Agent) in respect of its participation in the new Loans only to the extent that its participation in the new Loans exceeds that Lender’s participation in the maturing Loan and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan.

PREPAYMENT AND CANCELLATION

Illegality

that Lender shall promptly notify the Agent upon becoming aware of that event;

upon the Agent notifying the Borrowers, the Available Commitment of that Lender will be immediately cancelled ; and

to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 9.6 (Right of replacement or repayment and cancellation in relation to a single Lender or Issuing Bank), each Borrower shall repay that Lender’s participation in the Utilisations made to that Borrowers on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent and that Lender’s corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

Illegality in relation to Issuing Bank

that Issuing Bank shall promptly notify the Agent upon becoming aware of that event;

upon the Agent notifying the Company, the Issuing Bank shall not be obliged to issue any Letter of Credit;

the relevant Borrower shall use its reasonable best endeavours to procure the release of each Letter of Credit issued by that Issuing Bank and outstanding at such time on or before the date specified by the Issuing Bank in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law); and

unless any other Lender is or has become an Issuing Bank pursuant to the terms of this Agreement, the Facility shall cease to be available for the issue of Letters of Credit.

Change of control

the Borrowers shall promptly notify the Agent upon becoming aware of that event;

a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan); and

if the Majority Lenders so require, the Agent shall, by not less than thirty (30) Business Days’ notice to the Borrowers, cancel the Total Commitments and declare all outstanding Utilisations, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Total Commitments will be cancelled and all such outstanding Utilisations and amounts will become immediately due and payable.

Voluntary cancellation

Voluntary prepayment of Utilisations

Right of replacement or repayment and cancellation in relation to a single Lender or Issuing Bank

If:

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or

any Lender or Issuing Bank claims indemnification from a Borrower under Clause 14.3 (Tax indemnity),

(if such circumstances relate to a Lender) of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender’s participation in the Utilisations or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below; or

(if such circumstances relate to the Issuing Bank) of repayment of any outstanding Letter of Credit issued by it and cancellation of its appointment as an Issuing Bank under this Agreement in relation to any Letters of Credit to be issued in the future.

On receipt of a notice of cancellation referred to in paragraph (a) above in relation to a Lender, the Commitment(s) of that Lender shall immediately be reduced to zero.

On the last day of each Interest Period which ends after the Borrowers have given notice of cancellation under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Borrowers in that notice), each Borrower to which a Utilisation is outstanding shall repay that Lender’s participation in that Utilisation.

If:

any of the circumstances set out in paragraph (a) above apply to a Lender; or

an Obligor becomes obliged to pay any amount in accordance with Clause 9.1 (Illegality) to any Lender,

The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

the Borrower shall have no right to replace the Agent;

neither the Agent nor any Lender shall have any obligation to find a replacement Lender;

in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

the Lender shall only be obliged to assign and transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

A Lender shall perform the checks described in paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.

Restrictions

Any notice of cancellation or prepayment given by any Party under this Clause 9 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

The Borrowers shall not repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

If the Agent receives a notice under this Clause 9 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender or Issuing Bank, as appropriate.

If all or part of any Lender’s participation in a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of that Lender’s Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.

Application of prepayments

INTEREST

Calculation of interest

Margin; and

EURIBOR.

Payment of interest

Default interest and lump sum damages

If an Obligor fails to pay any amount (other than interest) payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is two (2) per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). If an Obligor fails to pay interest payable by it under the Finance Documents on its due date, lump sum damages (pauschalierter Schadensersatz) shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is two (2) per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). In the case of lump sum damages, the relevant Obligor shall be free to prove that no damages have arisen or that damages have not arisen in the asserted amount and any Finance Party shall be entitled to prove that further damages have arisen. Any interest or lump sum accruing under this Clause 10.3 shall be immediately payable by the Obligor on demand by the Agent.

If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

the rate of interest applying to the overdue amount during that first Interest Period shall be two (2) per cent. per annum higher than the rate which would have applied if the overdue amount had not become due.

Notification of rates of interest

The Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.

The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

INTEREST PERIODS

Selection of Interest Periods

A Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan.

Subject to this Clause 11, a Borrower may select an Interest Period of one (1), three (3) or six (6) Months, or of any other period agreed between the Borrower, the Agent and all the Lenders.

An Interest Period for a Loan shall not extend beyond the Termination Date.

Each Interest Period for a Loan shall start on the Utilisation Date.

A Loan has one Interest Period only.

Changes to Interest Periods

Prior to determining the interest rate for a Loan, the Agent may shorten the Interest Period for any Loan to ensure that (when aggregated with the Available Facility) there are sufficient Loans (with an aggregate amount equal to or greater than the Reduction Instalment) which have an Interest Period ending on a Reduction Date for the scheduled reduction to occur.

If, prior to the expiry of the Availability Period, two or more Interest Periods end on the same date, the Loans to which those Interest Periods relate shall be consolidate into, and treated as, a single Loan on the last day of the relevant Interest Period.

If the Agent makes any of the changes to an Interest Period referred to in this Clause 11.2, it shall promptly notify the Borrower and the Lenders.

Non-Business Days

CHANGES TO THE CALCULATION OF INTEREST

Unavailability of Screen Rate

If no Screen Rate is available for EURIBOR for the Interest Period of a Loan, the applicable EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

If no Screen Rate is available for EURIBOR for the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate, the applicable EURIBOR shall be the Reference Bank Rate as of the Specified Time for a period equal in length to the Interest Period of that Loan. If a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

If paragraph (b) above applies but no Reference Bank Rate is available for the relevant Interest Period there shall be no EURIBOR for that Loan and Clause 12.3 (Cost of funds) shall apply to that Loan for that Interest Period.

Market disruption

Cost of funds

If this Clause 12.3 applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

the Margin; and

the rate notified to the Agent by that Lender as soon as practicable and in any event within five (5) Business Days of the first day of that Interest Period (or, if earlier, on the date falling three (3) Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

If this Clause 12.3 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.

Break Costs

The Borrowers shall, within five (5) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

FEES

Commitment fee

ZPR shall pay to the Agent (for the account of each Lender) a fee in euro computed at the rate of 0.9 per cent. per annum on that Lender’s Available Commitment for the Availability Period.

The accrued commitment fee is payable semi-annually in arrears on each 30 June and 31 December during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

Upfront Arrangement fee

Agency fee

Fees payable in respect of Letters of Credit

The Borrower shall pay to the Agent (for the account of the Issuing Bank) a Letter of Credit fee at an annual rate of 150 basis points on the outstanding amount of each Letter of Credit requested by that Issuing Bank for the period from the issue of that Letter of Credit until such Letter of Credit is repaid or prepaid in full.

The accrued Letter of Credit fee on a Letter of Credit shall be payable on the first day of each successive period of three (3) Months (or such shorter period as shall end on the Expiry Date for that Letter of Credit) starting on the date of issue of that Letter of Credit. The accrued Letter of Credit fee is also payable to the Agent on the cancelled amount of any Lender’s Commitment at the time the cancellation is effective if that Commitment is cancelled in full and the Letter of Credit is prepaid or repaid in full.

Security Agent fee

TAX GROSS UP AND INDEMNITIES

Definitions

In this Clause 14:

Unless a contrary indication appears, in this Clause 14 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

Tax gross-up

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

Each Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender or Issuing Bank shall notify the Agent on becoming so aware in respect of a payment payable to that Lender or Issuing Bank. If the Agent receives such notification from a Lender or Issuing Bank it shall notify the Borrowers and that Obligor.

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

A Finance Party and each Obligor which makes a payment to which that Finance Party is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

Tax indemnity

The Borrowers shall (within five (5) Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

Paragraph (a) above shall not apply:

with respect to any Tax assessed on a Finance Party:

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

to the extent a loss, liability or cost:

is compensated for by an increased payment under Clause 14.2 (Tax gross-up); or

relates to a FATCA Deduction required to be made by a Party.

A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.

A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3, notify the Agent.

Tax Credit

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

that Finance Party has obtained and utilised that Tax Credit,

Stamp taxes

VAT

All amounts expressed to be payable under a Finance Document by any Borrower to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Borrower under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Borrower must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Borrower).

If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

Where a Finance Document requires any Borrower to reimburse or indemnify a Finance Party for any cost or expense, that Borrower shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

FATCA Information

Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:

confirm to that other Party whether it is:

a FATCA Exempt Party; or

not a FATCA Exempt Party;

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

any law or regulation;

any fiduciary duty; or

any duty of confidentiality.

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

FATCA Deduction

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower and the Agent and the Agent shall notify the other Finance Parties.

INCREASED COSTS

Increased costs

Subject to Clause 15.3 (Exceptions) the Borrowers shall, within five (5) Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any substantiated Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the date of this Agreement; or

compliance with any law or regulation made after the date of this Agreement; or

the implementation or application of, or compliance with Basel III, CRD IV and CRR or any law or regulation that implements or applies Basel III, CRD IV and/or CRR.

In this Clause 15:

“Increased Costs” means:

a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

an additional or increased cost; or

a reduction of any amount due and payable under any Finance Document,

“Basel III” means:

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”; and

“CRD IV” means:

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and

“CRR” means the Regulation (EU) no. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) no. 648/2012.

Increased cost claims

Subject to Clause 15.3 (Exceptions), a Finance Party intending to make a claim pursuant to Clause 15.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

Exceptions

Clause 15.1 (Increased costs) does not apply to the extent any Increased Cost is:

attributable to a Tax Deduction required by law to be made by an Obligor;

attributable to a FATCA Deduction required to be made by a Party;

compensated for by Clause 14.3 (Tax indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 14.3 (Tax indemnity) applied); or

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

In this Clause 15.3, a reference to a “Tax Deduction” has the same meaning given to that term in Clause 14.1 (Definitions).

OTHER INDEMNITIES

Currency indemnity

If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

making or filing a claim or proof against that Obligor;

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

Other indemnities

the occurrence of any Event of Default;

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 30 (Sharing among the Finance Parties);

funding, or making arrangements to fund, its participation in a Utilisation requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);

issuing or making arrangements to issue a Letter of Credit requested by a Borrower in a Utilisation Request but not issued by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by a Borrower.

Indemnity to the Agent

any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

investigating any event which it reasonably believes is a Default;

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and

any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 31.10 (Disruption to Payment Systems etc.) notwithstanding the Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent in acting as Agent under the Finance Documents.

Indemnity to the Security Agent and each Secured Party

The Borrowers shall indemnify the Security Agent and each Secured Party against any cost, loss or liability incurred by any of them as a result of:

any failure by a Borrower to comply with its obligations under Clause 18 (Costs and Expenses);

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

the taking, holding, protection or enforcement of the Transaction Security;

acting as Security Agent under the Finance Documents or which otherwise relates to any of the Charged Property (otherwise, in each case, than by reason of the relevant Security Agent’s gross negligence or wilful misconduct);

the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent by the Finance Documents or by law; and

any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents.

The Security Agent may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 16.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

MITIGATION BY THE LENDERS

Mitigation

Each Finance Party shall, in consultation with the Borrowers, take all reasonable steps to mitigate any circumstances which arise and which would result in the Facility ceasing to be available or any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 (Illegality), or in respect of the Issuing Bank Clause 9.2 (Illegality in relation to Issuing Bank), Clause 14 (Tax gross-up and indemnities), or Clause 14.1 (Increased costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

Limitation of liability

The Borrowers shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 17.1 (Mitigation).

A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

COSTS AND EXPENSES

Transaction expenses

this Agreement and any other documents referred to in this Agreement and the Transaction Security; and

any other Finance Documents executed after the date of this Agreement.

Amendment costs

Agent’s and Security Agent’s management time and additional remuneration

In the event of a Default, the Borrowers shall pay to each of the Agent and the Security Agent any additional remuneration that may be agreed between them or determined pursuant to paragraph (b) below.

If the Agent and/or the Security Agent and the Borrowers fail to agree upon the nature of the duties, or upon the additional remuneration referred to in paragraph (a) above or whether additional remuneration is appropriate in the circumstances, any dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Agent and the Security Agent and approved by the Borrowers or, failing approval, nominated (on the application of the Agent and the Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Borrowers) and the determination of any investment bank shall be final and binding upon the Parties.

Enforcement and preservation costs

GUARANTEE AND INDEMNITY

Guarantee (Garantie) and indemnity (Ausfallhaftung)

guarantees (garantiert) by way of an independent payment obligation (selbständiges Zahlungsversprechen) to each Finance Party to pay to that Finance Party any amount of principal, interest, costs, expenses or other amount under or in connection with the Finance Documents that has not been fully and irrevocably paid by a Borrower; the payment shall be due (fällig) within five (5) Business Days of a written demand by a Finance Party (or the Agent on its behalf) stating the sum demanded from that Guarantor and that such sum is an amount of principal, interest, costs, expenses or other amount under or in connection with the Finance Documents that has not been fully and irrevocably paid by a Borrower; and

undertakes vis-à-vis each Finance Party to indemnify (schadlos halten) that Finance Party against any cost, loss or liability suffered by that Finance Party if any obligation of a Borrower under or in connection with any Finance Document or any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover (Ersatz des positiven Interesses) and that claim shall be due (fällig) within three (3) Business Days of a written demand by that Finance Party (or the Agent on its behalf).

Continuing and independent guarantee and indemnity

Reinstatement

the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and

each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.

Excluded defences

The obligations of each Guarantor under this Clause 19 will not be affected by an act, omission, matter or thing which relates to the principal obligation (or purported obligation) of any Borrower and which would reduce, release or prejudice any of its obligations under this Clause 19, including any personal defences of any Borrower (Einreden des Hauptschuldners) or any right of revocation (Anfechtung) or set-off (Aufrechnung) of any Borrower.

The obligations of each Guarantor under this Clause 19 are independent from any other security or guarantee which may have been or will be given to the Finance Parties. In particular, the obligations of each Guarantor under this Clause 19 will not be affected by any of the following:

the release of, or any time (Stundung), waiver or consent granted to, any other Obligor from or in respect of its obligations under or in connection with any Finance Document;

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or any other person or any failure to realise the full value of any security;

any incapacity or lack of power, authority or legal personality of or dissolution or a deterioration of the financial condition of any other Obligor; or

any unenforceability, illegality or invalidity of any obligation of any other Obligor under any Finance Document.

For the avoidance of doubt nothing in this Clause 19 shall preclude any defences that any Guarantor (in its capacity as Guarantor only) may have against a Finance Party that the guarantee and indemnity does not constitute its legal, valid, binding or enforceable obligations.

Immediate recourse

Appropriations

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 19.

Deferral of Guarantors’ rights

to be indemnified by an Obligor;

to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;

to exercise any right of set-off against any Obligor; and/or

to take the benefit (in whole or in part and whether by way of legal subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party.

Release of Guarantors’ right of contribution

that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

Additional security

Guarantee Limitation

In this Clause 19.10:

any obligations (Verbindlichkeiten) of the German Guarantor (and, in the case of a GmbH & Co. KG, of its general partner)

owing to any member of the Group or any other affiliated company which are subordinated by law or by contract to any Financial Indebtedness outstanding under this Agreement (including, for the avoidance of doubt, obligations that would in an insolvency be subordinated pursuant to section 39 para 1 no 5 or section 39 para 2 of the German Insolvency Code (Insolvenzordnung)) and including obligations under guarantees for obligations which are so subordinated; or

incurred in violation of any of the provisions of the Finance Documents,

the assets of the German Guarantor (and, in the case of a GmbH & Co. KG, its general partner) shall be assessed at their liquidation value (Liquidationswert) instead of their book value (Buchwert) if, at the time demand under the Guarantee is made, a negative prognosis as to whether the business can carry on as a going concern (negative Fortführungsprognose) must be made.

its (or, where the German Guarantor is a GmbH & Co. KG, its general partner’s) share capital (Stammkapital) as registered in the commercial register (Handelsregister) provided that any increase registered after the date of this Agreement shall not be taken into account unless (i) such increase has been effected with the prior written consent of the Agent (even if such increase is permitted under this Agreement or any other Finance Document) and (ii) only to the extent it is fully paid up; and

its (or when applicable where the German Guarantor is a GmbH & Co. KG, its general partner’s) amount of profits (Gewinne) or reserves (Rücklagen) which are not available for distribution to its shareholder(s) in accordance with section 268 para 8 HGB or section 272 para 5 HGB, as applicable.

This Clause 19.10 applies if and to the extent the Guarantee is given by a German Guarantor and is an Up-stream and/or Cross-stream Guarantee.

Each Finance Party agrees that the enforcement of the Guarantee given by a German Guarantor shall be limited if and to the extent that:

the Guarantee constitutes an Up-stream and/or Cross-stream Guarantee; and

payment under the Guarantee would otherwise

have the effect of reducing the German Guarantor’s (or, where the German Guarantor is a GmbH & Co. KG, its general partner’s) Net Assets to an amount that is lower than the amount of its (or, in the case of a GmbH & Co. KG, its general partner’s) Protected Capital or, if the amount of the Net Assets is already lower than the amount of its (or, in the case of a GmbH & Co. KG, its general partner’s) Protected Capital, cause the Net Assets to be further reduced; and

thereby give rise to a violation of the capital maintenance requirement as set out in section 30 para 1 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung); and

the relevant German Guarantor has complied with its obligation to deliver the Management Determination and the Auditor’s Determination, in each case together with an up-to-date balance sheet, in accordance with the requirements set out in Clauses 19.10(d) and 19.10(e) below.

Within five (5) Business Days after a Finance Party has made a demand under the Guarantee, the German Guarantor shall provide a certificate signed by its managing director(s) (Geschäftsführer) confirming in writing if and to what extent the Guarantee is an Up-stream and/or Cross-stream Guarantee and an enforcement of the Guarantee would have the effects referred to in Clause 19.10(c)(ii) above (the “Management Determination”). Such confirmation shall comprise an up-to-date balance sheet of the German Guarantor (and, in the case of a GmbH & Co. KG, its general partner) and a detailed calculation, based on the provisions of this Agreement, of the amount of the Net Assets and Protected Capital of the German Guarantor (or, in the case of a GmbH & Co. KG, its general partner). The relevant German Guarantor shall fulfil its obligations under the Guarantee within three (3) Business Days of providing the Management Determination (and each Finance Party shall be entitled to enforce the Guarantee) in an amount which pursuant to the Management Determination would not cause the effects set out in Clause 19.10(c)(ii) above (irrespective of whether or not the Agent agrees with the Management Determination).

If the Agent (acting on the instructions of the Majority Lenders) disagrees with the Management Determination, it may within twenty (20) Business Days of its receipt request the German Guarantor to deliver, at its own cost and expense, within twenty (20) Business Days of such request an up-to-date balance sheet of the German Guarantor (and, in the case of a GmbH & Co. KG, of its general partner), drawn-up by a firm of auditors of international standing and reputation appointed by the German Guarantor in consultation with the Agent, together with a detailed calculation, based on the provisions of this Agreement, of the amount of the Net Assets and Protected Capital of the German Guarantor (or, in the case of a GmbH & Co. KG, its general partner) (the “Auditor’s Determination”). The German Guarantor shall fulfil its obligations under the Guarantee within three (3) Business Days of providing the Auditor’s Determination (and each Finance Party shall be entitled to enforce the Guarantee) in an amount which pursuant to the Auditor’s Determination would not cause the effects set out in Clause 19.10(c)(ii) above.

No reduction of the amount enforceable pursuant to this Clause 19.10 will prejudice the right of the Finance Parties to continue to enforce the Guarantee (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction of the claims guaranteed.

Each German Guarantor shall (and, in the case of a German Guarantor in the form of a GmbH & Co. KG, shall procure that its general partner will) do everything commercially justifiable and legally permitted to avoid the enforcement of the Guarantee becoming limited pursuant to the terms of this Clause 19.10 and shall in particular, within three (3) months after a written request of the Agent realise at least at market value any of its (and, in the case of a GmbH & Co. KG, any of its general partner’s) assets that is not necessary for its business (nicht betriebsnotwendig) (or, in the case of a GmbH & Co. KG, that of its general partner) and is shown in its (or, in the case of a GmbH & Co. KG, its general partner’s) balance sheet with a book value that is in the reasonable opinion of the Agent significantly lower than the market value.

REPRESENTATIONS

Status

It and each of its Subsidiaries:

(other than in respect of any limited partnership) is duly incorporated and validly existing under the laws of the Relevant Jurisdiction as limited liability companies;

(in case of any limited partnership only), is duly established and validly existing as a limited partnership under the laws of the Federal Republic of Germany; and

(in the case of a German Obligor only) the place from which it is administered and where all managerial decisions are taken (tatsächlicher Verwaltungssitz) is located within the Federal Republic of Germany.

It and each of its Subsidiaries has the power to own its assets.

It and each of its Subsidiaries has all material Authorisations necessary to carry on its business as it is being conducted, except as would not have a Material Adverse Effect.

Binding obligations

Non-conflict with other obligations

any law or regulation applicable to it;

its or any of its Subsidiaries’ constitutional documents; or

any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets,

Power and authority

Validity and admissibility in evidence

Governing law and enforcement

Deduction of Tax

No filing or stamp taxes

No default

No Event of Default is continuing or would be expected to result from the making of any Utilisation.

No other event or circumstance is outstanding which constitutes a default (howsoever defined) under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject which would have a Material Adverse Effect.

No misleading information

Any factual information provided by any member of the Group for the purposes of any Permitted Transaction was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

So far as it is aware after making reasonable enquiries, all other written information provided by any member of the Group to a Finance Party was true, complete and accurate in all material respects as at the date it was provided and in light of the circumstances at the time or as at the date (if any) at which it is stated, except as may be superseded by subsequent written information provided to such Finance Party, is not misleading in any material respect.

Financial statements

Pari passu ranking

No proceedings

Insurances

Good title to assets

Environmental compliance

all applicable Environmental Laws; and

the terms and conditions of such Environmental Permits,

Environmental Claims

Taxation

It and each of its Subsidiaries has duly and punctually paid and discharged all Taxes imposed upon it or its assets or, as the case may be, upon such Subsidiary or the assets of such Subsidiary within the time period allowed without incurring penalties (save to the extent that (i) payment is being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP and (ii) payment can be lawfully withheld) and to the extent that any Taxes are not due and payable, the relevant Borrower has provided adequate reserves for the payment of those Taxes in accordance with GAAP.

It and each of its Subsidiaries is not materially overdue in the filing of any Tax returns.

No claims are being or are reasonably likely to be asserted against it or any of its Subsidiaries with respect to Taxes which might reasonably be expected to have a Material Adverse Effect.

Indebtedness

No Security

no Security exists over any of the assets of any Obligor or any other member of the Group; and

no arrangement or transaction as described in clause 23.12 (Negative pledge) has been entered into by any Obligor or any other member of the Group and is outstanding.

Consents etc. relating to any Permitted Transaction

Repetition

the date of each Compliance Certificate and the date of each Utilisation Request; and

in the case of an Additional Guarantor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Guarantor.

INFORMATION UNDERTAKINGS

Financial statements

as soon as the same become available, but in any event within 90 days after the end of the relevant financial year:

the audited consolidated financial statements of the Ultimate Parent (including balance sheet, profit and loss statement, cash flow statement and related auditors’ report) for that financial year according to U.S. GAAP; and

commencing with the fiscal year ended 31 December 2017, the audited financial statements (including balance sheet, profit and loss statement and cash flow statement) of each Borrower for that financial year; and

for the first time as of 31 December 2017 the audited consolidated (combined) financial statements of the Borrowers for that financial year; and

as soon as the same become available, but in any event within 60 days after the end of each of its half-financial years the unaudited financial statements of the Borrowers;

for the first time as of 30 June 2017, as soon as the same become available, but in any event within 60 days after the end of each of its half-financial years the unaudited consolidated (combined) financial statements of the Borrowers for that period;

as soon as the same become available, but in any event within 45 days after the end of each quarter of each of its financial years the unaudited financial statements of each Borrower for that period; and

thirty (30) days prior to the beginning of each financial year, the budgeted balance sheet, the budgeted profit and loss statement and the budgeted cash flow statement for the next following financial year for each Borrower.

Compliance Certificate

The Borrowers shall supply to the Agent, with each set of financial statements delivered pursuant to paragraph (b) of Clause 21.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 22 (Financial Covenants) as at the date at which those financial statements were drawn up provided that as of 31 December 2018 MTP will be taken into account and the Borrowers shall supply a combined Compliance Certificate.

Each Compliance Certificate shall be signed by one director of the relevant Borrower and, if required to be delivered with the financial statements delivered pursuant to paragraphs (a)(ii) and (iii), (b) and (c) of Clause 21.1 (Financial statements).

Requirements as to financial statements

Each set of financial statements delivered by the Borrowers pursuant to Clause 21.1 (Financial statements) shall be certified by a director of the relevant company as fairly presenting its financial condition in all material respects as at the date at which those financial statements were drawn up.

Each of the Borrowers will at the request of the Agent require and authorise its auditors to discuss with the Lenders any matter reasonably related to or arising out of the annual audit of any of the Borrowers by such auditors.

The Borrowers shall procure that each set of financial statements delivered pursuant to Clause 21.1 (Financial statements) is prepared using GAAP, other than those in Clause 21.1(a) which shall be prepared using U.S. GAAP.

Information: miscellaneous

promptly, the details of any newly created Permitted Encumbrances (save for the creation of any Security in accordance with the definition of Permitted Encumbrances);

promptly, upon the request of the Agent, a certified copy of any agreement between an Obligor and any member of the Mercer Group;

promptly, the details of any newly created Permitted Indebtedness;

promptly upon becoming aware of it, the details of any tax field audit (Betriebsprüfung) which is current, threatened or pending against any member of the Group which would, if adversely determined, have a Material Adverse Effect;

promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which would, if adversely determined, have a Material Adverse Effect; and

promptly, the details of any change of its constitutional documents, any Transaction Document or any shareholders’ agreement.

Notification of default

Use of websites

Each Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “Website Lenders”) who accept this method of communication by posting this information onto an electronic website designated by the Borrowers and the Agent (the “Designated Website”) if:

the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

each Borrower and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

the information is in a format previously agreed between each Borrower and the Agent.

The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by each Borrower and the Agent.

Each Borrower shall promptly upon becoming aware of its occurrence notify the Agent if:

the Designated Website cannot be accessed due to technical failure;

the password specifications for the Designated Website change;

any new information which is required to be provided under this Agreement is posted onto the Designated Website;

any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

a Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Borrower shall comply with any such request within ten (10) Business Days.

“Know your customer” checks

If:

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

any change in the status of an Obligor after the date of this Agreement; or

a proposed assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme),

Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

A Borrower shall, by not less than ten 10 Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Guarantor pursuant to Clause 26 (Changes to the Obligors).

Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Guarantor obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the relevant Borrower shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Guarantor.

German Banking Act (Kreditwesengesetz)

FINANCIAL COVENANTS

Financial definitions

plus the amount of taxes on income, capital or gains of the Borrower in relevant financial statements and (without duplication) any provisions for taxes;

plus Interest Expense;

plus any other non-cash charges deducted against the net income of the Borrower in the relevant financial statements (including, without limitation, non-cash exchange rate gains or losses and non-cash effluent charges);

excluding extraordinary items;

minus (to the extent otherwise included) any net gain over book value arising in favour of an Obligor on the disposal of any business or asset (not being any disposals made in the ordinary course of business) during such period and any gain arising on any revaluation of any business or asset during such period;

plus (to the extent otherwise deducted) any net loss against book value incurred by an Obligor on the disposal of any business or asset (not being any disposals made in the ordinary course of business) during such period and any loss on any revaluation of any business or assets during such period;

plus any depreciation and amortisation (including for intangibles and goodwill) stated in the relevant financial statements.

the principal amount of Utilisations made to the relevant Borrower outstanding on such date; and

the principal amount of other Financial Indebtedness (except current payables to suppliers) of the relevant Borrower outstanding on such date (excluding Subordinated Debt and Utilisations made to a Borrower and guaranteed by it under this Agreement),

Unencumbered Cash at such date.

Financial condition

ZPR shall ensure that for the period from the date of this Agreement to 30 June 2018 (including):

its Leverage Ratio in respect of any twelve months period on any Calculation Date shall not exceed 3.00:1; and

its Current Ratio on any Calculation Date shall equal or exceed 110 per cent; and

The Borrowers shall ensure that for the period from 30 June 2018 to the Termination Date:

their Leverage Ratio in respect of any twelve months period on any Calculation Date shall not exceed 3.50:1; and

their Current Ratio on any Calculation Date shall equal or exceed 110 per cent.

Financial testing

The financial covenants set out in Clause 22.2 (Financial condition) shall be tested by reference to each of the financial statements and each Compliance Certificate delivered pursuant to Clause 21.2 (Compliance Certificate) applying GAAP.

The financial covenants set out in paragraph (a) of Clause 22.2 (Financial condition) shall be calculated solely for ZPR based on its financial statements applying GAAP.

The financial covenants set out in paragraph (b) of Clause 22.2 (Financial condition) shall be calculated for ZPR and MTP based on combined financial statements applying GAAP.

GENERAL UNDERTAKINGS

Authorisations

obtain, comply with and do all that is necessary to maintain in full force and effect; and

supply certified copies to the Agent of,

Compliance with laws

Compliance with Shareholders’ Undertaking Agreement

a payment or distribution from ZPR to the Shareholder Distribution Account ZPR shall only be made in compliance with the requirements set out in paragraphs (a) to (e) of clause 2.4.1 (Permitted Payments) of the Shareholders’ Undertaking Agreement; and

a payment or distribution from MTP to the Shareholder Distribution Account MTP shall only be made in compliance with the requirements set out in paragraphs (a) to (e) of clause 2.4.2 (Permitted Payments) of the Shareholders’ Undertaking Agreement.

Insurance

Each Borrower shall at all times effect and maintain insurance on and in relation to its business and assets with reputable underwriters or insurance companies.

Any Borrower shall pay all premiums and do all other things necessary to maintain the insurances required to be effected and maintained by it pursuant to paragraph (a) above.

Transactions

Each Obligor shall conclude any transaction with a third party, irrespective of whether or not it is a Subsidiary of the Ultimate Parent, only on terms reasonably no less favourable to it than those that could reasonably be obtained by it on an arm’s length basis. It will further waive any Financial Indebtedness owed by any person to it only for valuable market consideration.

No Obligor shall permit to subsist or conclude any transactions with a member of the Mercer Group, other than:

agreements with an aggregate value of less than EUR 8,000,000 (per annum and on an aggregate basis for the Borrowers) and which are entered into on arms-length basis; and

agreements entered into with the prior written consent of the Agent (such consent not to be unreasonably withheld).

Syndication

Pari passu ranking

Environmental Compliance

all applicable Environmental Laws; and

the terms and conditions of all Environmental Permits applicable to it,

Environmental Claims

any Environmental Claim which has been commenced or threatened against any member of the Group; or

any facts or circumstances which will or are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group,

Taxation

Each Obligor shall duly and punctually pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties (except to the extent that (a) such payment is being contested in good faith, (b) adequate reserves are being maintained for those Taxes and (c) such payment can be lawfully withheld).

No Obligor shall be materially overdue in the filing of any Tax returns.

Capitalisation

Negative pledge

Disposals

No Obligor shall, enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset, including any material investment (Beteiligungen) or divisions (Betriebsteile).

Paragraph (a) above does not apply to any sale, lease, transfer or other disposal:

made in the ordinary course of business of the disposing entity;

of assets in exchange for other assets comparable or superior as to type, value and quality;

of assets that are worn out, obsolete or redundant;

which is a Permitted Transaction;

to which the Majority Lenders have given their prior written consent; or

where the higher of the market value or consideration receivable (when aggregated with the higher of the market value or consideration receivable for any other sale, lease, transfer or other disposal, other than any permitted under paragraphs (i) to (iii) above does not exceed EUR 10,000,000 (or its equivalent in another currency or currencies) in any financial year.

Financial Indebtedness

Treasury Transactions

Merger and agreement on profit

No Obligor shall enter into:

any amalgamation, demerger, merger, consolidation or corporate reconstruction or any transaction with the commercial effect of the foregoing; or

any profit and loss transfer agreement (Ergebnisabführungsvertrag), any partnership agreements (stille Beteiligungen), any other intercompany agreement (Unternehmensvertrag) or any similar arrangement having as a consequence that a third party shares in the profits of any member of the Group or exercises control over any member of the Group.

Paragraph (a) above does not apply to:

a Permitted Transaction; or

any action taken with the prior written consent of the Majority Lenders.

Acquisitions

the aggregate value of which exceeds EUR 30,000,000 (or its equivalent in another currency or currencies) in respect of the Borrowers (on a combined basis); and

that the funding of which is fully or partially provided for by the proceeds of a Loan.

Joint Ventures

Except as permitted under paragraph (b) below, no Obligor shall:

enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture; or

transfer any assets or lend to or guarantee or give an indemnity for or give Security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture (or agree to do any of the foregoing).

Paragraph (a) above does not apply to any acquisition (or agreement to acquire) any interest in a Joint Venture or transfer of assets (or agreement to transfer assets) to a Joint Venture or loan made to or guarantee given in respect of the obligations of a Joint Venture if such transaction is a Permitted Transaction.

Change of business

Share capital

redeem, purchase, return or make any repayment in respect of any of its share capital or make any capital distribution or enter into any agreement to do so; or

issue any shares or grant any person any right (whether conditional or unconditional) to call for the issue or allotment of any shares in the capital of such Obligor (including an option or a right of pre-emption or conversion) or enter into any agreement to do any of the foregoing,

Distributions and withdrawals

Subordinated Debt

pay interest on any Subordinated Debt; and/or

prepay, repay, redeem, purchase or otherwise acquire any Subordinated Debt prior to the Termination Date,

Limitations of undertakings

each German Obligor shall give to the Agent not less than twenty (20) Business Days’ prior written notice if it or any of its Subsidiaries proposes to take or permit any action or circumstance which, if all the Relevant Undertakings had been given by that German Obligor on the date of this Agreement and had thereafter remained in force, would constitute a breach of any of the Relevant Undertakings;

the Agent shall be entitled, within ten (10) Business Days of receipt of notice under paragraph (a) above, to request that the relevant German Obligor supplies to the Agent, in sufficient copies for the Lenders, such further relevant information as the Agent (acting reasonably) may consider necessary for the purposes of this Clause 23.23 and such German Obligor shall supply such further information promptly and in any event within ten (10) Business Days of the request therefore, subject to any relevant confidentiality obligations provided that the relevant Obligor has used all reasonable endeavours to procure a release from any such confidentiality obligations;

if any Lender considers that the relevant action or circumstance (taken alone or together with other actions or circumstances, whether or not permitted hereunder) may have a Material Adverse Effect or materially and adversely affects its interests as a Lender under the Finance Documents, it may so notify the Agent in writing;

if, by not later than the date ten (10) Business Days after receipt by the Agent of notice pursuant to paragraph (a) above (or, if later and additional information has been requested pursuant to paragraph (b) above, by not later than the date ten (10) Business Days after receipt by the Agent of such additional information if received within the prescribed time or the date ten (10) Business Days after the request therefore if not), the Agent has received notices pursuant to clause paragraph (c) above from Lenders which constitute the Majority Lenders, the Agent shall promptly notify the Borrower and the Lenders; and

if the Agent gives notice to the Borrower pursuant to paragraph (d) above or the relevant action is undertaken or circumstance is permitted before the date two (2) Business Days after the latest time for the receipt by the Agent of notices pursuant to paragraph (d) above, the undertaking of the relevant action or permitting of the relevant circumstances shall immediately constitute an Event of Default provided that, for the avoidance of doubt, no failure of any German Obligor to perform or comply with an obligation under a Relevant Undertaking shall of itself constitute an Event of Default.

Conditions subsequent

EVENTS OF DEFAULT

Non-payment

its failure to pay is caused by:

administrative or technical error; or

a Disruption Event; and

payment is made within ten (10) Business Days of its due date.

Financial covenants and financial indebtedness

Other obligations

An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.1 (Non-payment), Clause 22 (Financial covenants) and Clause 23.14 (Financial Indebtedness)).

A German Obligor does not comply with a Relevant Undertaking after the Agent has confirmed, within the periods set out in Clause 23.23 (Limitation of undertakings), that it considers the relevant action or step to have material adverse consequences for the Lenders’ risk or security position.

An Obligor does not comply with any provision of any Security Document.

No Event of Default under paragraph (a) and (c) above will occur if the Agent considers that the failure to comply is capable of remedy and is remedied within twenty (20) Business Days, of the earlier of (A) the Agent giving notice to a Borrower and (B) a Borrower becoming aware of the failure to comply.

Misrepresentation

Cross default

Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.

Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).

Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).

No Event of Default will occur under this Clause 24.5 if (i) the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than EUR 10,000,000 (or its equivalent in any other currency or currencies) at any one time, or (ii) any event or circumstance that would otherwise give rise to, or cause an Event of Default to occur, under paragraphs (a) to (d) above is disputed in good faith by the relevant Obligor or Obligors affected thereby by way of appropriate proceedings.

Insolvency

any German Obligor or other member of the Group that is incorporated or established or has a place of business in the Federal Republic of Germany:

is unable to pay its debts as they fall due (Zahlungsunfähigkeit);

commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or, for any of the reasons set out in sections 17 to 19 of the German Insolvency Act (InsO);

files for insolvency (Antrag auf Eröffnung eines Insolvenzverfahrens) or the board of directors or management of any such German Obligor or member of the Group is required by law to file for insolvency; or

the competent court takes any of the actions set out in section 21 of the German Insolvency Act (InsO) or the competent court institutes insolvency proceedings against any such German Obligor or member of the Group (Eröffnung des Insolvenzverfahrens); or

any non-German Obligor or other member of the Group:

is declared bankrupt or enters into a preliminary or definitive moratorium pursuant to the applicable bankruptcy laws;

becomes, or admits to being, unable generally to pay its debts as they fall due; or

otherwise becomes insolvent or stops or suspends making payments (whether of principal or interest) with respect to all or any class of its debts or announces an intention to do so or a moratorium is declared in respect of any of its Indebtedness.

Insolvency and similar proceedings

the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than (i) a solvent liquidation or reorganisation of any member of the Group which is not an Obligor (ii) in the case of such action by a creditor, a Borrower can demonstrate, by providing opinion of a reputable lawyer to that effect, such action is frivolous, vexatious or an abuse of the process of the court or relates to a claim for which a good defence exists which is being vigorously defended;

a composition, assignment or arrangement with any creditor of any member of the Group;

the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Group or any of its assets (including the directors of any member of the Group requesting a person to appoint any such officer in relation to it or any of its assets); or

enforcement of any Security over any assets of any member of the Group which is not discharged within 30 days,

Execution or attachment