General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 36 156K
2: EX-1 Joint Filing Agreement 3 15K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 5 21K
Liquidation or Succession
4: EX-3 Term Sheet 11 40K
5: EX-4 Instrument Defining the Rights of Security Holders 2 11K
6: EX-5 Letter Agreement 10 43K
7: EX-6 Parent Senior Facilities Commitment Letter 10 39K
8: EX-7 Senior Subordinated Bridge B Facility Commitment 9 39K
9: EX-8 Senior Bridge C Commitment Letter 9 40K
EX-6 — Parent Senior Facilities Commitment Letter
| EX-6 | 1st Page of 10 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 6
MORGAN STANLEY SENIOR FUNDING INC. DEUTSCHE BANK AG
25 Cabot Square CAYMAN ISLANDS BRANCH
Canary Wharf DEUTSCHE BANK SECURITIES INC.
London E14 4QA 60 Wall Street
New York, NY 10005
December 15, 2003
BCP Luxembourg Holdings S.a.r.l ("Parent")
8-10, rue Mathias Hardt
L-1717 Luxembourg
Senior Secured Facilities and Senior Bridge A Facility
Commitment Letter
Ladies and Gentlemen:
Parent has advised Morgan Stanley (as defined below) (the "Global Coordinator")
and Deutsche Bank (as defined below, and, together with Morgan Stanley, the
"Joint Lead Arrangers", the "Initial Lenders" or "we" or "us") that it has
formed an indirect wholly-owned subsidiary ("Bidco"), which intends, subject to
certain conditions, to make an offer (the "Offer") to acquire all of the issued
share capital of Crystal AG (the "Company") on the terms set out in Part I of
Exhibit A hereto (the "Transaction Description"). In order to provide for the
financing needs of the Company in the event that the Offer is accepted by at
least 85% of the shareholders, Parent wishes to establish, and wishes to enable
Crystal Americas Corporation ("CAC") and the Company to establish, the senior
secured credit facilities described herein (the "Senior Secured Facilities") and
the senior secured bridge facility described herein (the "Senior Bridge A
Facility", and together with the Senior Secured Facilities, the "Facilities"),
the proceeds of which would be used for the purposes described in Part II of the
Transaction Description. Capitalized terms used in this letter agreement but not
defined herein shall have the meanings given to them in the Transaction
Description or, as applicable, in the Exhibits to this letter agreement.
Subject to the terms and conditions described in this letter agreement and the
attached Exhibits A, B, C and D (collectively, and together with the Fee Letter
referred to below, this "Commitment Letter"), the Initial Lenders, severally and
not jointly, agree to commit the amounts set forth below opposite such Initial
Lenders' name:
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[Enlarge/Download Table]
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REVOLVING AGGREGATE SENIOR AGGREGATE SENIOR
TERM FACILITY FACILITY SECURED BRIDGE A
COMMITMENT: COMMITMENT: FACILITIES FACILITY
COMMITMENT: COMMITMENT:
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MORGAN STANLEY: (euro)297 (euro)220 (euro)517 (euro)177.5
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DEUTSCHE BANK: (euro)243 (euro)180 (euro)423 (euro)177.5
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TOTAL: (euro)540 million (euro)400 million (euro)940 million (euro)355 million
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Notwithstanding the foregoing, the commitment of the Initial Lenders for the
Term Facility shall be reduced by the amount (if any) by which the principal
amount of debt, plus fees, interest, premiums and related costs and expenses to
be refinanced with proceeds of the Term Facility and Senior Bridge A Facility is
less than (euro)440 million.
For purposes of this Commitment Letter, "Morgan Stanley" shall mean Morgan
Stanley Senior Funding, Inc. and/or any affiliate thereof, including Morgan
Stanley Dean Witter Bank Limited, as Morgan Stanley shall determine to be
appropriate to provide the services (including by providing and funding the
commitment) contemplated herein, and "Deutsche Bank" shall mean Deutsche Bank AG
Cayman Islands Branch and Deutsche Bank Securities Inc and/or any other
affiliate thereof as Deutsche Bank shall determine appropriate to provide the
services contemplated herein.
You have requested the Initial Lenders to arrange and underwrite bridge loan
facilities of up to (euro)1,295,000,000 (the "Interim A Facilities" or "Interim
Facilities") which will be borrowed by the entities which are to become
borrowers under the Facilities on the date of the initial funding of the
Transaction. The Interim Facilities are proposed to be refinanced by a funding
under the Facilities and will be due and payable on the date which is 60 days
after the drawing thereof.
It is the intention of the parties to fund the Interim Facilities in the event
the operative documentation for the Facilities has not been completed and
executed on the date of the closing of the Transaction, but subject to all other
conditions precedent for drawings under the Facilities. Drawdowns and repayments
under the Interim Facilities shall be made in accordance with, and shall be
subject to the provisions of Appendix I.
It is acknowledged and agreed by the parties to this letter that it is the
intention to document the Facilities as soon as practicable after the date of
this letter with the intention that funding of the Facilities should take place
pursuant to the final documentation therefore and not the Interim Facilities.
However neither failure to document the Facilities adequately nor failure to
satisfy related documentary conditions thereunder shall prejudice the drawdown
of the Interim Facilities in accordance with the terms hereof.
Each of the Initial Lenders hereby agrees on a several basis to underwrite, in
the proportions specified in the table above, the (euro)1,295,000,000 of the
Interim Facilities.
You and we agree to negotiate and work in good faith towards the execution and
delivery of customary definitive documentation with respect to the Facilities
(prepared by counsel to the Initial Lenders and consistent with documentation
for transactions with affiliates of Blackstone so long as and to the extent
reasonably acceptable to the Initial Lenders), including credit agreements,
security agreements and guarantees incorporating substantially the terms and
conditions outlined in this Commitment Letter (the "Operative Documents"), as
soon as practicable after the date of this Commitment Letter. You and we agree
to commence negotiations of the Operative Documents as soon as practicable after
the Announcement, the intent of the parties being to execute and deliver the
Operative Documents prior to submission of the Offer Document to BAFin.
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The terms and conditions of the Facilities will not be limited to those set
forth herein. Those matters that are not covered by or made clear under the
provisions hereof are subject to the approval and agreement of you and the Joint
Lead Arrangers and will be contained in the Operative Documents for the
Facilities.
Without prejudice to the provisions of Exhibits A and D to this Commitment
Letter, which apply to all Advances or proposed Advances, the Initial Lenders or
other Lenders shall not otherwise:
(a) have the right to cancel, rescind or terminate the Interim Facilities
during the Certain Funds Period (as defined in Exhibit B); or
(b) make or enforce any claims they may have under this Commitment Letter if
the effect of such claim or enforcement would prevent or limit the making
or utilisation of the Advances during the Certain Funds Period; or
(c) otherwise exercise during the Certain Funds Period any right of set-off or
similar right or remedy which it may have in relation to any of the
Advances.
For the purposes of this paragraph and Appendix I, the term "Advances" shall
include loans under the Interim Facilities.
1. COMMITMENT TERMINATION
The Initial Lenders' commitments set forth in this Commitment Letter will
terminate on the earlier of the date which is 180 days after the Publication
Date of the Offer and the date the Operative Documents become effective.
2. SYNDICATION
The Initial Lenders reserve the right, before or after the execution of the
Operative Documents, to syndicate all or a portion of the Initial Lenders'
commitments hereunder to one or more other financial institutions reasonably
acceptable to you and the Initial Lenders and that will become parties to the
Operative Documents pursuant to syndications to be managed by the Joint Lead
Arrangers in consultation with you (the financial institutions becoming parties
to the Operative Documents being collectively referred to herein as the
"Lenders"). You understand that each of the Facilities will be separately
syndicated, the Initial Lenders intend to commence both such syndication efforts
promptly and they may elect to appoint, in consultation with you, one or more
agents to assist in such syndication efforts.
Morgan Stanley will act as Global Coordinator, and Morgan Stanley and Deutsche
Bank will act as Joint Lead Arrangers and Joint Book Runners with respect to the
Facilities, and will manage all aspects of the syndication in consultation with
you, including the timing of all offers to potential Lenders, the determination
of all amounts offered to potential Lenders, the selection of Lenders, the
allocation of commitments among the Lenders, the assignment of any titles and
the compensation to be provided to the Lenders.
You shall take, and use reasonable efforts to ensure that each of CAC and the
Company takes (in the case of CAC and the Company, to the extent consistent with
its obligations under the Takeover Act, Stock Corporation Act and applicable
law) all actions that the Joint Lead Arrangers may reasonably request to assist
the Joint Lead Arrangers in forming a syndicate acceptable to the Joint Lead
Arrangers and you. Your assistance in forming such syndicate shall include but
not be limited to: (i) using your commercially reasonable best efforts to make
senior management, representatives and advisors of Holdco, Bidco, CAC and the
Company available to participate in informational meetings with potential
Lenders at such times and places as the Joint Lead Arrangers may reasonably
request; (ii) using your commercially reasonable efforts to ensure that the
syndication effort benefits from your, your shareholders', and each of CAC and
the Company and its subsidiaries' existing lending relationships; (iii)
assisting (including using your commercially reasonable efforts to cause your
affiliates and advisors and reasonable efforts to ensure each of CAC and the
Company and its subsidiaries and advisors to assist) in the preparation of a
confidential
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information memorandum for each Facility and other marketing materials to be
used in connection with the syndication; and (iv) promptly providing the Joint
Lead Arrangers with all available information reasonably deemed necessary by it
to successfully complete the syndication. You shall use, and use reasonable
efforts to ensure that each of CAC and the Company uses all reasonable efforts
to obtain ratings for the Senior Secured Facilities.
To ensure an orderly and effective syndication of each Facility, you agree that,
until the termination of the syndication (as reasonably determined by the Joint
Lead Arrangers), you will not syndicate or issue, attempt to syndicate or issue,
announce or authorize the announcement of the syndication or issuance of, or
engage in discussions concerning the syndication or issuance of, any debt
security or commercial bank or other debt facility (including any renewals
thereof), without the prior written consent of the Joint Lead Arrangers (such
consent not to be unreasonably withheld or delayed). You agree that you will use
reasonable efforts to coordinate with the Joint Lead Arrangers any offerings or
syndications, or announcements of offerings or syndications, of debt or debt
securities by it or any of its affiliates prior to the completion of the
syndication of the Facilities.
You agree that no additional agents, co-agents or lead arrangers will be
appointed, or other titles conferred (except as previously set forth in this
Section 2), without the consent of the Joint Lead Arrangers, or except as
otherwise agreed by the Joint Lead Arrangers prior to the date hereof. You agree
that no Lender will receive any compensation of any kind for its participation
in any Facility, except as expressly provided in the Fee Letter or in Exhibit A,
B, C or D. Further, each party to this Commitment Letter agrees that the Initial
Lenders may (in consultation with Bidco) provide copies of, or disclose the
contents of, Exhibits A, B, C and D hereof to potential investors in connection
with the syndication of the Facilities.
3. FEES
In addition to the fees described in Exhibits B, C and D, you will pay (or cause
to be paid) the non-refundable fees set forth in the letter agreement dated the
date hereof (the "Fee Letter") among you and the Initial Lenders. The terms of
the Fee Letter are an integral part of the Initial Lenders' commitment hereunder
and constitute part of this Commitment Letter for all purposes hereof. Each of
the fees described in the Fee Letter and Exhibits B, C and D shall be
nonrefundable when paid, subject to rebates expressly provided for.
4. INDEMNIFICATION
Each of you, jointly and severally, agree to indemnify and hold harmless the
Initial Lenders and each of their affiliates and each of their respective
officers, directors, employees, agents, advisors and representatives (each, an
"Indemnified Person") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
disbursements of counsel), joint or several, that may be incurred by or asserted
or awarded against any Indemnified Person (including, without limitation, in
connection with any investigation, litigation or proceeding or the preparation
of any defense in connection therewith) in each case arising out of or in
connection with or relating to this Commitment Letter, the Transaction or the
Operative Documents or the transactions contemplated hereby or thereby, or any
use made or proposed to be made with the proceeds of the Facilities, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
primarily from such Indemnified Person's gross negligence or willful misconduct.
In the case of an investigation, litigation or proceeding to which the indemnity
in this paragraph applies, such indemnity shall be effective, whether or not
such investigation, litigation or proceeding is brought by you, or any of your
securityholders or affiliates, creditors, an Indemnified Person or any other
person, or an Indemnified Person is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated.
No Indemnified Person shall have any liability (whether in contract, tort or
otherwise) to you, or any of your securityholders, affiliates, or creditors for
or in connection with the transactions contemplated hereby, except to the extent
such liability is determined in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Person's gross
negligence or willful misconduct. In no
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event, however shall any Indemnified Person be liable for any special, indirect,
consequential or punitive damages (including, without limitation, any loss of
profits, business or anticipated savings).
5. COSTS AND EXPENSES
You shall if the Offer is completed and borrowings are made under the
Facilities, pay or reimburse the Initial Lenders on demand for all reasonable
costs and expenses incurred by the Initial Lenders (whether incurred before or
after the date hereof) in connection with the Facilities and the preparation,
negotiation, execution and delivery of this Commitment Letter, the Operative
Documents and any security arrangements in connection therewith, including,
without limitation, the reasonable fees and disbursements of counsel. You
further agree to pay all costs and expenses of the Initial Lenders (including,
without limitation, reasonable fees and disbursements of counsel) incurred in
connection with the enforcement of any of their rights and remedies hereunder.
6. CONFIDENTIALITY
By accepting delivery of this Commitment Letter, you agree that this Commitment
Letter is for your confidential use only and that neither its existence nor the
terms hereof will be disclosed by you to any person other than Blackstone, CAC,
the Company, your and CAC and the Company's officers, directors, employees,
accountants, attorneys and other advisors, and then only on a confidential and
"need to know" basis in connection with the transactions contemplated hereby.
Notwithstanding the foregoing, (i) you may file a copy of this Commitment Letter
in any public record in which it is required by law to be filed, (ii) you may
refer to the financing arrangements contemplated by this Commitment Letter in
the Offer Document, to the extent required by the Takeover Act or BAFin to do
so, and (iii) you may make such other public disclosures of the terms and
conditions hereof as you are required by law or regulation to make.
Notwithstanding any other provision of this letter, you and the Initial Lenders
hereby agree that you and the Initial Lenders (and each of your and their
respective officers, directors, employees, accountants, attorneys and other
advisors, agents and representatives) may disclose to any and all persons,
without limitation of any kind, the U.S. tax treatment and U.S. tax structure of
the transactions contemplated hereby and all materials of any kind (including
opinions and other tax analyses) that are provided to any of them relating to
such U.S. tax treatment and U.S. tax structure.
7. REPRESENTATIONS AND WARRANTIES
You represent and warrant that (i) all information (other than financial
projections), taken as a whole, that has been or will hereafter be made
available to the Initial Lenders, any Lender or any potential Lender by or on
behalf of you, CAC and the Company and its subsidiaries or any of your
representatives in connection with the transactions contemplated hereby is and
will be complete and correct in all material respects and does not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not misleading in
light of the circumstances under which such statements were or are made and (ii)
all financial projections, if any, that have been or will be prepared by or on
behalf of you, CAC and the Company and its subsidiaries or any of your
representatives and made available to the Initial Lenders, any Lender or any
potential Lender have been or will be prepared in good faith based upon
assumptions that are reasonable at the time made and at the time the related
financial projections are made available to the Initial Lenders. If, at any time
from the date hereof until the execution and delivery of the Operative
Documents, any of the representations and warranties in the preceding sentence
would be incorrect if the information or financial projections were being
furnished, and such representations and warranties were being made, at such
time, then you will promptly supplement the information and the financial
projections so that such representations and warranties will be correct under
those circumstances.
In issuing this Commitment Letter and in arranging the Facilities including the
syndication of the Facilities, the Initial Lenders will be entitled to use, and
to rely on the accuracy of, the information furnished to them by or on behalf of
you, CAC and the Company and its subsidiaries or any of your or its respective
representatives without responsibility for independent verification thereof.
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8. NO THIRD PARTY RELIANCE; SHARING INFORMATION
The agreements of the Initial Lenders hereunder and of any Lender that issues a
commitment to provide financing under the Facilities are made solely for your
benefit and may not be relied upon or enforced by any other person. This
Commitment Letter is not intended to create a fiduciary relationship among the
parties hereto.
You acknowledge that the Initial Lenders or any of their affiliates (each of
whom may rely on the provisions of this Section 8) may provide debt financing,
equity capital or other services (including financial advisory services) to
parties whose interests regarding the transactions described herein or otherwise
may conflict with your, CAC's, the Company's, Blackstone's or their respective
affiliates' interests. Consistent with the Initial Lenders' policy to hold in
confidence the affairs of their clients, such Initial Lenders will not furnish
confidential information obtained from you or your affiliates, CAC, the Company
or Blackstone to any of their other clients. Furthermore, no Initial Lenders
will use in connection with the transactions contemplated hereby, or furnish to
you, confidential information obtained by such Initial Lenders from any other
person.
9. ASSIGNMENTS
You may not assign this Commitment Letter or any Initial Lender's commitment
hereunder without such Initial Lender's prior written consent, and any attempted
assignment without such consent shall be void.
10. AMENDMENTS
This Commitment Letter may not be amended or any provision hereof waived or
modified except by an instrument in writing signed by each party hereto.
11. GOVERNING LAW, ETC.
This Commitment Letter shall be governed by, and construed in accordance with
the laws of the State of New York, and the parties to this Commitment Letter
submit to the jurisdiction of the New York state and federal courts sitting in
New York in the borough of Manhattan. You agree to appoint CT Corp as your agent
for service in connection with any proceedings in the courts of New York. This
Commitment Letter, together with any other documentation of the same date, sets
forth the entire agreement among the parties with respect to the matters
addressed herein and supersedes all prior communications, written or oral, with
respect hereto. This Commitment Letter may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an original
and all of which, taken together, shall constitute one and the same Commitment
Letter. Delivery of an executed counterpart of a signature page to this
Commitment Letter by telecopier shall be as effective as delivery of a manually
executed counterpart of this Commitment Letter. Sections 2 through 8, 11 and 12
shall survive the termination or expiration of any Initial Lender's commitment
hereunder, except that section 2 shall only so survive if the Closing Date
occurs. You acknowledge that information and documents relating to the
Facilities may be transmitted through Intralinks, the internet or similar
electronic transmission systems.
12. WAIVER OF JURY TRIAL
Each party hereto irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Commitment Letter or the transactions
contemplated hereby or the actions of the parties hereto in the negotiation,
performance or enforcement hereof.
Please indicate your acceptance of the provisions hereof by signing the enclosed
copy of this Commitment Letter and the Fee Letter and returning them to Kevin
Adeson, Managing Director, Morgan Stanley Senior Funding Inc., 25 Cabot Square,
Canary Wharf, London E14 4QA (facsimile: +44-20-7677-3443), on behalf of the
Initial Lenders, on or before 5:00 p.m. (London time) on the earlier of the day
before the Announcement (as defined in Exhibit A) and December 19, 2003, the
time at which the commitment of the Initial Lenders set forth above (if not so
accepted prior thereto) will terminate.
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This Commitment Letter amends, replaces and restates in its entirety the Crystal
AG Commitment Letter dated December 6, 2003 from the Initial Lenders to the
Company.
[Signature Pages Follow]
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If you elect to deliver this Commitment Letter by telecopier, please arrange for
the executed original to follow by next-day courier.
Very truly yours,
MORGAN STANLEY SENIOR FUNDING INC.
By: /s/ Kevin M. Adeson
--------------------------------------
Name: Kevin M. Adeson
Title: Managing Director
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DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
By: /s/ Albert Fischetti
-----------------------------------------
Name: Albert Fischetti
Title: Director
By: /s/ Ryan A. Zamin
-----------------------------------------
Name: Ryan A. Zamin
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By: /s/ David Flannery
-----------------------------------------
Name: David Flannery
Title: Managing Director
By: /s/ Thomas Cole
-----------------------------------------
Name: Thomas Cole
Title: Managing Director
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Accepted and agreed to as of the date first written above:
BCP LUXEMBOURG HOLDINGS S.A.R.L
By: /s/ Chinh Chu
------------------------------------
Name: Chinh Chu
Title: Authorized Person
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘SC 13D’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 12/24/03 | | | | | | | SC TO-C |
| | 12/19/03 | | 6 |
| | 12/15/03 | | 1 |
| | 12/6/03 | | 7 |
| List all Filings |
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