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
Exhibit 8
MORGAN STANLEY DEAN WITTER BANK DEUTSCHE BANK AG, LONDON BRANCH
LIMITED DEUTSCHE BANK AG
CAYMAN ISLANDS BRANCH
MORGAN STANLEY SENIOR FUNDING INC. Winchester House
25 Cabot Square 1 Great Winchester Street
Canary Wharf London EC2N 2DB
London E14 4QA
December 15, 2003
BCP Luxembourg Holdings S.a.r.l ("Parent")
8-10, rue Mathias Hardt
L-1717 Luxembourg
Senior Subordinated Bridge C 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 a newly
created 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"). Bidco is the indirect wholly owned subsidiary
of a newly created holding company ("Holdco" or "Borrower") which is controlled
by Blackstone. Parent wishes to establish the senior subordinated unsecured
bridge facility described herein (the "Senior Subordinated Bridge C Facility")
or the "Facility", 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 and C (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
Lender's name:
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AGGREGATE SENIOR SUBORDINATED BRIDGE C
FACILITY COMMITMENT:
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Morgan Stanley: (euro)282.5 million
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Deutsche Bank: (euro)282.5 million
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Total: (euro)565 million
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For the purposes of this Commitment Letter, "Morgan Stanley" shall mean Morgan
Stanley Dean Witter Bank Limited and/or any affiliate thereof, including Morgan
Stanley Senior Funding Inc., as Morgan Stanley shall determine to be appropriate
to provide the services (including by providing and funding the
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commitment) contemplated herein (provided that the commitment of Morgan Stanley
Dean Witter Bank Limited shall equal the total drawn outstandings of Morgan
Stanley under the Facility and the Commitments of Morgan Stanley Senior Funding
Inc. shall equal the total undrawn commitments of Morgan Stanley under this
Commitment Letter and the Senior Subordinated Bridge C Facility), and "Deutsche
Bank" shall mean Deutsche Bank AG Cayman Islands Branch, Deutsche Bank AG,
London 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 a bridge loan
facility of up to (euro)565,000,000 (the "Interim C Facility" or "Interim
Facility") which will be borrowed by the entity which is to become a borrower
under the Facility on the date of the initial funding of the Transaction. The
Interim Facility is proposed to be refinanced by a funding under the Facility
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 Facility in the event the
operative documentation for the Facility 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 Facility. Drawdowns and repayments under the
Interim Facility shall be made in accordance with, and subject to the provisions
described in Appendix I.
It is acknowledged and agreed by the parties to this letter that it is the
intention to document the Facility as soon as practicable after the date of this
letter with the intention that funding of the Facility should take place
pursuant to the final documentation therefore and not the Interim Facility.
However neither failure to document the Facility adequately nor failure to
satisfy related documentary conditions thereunder shall prejudice the drawdown
of the Interim Facility in accordance with the terms hereof.
Each of the Initial Lenders hereby agrees on a several basis to underwrite 50%
of the (euro)565,000,000 of the Interim Facility.
You and we agree to negotiate and work in good faith towards the execution and
delivery of customary definitive documentation with respect to the Senior
Subordinated Bridge C Facility (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 and security agreements 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.
The terms and conditions of the Facility 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 Facility.
Without prejudice to the provisions of Exhibits A and D to this Commitment
Letter, which applied 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 Facility 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.
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For the purposes of this paragraph and Appendix I, the term "Advances" shall
include loans under the Interim Facility.
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 the Initial Lenders intend to commence 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
Facility, 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 efforts to make senior
management, representatives and advisors of Bidco 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 information
memorandum for the 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 the Company uses, all reasonable efforts to obtain ratings for
the Senior Secured Facilities.
To ensure an orderly and effective syndication of the 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 Facility.
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 (such
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consent not to be unreasonably withheld or delayed), 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 the
Facility, except as expressly provided in the Fee Letter or in Exhibits A, B or
C. Further, each party to this Commitment Letter agrees that the Initial Lenders
(in consultation with Bidco) may provide copies of, or disclose the contents of,
Exhibits A, B and C hereof to potential investors in connection with the
syndication of the Facility.
3. FEES
In addition to the fees described in Exhibits B and C, you will pay (or cause to
be paid) the 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 and C shall be nonrefundable when
paid, subject to rebates expressly provided for.
4. INDEMNIFICATION
You 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 or the Operative Documents or the Transaction contemplated
hereby or thereby, or any use made or proposed to be made with the proceeds of
the Facility, 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 wilful 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 or the affiliates, securityholders or
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 affiliates, securityholders or creditors for or
in connection with the transactions contemplated hereby, except to the extent
such liability is determined in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Person's gross
negligence or wilful misconduct. In no 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 Facility 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
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person other than Blackstone, the Company, your 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. CLASSIFICATION
The Initial Lenders will treat you, the Company and your respective affiliates
for the purposes of their engagement hereunder as intermediate customers within
the meaning of and for the purposes of the Financial Services Authority Handbook
of Rules and Guidance (the "Handbook"). In addition, you agree that they will at
any time at the Initial Lenders' request in connection with the requirements set
out in the Handbook, provide the Initial Lenders within a reasonable period
after such request with documentation evidencing the existence, ownership and
control of any obligors under any financing documentation in relation to the
Financing.
8. 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 or your 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, or your
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 Facility including the
syndication of the Facility, 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, the Company and its subsidiaries or any of your or its respective
representatives without responsibility for independent verification thereof.
9. 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 Facility 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.
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You acknowledge that the Initial Lenders or any of their affiliates (each of
whom may rely on the provisions of this Section 9) 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, 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.
10. 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.
11. 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.
12. GOVERNING LAW, ETC.
This Commitment Letter shall be governed by, and construed in accordance with
the laws of the England and Wales, and the parties to this Commitment Letter
submit to the jurisdiction of the courts of the England and Wales. You agree to
appoint Law Debenture as your agent for service in connection with any
proceedings in the courts of England and Wales. 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 9, 12 and 13 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 Facility may be transmitted through
Intralinks, the internet or similar electronic transmission systems.
13. 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 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.
This Commitment Letter amends, replaces and restates in its entirety the Holdco
Commitment Letter dated December 6, 2003 from the Initial Lenders to Holdco.
[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
DEUTSCHE BANK AG, LONDON BRANCH
By: /s/ Brian Bassett
------------------------------------
Name: Brian Bassett
Title: Managing Director
By: /s/ Arnulf Schneider
-------------------------------------
Name: Arnulf Schneider
Title: Director
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
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MORGAN STANLEY DEAN WITTER BANK LIMITED
By: /s/ Mathias Blumschein
------------------------------------
Name: Mathias Blumschein
Title: Executive 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/ David Blitzer
------------------------------------
Name: David Blitzer
Title: Attorney-in-fact
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘SC 13D’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 12/24/03 | | | | | | | SC TO-C |
| | 12/19/03 | | 6 |
| | 12/15/03 | | 1 |
| | 12/6/03 | | 6 |
| List all Filings |
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