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EXHIBIT 10.4
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C L I F F 0 R D LIMITED LIABILITY PARTNERSHIP
C H A N C E
CONFORMED COPY
DATED 28 APRIL 2001
CHASE MANHATTAN INTERNATIONAL LIMITED
AS SECURITY TRUSTEE
GOLDMAN SACHS INTERNATIONAL
AS GLOBAL CO-ORDINATOR
GOLDMAN SACHS INTERNATIONAL
BAYERISCHE HYPO- UND VEREINSBANK AG
J.P. MORGAN PLC
AND
THE ROYAL BANK OF SCOTLAND PLC
AS SENIOR ARRANGERS
GOLDMAN SACHS INTERNATIONAL
BAYERISCHE HYPO- UND VEREINSBANK AG
AND
THE ROYAL BANK OF SCOTLAND PLC
AS MEZZANINE ARRANGERS
CHASE MANHATTAN INTERNATIONAL LIMITED
AS SENIOR AGENT
THE SENIOR LENDERS
NAMED HEREIN
HYPOVEREINSBANK LUXEMBOURG SOCIETE ANONYME
AS MEZZANINE AGENT
THE MEZZANINE LENDERS
NAMED HEREIN
AND OTHERS
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INTERCREDITOR DEED
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CONTENTS
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CLAUSE PAGE
1. Interpretation And Definitions ..................................................................2
2. Consent To The Finance Documents And Security Documents ........................................11
3. Ranking.........................................................................................11
4. Undertakings Of The Intercreditor Obligors .....................................................13
5. Undertakings Of The Intra-Group Lenders ........................................................13
6. Undertakings Of The Mezzanine Beneficiaries ....................................................14
7. Accession And Undertakings Of Hedge Counterparties .............................................15
8. Undertakings In Respect Of The Senior Liabilities ..............................................18
9. Consents And Entrenched Provisions .............................................................19
10. Permitted Payments .............................................................................20
11. Turnover .......................................................................................21
12. Suspension Of Permitted Payments ...............................................................22
13. Subordination ..................................................................................24
14. Distributions ..................................................................................25
15. Filing Of Claims ...............................................................................27
16. Restrictions On Enforcement ....................................................................28
17. Permitted Enforcement ..........................................................................30
18. Preservation....................................................................................31
19. Enforcement Of Transaction Security.............................................................31
20. Sales By Security Trustee.......................................................................33
21. Priority Of Transaction Security................................................................34
22. Appropriation...................................................................................35
23. Discharge Of Senior Liabilities.................................................................36
24. Intercreditor Obligors' Acknowledgement.........................................................36
25. Defences........................................................................................37
26. Disclosure......................................................................................37
27. Repayments......................................................................................38
28. Amendments......................................................................................39
29. Reports.........................................................................................39
30. New Intra-Group Lenders And Borrowers...........................................................40
31. Notices.........................................................................................40
32. Miscellaneous...................................................................................41
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33. Assignments And Transfers.......................................................................43
34. The Security Trustee............................................................................44
35. Status Of Intercreditor Obligors................................................................52
36. Expenses........................................................................................53
37. Governing Law...................................................................................53
38. Jurisdiction ...................................................................................53
SCHEDULE 1 THE ORIGINAL LENDERS .............................................................55
Part A The Original Senior Lenders ......................................................55
Part B The Original Mezzanine Lenders ...................................................56
SCHEDULE 2 THE ORIGINAL HEDGE COUNTERPARTIES ................................................57
SCHEDULE 3 THE ORIGINAL SENIOR BORROWERS ....................................................58
SCHEDULE 4 THE ORIGINAL GUARANTORS ..........................................................59
Part A The Original Senior Guarantors ...................................................59
Part B The Original Mezzanine Guarantors ................................................60
SCHEDULE 5 INTRA GROUP LENDERS AND BORROWERS ................................................61
Part A Intra-Group Lenders ..............................................................61
Part B Intra-Group Borrowers ............................................................62
SCHEDULE 6 FORM OF DEED OF ACCESSION ........................................................63
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THIS INTERCREDITOR DEED is dated 28 April 2001
BETWEEN:
(1) CHASE MANHATTAN INTERNATIONAL LIMITED as security trustee (the
"SECURITY TRUSTEE");
(2) GOLDMAN SACHS INTERNATIONAL as global co-ordinator (the "GLOBAL
CO-ORDINATOR");
(3) GOLDMAN SACHS INTERNATIONAL, BAYERISCHE HYPO- UND VEREINSBANK AG, J.P.
MORGAN PLC and THE ROYAL BANK OF SCOTLAND PLC as joint lead arrangers
under the Senior Credit Agreement (the "SENIOR ARRANGERS");
(4) GOLDMAN SACHS INTERNATIONAL, BAYERISCHE HYPO- UND VEREINSBANK AG and
THE ROYAL BANK OF SCOTLAND PLC as joint lead arrangers under the
Mezzanine Facility Agreement (the "MEZZANINE ARRANGERS");
(5) CHASE MANHATTAN INTERNATIONAL LIMITED as agent for the Senior Lenders
under the Senior Credit Agreement (the "SENIOR AGENT");
(6) HYPOVEREINSBANK LUXEMBOURG SOCIETE ANONYME as agent for the Mezzanine
Lenders under the Mezzanine Facility Agreement (the "MEZZANINE AGENT");
(7) THE FINANCIAL INSTITUTIONS whose names are set out in Part A of
Schedule 1 as senior lenders (the "ORIGINAL SENIOR LENDERS");
(8) THE FINANCIAL INSTITUTIONS whose names are set out in Part B of
Schedule 1 as mezzanine lenders (the "ORIGINAL MEZZANINE LENDERS");
(9) THE FINANCIAL INSTITUTIONS (if any) whose names are set out in Schedule
2 as hedge counterparties (the "ORIGINAL HEDGE COUNTERPARTIES");
(10) THE COMPANIES whose names are set out in Schedule 3 as senior borrowers
(the "ORIGINAL SENIOR BORROWERS");
(11) MESSER GRIESHEIM GmbH as the mezzanine borrower (the "MEZZANINE
BORROWER");
(12) THE COMPANIES whose names are set out in Part A of Schedule 4 as senior
guarantors (the "ORIGINAL SENIOR GUARANTORS");
(13) THE COMPANIES whose names are set out in Part B of Schedule 4 as
mezzanine guarantors (the "ORIGINAL MEZZANINE GUARANTORS");
(14) THE COMPANIES whose names are set out in Part A of Schedule 5
(INTRA-GROUP LENDERS) as intra-group lenders; and
(15) THE COMPANIES whose names are set out in Part B of Schedule 5
(INTRA-GROUP BORROWERS) as intra-group borrowers.
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WHEREAS:
(A) By a loan facilities agreement (the "SENIOR CREDIT AGREEMENT") dated on
or about the date hereof and originally made between the Senior Agent,
the Senior Arrangers, the Security Trustee, the Original Senior Lenders
and Cornelia Verwaltungsgesellschaft mbH, the Senior Lenders have agreed
to make available to the Senior Borrowers term and revolving facilities
of such amounts and on the terms referred to in the Senior Credit
Agreement for the purposes therein mentioned.
(B) The Hedge Counterparties have entered into or have agreed to or may
enter into Hedging Agreements with Group Entities pursuant to and in
accordance with the terms of the Senior Credit Agreement and the
Mezzanine Facility Agreement.
(C) The Transaction Security is to be granted in favour of the Security
Trustee as trustee for the Beneficiaries as security for certain of the
obligations of (i) the Intercreditor Obligors under the Senior Documents
and the Mezzanine Documents and (ii) any Group Entities under any
Hedging Agreements.
(D) By a mezzanine facility agreement, dated on or about the date hereof
(as the same may be amended, restated, supplemented or otherwise
modified from time to time) between, amongst others, Cornelia
Verwaltungsgesellschaft mbH, certain financial institutions party
thereto, HypoVereinsbank Luxembourg Societe Anonyme as agent for the
Mezzanine Lenders, Chase Manhattan International Limited as the Security
Trustee, Goldman Sachs International, Bayerische Hypo- Und Vereinsbank
AG and The Royal Bank of Scotland plc as joint lead arrangers and
Goldman Sachs International as the Global Co-ordinator (the "MEZZANINE
FACILITY AGREEMENT") the Mezzanine Lenders have agreed to make available
term loan facilities of such amounts and on the terms referred to in the
Mezzanine Facility Agreement for the purposes therein mentioned.
(E) It has been agreed between the parties hereto that the claims of the
Senior Beneficiaries, under the Senior Documents, the claims of the
Mezzanine Beneficiaries under the Mezzanine Documents and the claims of
the Intra-Group Lenders against the Intra-Group Borrowers shall be
regulated and/or subordinated in the manner set out herein.
NOW THIS DEED WITNESSETH and IT IS HEREBY AGREED AND DECLARED as follows:
1. INTERPRETATION AND DEFINITIONS
1.1 In this Deed:
"ACCESSION LETTER" has the meaning given to such term in the Senior
Credit Agreement and/or in the Mezzanine Facility Agreement.
"ANCILLARY LIABILITIES" in relation to any of the Liabilities means:
(a) any refinancing (excluding any refinancing through the issue
of High-Yield Notes, Exchange Notes, Direct Mezzanine
Refinancing, the High-Yield Proceeds Loan and the Exchange
Notes Loan), novation (not being a transfer
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permitted by the Senior Documents or the Mezzanine Documents),
refunding, deferral or permitted extension of any of those
liabilities;
(b) any permitted further advance which may be made under any
agreement supplemental to any relevant facilities agreement
plus all interest, fees and costs in connection therewith;
(c) any claim for damages or restitution in the event of
rescission of any such liabilities or otherwise in connection
with any relevant facilities agreement;
(d) any claim against any Intercreditor Obligor flowing from any
recovery by an Intercreditor Obligor of a payment or discharge
in respect of those liabilities on the grounds of preference
or otherwise; and
(e) any amounts (such as post-insolvency interest) which would be
included in any of the above but for any discharge,
non-provability, unenforceability or non-allowability of the
same in any insolvency or other proceedings.
"APPROVED AFFILIATE BANK" means an affiliate of a Senior Lender which
(a) the Senior Agent has agreed may be a Hedge Counterparty and (b) is a
party to this Deed or has become a party to this Deed pursuant to and in
accordance with the provisions hereof.
"AUSTRIAN GUARANTEE" means the guarantee dated on or about the date
hereof granted by Messer Austria GmbH in favour of the Security Trustee.
"AUSTRIAN GUARANTOR" means Messer Austria GmbH of Am Kanal 2, A-2352
Gumpoldskirchen, Austria, and registered with the Commercial Register of
the State Court of Wiener Neustadt under file no FN 111741a.
"BENEFICIARIES" means each of the Senior Beneficiaries and the
Mezzanine Beneficiaries.
"BORROWER" means a Senior Borrower or a Mezzanine Borrower.
"CONTINUING" means in relation to an Enforcement Event, that the Total
Commitments under (and as defined in) the Senior Credit Agreement and/or
the Mezzanine Facility Agreement (as the case may be), have not been
reinstated or the notice served under Clause 24.15(b), (c) and/or (e) of
the Senior Credit Agreement or Clause 22.14(b) and/or (c) of the
Mezzanine Facility Agreement has not been revoked.
"DEED OF ACCESSION" means a deed of accession substantially in the form
set out in Schedule 6 (FORM OF DEED OF ACCESSION) executed or to be
executed by a person intending to become a party hereto.
"ENFORCEMENT EVENT" means the occurrence of any of the events set out in
Clause 24.15 (a), (b), (c) and (e) of the Senior Credit Agreement or
Clause 22.14 (a), (b) and (c) of the Mezzanine Facility Agreement.
"FINANCE DOCUMENTS" means the Senior Documents, the Mezzanine Documents
and the Intra-Group Documents.
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"GERMAN INTERCREDITOR OBLIGOR" means an Intercreditor Obligor whose
Relevant Jurisdiction is the Federal Republic of Germany.
"GUARANTOR" means a Senior Guarantor or a Mezzanine Guarantor.
"GROUP ENTITY" means any member of the Group.
"HEDGE COUNTERPARTIES" means:
(a) the Original Hedge Counterparties (if any); and
(b) any Senior Lender, Approved Affiliate Bank or any other
financial institution approved by the Senior Agent and
the Mezzanine Agent (acting reasonably) which is a party
to an outstanding Hedging Agreement with any Group Entity
from time to time and which becomes a party hereto in
accordance with the provisions hereof.
"HEDGING AGREEMENTS" means each of the agreements entered into or to be
entered into between the Borrowers (approved by the Senior Agent and the
Mezzanine Agent, acting reasonably) and Hedge Counterparties for the
purpose of hedging interest rate liabilities in accordance with Clause
23.29 (HEDGING) of the Senior Credit Agreement and Clause 21.29
(HEDGING) of the Mezzanine Facility Agreement.
"HEDGING LIABILITIES" means all present and future sums, liabilities and
obligations whatsoever (actual or contingent) payable, owing, due or
incurred by any Borrower to any Hedge Counterparty pursuant to the
terms of any Hedging Agreement together with all Ancillary Liabilities
relating thereto, as determined by the relevant Hedge Counterparty and
agreed by the Senior Agent at any given time.
"INSOLVENCY EVENT" means in relation to any of MGG, Newco 2 or MIG:
(a) ceasing or suspending generally payment of its debts or
publicly announces an intention to do so (or is deemed for
the purposes of any law applicable to it to be) or is over
indebted (UBERSCHULDUNG) within the meaning of section 19 of
the German Insolvency Code or unable to or deemed unable to
pay its debts as they fall due (ZAHLUNGSUNFAHIGKEIT or
DROHENDE ZAHLUNGSUNFAHIGKEIT); or
(b) by reason of actual or anticipated financial difficulties,
commences negotiations with one or more of its creditors with
a view to rescheduling any of its indebtedness.
"INTERCREDITOR OBLIGORS" means each Borrower, each Guarantor, each
Intra-Group Lender and each Intra-Group Borrower.
"INTRA-GROUP BORROWERS" means those Intercreditor Obligors whose names
are set out in Part B of Schedule 5 (INTRA-GROUP BORROWERS), and any
other Group Entities who accede to this Deed as Intra-Group Borrowers in
accordance with the provisions hereof.
"INTRA-GROUP DOCUMENTS" means any and all agreements and other
instruments under or by which any Intra-Group Liabilities are
outstanding, evidenced, secured or
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guaranteed in each case as, and including any instrument pursuant to
which the same is, novated, varied, supplemented or amended from time
to time.
"INTRA-GROUP LENDERS" means those Intercreditor Obligors whose names are
set out in Part A of Schedule 5 (INTRA-GROUP LENDERS), and any other
Group Entities who accede to this Deed as Intra-Group Lenders in
accordance with the provisions hereof.
"INTRA-GROUP LIABILITIES" means all present and future sums,
liabilities and obligations whatsoever (actual or contingent) payable,
owing, due or incurred by any Intra-Group Borrower to any Intra-Group
Lender (whether pursuant to any Intra-Group Loan or otherwise) together
with all Ancillary Liabilities relating thereto, other than sums,
liabilities and obligations:
(a) arising in the ordinary course of trading;
(b) in respect of the High Yield Proceeds Loan;
(c) in respect of the Exchange Notes Loan;
(d) in respect of any Newco 2 Loan;
(e) in respect of any Treasury Borrower Loan Agreement;
(f) in respect of any Intra Group Loan where Debtco is the lender
and MGG is the borrower; or
(g) which relate to Financial Indebtedness owed by an
Intercreditor Obligor to a Group Entity, where such Financial
Indebtedness has been subordinated to the Senior Liabilities
and the Mezzanine Liabilities on terms acceptable to the
Majority Senior Lenders and the Majority Mezzanine Lenders
(other than under this Deed).
"LENDERS" means the Senior Lenders, the Mezzanine Lenders and the Hedge
Counterparties.
"LIABILITIES" means the Senior Liabilities, the Mezzanine Liabilities
and the Intra-Group Liabilities.
"MAJORITY MEZZANINE LENDERS" has the meaning given to "MAJORITY LENDERS"
in the Mezzanine Facility Agreement.
"MAJORITY SENIOR LENDERS" has the meaning given to "MAJORITY LENDERS"
in the Senior Credit Agreement.
"MATERIAL COVENANT AMENDMENTS" means, in relation to the Senior
Documents and the Mezzanine Documents, amendments or additions to the
representations, covenants, financial covenants or events of default set
out therein, save to the extent that an amendment or addition relaxes
such representations, covenants, financial covenants or events of
default PROVIDED THAT any amendments (in the case of sub-clause 6.1.4 of
Clause 6.1 (UNDERTAKINGS OF MEZZANINE BENEFICIARIES)) which would not
have a materially adverse effect on the interests of the Senior Lenders
under any of the Senior
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Documents or pursuant to Clause 34.5 of the Mezzanine Facility Agreement
or (in the case of Clause 8.1 (MATERIAL COVENANT AMENDMENTS) amendments
which would not have a materially adverse effect on the interests of the
Mezzanine Lenders under any of the Mezzanine Documents, or amendments
made pursuant to Clause 37.5 of the Senior Credit Agreement shall not
constitute a "Material Covenant Amendment".
"MATERIAL VARIATION" means in relation to the Senior Documents and the
Mezzanine Documents:
(a) increases (exceeding in aggregate 0.5 per cent. per annum) in
interest or commission or a change in the basis on which
interest, fees or commission accrues, is calculated or is
payable (not being, for the avoidance of doubt, fluctuations
of LIBOR, EURIBOR, Mandatory Cost or Mezzanine Mandatory Cost)
not provided for by the original terms of the documents
(unless the change in the basis is not one which could
reasonably be expected to give rise to an increase in the cost
of interest);
(b) alterations of the provisions relating to the amount or dates
of repayment;
(c) increases in the maximum amounts available to be raised as at
the date hereof (excluding any rolled-up or capitalised
interest); or
(d) any Intercreditor Obligor becoming liable to make an
additional payment (or increase an existing payment) (other
than arm's length fees payable in connection with a
refinancing of the Senior Liabilities on improved terms and
other than any payment in respect of any obligation or
provision thereof from time to time in effect),
PROVIDED THAT any variation of a technical or administrative nature only
shall not constitute a "Material Variation".
"MEZZANINE AGENT" means the Mezzanine Agent (under and as defined in the
Mezzanine Facility Agreement) from time to time.
"MEZZANINE BENEFICIARIES" means each of the Security Trustee, the
Mezzanine Agent, the Global Co-ordinator, the Mezzanine Arrangers and
the Mezzanine Lenders.
"MEZZANINE BORROWER" means the Initial Borrower or the Additional
Borrower (as such terms are defined in the Mezzanine Facility
Agreement).
"MEZZANINE DISCHARGE DATE" means the date on which all Mezzanine
Liabilities have been fully paid and discharged to the satisfaction of
the Mezzanine Agent (acting reasonably), whether or not as a result of
an enforcement.
"MEZZANINE DOCUMENTS" means the documents defined as "FINANCE DOCUMENTS"
in the Mezzanine Facility Agreement (with the exception of the Warrant
Documents, the Priority Letter, this Deed and the Subordination
Agreements).
"MEZZANINE ENFORCEMENT EVENT" means the occurrence of any of the events
fisted in sub-clauses 22.14, (a), (b) or (c) or the Mezzanine Facility
Agreement.
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"MEZZANINE EVENT OF DEFAULT" means any event specified as an event of
default in Clause 22 of the Mezzanine Facility Agreement.
"MEZZANINE FINAL MATURITY DATE" has the meaning given to "FINAL
MATURITY DATE" in the Mezzanine Facility Agreement.
"MEZZANINE GUARANTOR" means each Original Mezzanine Guarantor or each
"ADDITIONAL GUARANTOR" under the Mezzanine Facility Agreement once it
accedes to this Deed in accordance with the provisions hereof.
"MEZZANINE LENDER" means:
(a) the Original Mezzanine Lenders; and
(b) any other person who is owed any Mezzanine Liabilities, from time
to time (including, without limitation, any Transferee (as defined
in the Mezzanine Facility Agreement)), and who has acceded hereto
in accordance with the provisions hereof or become bound by the
provisions hereof.
"MEZZANINE LIABILITIES" means, subject to Clause 6.2 (POSTPONEMENT OF
MEZZANINE LIABILITIES), all present and future sums, liabilities and
obligations whatsoever (actual or contingent) payable, owing, due or
incurred by any Group Entity to any Mezzanine Beneficiary pursuant to
the terms of the Mezzanine Documents together with all Ancillary
Liabilities relating thereto (including, without limitation, interest
accruing after (as well as before) the commencement of a bankruptcy
proceeding by or against any U.S. Intercreditor Obligor under U.S. law,
whether or not a claim for such interest is an allowed claim in such
proceeding).
"MEZZANINE MANDATORY COST" has the meaning given to "MANDATORY COST" in
the Mezzanine Facility Agreement.
"MEZZANINE OUTSTANDINGS" has the meaning given to "OUTSTANDINGS" in the
Mezzanine Facility Agreement.
"MGG" means Messer Griesheim. GmbH, registered in the Handelsregister
(commercial register) of the Amtsgericht (local court) of Frankfurt am
Main under HRB 7812.
"MIG" means Messer Industrie GmbH, a limited liability company
incorporated in the Federal Republic of Germany in the commercial
register of the local court of Konigstein am Taunus under HRB 1033.
"MIG POWER OF ATTORNEY" means the powers of attorney granted or to be
granted to the Security Trustee in connection with the MIG Share
Pledges, allowing the Security Trustee to execute the MIG Share Pledges
on behalf of MIG if the capital increase in respect of DIOGENES Vierte
Vermogensverwaltungs AG by EUR30,000 to EUR90,000 has not been
registered within 20 days of the date of such powers of attorney.
"MIG SHARES PLEDGES" means the first ranking share pledge agreement
over shares in MGG between INTER ALIA MIG and the Security Trustee,
and the second ranking share pledge agreement over shares in MGG
between INTER ALIA MIG and the Security Trustee.
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"OBLIGOR'S AGENT" has the meaning given to such term in the Senior
Credit Agreement.
"PERMITTED ENFORCEMENT ACTION" means:
(a) any action prohibited by any of sub-clauses 16.2.1, 16.2.3 or
16.2.4 of Clause 16.2 (MEZZANINE LIABILITIES); and/or
(b) if a Mezzanine Enforcement Event has occurred and is
Continuing, instructing the Security Trustee to enforce any of
the Transaction Security.
"POSTPONED MEZZANINE LIABILITIES" means any Mezzanine Liabilities (and
any Ancillary Liabilities relating thereto) which do not have priority
over the Postponed Senior Liabilities by reason of Clause 6.2
(POSTPONEMENT OF MEZZANINE LIABILITIES).
"POSTPONED SENIOR LIABILITIES" means any Senior Liabilities (and any
Ancillary Liabilities relating thereto) which do not have priority over
the Mezzanine Liabilities by reason of Clause 8 (UNDERTAKINGS IN
RESPECT OF THE SENIOR LIABILITIES).
"SECURITY DOCUMENTS" means:
(a) the "SECURITY DOCUMENTS", as defined in the Senior Credit
Agreement;
(b) any present or future document conferring or evidencing any
Security, guarantee or other assurance against financial loss
for or in respect of any of the Senior Liabilities or the
Mezzanine Liabilities; and
(c) any Security granted under any covenant for further assurance
in any of the documents referred to in paragraphs (a) and (b)
above.
"SENIOR ACCELERATION NOTICE" means a notice referred to in paragraph
(a) of the definition of "STOP EVENT".
"SENIOR BENEFICIARIES" means each of the Security Trustee, the Senior
Agent, the Global Co-ordinator, the Senior Arrangers, the Senior
Lenders, the Fronting Banks and the Hedge Counterparties.
"SENIOR BORROWERS" means the Original Senior Borrowers and any
Additional Borrower once it accedes to this Deed in accordance with the
provisions hereof.
"SENIOR DISCHARGE DATE" means the date on which all Senior Liabilities
(other than the Postponed Senior Liabilities) have been fully paid and
discharged to the satisfaction of the Senior Agent (acting reasonably),
whether or not as a result of an enforcement.
"SENIOR DOCUMENTS" means the documents defined as "FINANCE DOCUMENTS"
in the Senior Credit Agreement (with the exception of this Deed, the
Subordination Agreements and the Priority Letter).
"SENIOR ENFORCEMENT EVENT" means the occurrence of any of the events
listed in subclauses 24.15(a), (b), (c) or (e) of the Senior Credit
Agreement.
"SENIOR EVENT OF DEFAULT" means any event specified as an event of
default in Clause 24 (EVENTS OF DEFAULT) of the Senior Credit
Agreement.
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"SENIOR GUARANTOR" means each Original Senior Guarantor or any
Additional Guarantor once it accedes to this Deed in accordance with
the provisions hereof.
"SENIOR LENDERS" means:
(a) the Original Senior Lenders; and
(b) and any other person who is owed any Senior Liabilities, from time
to time (including, without limitation, any Transferee (as defined
in the Senior Credit Agreement)), and who has acceded hereto in
accordance with the provisions hereof or become bound by the
provisions hereof.
"SENIOR LIABILITIES" means, subject to Clause 8.2 (MATERIAL
VARIATIONS), all present and future sums, liabilities and obligations
whatsoever (actual or contingent) payable, owing, due or incurred by
any Group Entity to any of the Senior Beneficiaries under the Senior
Documents together with all Ancillary Liabilities relating thereto
(including, without limitation, interest accruing after (as well as
before) the commencement of a bankruptcy proceeding by or against any
U.S. Intercreditor Obligor under U.S. law, whether or not a claim for
such interest is an allowed claim in such proceeding).
"STANDSTILL PERIOD" has the meaning given to it in Clause 17.3
(ENFORCEMENT BY MEZZANINE LENDERS).
"STOP EVENT" means:
(a) a notice has been issued in respect of all Outstandings, under
paragraphs (b) and (e) of Clause 24.15 (ACCELERATION) of the
Senior Credit Agreement, and such notice has not been withdrawn;
(b) a Senior Event of Default has occurred and is continuing under
Clause 24.1 (NON-PAYMENT) of the Senior Credit Agreement in an
amount exceeding EUR150,000 (or its equivalent); or
(c) a Senior Event of Default has occurred and is continuing as a
result of a breach of Clause 22.2 (FINANCIAL CONDITION) of the
Senior Credit Agreement.
"STOP NOTICE" means a written notice served by the Senior Agent on the
Mezzanine Agent and the Obligor's Agent under Clause 12.1 (STOP
NOTICES).
"TRANSACTION SECURITY" means the existing and future Security granted
pursuant to the Security Documents or otherwise in respect of the
Senior Liabilities and/or Mezzanine Liabilities.
"TRANSFER CERTIFICATE" has the meaning given to such term in the Senior
Credit Agreement and/or the Mezzanine Facility Agreement.
"TRUST PROPERTY" means:
(a) the assets secured by, and the rights and powers given under and
pursuant to the Security Documents including the covenants given
in respect of the obligations under the Security Documents;
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(b) all assets, rights, powers, guarantees, encumbrances or money at
any time transferred, paid to or vested in the Security Trustee
as additions to the Trust Property;
(c) all investments, property or money at any time representing the
Trust Property or any part thereof, including all income and
other sums at any time received or receivable by the Security
Trustee in respect of the Trust Property (or any part thereof);
and
(d) all rights under the Subordination Agreements.
"US INTERCREDITOR OBLIGOR" means an Intercreditor Obligor whose
Relevant Jurisdiction is a state of the United States of America or the
District of Columbia.
1.2 Unless the context or the express provisions of this Deed otherwise
require:
1.2.1 words importing the singular shall include the plural and vice
versa;
1.2.2 references herein to an Act of Parliament or to any particular
Act of Parliament shall include any modification, extension or
re-enactment thereof for the time being in force and shall
also include all instruments, orders, plans, regulations,
permissions and directions at any time deriving validity
therefrom;
1.2.3 references herein to all or any documents shall be construed
as references to those documents as the same may have been or
may be from time to time amended, supplemented or novated in
accordance with their terms and, if appropriate, the terms of
this Deed;
1.2.4 any reference herein to a person shall include any person,
firm, company, corporation, government, state or agency of a
state or any association, trust fund or other entity or
partnership (whether or not having separate legal personality)
of two or more of the foregoing, or unincorporated
association;
1.2.5 any obligation of an Intercreditor Obligor or any Intra-Group
Lender herein to do something shall include an obligation to
procure the same to be done and any obligation not to do
something shall include an obligation not knowingly to permit,
suffer or allow the same;
1.2.6 headings shall be ignored for the purposes of interpretation;
1.2.7 references herein to a party, shall be construed so as to
include their respective successors in title, transferees and
assigns and (where applicable) to any replacement or
additional trustee or agent as permitted by and in accordance
with the document governing the rights and obligations of such
party and subject to the applicable terms hereof;
1.2.8 references to a "CLAUSE", "SUB-CLAUSE" OR "SCHEDULE" SHALL,
subject to any contrary indication, be construed as a
reference to a clause or sub-clause hereof or schedule hereto;
and
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1.2.9 "FULLY PAID", "PAYMENT IN FULL", "PAID IN FULL", "DISCHARGED"
OR "SATISFIED", as used with respect to the Liabilities, means
the receipt of cash equal to the full amount of the
Liabilities including, without limitation, the principal
amount of the Liabilities, interest thereon (including
post-petition interest whether or not a claim for such
post-petition interest is an allowed claim) to the date of
such payment and all other amounts, including, without
limitation, fees, costs, expenses and indemnities, payable
in connection therewith provided that any such cash that the
Beneficiaries are required to return or disgorge (or
disgore through compromise or settlement) shall not be deemed
to have been paid to the Beneficiaries for the purposes of
determining whether the Liabilities have been "fully paid",
"paid in full", "discharged" or "satisfied".
1.3 Terms defined in the Senior Credit Agreement shall, unless otherwise
defined herein, bear the same meaning herein.
1.4 For the purposes of Clause 16 (RESTRICTIONS ON ENFORCEMENT), Clause 17
(PERMITTED ENFORCEMENT), Clause 19 (ENFORCEMENT OF TRANSACTION
SECURITY), Clause 20 (SALES BY SECURITY TRUSTEE) and Clause 34 (THE
SECURITY TRUSTEE), Transaction Security and Security Documents shall
both include rights under the Subordination Agreements.
2. CONSENT TO THE FINANCE DOCUMENTS AND SECURITY DOCUMENTS
2.1 CONSENT TO THE FINANCE AND SECURITY DOCUMENTS
Subject to the terms of this Deed and the Security Documents, each of
the Senior Agent, the Senior Arrangers, the Senior Lenders, the Hedge
Counterparties, the Mezzanine Agent, the Mezzanine Arrangers and the
Mezzanine Lenders for all purposes hereby consents to the entering into
and performance of the Finance Documents and the Security Documents by
the parties thereto and to the giving by the Intercreditor Obligors of
the Transaction Security so that such actions shall not constitute a
default under or with respect to the Senior Liabilities, the Mezzanine
Liabilities or the Hedging Liabilities.
3. RANKING
3.1 RANKNG
Each of the Senior Beneficiaries, the Mezzanine Beneficiaries and the
Intra-Group Lenders hereby agrees and each of the Intercreditor
Obligors and the Security Trustee acknowledges that:
3.1.1 the Senior Liabilities (other than the Postponed Senior
Liabilities), whether secured or unsecured but subject to
Clause 8 (UNDERTAKINGS IN RESPECT OF THE SENIOR LIABILITIES),
shall rank in priority to the Mezzanine Liabilities and the
Intra-Group Liabilities;
3.1.2 the Mezzanine Liabilities (other than the Postponed Mezzanine
Liabilities), whether secured or unsecured but subject to
Clause 6 (UNDERTAKINGS OF THE MEZZANINE BENEFICIARIES), shall
rank in priority to the Postponed Senior Liabilities and the
Intra-Group Liabilities;
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3.1.3 the Postponed Senior Liabilities, whether secured or
unsecured, shall rank in priority to the Postponed Mezzanine
Liabilities and the Intra-Group Liabilities; and
3.1.4 the Postponed Mezzanine Liabilities, whether secured or
unsecured, shall rank in priority to the Intra-Group
Liabilities.
3.2 PRIORITIES NOT AFFECTED
Save as otherwise provided herein (and, in particular, but without
limitation, in Clause 8 (UNDERTAKINGS IN RESPECT OF THE SENIOR
LIABILITIES)), the priorities referred to in Clause 3.1 (RANKING) will
not be affected by any reduction or increase in the principal amount
secured by the Transaction Security in respect of the Senior
Liabilities or, as the case may be, the Mezzanine Liabilities or by any
intermediate reduction or increase in, amendment or variation to any of
the Finance Documents, or by any variation or satisfaction of, any of
the Liabilities or any other circumstances.
3.3 EXECUTION AND REGISTRATION
The provisions of Clause 3.1 (RANKING) shall apply notwithstanding the
order in which or dates upon which the Finance Documents and this Deed
are executed or any of them are registered or notice of them is given
to any person.
3.4 APPLICATION OF PROCEEDS
If under the terms of any of the Senior Documents the proceeds from any
Excess Cash Flow, any disposal, sale, conveyance, transfer or
assignment of assets, any Acquisition Recovery Proceeds or any proceeds
from any insurance policy or an amount equal thereto or in each case
any part thereof or an amount equal thereto are required to be applied
in mandatory prepayment of the Senior Liabilities (other than the
Postponed Senior Liabilities) then the prior written consent of the
Mezzanine Agent shall not be required for such application and such
proceeds or amounts equal thereto shall be applied in or towards
payment of the Senior Liabilities (other than the Postponed Senior
Liabilities) in accordance with the terms of the Senior Credit
Agreement (without any obligation to apply such amounts in or towards
payment of the Mezzanine Liabilities) and Clause 22 (APPROPRIATION).
3.5 INSOLVENCY OF A GERMAN INTERCREDITOR OBLIGOR
The Mezzanine Beneficiaries and the Intra-Group Lenders shall, upon the
request of the Security Trustee, register their claims in the
insolvency of any German Intercreditor Obligor.
3.6 THE AUSTRIAN GUARANTOR
Notwithstanding anything to the contrary contained herein or in any
other Senior Document or Mezzanine Document, the liability of the
Austrian Guarantor in its capacity as Guarantor shall at all times be
limited to the effect that at no time shall the direct or indirect
payment of any moneys or the realisation of any Security given by the
Austrian Guarantor be required if this would violate mandatory Austrian
provisions prohibiting the illegal repayment of capital (in particular,
Sec. 82 seq. of the Austrian Acton Companies with Limited Liability -
GmbH).
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4. UNDERTAKINGS OF THE INTERCREDITOR OBLIGORS
Each of the Intercreditor Obligors undertakes that (a) in respect of
the Mezzanine Liabilities it will not until the Senior Discharge Date,
unless the Majority Senior Lenders otherwise consent in writing, (b) in
respect of the Postponed Senior Liabilities it will not until the
Mezzanine Discharge Date, unless the Majority Mezzanine Lenders
otherwise consent in writing, and (c) in respect of the Intra-Group
Liabilities, it will not until the later of the Senior Discharge Date
and the Mezzanine Discharge Date, unless the Majority Senior Lenders
or, as the case may be, the Majority Mezzanine Lenders otherwise
consent in writing and subject to Clause 17 (PERMITTED ENFORCEMENT):
4.1.1 pay, repay, prepay, redeem, purchase or otherwise acquire any
of the Mezzanine Liabilities or the Postponed Senior
Liabilities save to the extent permitted or contemplated by
Clause 10 (PERMITTED PAYMENTS);
4.1.2 discharge any of the Mezzanine Liabilities or the Postponed
Senior Liabilities by set-off, any right of combination of
accounts or otherwise save to the extent permitted or
contemplated by Clause 10 (PERMITTED PAYMENTS);
4.1.3 pay, prepay, redeem, purchase or otherwise acquire any of the
Intra-Group Liabilities save to the extent permitted or
contemplated by Clause 10 (PERMITTED PAYMENTS);
4.1.4 discharge any of the Intra-Group Liabilities by set-off, any
right of combination of accounts or otherwise save to the
extent permitted or contemplated by Clause 10 (PERMITTED
PAYMENTS);
4.1.5 create or permit to subsist any Security over any of its
assets for, or any guarantee, indemnity or other assurance
against financial loss in respect of, any of the Mezzanine
Liabilities or the Postponed Senior Liabilities or the Intra.
Group Liabilities except, in the case of the Mezzanine
Liabilities and the Postponed Senior Liabilities only, the
Transaction Security; or
4.1.6 take or omit any action whereby the ranking or subordination
contemplated by this Deed may be impaired.
5. UNDERTAKINGS OF THE INTRA-GROUP LENDERS
Each of the Intra-Group Lenders undertakes that it will not, unless the
Majority Senior Lenders and the Majority Mezzanine Lenders or, after
the Senior Discharge Date, the Majority Mezzanine Lenders otherwise
consent (or direct) in writing:
5.1.1 permit or require any Intra-Group Borrower to pay, repay,
prepay, redeem, purchase, defease or otherwise acquire or
satisfy in any manner the whole or any part of the Intra-Group
Liabilities save to the extent permitted or contemplated by
Clause 10 (PERMITTED PAYMENTS);
5.1.2 save as set out herein or as provided by the provisions of the
Senior Credit Agreement or the Mezzanine Facility Agreement,
take, accept or receive the benefit of any Security,
guarantee, indemnity or other assurance against financial loss
in respect of the Intra-Group Liabilities;
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5.1.3 agree to any amendment, variation, waiver or supplement to any
provision of the Intra-Group Documents except to the extent
that such amendment, variation, waiver or supplement does not
adversely affect the interests of the Senior Lenders and
Mezzanine Lenders or the ranking and/or subordination
arrangements provided for in this Deed;
5.1.4 save to the extent permitted or contemplated by Clause 10
(PERMITTED PAYMENTS), discharge or seek to discharge all or
any part of the Intra-Group Liabilities by set-off, any right
of combination of accounts or otherwise; or
5.1.5 take or omit any action whereby the ranking or subordination
contemplated by this Deed may be impaired.
6. UNDERTAKINGS OF THE MEZZANINE BENEFICIARIES
6.1 UNDERTAKINGS OF MEZZANINE BENEFICIARIES
Each of the Mezzanine Beneficiaries undertakes that it will not prior
to the Senior Discharge Date, unless the Majority Senior Lenders
otherwise consent in writing and subject to Clause 17 (PERMITTED
ENFORCEMENT):
6.1.1 permit or require any Intercreditor Obligor to pay, repay,
prepay, redeem, purchase or otherwise acquire any of the
Mezzanine Liabilities save:
(a) to the extent permitted or contemplated by Clause 10
(PERMITTED PAYMENTS); or
(b) in respect of amounts received in accordance with
Clause 22 (APPROPRIATION);
6.1.2 (other than under Mezzanine Documents and the Transaction
Security) take, accept or receive the benefit of any Security,
guarantee, indemnity or other assurance against financial loss
in respect of the Mezzanine Liabilities unless:
(a) first or at the same time there is conferred on the
Senior Lenders and the Hedge Counterparties the benefit
(ranking first in point of security) of such (or a
substantially identical) Security, guarantee, indemnity
or other assurance against financial loss in such manner
and such form as the Senior Agent may require; or
(b) the Senior Agent shall have declined to take the benefit
of such Security, guarantee, indemnity or other
assurance against financial loss and shall have notified
such decision to the Mezzanine Agent in writing,
and in any event the Senior Agent shall have received a legal
opinion in form and substance satisfactory to it stating that
the Transaction Security and the ranking created hereby will
not thereby be prejudiced;
6.1.3 agree to any Material Variation to the Mezzanine Documents;
6.1.4 agree to any Material Covenant Amendments in respect of the
Mezzanine Documents;
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6.1.5 discharge or seek to discharge all or any part of the
Mezzanine Liabilities by set-off, any right of combination of
accounts or otherwise save to the extent (a) the same occurs
automatically by operation of law under any applicable law or
(b) as permitted by sub-clause 6.1.1; or
6.1.6 take or omit any action whereby the ranking or subordination
contemplated by this Deed may be impaired.
6.2 POSTPONEMENT OF MEZZANINE LIABILITIES
Each of the Mezzanine Beneficiaries agrees with each Senior Beneficiary
that, unless the Majority Senior Lenders otherwise consent in writing:
6.2.1 if any of the Mezzanine Beneficiaries agree or consent to any
Material Variation to the Mezzanine Documents; and
6.2.2 such a Material Variation results in either an increase in the
amount of the Mezzanine Liabilities or an extension of the
date on which the Mezzanine Outstandings are to be repaid,
the amount of either the increase of the Mezzanine Liabilities or, as
the case may be, the amount of the Mezzanine Outstandings with such an
extended repayment date will rank, for all purposes of this Deed and
the Security Documents, behind the Postponed Senior Liabilities.
7. ACCESSION AND UNDERTAKINGS OF HEDGE COUNTERPARTIES
7.1 ACCESSION OF HEDGE COUNTERPARTY
If there are no Original Hedge Counterparties then the provisions of
this Deed relating to Hedge Counterparties will not come into effect
until such time as a Senior Lender, Approved Affiliate Bank or other
person approved by the Senior Agent and Mezzanine Agent enters into a
Hedging Agreement and has either executed a Transfer Certificate in
relation to the Senior Credit Agreement, or executes and delivers to
the Security Trustee a Deed of Accession, undertaking to be bound by
all the provisions of this Deed, together with copies of the Hedging
Agreements entered into by it. No Senior Lender, Approved Affiliate
Bank or other person approved by the Senior Agent and Mezzanine Agent
will be entitled to share in any of the Transaction Security in respect
of the Hedging Liabilities unless and until it is party to this
Intercreditor Deed either by executing a Transfer Certificate in
relation to the Senior Credit Agreement or has executed and delivered
to the Security Trustee a Deed of Accession. Forthwith upon executing
a Transfer Certificate in relation to the Senior Credit Agreement or
executing and delivering a Deed of Accession to the Security Trustee a
Hedge Counterparty will acquire all its rights and assume all its
obligations under this Deed. Notwithstanding the foregoing, no person
may become a Hedge Counterparty unless it is a Senior Lender, Approved
Affiliate Bank or is approved by the Senior Agent and the Mezzanine
Agent (acting reasonably).
7.2 UNDERTAKINGS OF HEDGE COUNTERPARTIES
Until the Senior Discharge Date, except as the Majority Senior Lenders
have previously consented in writing, no Hedge Counterparty will:
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7.2.1 demand (other than as may be necessary in order to exercise any
right to terminate or close out any hedging transaction as
provided in and permitted under sub-clause 7.2.2) or receive
payment, prepayment or repayment of, or any distribution in
respect of or on account of, any of the Hedging Liabilities in
cash or in kind or apply any money or property in or towards the
discharge of any Hedging Liabilities except:
(a) for scheduled payments arising under the original
terms of the Hedging Agreements (without regard to
any amendment made after the date of those Hedging
Agreements other than those permitted by the terms of
this Deed); and/or
(b) for the proceeds of enforcement of the Transaction
Security received and applied in the order permitted
by Clause 22 (Appropriation);
7.2.2 exercise any right it might otherwise have pursuant to any
Hedging Agreement to terminate or close out any hedging
transactions under such Hedging Agreement or to refuse to make
any payment due from it thereunder until either (a) the Senior
Agent serves a Senior Acceleration Notice and/or (b) a default
on a payment due under a Hedging Agreement, after allowing for
any required, notice and any applicable grace period,
continues for more than ten Business Days after notice of such
default has been given by the relevant Hedge Counterparty to
the Senior Agent;
7.2.3 discharge all or any part of the Hedging Liabilities by
set-off, any right of combination of accounts or otherwise
except if and to the extent that those Hedging Liabilities are
permitted to be paid under sub-clause 7.2.1; or
7.2.4 take, accept or receive the benefit of any Security,
guarantee, indemnity or other assurance against financial loss
in respect of the Hedging Liabilities other than under the
original terms of the relevant Hedging Agreements, the Senior
Credit Agreement, the Mezzanine Facility Agreement, the
Transaction Security or any other Security, guarantee,
indemnity or other assurance against financial loss granted
for the full benefit of the Senior Beneficiaries and the
Mezzanine Beneficiaries in accordance with the ranking
specified in this Deed.
7.3 TWO WAY PAYMENTS
Each Intercreditor Obligor and each Hedge Counterparty agrees that:
7.3.1 any Hedging Agreement to which it is at any time party
governing the terms of a hedging transaction will provide for
"two-way payments" in the event of a termination of that
hedging transaction entered into under such Hedging Agreement
whether upon a Termination Event or an Event of Default (each
as defined therein), meaning that the defaulting party under
that Hedging Agreement will be entitled to receive payment
under the relevant termination provisions if the net
replacement value of all terminated transactions affected
under the Hedging Agreement is in its favour;
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<Page>
7.3.2 if on termination of any hedging transaction under any Hedging
Agreement to which it is a party a settlement amount or other
amount falls due from the Hedge Counterparty to any
Intercreditor Obligor then, if the Transaction Security has
become enforceable, that amount shall be paid by such Hedge
Counterparty to the Security Trustee and treated as proceeds
of enforcement of the Transaction Security for application in
the order prescribed in this Deed;
7.3.3 the Hedge Counterparty, unless the Majority Senior Lenders
otherwise agree or require, will promptly (and in any event
within 5 business days of the relevant event) exercise any
rights it may have to terminate the hedging transactions under
the Hedging Agreements after the Senior Agent serves a Senior
Acceleration Notice; and
7.3.4 if the Senior Discharge Date would have occurred but for the
fact that Hedging Liabilities only remain outstanding, the
Mezzanine Agent acting on the instructions of the Majority
Mezzanine Lenders may by notice to the Obligors' Agent direct
the Obligors' Agent to terminate or procure the termination of
all outstanding hedging transactions under the Hedging
Agreements in relation to any Hedge Counterparty if that Hedge
Counterparty is requiring any Mezzanine Lender to refrain from
taking any step which, but for the provisions of this Deed it
would not have been prevented from taking.
7.4 APPROVED AFFILIATE BANK
To the extent that any Hedge Counterparty is not a Senior Lender, then
the Senior Lender to which the Approved Affiliate Bank is affiliated
shall procure that such Approved Affiliate Bank complies with the
obligations of a Hedge Counterparty as set out in Clause 7.3 (TWO WAY
PAYMENTS).
7.5 HEDGING AGREEMENTS
Each Hedge Counterparty will provide the Security Trustee with copies of
all documents constituting the Hedging Agreements as soon as reasonably
practicable.
7.6 CHANGES TO HEDGING AGREEMENTS
Except as the Majority Senior Lenders and the Majority Mezzanine Lenders
have previously consented in writing prior to the Senior Discharge Date,
and thereafter except as the Majority Mezzanine Lenders have previously
consented in writing, no Intercreditor Obligor or Hedge Counterparty
will amend, vary, supplement or allow to be superseded any provision of
the Hedging Agreements which would result in:
7.6.1 any provision in the Hedging Agreements being amended unless
the Hedge Counterparty concerned acting reasonably and in good
faith certifies that it considers such amendment does not
impose restrictions or obligations or conditions on any
Intercreditor Obligor which are more onerous than those
originally provided for in the Hedging Agreements;
7.6.2 any payment under the Hedging Agreements being required to be
made by an Intercreditor Obligor earlier than the date
originally provided for in the Hedging Agreements; or
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<Page>
7.6.3 any Intercreditor Obligor becoming liable to make an
additional payment (or increase an existing payment) under any
of the Hedging Agreements which liability does not arise from
the original provisions of the Hedging Agreements.
8. UNDERTAKINGS IN RESPECT OF THE SENIOR LIABILITIES
8.1 MATERIAL COVENANT AMENDMENTS
Each of the Senior Beneficiaries and each Intercreditor Obligor
undertakes that it will not, unless the Majority Mezzanine Lenders
otherwise consent in writing, agree to any Material Covenant Amendments
in respect of the Senior Documents.
8.2 MATERIAL VARIATIONS
8.2.1 Subject to sub-clause 8.2.2, each of the Senior Beneficiaries
agrees with each Mezzanine Beneficiary that, unless the
Majority Mezzanine Lenders otherwise consent in writing:
(a) if any of the Senior Beneficiaries agree or consent
to any Material Variation to the Senior Documents;
and
(b) such a Material Variation results in either an increase
in the amount of the Senior Liabilities or an extension
of the date on which any Outstandings under the Senior
Credit Agreement are to be repaid,
the amount of either the increase of the Senior Liabilities
or, as the case may be, the amount of Outstandings under the
Senior Facility with such an extended repayment date will
rank, for all purposes of this Deed and the Security
Documents, behind the Mezzanine Liabilities.
8.2.2 Notwithstanding anything herein to the contrary, the Senior
Beneficiaries shall be permitted at any time (and will still
preserve their priority over the Mezzanine Liabilities in
respect thereof) to:
(a) increase the amount of Outstandings under the Senior
Credit Agreement (including without limitation, in
excess of the Total Commitments as originally provided
in the Senior Credit Agreement) by, in aggregate, an
amount of up to EUR200,000,000 or its equivalent (the
"SENIOR HEADROOM"); and
(b) extend the date on which any Outstandings under the
Senior Credit Agreement are to be repaid PROVIDED THAT
(i) such an extension is for a period of no longer than
12 months, (ii) such an extension does not extend beyond
the Mezzanine Final Maturity Date and (iii) the amount,
in aggregate of Outstandings so extended is no greater
than the Senior Headroom.
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<Page>
8.3 UNDERTAKINGS OF SENIOR BENEFICIARIES
Each of the Senior Beneficiaries undertakes that it will not prior to
the Mezzanine Discharge Date, unless the Mezzanine Agent acting on the
instructions of the Majority Mezzanine Lenders otherwise consents in
writing:
8.3.1 permit or require any Intercreditor Obligor to pay, repay,
prepay, redeem, purchase or otherwise acquire any of the
Postponed Senior Liabilities, save in respect of amounts
received in accordance with Clause 22 (APPROPRIATION);
8.3.2 (other than under the Finance Documents and the Transaction
Security) take, accept or receive the benefit of any Security,
guarantee, indemnity or other assurance against financial loss
in respect of the Postponed Senior Liabilities unless:
(a) first or at the same time there is conferred on the
Mezzanine Lenders the benefit (ranking first in point of
security) of such (or a substantially identical)
Security, guarantee, inderrinity or other assurance
against financial loss in such manner and such form as
the Mezzanine Agent may require; or
(b) the Mezzanine Agent shall have declined to take the
benefit of such Security, guarantee, indemnity or other
assurance against financial loss and the Mezzanine Agent
shall have notified such decision to the Senior Agent in
writing,
and, in any event, the Mezzanine Agent shall have received a
legal opinion in form and substance satisfactory to it stating
that the Transaction Security and the ranking created hereby
will not thereby be prejudiced;
8.3.3 discharge or seek to discharge all or any part of the
Postponed Senior Liabilities by set-off, any right of
combination of accounts or otherwise save to the extent (a)
the same occurs automatically by operation of law under any
applicable law or (b) as permitted by sub-clause 8.3.1; or
8.3.4 take or omit any action whereby the ranking contemplated of
the Postponed Senior Liabilities by this Deed may be impaired,
PROVIDED THAT nothing in this Clause 8.3 shall prevent any enforcement
of the Security Documents by or on behalf of the Senior Agent and/or the
Senior Lenders at any time before the Senior Discharge Date.
9. CONSENTS AND ENTRENCHED PROVISIONS
9.1 CONSENTS AND ENTRENCHED PROVISIONS
If the Senior Agent, the Senior Lenders or Majority Senior Lenders or,
after the Senior Discharge Date, the Mezzanine Agent, the Mezzanine
Lenders or Majority Mezzanine Lenders at the request of any
Intercreditor Obligor:
9.1.1 grants any consent, release, approval or waiver to any
Intercreditor Obligor pursuant to the terms of any of the
Finance Documents;
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<Page>
9.1.2 makes any determination under, or agrees any amendment,
supplement or novation to, any of the Finance Documents; or
9.1.3 waives any Senior Event of Default or, after the Senior
Discharge Date, any Mezzanine Event of Default,
then the Intra-Group Lenders shall (a) be deemed to have given or made,
at the same time, a corresponding consent, release, approval,
determination, amendment, supplement, novation or waiver, in each case
in equivalent terms, for the purposes of the Intra-Group Documents to
which they are party, (b) not be permitted to object to any such action
by the Senior Agent, the Senior Lenders or Majority Senior Lenders (or
the Mezzanine Agent, the Mezzanine Lenders or Majority Mezzanine
Lenders), or any Intercreditor Obligor or other Group Entity doing
anything in accordance with such action, by virtue of anything in the
Intra-Group Documents and (c) do all such things and execute or procure
the execution of all such documents as the Senior Agent (or the
Mezzanine Agent) may require to give effect to the terms of this Clause
9.
9.2 NO LIABILITY
None of the Beneficiaries shall be liable for any consent, release,
approval, determination, amendment, supplement, novation or waiver or
other action given or taken under Clause 9.1 (CONSENTS AND ENTRENCHED
PROVISIONS) to any of the Intra-Group Lenders or any other person.
10. PERMITTED PAYMENTS
Subject to Clause 12 (SUSPENSION OF PERMITTED PAYMENTS) and Clause 14
(DISTRIBUTIONS):
10.11 any Mezzanine Borrower may pay a Mezzanine Liability and the
Mezzanine Beneficiaries may receive payment of a Mezzanine
Liability if:
(a) it is paid (directly or indirectly) out of the proceeds
of the High Yield Notes or out of the proceeds of a
Direct Mezzanine Refinancing (in accordance with the
provisions of the Senior Credit Agreement);
(b) such payment is made by way of a release of a Mezzanine
Liability in return for the issue of Exchange Notes in
accordance with the Mezzanine Facility Agreement;
(c) it is a payment or receipt of interest (excluding any
interest capitalised but including default interest and
any interest compounded under the terms of the Mezzanine
Documents); or
(d) it is an amount payable under Clauses 11 (FEES), 16
(COSTS AND EXPENSES), 13 (INCREASED COSTS), 7.1
(ILLEGALITY) or 7.12 (RIGHT OF REPAYMENT AND
CANCELLATION IN RELATION TO A SINGLE MEZZANINE LENDER)
of the Mezzanine Facility Agreement each in accordance
with the terms of the Mezzanine Documents as at the date
hereof or as amended without breaching Clause 6
(UNDERTAKINGS OF THE MEZZANINE BENEFICIARIES);
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<Page>
10.1.2 any Intercreditor Obligor may accept a transfer of, and any
Intercreditor Obligor may transfer any Mezzanine Liability if
and to the extent provided for in the Mezzanine Facility
Agreement;
10.1.3 prior to the occurrence of any Enforcement Event which is
Continuing, any Intra-Group Borrowers may pay an Intra-Group
Liability and an Intra-Group Lender may receive payment of an
Intra-Group Liability; and
10.1.4 the Senior Agent acting on the instructions of the Majority
Senior Lenders and (after the Senior Discharge Date or, if
earlier, at such time as the Mezzanine Lenders are then
entitled to enforce in accordance with Clause 17 (PERMITTED
ENFORCEMENT)) the Mezzanine Agent acting on the instructions
of the Majority Mezzanine Lenders may direct (following
service of a notice under Clause 24.15(a), (b), (c) and/or (e)
(ACCELERATION) of the Senior Credit Agreement or (as the case
may be) Clause 22.14(a), (b) and/or (c) (ACCELERATION) of the
Mezzanine Facility Agreement) that an Intra-Group Lender
demand repayment, in part or full, of any Intra-Group
Liability,
PROVIDED THAT it is expressly agreed as between the Intercreditor
Obligors and the Lenders that the obligation to make any payment under
the Mezzanine Documents or the Intra-Group Documents not permitted to be
paid under this Deed shall continue and that default interest shall
accrue thereon in accordance with the provisions of the Mezzanine
Documents or, as the case may be, the Intra-Group Documents (as each is
in force at the date hereof or as amended without breaching this Deed)
and the fact that non-payment of any amount due under the Mezzanine
Documents has arisen as a result of Clause 12 (SUSPENSION OF PERMITTED
PAYMENTS) shall not prevent a Mezzanine Event of Default from occurring.
11. TURNOVER
11.1 SENIOR BENEFICIARIES
If, whilst the Mezzanine Liabilities are or may be outstanding, any
Senior Beneficiary receives a payment or distribution in cash or in kind
of, or on account of, any Postponed Senior Liabilities, the receiving
Senior Beneficiary will forthwith pay any and all such amounts, less any
costs, liabilities and expenses reasonably incurred by it in connection
with its receipt of such payment, to the Security Trustee who shall hold
such on trust for application in accordance with Clause 22
(APPROPRIATION).
11.2 MEZZANINE BENEFICIARIES AND INTRA-GROUP LENDERS
If, whilst the Senior Liabilities are or may be outstanding:
11.2.1 any Mezzanine Beneficiary or Intra-Group Lender receives a
payment or distribution in cash or in kind of, or on account
of, any of the Mezzanine Liabilities or, as the case may be,
Intra-Group Liabilities not permitted by Clause 6.1.1
(UNDERTAKINGS OF MEZZANINE BENEFICIARIES), or Clause 10
(PERMITTED PAYMENTS) or made in accordance with Clause 22
(APPROPRIATION);
11.2.2 any Mezzanine Lender receives the proceeds of any enforcement
of any Transaction Security otherwise than in the order set
out in Clause 22 (APPROPRIATION); or
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11.2.3 any Intercreditor Obligor or any Group Entity or its estate or
any liquidator, receiver or like officer consequent upon its
winding-up makes any payment or distribution in cash or in
kind on account of the purchase or other acquisition of any of
the Mezzanine Liabilities or Intra-Group Liabilities,
the receiving Mezzanine Beneficiary or Intra-Group Lender (as the case
may be) will (save to the extent it is prohibited from doing so by
applicable law) forthwith pay any and all such amounts less (in the case
of a Mezzanine Beneficiary) any costs, liabilities and expenses
reasonably incurred by it in connection with its receipt of such
payment, distribution, proceeds or other discharge to the Security
Trustee, who shall hold such on trust for application in accordance with
Clause 22 (APPROPRIATION) PROVIDED THAT, in the case of the Mezzanine
Beneficiaries:
(a) the receiving Mezzanine Beneficiary shall only pay such an
amount determined by the Senior Agent to be equal to the
lesser of:
(i) the outstanding aggregate unrecovered balance of the
Senior Liabilities; and
(ii) the amount of such payment, distribution, proceeds,
or other discharge; and
(b) no Mezzanine Lender shall be required to pay any amount to the
Security Trustee on or after the Senior Discharge Date other
than Mezzanine Liabilities referred to in sub-clause 22.1.4 of
Clause 22.1 (ORDER OF APPLICATION).
11.3 PROTECTION OF BENEFICIARIES
If a Beneficiary is obliged to pay any amount to the Security Trustee
in accordance with this Clause 11 (TURNOVER):
11.3.1 each Intercreditor Obligor shall indemnify that Beneficiary
upon demand (to the extent of its liability for the relevant
Postponed Senior Liabilities or Mezzanine Liabilities) for any
costs, liabilities and expenses incurred by such a Beneficiary
as a result of it having to make such a payment; and
11.3.2 the relevant Intra-Group Liabilities, Postponed Senior
Liabilities or, as the case may be, Mezzanine Liabilities in
respect of which that Beneficiary received a payment or
distribution will be deemed not to have been reduced or
discharged in any way or to any extent by the relevant
payment, distribution, proceeds or other discharge.
12. SUSPENSION OF PERMITTED PAYMENTS
12.1 STOP NOTICES
Any Intercreditor Obligor may make any payment in respect of the
Mezzanine Liabilities permitted by Clause 10 (PERMITTED PAYMENTS) on the
relevant payment date if, immediately prior to such payment being made,
no Stop Notice has been issued to the Mezzanine Agent and copied to the
Obligor's Agent in accordance with Clause 12.2 (RIGHT TO ISSUE A STOP
NOTICE) or if a Stop Notice has been so issued, it has ceased to have
effect under Clause 12.3 (DURATION OF EFFECT OF STOP NOTICE) provided
that issuing the
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Stop Notice shall not prevent any payment or transfer permitted pursuant
to Clauses 10.1.1(a) or 10.1.2.
12.2 RIGHT TO ISSUE A STOP NOTICE
The Senior Agent, acting on the instructions of the Majority Senior
Lenders, shall be entitled to issue a Stop Notice to the Mezzanine Agent
with a copy being sent to the Obligor's Agent only if a Stop Event has
occurred and is continuing unremedied and unwaived PROVIDED THAT:
12.2.1 no Stop Notice may be served by the Senior Agent in reliance
on a particular Senior Event of Default which would constitute
a Stop Event more than six months (or four months in respect
of a Senior Event of Default arising pursuant to Clause 22.2
(FINANCIAL CONDITION) of the Senior Credit Agreement) after
the Senior Agent receives notice in writing from any
Intercreditor Obligor, Senior Lender, the Mezzanine Agent or
any Mezzanine Lender specifying the occurrence constituting
that Senior Event of Default and specifying that it
constitutes a Senior Event of Default under the Senior Credit
Agreement; and
12.2.2 if:
(a) at the time the Senior Agent wishes to serve a Stop
Notice (an "INTENDED STOP NOTICE") in reliance on any
Stop Event(s) less than 360 days has elapsed since the
service of the most recently preceding Stop Notice (the
"PRIOR STOP NOTICE"); and
(b) the Stop Event(s) to be relied upon in relation to the
Intended Stop Notice are the same or substantially the
same as (or a direct or indirect result of) a Stop Event
which was in existence at the time of the Prior Stop
Notice (the "RELEVANT EVENT(S)"),
the Senior Agent may only serve the Intended Stop Notice if
the Relevant Event(s) to be relied upon in respect of the
Intended Stop Notice had been cured or waived or complied with
for at least 180 days prior to the date of service of the
Intended Stop Notice.
12.3 DURATION OF EFFECT OF A STOP NOTICE
A Stop Notice will cease to have effect on the earlier of:
12.3.1 the date 150 days after receipt by the Mezzanine Agent of the
Stop Notice or, if any Standstill Period is current at any
time during such 150 day period, the expiry of such Standstill
Period (if earlier);
12.3.2 the date on which the circumstances specified in the relevant
Stop Notice have been cured or waived by the Majority Senior
Lenders in writing or have ceased to be continuing (and for
this purpose only, in the case of a Stop Event under paragraph
(c) of the definition thereof, the breach will be treated as
having ceased to be continuing from the time upon which any
financial statements or accounts delivered to the Senior Agent
under Clause 21 (INFORMATION UNDERTAKINGS) of the Senior
Credit Agreement together with the relevant
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Compliance Certificate establish compliance with Clause 22.2
(FINANCIAL CONDITION) of the Senior Credit Agreement);
12.3.3 the date on which the Senior Agent, acting on the instructions
of the Majority Senior Lenders, by notice in writing to the
Mezzanine Agent, cancels the Stop Notice; and
12.3.4 the Senior Discharge Date.
12.4 NOTIFICATION
The Senior Agent shall promptly notify the Mezzanine Agent that a Stop
Event has been waived or cured and shall send a copy of such
notification to the Obligor's Agent.
12.5 FEES
None of the provisions of this Clause 12 shall prevent the payment to
the Mezzanine Beneficiaries of any fees payable in accordance with
Clause 11 (FEES) of the Mezzanine Facility Agreement.
12.6 PARTIAL PAYMENTS
Any Borrower may make a permitted payment pursuant to Clause 10
(PERMITTED PAYMENTS) which would otherwise be blocked by this Clause 12
to the extent that, by reduction of the amount of such permitted
payment, this Clause 12 can be complied with and the Mezzanine Agent may
by notice to such Borrower (and the Security Trustee) elect to receive
part only of a permitted payment for such purpose.
13. SUBORDINATION
13.1 SENIOR EVENT OF DEFAULT
After service of a Senior Acceleration Notice (which is not withdrawn or
cancelled) in respect of all amounts outstanding under the Senior Credit
Agreement, notwithstanding the terms of the Finance Documents it is
agreed that:
13.1.1 all amounts payable under the Finance Documents;
13.1.2 all proceeds of enforcement of the Transaction Security; and
13.1.3 any payment or distribution of any kind or character, whether
in cash, securities or other property which is payable or
deliverable upon or with respect to the Senior Liabilities,
the Mezzanine Liabilities or the Intra-Group Liabilities or
any part thereof by any Intercreditor Obligor or its estate or
any liquidator, receiver or like officer consequent upon its
winding-up,
shall forthwith be paid or delivered direct to the Security Trustee.
13.2 SUBORDINATION ON INSOLVENCY
If:
13.2.1 there occurs any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of
law or otherwise, of all or any part of the assets of any
Intercreditor Obligor by reason of the liquidation,
dissolution or other winding-up of any Intercreditor Obligor
or its businesses or any sale,
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receivership or insolvency proceeding or assignment for the
benefit of creditors (or any analogous process in respect of
any Intercreditor Obligor incorporated outside of England);
or
13.2.2 any Intercreditor Obligor goes into liquidation or becomes
subject to any insolvency or rehabilitation proceeding,
administration, or voluntary arrangement (or any analogous
process in respect of any Intercreditor Obligor incorporated
outside of England),
then and in any such event, in relation to such Intercreditor Obligor,
(a) the Mezzanine Liabilities (subject to Clause 8 (UNDERTAKINGS IN
RESPECT OF THE SENIOR LIABILITIES)) shall be subordinated to the Senior
Liabilities (other than the Postponed Senior Liabilities), (b) the
Postponed Senior Liabilities (subject to Clause 6 (UNDERTAKINGS OF
MEZZANINE BENEFICIARIES) shall be subordinated to the Mezzanine
Liabilities and (c) the Intra-Group Liabilities shall be postponed and
subordinated to the Senior Liabilities and the Mezzanine Liabilities.
13.3 US INTERCREDITOR OBLIGORS
For the purposes of this Clause 13, the subordination of the
Intra-Group Liabilities of a US Intercreditor Obligor means that:
13.3.1 in any bankruptcy, insolvency, receivership or similar
proceedings in which any US Intercreditor Obligor is a debtor,
or any proceedings for voluntary liquidation, dissolution or
winding up of such US Intercreditor Obligor (a "PROCEEDING"),
the holders of the Liabilities ("PRIOR LIABILITIES") to which
any other Liabilities ("JUNIOR LIABILITIES") are said to be
"subordinate" shall be entitled to receive payment in full in
cash of all principal of, interest on (including, without
limitation, interest accruing after the commencement of such
Proceeding, whether or not a claim for such interest is an
allowed claim in such Proceeding) and other amounts payable in
connection with, such Prior Liabilities before the holders of
such Junior Liabilities are entitled to receive any payments
or distribution (whether in cash, property or securities) on
account of principal, interest or other amounts payable in
connection with any such Junior Liabilities; and
13.3.2 to that end the holders of the Prior Liabilities shall be
entitled to receive for application (as provided in Clause 22
(APPROPRIATION)) in payment thereof any payment or
distribution, whether in cash, property or securities, which
may be payable or deliverable in any such Proceeding in
respect of such Junior Liabilities, including any such payment
or distribution which may be payable or deliverable by virtue
of the provisions of any indebtedness which is subordinate and
junior in right of payment to such Junior Liabilities.
14. DISTRIBUTIONS
14.1 PAYMENT TO SECURITY TRUSTEE
Any amounts paid or delivered to the Security Trustee shall be held by
the Security Trustee pursuant to this Deed on trust for application in
accordance with Clause 22 (APPROPRIATION).
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14.2 RECEIPT OF AMOUNTS BY BENEFICIARIES
If any amounts described in Clause 13.1 (SENIOR EVENT OF DEFAULT) are,
following the service of a Senior Acceleration Notice, received by any
of the Mezzanine Beneficiaries or the Intra-Group Lenders or the Senior
Beneficiaries (in respect of the Postponed Senior Liabilities) or any
person acting on their behalf with respect to the Mezzanine Liabilities,
the Postponed Senior Liabilities or, as the case may be, the
Intra-Group Liabilities or any part thereof:
14.2.1 the relevant Mezzanine Beneficiary (or person acting on its
behalf as aforesaid), the relevant Senior Beneficiary in
respect of the Postponed Senior Liabilities (or person acting
on its behalf as aforesaid) or, as the case may be, the
relevant Intra-Group Lender (or person acting on its behalf as
aforesaid) will (a) forthwith pay to the Security Trustee an
amount equal to the amount received less (in the case of a
Mezzanine Beneficiary or a Senior Beneficiary) any costs,
liabilities and expenses reasonably incurred by it in
connection with its receipt of such payment, to be held on
trust by the Security Trustee and applied in accordance with
the terms of Clause 22 (APPROPRIATION) and (b) pending such
payment hold the same on trust for the Security Trustee;
14.2.2 each Intercreditor Obligor shall indemnify any such Mezzanine
Beneficiary or Senior Beneficiary upon demand (to the extent
of its liability for the relevant Mezzanine Liabilities or
Postponed Senior Liabilities) for any costs, liabilities and
expenses incurred by such a Mezzanine Beneficiary or Senior
Beneficiary as a result of it having to make such a payment;
and
14.2.3 the relevant Intra-Group Liabilities, Postponed Senior
Liabilities or, as the case may be, Mezzanine Liabilities in
respect of which that Beneficiary received such a payment will
be deemed not to have been reduced or discharged in any way or
to any extent by such a payment.
14.3 EQUIVALENT PAYMENT
If the trust referred to in Clause 14.2 (RECEIPT OF AMOUNTS BY
BENEFICIARIES) fails or cannot be given effect to, each Mezzanine
Beneficiary will pay an amount equal to any such payment or distribution
in respect of the Mezzanine Liabilities received by such Mezzanine
Beneficiary, each Senior Beneficiary will pay an amount equal to any
such payment or distribution in respect of the Postponed Senior
Liabilities received by such Senior Beneficiary and the Intra-Group
Lenders will pay an amount equal to such payment or distribution in
respect of the Intra-Group Liabilities to the Security Trustee less (in
the case of a Mezzanine Beneficiary or a Senior Beneficiary) any costs,
liabilities and expenses reasonably incurred by it in connection with
its receipt of such payment or distribution for application in
accordance with Clause 22 (APPROPRIATION) and the relevant Mezzanine
Liabilities, Postponed Senior Liabilities or, as the case may be, Intra
Group Liabilities in respect of which that Beneficiary received such a
payment or distribution will be deemed not to have been reduced or
discharged in any way or to any extent by such a payment.
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14.4 PAYMENT BY LIQUIDATOR
The liquidator or other insolvency representative or trustee of any
Intercreditor Obligor or its estate is authorised to apply any assets or
moneys received by him in accordance with the terms of this Deed or as
instructed by the Security Trustee acting in accordance with this Deed.
14.5 DISCHARGE OF LIABILITIES BY SET-OFF
Save to the extent that the payment is a permitted payment hereunder, if
any Mezzanine Liabilities, Postponed Senior Liabilities or Intra-Group
Liabilities are discharged in whole or in part by a set-off:
14.5.1 the relevant Mezzanine Beneficiary, Senior Beneficiary (in
respect of the Postponed Senior Liabilities) or, as the case
may be, Intra-Group Lender will (a) forthwith pay to the
Security Trustee an amount equal to the amount of the
Mezzanine Liabilities, Postponed Senior Liabilities or, as the
case may be, Intra-Group Liabilities discharged by the set-off
less (in the case of a Mezzanine Beneficiary or a Senior
Beneficiary) any costs, liabilities and expenses reasonably
incurred by it in connection with its receipt of such payment,
to be held on trust by the Security Trustee and applied in
accordance with the terms of Clause 22 (APPROPRIATION) and (b)
pending such payment hold the same on trust for the Security
Trustee;
14.5.2 each Intercreditor Obligor shall indemnify any such Mezzanine
Beneficiary or Senior Beneficiary upon demand (to the extent
of its liability for the relevant Mezzanine Liabilities or
Postponed Senior Liabilities) for any costs, liabilities and
expenses incurred by such a Mezzanine Beneficiary or Senior
Beneficiary as a result of it having to make such a payment;
and
14.5.3 the relevant Intra-Group Liabilities, Postponed Senior
Liabilities or, as the case may be, Mezzanine Liabilities in
respect of which that Beneficiary exercised such a right of
set-off will be deemed not to have been reduced or discharged
in any way or to any extent by such a right of set-off.
15. FILING OF CLAIMS
15.1 FILING OF CLAIMS
Each of the Senior Beneficiaries, the Mezzanine Beneficiaries and the
Intra-Group Lenders irrevocably authorises and empowers the Security
Trustee to demand, sue and prove for, collect and receive every payment
or distribution referred to in Clause 13.1 (SENIOR EVENTS OF DEFAULT) in
the circumstances contemplated by that Clause and give good receipt
therefor and to file claims and take such other proceedings, in the
Security Trustee's own name, the name of the relevant Senior
Beneficiary, Mezzanine Beneficiary or, as the case may be, the
Intra-Group Lenders or otherwise, as the Security Trustee may deem
necessary or advisable for the enforcement of the provisions of this
Deed or otherwise to ensure the payment of debts in accordance with the
terms set out herein.
15.2 POWERS OF ATTORNEY
15.2.1 The Senior Beneficiaries, the Mezzanine Beneficiaries and the
Intra-Group Lenders will execute or procure the execution of
and deliver to the Security
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Trustee such powers of attorney, forms of proxy or
representation as may reasonably be requested by the Security
Trustee in order to enable the Security Trustee in the
circumstances contemplated by Clause 13.2 (SUBORDINATION ON
INSOLVENCY) to enforce any and all claims upon or with respect
to the Liabilities or any part thereof and to collect and
receive any and all payments or distributions which may be
payable or deliverable at any time upon or with respect to the
Liabilities or any part thereof and to exercise all powers of
convening meeting, voting and representation in respect to the
Senior Liabilities, the Mezzanine Liabilities, the Postponed
Senior Liabilities or the Intra-Group Liabilities in the
circumstances contemplated by Clause 13.2 (SUBORDINATION ON
INSOLVENCY) including, without limitation, voting for or
against a plan of reorganisation, seeking or declining to seek
adequate protection, and objecting or failing to object to any
transaction or other occurrence which can only be taken upon
notice and a hearing or otherwise is subject to the approval
of or absence of objection from any one or more creditors
under applicable bankruptcy law.
15.2.2 Nothing in this Clause 15.2 will entitle the Security Trustee
to exercise, or require the Senior Beneficiaries or the
Mezzanine Beneficiaries to exercise, any rights, power of
voting or representation to waive or amend any of the
provisions of the Senior Credit Agreement or the Mezzanine
Facility Agreement respectively or otherwise to waive, reduce,
discharge, extend the due date for payment of or reschedule
any of the Senior Liabilities or, as the case may be, the
Mezzanine Liabilities.
15.3 PROOF IN LIQUIDATION
Without prejudice to the foregoing provisions of this Clause 15 (FILING
OF CLAIMS) or any other provision hereof, nothing in this Deed shall
inhibit the Senior Beneficiaries, the Mezzanine Beneficiaries or, with
the consent of the Security Trustee, the Intra-Group Lenders from
claiming or proving in the liquidation of any Intercreditor Obligor for
the amount of the Liabilities owing to them.
16. RESTRICTIONS ON ENFORCEMENT
16.1 HEDGING LIABILITIES
So long as any of the Senior Liabilities (other than the Hedging
Liabilities) are or may be outstanding, the Hedge Counterparties shall
not be entitled, unless the Majority Senior Lenders otherwise consent in
writing:
16.1.1 to accelerate or demand any of the Hedging Liabilities, unless
at the same time, or prior to, such acceleration or demand the
Senior Liabilities (other than the Hedging Liabilities) have
been accelerated; or
16.1.2 in any manner to enforce any Transaction Security or to
require any other person to enforce the same; or
16.1.3 to sue for or institute legal proceedings to recover all or
any part of the Hedging Liabilities; or
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16.1.4 to petition or apply for or vote in favour of any resolution
for the winding-up, dissolution, administration of or
voluntary arrangement in relation to any of the Intercreditor
Obligors.
16.2 MEZZANINE LIABILITIES
Subject to either (a) such being permitted by Clause 17 (PERMITTED
ENFORCEMENT) or (b) the Majority Senior Lenders consenting to such in
writing, none of the Mezzanine Beneficiaries will (prior to the Senior
Discharge Date) be entitled to require the Mezzanine Agent:
16.2.1 otherwise than pursuant to Clause 7.1 (ILLEGALITY) of the
Mezzanine Facility Agreement, accelerate any of the Mezzanine
Liabilities or otherwise declare any of the Mezzanine
Liabilities prematurely due and payable on or by reason of the
occurrence of a Mezzanine Event of Default or any other
circumstances howsoever described unless at the same time, or
prior to, such acceleration, the Senior Liabilities (or any of
them) have been accelerated or otherwise declared prematurely
due and payable; or
16.2.2 in any manner enforce any of the Transaction Security by sale,
possession, appointment of a receiver or otherwise or to
require any other person to enforce the same other than by
appointment of an administrative receiver of any Intercreditor
Obligor incorporated in England and Wales or similar officer
of any Intercreditor Obligor appointed elsewhere, if the
purpose of such appointment is to block the appointment in
respect of such Intercreditor Obligor of an administrator (or
similar officer in any other jurisdiction); or
16.2.3 sue for or institute legal proceedings to recover all or any
part of the Mezzanine Liabilities; or
16.2.4 petition or apply or vote in favour of any resolution for the
winding-up, dissolution, administration of or voluntary
arrangement in relation to any of the Intercreditor Obligors,
PROVIDED THAT, for the avoidance of doubt, the Mezzanine Beneficiaries
shall be entitled to apply to a court for injunctive relief, an order
for specific performance or a declaratory order on the interpretation of
any of the Mezzanine Documents or take any analogous proceedings in
jurisdictions outside of England and Wales.
16.3 INTRA-GROUP LIABILITIES
Prior to the Senior Discharge Date and the Mezzanine Discharge Date,
none of the IntraGroup Lenders shall be entitled to without the consent
(or direction) of the Senior Agent (or, after the Senior Discharge Date,
the consent of the Mezzanine Agent, acting on the instructions of the
Majority Mezzanine Lenders):
16.3.1 accelerate any of the Intra-Group Liabilities; or
16.3.2 sue for or institute legal proceedings to recover all or any
part of the Intra-Group Liabilities; or
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16.3.3 petition or apply for or vote in favour of any resolution for
the winding-up, dissolution, administration of or voluntary
arrangement in relation to any of the Intercreditor Obligors;
or
16.3.4 claim or rank as a creditor in the insolvency, winding-up,
bankruptcy or liquidation of any Intercreditor Obligor.
17. PERMITTED ENFORCEMENT
17.1 ENFORCEMENT NOTICE
Subject to Clause 17.4 (DEMANDS AGAINST GUARANTORS), if:
17.1.1 any Mezzanine Event of Default occurs (otherwise than as a
direct result of a breach by any Mezzanine Beneficiary of its
obligations under the Mezzanine Documents) and is continuing;
and
17.1.2 the Mezzanine Agent certifies to the Senior Agent that such a
Mezzanine Event of Default is material in the opinion of the
Majority Mezzanine Lenders,
the Mezzanine Agent may, by written notice (an "ENFORCEMENT NOTICE") to
the Senior Agent specifying the Mezzanine Event of Default, inform the
Senior Agent that the Mezzanine Beneficiaries wish to take Permitted
Enforcement Action.
17.2 SENIOR LENDERS' FAILURE TO ENFORCE
If:
17.2.1 the Senior Agent (a) within 14 days of its receipt of an
Enforcement Notice, informs the Mezzanine Agent that it
proposes to instruct the Security Trustee to enforce the
Transaction Security and (b) fails to so instruct the Security
Trustee within 28 days of its receipt of such Enforcement
Notice; or
17.2.2 the Senior Agent does not respond to an Enforcement Notice
within 14 days of its receipt of such,
the Mezzanine Agent may instruct the Security Trustee to enforce the
Transaction Security PROVIDED THAT, for the avoidance of doubt, no such
instruction may be given unless a Mezzanine Enforcement Event has
occurred which is Continuing.
17.3 ENFORCEMENT BY MEZZANINE LENDERS
Subject to Clause 17.4 (DEMANDS AGAINST GUARANTORS), the Mezzanine
Beneficiaries shall be able to take such Permitted Enforcement Action
they deem appropriate, upon the expiry of the following relevant period
(the "STANDSTILL PERIOD") after the Senior Agent's receipt of an
Enforcement Notice:
17.3.1 at least 90 days, in the case of a Mezzanine Event of Default
relating to failure to pay any amount due under the Mezzanine
Documents;
17.3.2 at least 120 days, in the case of a Mezzanine Event of Default
relating to failure to comply with the provisions of Clause
22.2 (FINANCIAL COVENANTS) of the Mezzanine Facility
Agreement; or
17.3.3 at least 150 days, in the case of any other Mezzanine Event of
Default,
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PROVIDED THAT, in each case, the same Mezzanine Event
of Default referred to in such Enforcement Notice is
continuing.
17.4 DEMANDS AGAINST GUARANTORS
The Mezzanine Beneficiaries may not make any demand on or take any
other action against any Intercreditor Obligor in relation to the
Mezzanine Liabilities in circumstances which would otherwise be
permitted by this Clause 17 (PERMITTED ENFORCEMENT) where the Security
Trustee (or any receiver appointed pursuant to any of the Security
Documents), acting on the instructions of the Majority Senior Lenders
and in accordance with the terms hereof:
17.4.1 confirms to the Mezzanine Agent in writing that it is
enforcing, taking steps to enforce or has enforced any
Transaction Security over the shares of such Guarantor or
Intercreditor Obligor or over the shares of any holding
company of such Guarantor or Intercreditor Obligor by selling
or procuring the sale of all such shares which are subject to
such Transaction Security; and
17.4.2 has not subsequently notified the Mezzanine Agent to the
contrary in writing (and, if applicable, the Security Trustee
undertakes to notify or procure that any such receiver (or
similar Officer in any jurisdiction) notifies the Mezzanine
Agent promptly upon such enforcement being discontinued).
18. PRESERVATION
Each of the Senior Beneficiaries, the Mezzanine Beneficiaries and the
Intra-Group Lenders agrees that the subordination effected hereby shall
be in addition to and shall not prejudice or affect any Security or any
right or remedy of the Senior Beneficiaries in respect of the Senior
Liabilities or the Mezzanine Beneficiaries in respect of the Mezzanine
Liabilities and each of the Senior Beneficiaries, the Mezzanine
Beneficiaries and the Intra-Group Lenders hereby agrees that the
obligations and liabilities of each of the Intercreditor Obligors, or
any other party or parties, for or in respect of the Senior Liabilities
and the Mezzanine Liabilities (subject to the agreement between the
Senior Beneficiaries and the Mezzanine Beneficiaries contained in this
Deed) may in whole or in part, be renewed, extended, amended,
supplemented, novated, accelerated, compromised, terminated, sold,
transferred, exchanged, waived or released and that all of the above
shall be without impairing, abridging, diminishing, releasing or
affecting the subordination of the Mezzanine Liabilities and the
Intra-Group Liabilities to the Senior Liabilities (other than the
Postponed Senior Liabilities) provided for herein and the Intra-Group
Liabilities and the Postponed Senior Liabilities to the Mezzanine
Liabilities provided for herein and the Intra-Group Liabilities to the
Postponed Senior Liabilities provided for herein.
19. ENFORCEMENT OF TRANSACTION SECURITY
19.1 SENIOR AGENT ENTITLED TO INSTRUCT
Upon the occurrence of an Enforcement Event, the Senior Agent shall be
entitled whilst such event is Continuing to instruct the Security
Trustee to enforce the Transaction Security (including making demands in
respect of Intra-Group Liabilities) and the Security Trustee shall be
bound to do so in accordance with the terms of the Security
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Documents. The Senior Agent agrees to notify the Mezzanine Agent in
writing if it intends to instruct the Security Trustee to enforce the
Transaction Security.
19.2 MEZZANINE AGENT ENTITLED TO INSTRUCT
Upon the occurrence of an Enforcement Event, the Mezzanine Agent shall,
after the Senior Discharge Date or if it is permitted to do so pursuant
to Clause 17 (PERMITTED ENFORCEMENT), be entitled whilst such event is
Continuing to instruct the Security Trustee to enforce the Transaction
Security (including making demands in respect of Intra-Group
Liabilities) and the Security Trustee shall be bound to do so in
accordance with the terms of the Security Documents. If any Postponed
Senior Liabilities exist, the Mezzanine Agent agrees to notify the
Senior Agent in writing if it intends to instruct the Security Trustee
to enforce the Transaction Security.
19.3 MANNER OF ENFORCEMENT
Prior to the Senior Discharge Date, the Security Trustee will enforce
the Transaction Security (including making demands in respect of
Intra-Group Liabilities) pursuant to Clause 19.1 (SENIOR AGENT ENTITLED
TO INSTRUCT) only on the instructions of the Senior Agent or, as the
case may be, on the instructions of the Mezzanine Agent (acting on the
instructions of the Majority Mezzanine Lenders) where the Mezzanine
Agent instructs the Security Trustee to enforce the Transaction Security
in accordance with Clause 17 (PERMITTED ENFORCEMENT). In relation to the
manner of enforcement (apart from the decision or right to commence an
enforcement, which shall be in accordance with the other provisions of
this Deed) of the Security Documents, the Security Trustee will always
act on the directions of the Senior Agent or, after the Senior Discharge
Date or, where the Mezzanine Agent instructs the Security Trustee to
enforce the Transaction Security in accordance with Clause 17 (PERMITTED
ENFORCEMENT), the Mezzanine Agent. The Senior Agent or, after the Senior
Discharge Date or where the Mezzanine Agent instructs the Security
Trustee to enforce the Transaction Security in accordance with Clause 17
(PERMITTED ENFORCEMENT), the Mezzanine Agent is entitled to give such
directions and do such other things in relation to the enforcement of
the Transaction Security as they consider appropriate including (without
limitation) determining the timing and manner of enforcement against any
particular person or asset. Any partial enforcement of the Transaction
Security will be considered to be an enforcement of the Transaction
Security for the purposes of this Deed. The Security Trustee shall
always have regard to the interests of the Mezzanine Beneficiaries on
enforcement of the Transaction Security save where the interests of the
Senior Beneficiaries would be adversely affected.
19.4 INSURANCE PROCEEDS
The Mezzanine Beneficiaries waive (until the Senior Discharge Date), as
against the Senior Beneficiaries any rights they may have of requiring
that insurance proceeds be applied in reinstatement of any assets
subject to the Transaction Security.
19.5 ENFORCEMENT AND THE INTERCREDITOR OBLIGORS
The Intercreditor Obligors (except as expressly provided under the
Senior Documents or the Mezzanine Documents) shall have no right to be
consulted in relation to or object to any enforcement or other action by
the Beneficiaries in accordance with the Finance Documents and, for the
avoidance of doubt, none of the Beneficiaries shall incur any
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liability to any of the Intercreditor Obligors in relation to such
action in the absence of fraud, gross negligence or wilful misconduct.
19.6 RELEASE OR SALE OF SUBORDINATED DEBT ON ENFORCEMENT
In the event that, pursuant to an enforcement of the Transaction
Security (whether in connection with a recapitalisation or otherwise),
the Security Trustee wishes to dispose of the share capital of any
company which the Security Trustee is entitled to dispose of at such
time, to a bona fide third party for good consideration, the Security
Trustee is authorised to execute, at or after the time of the disposal
of such shares, on behalf of the Senior Beneficiaries and the Mezzanine
Beneficiaries and the Intra Group Lenders a release of the relevant
company or any of its Subsidiaries from all or any of the past, present
and future liabilities (both actual and contingent) to all or any of
such persons under the Senior Documents, the Mezzanine Documents, the
Intra Group Documents or any other agreements or instruments under or by
which any sums, liabilities or obligations to any Intra Group Lender are
outstanding or evidenced and to release any Transaction Security granted
by such company or any of its Subsidiaries over any of its assets (and
the Senior Beneficiaries and the Mezzanine Beneficiaries and the Intra
Group Lenders each undertake to execute such releases or other documents
as may be necessary to give effect to the above mentioned releases)
PROVIDED THAT in each such case the proceeds are to be applied in the
manner provided for in this Deed and the Senior Credit Agreement and the
Mezzanine Facility Agreement, and any such release may only be given
after such proceeds have been so applied, and in the case of any
principal amount outstanding under the Mezzanine Documents, such release
is made at the same time or immediately after the irrevocable release of
all principal amounts outstanding under the Senior Documents.
20. SALES BY SECURITY TRUSTEE
If:
20.1.1 pursuant to an enforcement of any of the Transaction Security,
the Security Trustee (on the instructions or with the consent,
if prior to the Senior Discharge Date, of the Majority Senior
Lenders or, if thereafter or where the Mezzanine Agent has
instructed the Security Trustee to enforce the Transaction
Security in accordance with Clause 17 (PERMITTED ENFORCEMENT),
the Majority Mezzanine Lenders), sells or otherwise disposes
of any assets to a bona fide third party for good
consideration; or
20.1.2 an Intercreditor Obligor sells or otherwise disposes of any
assets at the request of the Security Trustee (on the
instructions or with the consent of either (a) the Majority
Senior Beneficiaries after a Senior Enforcement Event or (b)
after the Senior Discharge Date or where the Mezzanine Agent
(acting on the instructions of the Majority Mezzanine Lenders)
has instructed the Security Trustee to enforce the Transaction
Security in accordance with Clause 17 (PERMITTED ENFORCEMENT),
the Majority Mezzanine Lenders, after a Mezzanine Enforcement
Event),
the Security Trustee is hereby authorised by each of the Senior
Beneficiaries, and the Mezzanine Beneficiaries and the Intra Group
Lenders to execute on behalf of itself and
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each such Senior Beneficiary and Mezzanine Beneficiary, without the need
for any further referral to or authority from such Senior Beneficiary,
Mezzanine Beneficiary or Intra Group Lender any release of the
Transaction Security over that asset and, if such asset comprises all of
the shares in the capital of any Intercreditor Obligor which is an
Intercreditor Obligor under the Senior Documents or the Mezzanine
Documents and the Intra Group Documents the Security Trustee is hereby
further so authorised to execute on behalf of each Senior Beneficiary,
each Mezzanine Beneficiary or each Intra Group Lender, without the need
for any further referral to or authority from such Senior Beneficiary,
Mezzanine Beneficiary or Intra Group Lender, a release of such
Intercreditor Obligor from all past, present and future liabilities
(both actual and contingent and including, without limitation, any
liability to any other Intercreditor Obligor under the Senior Documents
or the Mezzanine Documents or the Intra Group Documents by way of
guarantee, contribution or indemnity) in its capacity as an
Intercreditor Obligor and/or Intra. Group Borrower to release any
Transaction Security granted by such Intercreditor Obligor over any of
its assets (and the Senior Beneficiaries and the Mezzanine Beneficiaries
and the Intra Group Lenders each undertake to execute such releases or
other documents as may be necessary to give effect to the above
mentioned releases) PROVIDED THAT in each such case the proceeds are to
be applied in the manner provided for in this Deed and any such release
may only be given after such proceeds have been so applied, and in the
case of any principal amount outstanding under the Mezzanine Documents,
such release is made at the same time or immediately after the
irrevocable release of all principal amounts outstanding under the
Senior Documents.
21. PRIORITY OF TRANSACTION SECURITY
21.1 PRIORITY OF TRANSACTION SECURITY
21.1.1 The Transaction Security will, to the extent that it secures
Senior Liabilities (other than the Postponed Senior
Liabilities) subject to Clause 8 (UNDERTAKINGS IN RESPECT OF
SENIOR LIABILITIES):
(a) rank in all respects prior to Transaction Security
conferred on the Mezzanine Beneficiaries, regardless of
order or manner of registration, perfection,
attachment, notice, execution or otherwise; and
(b) secure all the Senior Liabilities (other than the
Postponed Senior Liabilities) in priority to the
Mezzanine Liabilities, regardless of the date upon
which the Senior Liabilities arise, regardless of
whether a Senior Beneficiary is obliged to advance
monies included in the Senior Liabilities, and
regardless of any fluctuations in the amount of Senior
Liabilities outstanding or any intermediate discharge
of the Senior Liabilities in whole or in part.
21.1.2 The Transaction Security will, to the extent that it secures
Mezzanine Liabilities subject to Clause 6 (UNDERTAKINGS OF
MEZZANINE BENEFICIARIES):
(a) rank in all respects prior to Transaction Security
conferred on the Senior Beneficiaries in respect of
the Postponed Senior Liabilities and
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Transaction Security, regardless of order or manner of
registration, perfection, attachment, notice, execution
or otherwise; and
(b) secure all the Mezzanine Liabilities in priority to the
Postponed Senior Liabilities, regardless of the date
upon which the Mezzanine Liabilities arise, regardless
of whether a Mezzanine Lender is obliged to advance
monies included in the Mezzanine Liabilities, and
regardless of any fluctuations in the amount of
Mezzanine Liabilities outstanding or any intermediate
discharge of the Mezzanine Liabilities in whole or in
part.
21.2 BENEFICIARIES TO CO-OPERATE
The Beneficiaries will take all reasonable steps to co-operate with the
Security Trustee with a view to reflecting the priority of the
Transaction Security in any register or with any filing or registration
authority and in giving notice to insurers, debtors liable for
receivables covered by the Transaction Security and other persons.
21.3 FURTHER ACTIONS TO EVIDENCE PRIORITY
If the Senior Beneficiaries and/or the Mezzanine Beneficiaries take any
collateral, additional or substituted Security for all or any part of
the Senior Liabilities or the Mezzanine Liabilities respectively, the
Senior Beneficiaries, the Mezzanine Beneficiaries and each of the
Intercreditor Obligors respectively undertake to execute such documents
and do such other acts or things as may be necessary to evidence the
priority of such Security in the manner established by this Deed.
21.4 SECURITY EXISTING IN BREACH
In the event of any of the Intercreditor Obligors, the Intra Group
Lenders or the Mezzanine Lenders breaching the terms of sub-clauses
4.1.5 of Clause 4 (UNDERTAKINGS OF THE INTERCREDITOR OBLIGORS), 5.1.2 of
Clause 5 (UNDERTAKINGS OF THE INTER-GROUP LENDERS) or 6.1.2 of Clause
6.1 (UNDERTAKINGS OF MEZZANINE BENEFICIARIES) (as applicable), the
Security, guarantee, indemnity so granted or given shall be deemed to
have been granted or given in favour of the Security Trustee to hold on
the trusts created by this Deed.
22. APPROPRIATION
22.1 ORDER OF APPLICATION
All amounts received by the Security Trustee pursuant to any enforcement
of the Security Documents or otherwise with respect to any of the
Liabilities, after providing for all of its outgoings, costs, charges,
expenses and liabilities incurred by or on behalf of the Security
Trustee and any receiver, attorney or agent in connection with carrying
out duties and exercising its powers and discretions under the Security
Documents and any remuneration of the Security Trustee and every
receiver under the Security Documents and for payments ranking in
priority as a matter of law, shall be applied by the Security Trustee:
22.1.1 FIRST in or towards payment of the Senior Liabilities other
than the Postponed Senior Liabilities, including, without
limitation, any amounts required by way of cash collateral in
respect thereof, by payment (via the Senior Agent) in rateable
proportions to the amounts then due to the Senior
Beneficiaries;
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22.1.2 SECONDLY in or towards payment, subject to Clause 6
(UNDERTAKINGS OF THE MEZZANINE BENEFICIARIES), of the
Mezzanine Liabilities other than the Postponed Mezzanine
Liabilities, by payment (via the Mezzanine Agent) in rateable
proportions to the amounts then due to the Mezzanine
Beneficiaries;
22.1.3 THIRDLY in or towards payment to the Senior Beneficiaries (via
the Senior Agent) of any amounts outstanding in respect of the
Postponed Senior Liabilities; and
22.1.4 FOURTHLY in or towards payment to the Mezzanine Beneficiaries
(via the Mezzanine Agent) of any amounts outstanding in
respect of the Postponed Mezzanine Liabilities.
22.2 APPLICATION OF BALANCE
Any balance shall be held by the Security Trustee and shall be
subsequently applied in accordance with sub-clauses 22.1.1, 22.1.2,
22.1.3 and 22.1.4 as and when relevant amounts become due and may be so
applied. Any balance held by the Security Trustee on irrevocable
discharge in full of the Senior Liabilities, including, without
limitation, any amounts required by way of cash collateral in respect
thereof, (as to which the Security Trustee shall be entitled to rely on
a written certificate from the Senior Agent and the Hedge Counterparties
(if any)) and the Mezzanine Liabilities (as to which the Security
Trustee shall be entitled to rely on a written certificate from the
Mezzanine Agent), shall (after providing for payments ranking in
priority as a matter of law) be paid to the relevant Intercreditor
Obligor or to such other person as may be entitled thereto.
23. DISCHARGE OF SENIOR LIABILITIES
On the Senior Discharge Date (notice of the occurrence of which will be
given promptly in writing by the Senior Agent to the Mezzanine Agent),
all the rights and obligations of the Senior Beneficiaries hereunder in
respect of the Senior Liabilities (other than the Postponed Senior
Liabilities) shall (to the extent that the Senior Beneficiaries are
entitled to do so) automatically be assigned to and assumed by the
Mezzanine Beneficiaries and thereafter references in this Deed to the
Senior Agent shall be deemed to be references to the Mezzanine Agent
unless the context otherwise requires.
24. INTERCREDITOR OBLIGORS' ACKNOWLEDGEMENT
24.1 INTERCREDITOR OBLIGORS' ACKNOWLEDGEMENT
Each of the Intercreditor Obligors recognises the undertakings and
obligations to and on the parts of the Senior Beneficiaries and the
Mezzanine Beneficiaries herein contained and:
24.1.1 expressly authorises the Security Trustee to enforce the
Transaction Security in the manner provided for herein;
24.1.2 irrevocably waives any rights which each respectively or
collectively may now or in the future have to challenge or
have set aside any arrangement relating to:
(a) the placing of the proceeds of the enforcement of the
Transaction Security in a suspense account; or
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(b) any other matter or thing regarding the order of
enforcement of the Transaction Security and the
priority of the application of the proceeds of such
enforcement; and
24.1.3 confirms that it does not have any right to enforce any
agreement, arrangement or understanding herein contained or to
claim any right of estoppel in relation hereto.
24.2 PRESERVATION OF MEZZANINE LIABILITIES
Except where expressly provided in this Deed, nothing contained in this
Deed is intended to or shall impair, as between any Intercreditor
Obligor and the Mezzanine Beneficiaries, the obligations of any
Intercreditor Obligor under the Mezzanine Documents, including, without
limitation, the obligation of the Mezzanine Borrower to pay the
Mezzanine Beneficiaries all of the relevant Mezzanine Liabilities. Each
Intercreditor Obligor expressly acknowledges that no failure or delay by
the Mezzanine Beneficiaries in exercising any of their respective rights
in relation to a Mezzanine Event of Default as a result of the
provisions of this Deed shall operate as a waiver or variation of its
rights with respect thereto.
25. DEFENCES
The provisions of this Deed shall not be affected, impaired or revoked
by any act, omission, transaction, limitation, matter, thing or
circumstance whatsoever which but for this provision might operate to
affect the priorities of any of the Transaction Security provided for
herein including without limitation:
25.1.1 any time, waiver or indulgence granted to any Intercreditor
Obligor or any other person;
25.1.2 the taking of any Security from any Intercreditor Obligor or
any other person or the variation, compromise, renewal or
release of, or the failure, refusal or neglect to take,
perfect or enforce, any rights remedies or Security from or
against any Intercreditor Obligor or any other person or all
or any part of the Transaction Security or any other document;
25.1.3 any legal limitation, disability, incapacity or other
circumstances relating to any Intercreditor Obligor or any
other person; or
25.1.4 any amendment, supplement to or novation of any of the Finance
Documents.
26. DISCLOSURE
Each of the Intercreditor Obligors hereby consents, so long as any of
the Transaction Security shall remain subsisting, to the disclosure by
any of the Beneficiaries to each other of such information concerning
such Intercreditor Obligor to such extent as any Beneficiary shall see
fit but in no event to any third party without the prior written consent
of such Intercreditor Obligor except to the extent and in the manner
permitted under the Senior Documents and the Mezzanine Documents.
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27. REPAYMENTS
27.1 REPAYMENTS
No payments, receipts or amounts in respect of set-off as described in
Clauses 11 (TURNOVER), 14.2 (RECEIPT OF AMOUNTS BY BENEFICIARIES), 14.3
(EQUIVALENT PAYMENT) or 14.5 (DISCHARGE OF LIABILITIES BY SET-OFF)
shall, as between any Intercreditor Obligor and its creditors, be
deemed to constitute payment by any Intercreditor Obligor to any
Beneficiary in respect of the Senior Liabilities or the Mezzanine
Liabilities. Any amount paid by any Beneficiary under Clauses II
(TURNOVER) or 14 (DISTRIBUTIONS) to the Security Trustee shall not
constitute the discharge of the Liabilities to which such amounts
relate save to the extent such Beneficiary receives any distribution in
respect thereof pursuant to the provisions of Clause 22
(APPROPRIATION).
27.2 TRANSFERS OF SENIOR LIABILITIES
If at any time and for so long as (a) the Mezzanine Beneficiaries are
not entitled to receive payments pursuant to Clause 12 (SUSPENSION OF
PERMITTED PAYMENTS) or (b) a Senior Acceleration Notice has been served
and not withdrawn, the Mezzanine Agent shall be entitled to request
that the Senior Lenders (in accordance with Clause [25] (CHANGES TO THE
LENDERS) of the Senior Credit Agreement) and the Hedge Counterparties
shall transfer to them or such person or persons as they may reasonably
select all (and not part only) of their rights and obligations in
respect of the Senior Liabilities whereupon:
27.2.1 to the extent that they are lawfully able to do so; and
27.2.2 upon receipt by the Senior Agent of the amounts referred to in
Clause 27.3 (PAYMENT BY MEZZANINE LENDERS),
each of the Senior Lenders and the Hedge Counterparties shall promptly
after such receipt so transfer all of its rights and obligations in
respect of the Senior Liabilities to such person or persons as the
Mezzanine Lenders shall reasonably select.
27.3 PAYMENT BY MEZZANINE LENDERS
In consideration of the Senior Lenders and Hedge Counterparties
transferring their rights and obligations in respect of the Senior
Liabilities as provided for in Clause 27.2 (TRANSFER OF SENIOR
LIABILITIES), the Mezzanine Lenders (in such proportions as they may
agree) shall pay to the Senior Agent for the account of the Senior
Lenders and the Hedge Counterparties and in the currency in which the
same are outstanding or incurred:
27.3.1 an amount equal to all amounts then due to the Senior Lenders
and Hedge Counterparties in respect of the Senior Liabilities
or outstanding in respect thereof (whether or not due);
27.3.2 an amount equal to all the costs which will be incurred by the
Senior Lenders and Hedge Counterparties (or any of them) in
terminating any arrangements which they may have made to fund
such due or outstanding amounts; and
27.3.3 any fees, costs or expenses (including legal fees) which the
Senior Agent or the Senior Lenders and Hedge Counterparties or
any of them may properly incur in connection with effecting
such transfer,
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all as certified by the Senior Agent to the Mezzanine Agent
within 10 Business Days of receipt of the request for such
transfer.
28. AMENDMENTS
28.1 REQUIRED CONSENTS
(a) Subject to Clause 28.2 (EXCEPTIONS) the provisions of this
Deed may not be amended (otherwise than in accordance with the
terms hereof) except by written agreement between the Majority
Senior Lenders and the Majority Mezzanine Lenders and, if any
such amendment would impose upon or vary any obligation or
right of the Intra-Group Lenders or any Intercreditor Obligor,
then the consent and agreement of such party to such amendment
shall be required.
(b) If the amendment or waiver may impose new or additional
obligations on or withdraw or reduce the rights of an Party,
the consent of that Party is required.
(c) An amendment or waiver which relates to the rights or
obligations of the Agents or the Security Trustee may not be
effected without the written consent of the Agents or, as the
case may be, the Security Trustee.
(d) Any amendment or waiver given in accordance with this Clause
will be binding on all Parties and the Security Trustee may
effect, on behalf of the Senior Beneficiaries and the
Mezzanine Beneficiaries any amendment or waiver permitted by
this Clause.
28.2 EXCEPTIONS
Except as otherwise provided in this Deed, any amendment or waiver that
has the effect of changing or which relates to Clauses 3 (RANKING), 4
(UNDERTAKINGS OF THE INTERCREDITOR OBLIGORS), 5 (UNDERTAKINGS OF THE
INTRA-GROUP LENDERS), 6 (UNDERTAKINGS OF THE MEZZANINE BENEFICIARIES), 8
(UNDERTAKINGS IN RESPECT OF THE SENIOR LIABILITIES), 10 (PERMITTED
PAYMENTS), 11 (TURNOVER), 12 (SUSPENSION OF PERMITTED PAYMENTS), 13
(SUBORDINATION), 14 (DISTRIBUTIONS), 16 (RESTRICTION ON ENFORCEMENT),
16.3.4 (PERMITTED ENFORCEMENT), 19 (ENFORCEMENT OF TRANSACTION
SECURITY), 21 (PRIORITY OF TRANSACTION SECURITY) and 22 (APPROPRIATION)
shall not be made without the prior written consent of all the Senior
Beneficiaries and all the Mezzanine Beneficiaries.
29. REPORTS
Nothing in this Deed shall prevent any of the parties hereto making a
claim for costs or damages in relation to the Reports PROVIDED THAT:
29.1.1 before any party to this Deed takes such action it will
consult with the other parties to this Deed on the nature of
such action to be taken; and
29.1.2 if any Intercreditor Obligor or any Lender (other than (save
in respect of the Postponed Senior Liabilities) the Senior
Lenders) receives any money before the discharge in full of
the Senior Liabilities and Mezzanine Liabilities as a result
of making any claim for costs or damages in relation to any
Report, it should pay an amount equal to the amount of such
monies (less the costs and expenses directly incurred in
making such claim) to the Security Trustee to be
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held on trust and be applied in accordance with the terms of
Clause 22 (APPROPRIATION).
30. NEW INTRA-GROUP LENDERS AND BORROWERS
After the threshold in paragraph (b)(vi) in the definition of Permitted
Loans and Guarantees in the Senior Credit Agreement has been reached, if
at any time thereafter, there shall be any indebtedness for money
borrowed or owed by one Group Entity to another Group Entity which (a)
does not constitute an Intra-Group Liability, (b) is not already
subordinated pursuant to a Subordination Agreement and (c) is of an
amount (but not less than EUR10,000,000 or its equivalent), and likely
to be outstanding for a time, reasonably considered by the Majority
Senior Lenders or the Majority Mezzanine Lenders to be such that failure
to subordinate the claims of the Group Entity which is the creditor in
respect thereof would be materially prejudicial to the interests of the
Senior Lenders or Mezzanine Lenders respectively, the Obligors' Agent
shall promptly inform the Senior Agent and the Mezzanine Agent thereof
and, upon request by the Senior Agent or the Mezzanine Agent, shall
procure that such indebtedness becomes an Intra-Group Liability and that
the debtor and creditor in respect thereof become party hereto as an
Intra-Group Borrower and Intra-Group Lender respectively by execution of
a Deed of Accession, unless such Intra-Group Borrowers and Intra-Group
Lenders have executed Accession Letters in relation to the Senior Credit
Agreement or the Mezzanine Facility Agreement.
31. NOTICES
31.1 NOTICES OF WRITING
Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by fax, letter or telex.
31.2 DELIVERY OF NOTICES
31.2.1 The address, fax number and telex number (and the department
or officer, if any, for whose attention the communication is
to be made) of each party for any communication or document to
be made or delivered under or in connection with this Deed is:
(a) in the case of an original party hereto, that
identified in any Finance Document to which it is
party;
(b) in the case of a party that accedes to this Deed
under a Deed of Accession, that identified in such
Deed of Accession,
or any substitute address, fax number, telex number or
department or officer as the party may notify to the other
parties to this Deed by not less than five Business Days'
notice.
31.2.2 Any communication or document made or delivered by one person
to another under or in connection with this Deed will only be
effective:
(a) if by way of fax, when received in legible form;
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(b) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address; or
(c) if by way of telex, when despatched, but only if, at
the time of transmission, the correct answerback
appears at the start and at the end of the sender's
copy of the notice,
and, if a particular department or officer is specified as
part of its address details, if addressed to that department
or officer.
31.2.3 If any communication or document would be deemed by this
Clause 31 to have been made or received on a day which is not
a Business Day, it shall be deemed to have been made or
received on the next following Business Day.
31.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to this Deed shall be in the English language.
32. MISCELLANEOUS
32.1 COUNTERPARTS
This Deed may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute one and the same instrument.
32.2 OBLIGATIONS BINDING
The obligations of the parties who have executed this Deed shall not be
affected by the fact that not all of the parties hereto have validly
executed this Deed and such obligations shall be binding INTER SE.
32.3 SEVERABILITY
If any provision of this Deed is prohibited or unenforceable in any
jurisdiction in relation to any party hereto, such prohibition or
unenforceability shall not invalidate the remaining provisions hereof or
affect the validity or enforceability of such provision in any other
jurisdiction or in relation to any of the other parties hereto.
32.4 INTEREST ON OVERDUE AMOUNTS
Each amount payable by the Senior Beneficiaries, the Mezzanine
Beneficiaries or the Intra-Group Lenders to the Security Trustee which
is not paid when due and payable shall carry interest until paid (as
well before as after judgement) payable on demand at a rate of interest
as would equal the reasonable cost to the Security Trustee of borrowing
such amount as determined by the Security Trustee.
32.5 BENEFICIARIES ACKNOWLEDGEMENT
The Beneficiaries hereby acknowledge that the certificate of the Senior
Agent concerning the amounts due to each Beneficiary in respect of the
payment obligations of the Intercreditor Obligors under the Senior
Documents and of the Mezzanine Agent concerning the amounts due to each
Beneficiary in respect of the payment obligations of
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the Intercreditor Obligors under the Mezzanine Documents, shall be
binding upon each Beneficiary hereunder in the absence of manifest
error.
32.6 PRIORITY CUMULATIVE
The priority and subordination provisions of this Deed are cumulative.
32.7 DEED TO OVERRIDE
This Deed overrides anything in the Senior Documents, the Mezzanine
Documents and the Intra-Group Documents to the contrary, other than any
provisions of the Subordination Agreements.
32.8 DEED SHALL NOT CONSTITUTE SECURITY
The parties hereto confirm that this Deed shall not constitute nor
create nor is it intended to constitute or create any Security.
32.9 AGENT RESIGNATION
The Senior Agent may not resign or be removed as specified in the
Senior Credit Agreement unless a replacement Senior Agent agrees with
all other parties hereto to become the replacement agent under this
Deed by either execution of a Deed of Accession or executing a Transfer
Certificate in relation to the Senior Credit Agreement.
32.10 SENIOR AGENT NOTIFICATION
Promptly after the Senior Agent has been notified by the Senior Lenders
and the Hedge Counterparties that the Senior Liabilities have been
irrevocably paid in full, the Senior Agent shall confirm this fact in
writing to the Mezzanine Agent and the Security Trustee.
32.11 SECURITY IN RELEVANT JURISDICTIONS AND PARALLEL OBLIGATIONS
32.11.1 For the purposes of (a) taking Transaction Security or the
Austrian Guarantee in, or subject to the laws of, a Relevant
Jurisdiction and (b) ensuring the continued validity of such
Transaction Security, the Beneficiaries and the Intercreditor
Obligors agree that despite anything to the contrary contained
in any Finance Document:
(a) each Intercreditor Obligor shall pay to the Security
Trustee sums equal to, and in the currency of, its
Principal Obligations as and when the same fall due
for payment under any Finance Document (the "PARALLEL
OBLIGATIONS");
(b) the rights of the Beneficiaries to receive payment of
the Principal Obligations are several from the rights
of the Security Trustee to receive the Parallel
Obligations;
(c) the Security Trustee shall have its own independent
right to demand payment of the Parallel Obligations
by the Intercreditor Obligors;
(d) the payment by an Intercreditor Obligor of its
Parallel Obligations to the Security Trustee in
accordance with this Clause 32.11 shall be a good
discharge of the corresponding Principal Obligations
owed by it to the relevant Beneficiary under the
relevant Finance Document; and
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(e) nothing in this Deed or any Finance Document shall in
any way limit the Security Trustee's right to act in
the protection or preservation of, the rights under, or
to enforce any, Security Document as contemplated by
this Deed or the relevant Security Document.
Despite the foregoing, any such payment shall be made to the
Senior Agent, or as the case may be, the Mezzanine Agent,
unless the Senior Agent, or as the case may be, the Mezzanine
Agent directs such payment to be made to the Security Trustee.
Without limiting or affecting the Security Trustee's rights
against the Intercreditor Obligors (whether under this Clause
32.11 or under any other provision of the Finance Documents
and subject to sub-clause 32.11.1(e), the Security Trustee
agrees with each other Beneficiary (on a several basis) that
it will not exercise its rights in respect of the Parallel
Obligations except with the consent of the relevant
Beneficiary or the Majority Senior Lenders or the Majority
Mezzanine Lenders (as applicable).
32.11.2 For the purposes of this Clause 32.11:
(a) "FRENCH RECEIVABLES ASSIGNMENT" means any assignment
of receivables by way of security made pursuant to
the provisions of French Law No. 81-1 dated 2
January 1981 (as amended);
(b) "RELEVANT JURISDICTION" means Austria, the Kingdom of
Belgium, the Republic of France, Germany, Hungary,
Luxembourg, The Netherlands or such other
jurisdiction as the Obligors' Agent, the Senior Agent
and the Mezzanine Agent (acting reasonably) agree is
a Relevant Jurisdiction; and
(c) "PRINCIPAL OBLIGATIONS" means:
(i) in respect of each Relevant Jurisdiction (other
than The Netherlands) and in relation to an
Intercreditor Obligor, any sums owing by it to a
Beneficiary (other than the Security Trustee)
under any Finance Document other than any French
Receivables Assignment; or
(ii) in respect of The Netherlands, has the meaning
ascribed thereto in the Security Documents
governed by Dutch law.
33. ASSIGNMENTS AND TRANSFERS
33.1 BENEFICIARIES ENTITLED TO BENEFIT OF DEED
The parties hereto confirm that any person becoming a Beneficiary (by
the execution of a substitution or transfer certificate or otherwise)
shall be entitled to the benefit of the provisions contained herein as
if it had been originally named a party hereto. Each party hereto makes
an irrevocable offer, without the need for any further action, to each
such person which may be accepted by such person becoming a Beneficiary.
In addition each party hereto (including parties subsequently becoming
bound by this Deed) irrevocably authorises the Security Trustee to
agree, on its behalf with any other person intended to
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become a party hereto as a Beneficiary to the execution of a Deed of
Accession and/or a Transfer Certificate in relation to the Senior Credit
Agreement and/or the Mezzanine Facility Agreement so as to make such
person a party to this Deed as a Beneficiary. The parties hereto agree
that this authorisation is given to secure the interests of the parties
under this Deed and is accordingly irrevocable.
33.2 DEED OF ACCESSION
The parties hereto agree that none of the Senior Lenders or, as the case
may be, the Mezzanine Lenders or, as the case may be, the Intra-Group
Lenders will assign or transfer to any person the whole or any part of
their rights or obligations in respect of the Senior Liabilities or the
Mezzanine Liabilities or the Intra-Group Liabilities unless the assignee
or transferee previously or simultaneously agrees with the other parties
hereto to be bound by the provisions of this Deed as if it was named
herein and subject to the same rights and obligations (mutatis mutandis)
as the Senior Beneficiaries or, as the case may be, the Mezzanine
Beneficiaries or, as the case may be, the Intra-Group Lenders by
executing and delivering to the Security Trustee (with a copy to the
Senior Agent and the Mezzanine Agent) a Deed of Accession, or (in the
case of a Senior Lender or Mezzanine Lender) by executing a Transfer
Certificate as a transferee in relation to the Senior Credit Agreement
or the Mezzanine Facility Agreement (as the case may be) or otherwise.
33.3 ACCESSION AS AN INTERCREDITOR OBLIGOR
If any person becomes a guarantor or otherwise becomes liable for
(except as a provider) any of the Senior Liabilities, the Mezzanine
Liabilities or the Intra-Group Liabilities, the Obligors' Agent will
procure that such person will become a party hereto as an Intercreditor
Obligor by the execution of a Deed of Accession, or execution of an
Accession Letter in relation to the Senior Credit Agreement or the
Mezzanine Facility Agreement.
34. THE SECURITY TRUSTEE
34.1 APPOINTMENT OF SECURITY TRUSTEE
Each of the Senior Beneficiaries and the Mezzanine Beneficiaries hereby
appoint the Security Trustee to act as its trustee in connection
herewith and authorises the Security Trustee to exercise such rights,
powers and discretions as are specifically delegated to the Security
Trustee by the terms hereof together with all rights, powers and
discretions as are reasonably incidental thereto or necessary to give
effect to the trusts hereby created and each of the Senior Beneficiaries
and the Mezzanine Beneficiaries irrevocably authorises the Security
Trustee on its behalf to enter into any and each Security Document and
(if applicable) any Subordination Agreement.
34.2 TRUST PROPERTY
The Security Trustee shall stand possessed of the Trust Property upon
trust for the benefit of the Beneficiaries on the terms and subject to
the conditions set out in this Deed. It is hereby agreed that, in
relation to any jurisdiction the courts of which would not recognise or
give effect to the trust expressed to be created by this Deed, the
relationship of the Beneficiaries to the Security Trustee shall be
construed as one of principal and agent but, to the extent permissible
under the laws of such jurisdiction, all the other provisions of this
Deed shall have full force and effect between the parties hereto.
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34.3 DIRECTIONS
The Beneficiaries shall not have any independent power to enforce the
Transaction Security or to exercise any rights, discretions or powers or
to grant any consents or releases under or pursuant to the Security
Documents or otherwise have direct recourse to the Transaction Security
except through the Security Trustee. Subject to Clause 34.9 (PROVISION
OF DIRECTIONS AND INFORMATION) (and subject to its being indemnified to
its satisfaction), the Security Trustee shall take such action
(including, without limitation, the exercise of all rights, discretions
or powers and the granting of consents or releases) or, as the case may
be, refrain from taking such action under or pursuant to this Deed and
the Security Documents as the Senior Agent or, subject to the terms
hereof, the Mezzanine Agent shall specifically direct the Security
Trustee in writing (and so that only the Senior Agent or, subject to the
terms hereof, the Mezzanine Agent shall be entitled to give any such
directions to the Security Trustee). Unless and until the Security
Trustee shall have received such directions, the Security Trustee shall
not take any action under this Deed or the Security Documents. The
provisions of the preceding two sentences of this Clause 34 shall not
apply where the terms of the Security Documents entitle the Security
Trustee to take, or refrain from taking, any action and in any such case
the Security Trustee shall be entitled to take or, as the case may be,
refrain from taking such action without reference to (and
notwithstanding any contrary direction from) the Senior Agent or the
Mezzanine Agent.
34.4 EXERCISE OF POWERS OF ENFORCEMENT
Subject to Clause 34.3 (DIRECTIONS), at any time after the Security
Documents have become so enforceable in accordance with their respective
terms, the Security Trustee shall, acting on the.written directions of
the Senior Agent or, subject to the terms hereof, the Mezzanine Agent,
acting reasonably, (but not otherwise), exercise all powers of
enforcement of the Transaction Security in accordance with such
directions but not otherwise.
34.5 NO OTHER ACTION
The Security Trustee shall not be required to take any action or
exercise any rights, remedies, powers or discretions under or in
connection with this Deed beyond those which the Senior Agent or,
subject to the terms hereof, the Mezzanine Agent (acting reasonably)
shall specifically instruct the Security Trustee in writing to take or
exercise and then only to the extent stated in the Senior Agent's or, as
the case may be, the Mezzanine Agent's specific instructions in writing.
34.6 SECURITY TRUSTEE'S ASSUMPTIONS
The Security Trustee shall be entitled to assume that any instructions
or certificates received by it from the Senior Agent or the Mezzanine
Agent under or pursuant to this Deed are (a) given in accordance with
the provisions of this Deed and (b) given, where appropriate, in
accordance with directions of persons or the provisions of agreements by
which the Senior Agent or the Mezzanine Agent (as the case may be) is
bound and the Security Trustee shall not be liable to any other person
for any action taken or omitted under or in connection with this Deed in
accordance with any such instructions or certificates unless caused by
its gross negligence or wilful misconduct.
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34.7 IDENTITY OF AGENTS
The Security Trustee shall be entitled (and bound) to assume that the
identity of the Senior Agent and the Mezzanine Agent is as notified to
it at the date of this Deed, unless and until it is notified otherwise
by the retiring such Senior Agent or, as the case may be, Mezzanine
Agent and the successor agent in writing together with the date from
which the change becomes effective. The Security Trustee shall be
entitled to rely upon and assume that any such notification is authentic
and shall not be liable for any loss occasioned by so assuming or
relying.
34.8 MODIFICATION TO SECURITY DOCUMENTS
On the instructions of the Senior Agent or, after the Senior Discharge
Date, the Mezzanine Agent, the Security Trustee shall concur with the
Obligors' Agent or any Intercreditor Obligor in making any modification
to the Security Documents which:
34.8.1 in the opinion of the Senior Agent or, after the Senior
Discharge Date, the Mezzanine Agent, it may be expedient to
make and which will not be prejudicial to the interest of the
Beneficiaries; or
34.8.2 is necessary to correct a manifest error.
Any such modification shall be promptly notified to the Beneficiaries by
the Senior Agent or the Mezzanine Agent (as the case may be) and shall
be binding on all the Beneficiaries. For the purposes of this Clause 34,
(a) the execution of a Security Document by an Intercreditor Obligor and
(b) the release from the Transaction Security of any property which may
be so released shall be deemed not to constitute a modification.
34.9 PROVISION OF DIRECTIONS AND INFORMATION
The parties hereto (other than the Security Trustee) (whether direct or
through the Senior Agent) shall provide the Security Trustee with all
necessary directions and information as it may reasonably require for
the purposes of carrying out its duties and obligations under this Deed.
34.10 NO DUTY OR RESPONSIBILITY
The Security Trustee shall not have any duty or responsibility, either
initially or on a continuing basis:
34.10.1 to provide any Beneficiaries, any Investor, any Intra-Group
Lender with any information with respect to any Intercreditor
Obligor whenever coming into its possession or to provide any
other person with any communication received by it under or in
connection with this Deed; or
34.10.2 to investigate the application of sums distributed pursuant to
Clause 22 (APPROPRIATION).
34.11 FURTHER ACTS AND THINGS
On the instructions of the Senior Agent or, after the Senior Discharge
Date, the Mezzanine Agent, the Security Trustee shall be entitled to
agree to and execute and perform any documents and do such other acts
or things as may in the opinion of the Senior Agent or Mezzanine Agent
be necessary or expedient to give effect to the
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provisions of Clauses 28 (AMENDMENTS), 30 (NEW INTRA-GROUP LENDERS AND
BORROWERS), 32.9 (AGENT RESIGNATION) and 33 (ASSIGNMENTS AND
TRANSFERS).
34.12 FORMAL NOTICES
The Security Trustee shall, as soon as practicable upon receipt, send
to the Senior Agent and the Mezzanine Agent copies of each formal
notice received by it as Security Trustee from the Obligors'Agent or
any Intercreditor Obligor.
34.13 NO DELEGATION
The Security Trustee may not delegate any power, trust, authority or
discretion vested in it by this Deed and/or the Security Documents to
any other person without the prior written consent of the Senior Agent
and the Mezzanine Agent.
34.14 SECURITY TRUSTEE'S DISCRETIONS
By way of supplement to the Trustee Act 1925, it is expressly declared
as follows:
34.14.1 the Security Trustee may in relation to any of the provisions
of this Deed act or rely upon the opinion or advice of or any
information obtained from any lawyer, accountant, valuer,
surveyor, broker, auctioneer or other expert commissioned by
the Security Trustee and the Security Trustee shall not be
responsible for any loss occasioned by so acting or relying;
34.14.2 any opinion, advice or information obtained pursuant to
sub-clause 34.14.1 may be sent or obtained by letter, telex
message, facsimile transmission, telephone or any other means
and the Security Trustee shall not be liable for acting on
any opinion, advice or information purporting to be so
conveyed although the same shall contain some error or shall
not be authentic;
34.14.3 the Security Trustee shall be at liberty to accept as
sufficient evidence a certificate signed or purported to be
signed on behalf of the Senior Agent or, subject to the
terms hereof, the Mezzanine Agent to the effect that any
particular dealing, transaction, step or thing is, in the
opinion of the Senior Agent or, subject to the terms hereof,
the Mezzanine Agent, suitable or expedient or as to any other
fact or matter upon which the Security Trustee may require to
be satisfied and the Security Trustee shall be in no way
bound to call for further evidence or to be responsible for
any loss that may be occasioned by acting on any such
certificate;
34.14.4 the Security Trustee may refrain from doing anything which
would or might in its opinion be contrary to any law of any
jurisdiction or any directive or regulation of any agency of
any state or which would or might otherwise render it liable
to any person and may do anything which is, in its opinion,
necessary to comply with any such law, directive or
regulation;
34.14.5 the Security Trustee shall not be liable for any failure,
omission or defect in perfecting the arrangements created by
or pursuant to this Deed;
34.14.6 the Security Trustee and every attorney, agent or other
person appointed by it under or in connection with this Deed
shall be entitled to be indemnified out of amounts received
by the Security Trustee under this Deed against all
liabilities
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and expenses properly incurred in the execution of any power,
trust, authority or discretion in connection with this Deed
and against all actions, proceedings, costs, claims and
demands in respect of any matter or thing done or omitted to
be done in any way relating to this Deed;
34.14.7 all moneys which under the trusts contained in this Deed are
received or held by the Security Trustee may be invested in
the name of the Security Trustee or any nominee or under the
control of the Security Trustee in any investment for the
time being authorised by English law for the investment by a
trustee of trust moneys or by placing the same on deposit in
the name of the Security Trustee or any nominee or under the
control of the Security Trustee at such bank or institution
(including the Security Trustee) as the Senior Trustee or,
subject to the terms hereof, the Mezzanine Agent may direct
or in such currency as the Senior Trustee or, subject to the
terms hereof, the Mezzanine Agent may direct and the Security
Trustee may at any time vary or transfer any such investments
for or into other such investments or convert any moneys so
deposited into any other currency as the Senior Agent or,
subject to the terms hereof, the Mezzanine Agent shall from
time to time direct and shall not be responsible for any loss
occasioned thereby, whether by depreciation in value,
fluctuation in exchange rates or otherwise except for any
loss or liability arising from its own gross negligence or
wilful misconduct;
34.14.8 the Security Trustee shall have full power to determine (as
between the Security Trustee and the other Finance Parties)
all questions and doubts arising in relation to the
interpretation or application of any of the provisions of
this Deed as it affects the Security Trustee and every such
determination (whether made upon a question actually raised
or implied in the acts or proceedings of the Security
Trustee) shall be conclusive and shall bind the other parties
hereto;
34.14.9 the Security Trustee may in the conduct of the trusts hereof
(otherwise than in relation to its right to make any
declaration, determination or decision) instead of acting
personally employ and pay an agent (whether being a lawyer or
other person) to transact or concur in transacting any
business and to do or concur in doing any acts required to be
done by the Security Trustee (including the receipt and
payment of money) and any such agent engaged in any
profession or business shall be entitled to be paid all usual
professional and other charges for business transacted and
acts done by him or any partner or employee of his in
connection with the trusts hereof;
34.14.10 the Security Trustee shall be at liberty to place all title
deeds and other documents certifying, representing or
constituting the title to any of the property which is the
subject matter of the Transaction Security for the time being
in its hands in any safe deposit, safe or receptacle selected
by the Security Trustee or with any bankers or banking
company (including the Security Trustee or the Senior Agent
or any of the Beneficiaries) or company whose business
includes undertaking the safe custody of documents or
solicitors or firm of solicitors and may on the instructions
of the Senior Agent or, subject to the terms hereof, the
Mezzanine Agent (acting reasonably) make any such
arrangements as they think
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fit for allowing the relevant Intercreditor Obligor or its
lawyers or auditors access to or possession of such title
deeds and other documents when necessary or convenient and
the Security Trustee shall not be responsible for any loss
incurred in connection with any such deposit, access or
possession; and
34.14.11 any investment or any part or all of the Trust Property may,
at the discretion of the Security Trustee, be made or
retained in the names of nominees.
34.15 PARTIES PERFORMING OBLIGATIONS
The Security Trustee may assume without enquiry (in the absence of
knowledge by or an express notice to it to the contrary acquired or
received by it in its capacity as Security Trustee hereunder) that each
of the parties hereto is duly performing and observing all its
obligations contained in this Deed.
34.16 OTHER CAPACITY AND BUSINESS
The Security Trustee may, from time to time, be a Beneficiary or act in
any other capacity and shall in such event be entitled, notwithstanding
that it is also Security Trustee, to take, or refrain from taking, any
action which it would be entitled so to take if it was not the Security
Trustee and shall not be precluded, by virtue of its position as a
Beneficiary or acting in any other capacity, from exercising any of its
discretions, powers and duties as Security Trustee. The Security Trustee
may enter into any financial or business contracts or any other
transaction or arrangement with any Intercreditor Obligor or any other
person and the Security Trustee shall be in no way accountable to such
Intercreditor Obligor or any other person for any profits or benefits
arising from any such contract or transaction.
34.17 POWERS CONFERRED BY GENERAL LAW
The powers, trusts, authorities and discretions conferred upon the
Security Trustee by this Deed shall be in addition to any which may from
time to time be vested in the Security Trustee by the general law or
otherwise.
34.18 ADDITIONAL TRUSTEES
34.18.1 The statutory power to appoint new or additional trustees
hereof shall be vested in the Security Trustee. A trust
corporation may be appointed as sole trustee hereof.
34.18.2 The Security Trustee hereof may retire at any time and
without being responsible for the costs occasioned by such
retirement. Prior to confirmation by the Senior Agent that
the Senior Liabilities have been irrevocably discharged in
full and the Mezzanine Agent that the Mezzanine Liabilities
have been irrevocably discharged in full, the retirement of
a Security Trustee shall not take effect until the
appointment of a new Security Trustee has been made and
accepted by the Senior Agent and the Mezzanine Agent (in
each case acting reasonably) and the Security Trustee and
the new Security Trustee shall have executed all deeds and
documents as are necessary to effect such appointment and the
transfer of the Security Trustee's rights and obligations in
respect of the Finance Documents in a legal, valid and
binding manner.
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34.18.3 The Senior Agent or, after the Senior Discharge Date, the
Mezzanine Agent may require the Security Trustee to retire at
any time, upon 60 days prior written notice. The Security
Trustee shall not be responsible for the costs occasioned by
such retirement. The Security Trustee agrees to co-operate in
executing all deeds and documents as are necessary to effect
the retirement of the Security Trustee, the appointment of
the new Security Trustee and the transfer of the Security
Trustee's rights and obligations in respect of the Finance
Documents in a legal, valid and binding manner.
34.19 INDEMNITY
Each of the Senior Beneficiaries and the Mezzanine Beneficiaries (in
each case other than the Security Trustee) hereby undertakes severally
in the proportion which the amounts then due to them in respect of the
Senior Liabilities and the Mezzanine Liabilities bears to the then
aggregate amount of such liabilities, to indemnify and hold harmless the
Security Trustee against (a) all costs, charges, losses, claims,
damages, liabilities, expenses and other sums (or actions in respect
thereof) including value added tax thereon suffered or incurred by the
Security Trustee or any person appointed by the Security Trustee to whom
any power, trust, authority or discretion may be delegated by it
pursuant hereto, in connection with this Deed, the Security Documents
and the powers, trusts, authorities and discretion and duties
contemplated therein or actions in respect thereof (including, without
limitation, legal fees and other expenses incurred in connection with
the negotiation of this Deed and the Security Documents) and all costs,
charges, expenses and other sums suffered or incurred by, the Security
Trustee or such person as a result of complying with the provisions
hereof or as a result of any Beneficiary challenging the right of the
Security Trustee so to comply, save in respect of any suffered or
incurred directly as a result of the gross negligence or wilful default
of the Security Trustee and (b) any fees owing, demanded and remaining
unpaid to it by the Intercreditor Obligors in respect of the performance
of the Security Trustee's duties hereunder and under the Security
Documents.
34.20 REMUNERATION
The Security Trustee shall be entitled to such remuneration as it may
agree from time to time with the Obligors' Agent and as may be approved
by the Senior Agent (until the Senior Discharge Date) and the Mezzanine
Agent.
34.21 PERPETUITY PERIOD
The perpetuity period for each trust created pursuant to this Deed shall
be 80 years from the date hereof.
34.22 RELEASE OF TRANSACTION SECURITY
The Security Trustee shall and is hereby authorised by each of the
Senior Beneficiaries and the Mezzanine Beneficiaries (and to the extent
it may have any interest therein, every other party hereto) to execute
on behalf of itself and each Senior Beneficiary, Mezzanine Beneficiary
and other party hereto where relevant without the need for any further
referral to, or authority from, any Senior Beneficiary, Mezzanine
Beneficiary or other person all necessary releases of any Transaction
Security (and certificates on non-crystallization of floating charges
and any similar document under the laws of other jurisdictions) or
guarantees given by any Intercreditor Obligor under any Senior
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Document or any Mezzanine Document in relation to the disposal of any
asset (including the shares, capital stock or other equity interests
in any Intercreditor Obligor) which is permitted under or consented to
in accordance with the Senior Documents and the Mezzanine Documents
disregarding for this purpose only, any restriction in any Security
Document including, without limitation:
34.22.1 any formal release (and certificates of non-crystallization
of floating charges and any similar document under the laws of
other jurisdictions) of any asset which the Security Trustee
in its absolute discretion considers necessary or desirable in
connection with that disposal;
34.22.2 any release of any guarantee given under any Senior Document
or Mezzanine Document or any other document referred to
therein where all the shares in the capital of the party
giving such guarantee are so disposed of in accordance with
the terms of and without any breach of the Senior Documents
and the Mezzanine Documents disregarding for this purpose
only, any restriction in any Security Document; and
34.22.3 any release of any Transaction Security given by any
Intercreditor Obligor which is or is a subsidiary of a company
which is sold in accordance with the terms of and without any
breach of the Senior Documents and the Mezzanine Documents.
34.23 GERMAN SECURITY
34.23.1 Regarding all Transaction Security established under German
law (the "GERMAN SECURITY") the Security Trustee shall:
(a) hold and administer any German Security which is
security assigned
(SICHERUNGSEIGENTUM/SICHERUNGSABTRETUNG) or otherwise
transferred under a non-accessory security right
(NICHT AKZESSORISCHE SICHERHEIT) to it as trustee
(TREUHANDER) for the benefit of the Beneficiaries;
and
(b) administer any German Security which is pledged
(VERPFANDUNG) or otherwise transferred to any
Beneficiary under an accessory security right
(AKZESSORISCHE SICHERHEIT).
34.23.2 Each Beneficiary hereby authorises the Security Trustee to
accept as its representative (STELLVERTRETER) any pledge or
other creation of any accessory right under German law made to
such Beneficiary in relation to the Senior Documents and/or
the Mezzanine Documents (as the case may be).
34.23.3 Each of the Intercreditor Obligors and the Beneficiaries
hereby relieves the Security Trustee from the restrictions of
Section 181 of the German Civil Code (BGB) to allow it to
perform its duties and obligations as Security Trustee
hereunder.
34.23.4 Each Beneficiary hereby ratifies and approves all acts
previously done by the Security Trustee on such Beneficiary's
behalf. Each Beneficiary hereby expressly consents to the
declarations of the Security Trustee made on behalf
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and in the name of such Beneficiary as future pledgee in the
agreements relating to German Security that is an accessory
security right
34.24 MIG POWER OF ATTORNEY
The Security Trustee shall not (and the Beneficiaries acknowledge that
the Security Trustee shall not) exercise its rights under the MIG Power
of Attorney to execute the MIG Share Pledges unless one or more of the
following conditions are met:
(a) the Security Trustee (acting reasonably) believes that there
is a real possibility that the capital increase in respect of
DIOGENES Vierte Vermogensverwaltungs AG by EUR 30,000 to EUR
90,000 will not be registered at the commercial registry; or
(b) an Insolvency Event occurs which is continuing in relation to
MGG, Newco2 or MIG.
35. STATUS OF INTERCREDITOR OBLIGORS
35.1 PRIORITIES
Each of the Intercreditor Obligors joins in this Deed for the purpose
of acknowledging the priorities, rights and obligations recorded in
this Deed and undertakes with each of the other parties hereto to
observe the provisions of this Deed at all times and not in any way to
prejudice or affect the enforcement of such provisions or do or suffer
anything which would be inconsistent with the terms of this Deed.
35.2 NO RIGHTS OF INTERCREDITOR OBLIGORS
None of the Intercreditor Obligors shall have any rights hereunder and
none of the undertakings herein contained on the part of the Senior
Beneficiaries or the Mezzanine Beneficiaries are given (or shall be
deemed to have been given) to, or for the benefit of, the Intercreditor
Obligors save, in each case, under Clauses 10.1.2 of Clause 10
(PERMITTED PAYMENTS), 12.6 (PARTIAL PAYMENTS), 15.3 (PROOF IN
LIQUIDATION), 22.2 (APPLICATION OF BALANCE), 26 (DISCLOSURE), 28.1
(REQUIRED CONSENTS), 32.11(d) of Clause 32.11 (SECURITY IN RELEVANT
JURISDICTIONS AND PARALLEL OBLIGATIONS), 34.8 (MODIFICATION TO SECURITY
DOCUMENTS), 34.22 (RELEASE OF TRANSACTION SECURITY) and 34.24 (MIG
POWER OF ATTORNEY) and the Obligors shall be entitled to receive
notices required to be given by the Security Trustee, the Security
Agent or the Mezzanine Agent.
35.3 NO SUBROGATION
Unless and save to the extent otherwise agreed by:
35.3.1 prior to the Senior Discharge Date, the Senior Agent (acting
on the instructions of the Majority Senior Lenders); and
35.3.2 prior to the Mezzanine Discharge Date, the Mezzanine Agent
(acting on the instructions of the Majority Mezzanine
Lenders),
the Intercreditor Obligors will not under any circumstances acquire by
way of subrogation any of the rights of the Senior Beneficiaries under
the Finance Documents or the Mezzanine Beneficiaries under the Mezzanine
Documents or otherwise acquire any rights in respect of any Transaction
Security.
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35.4 SUBROGATION OF MEZZANINE BENEFICIARIES
If the Senior Liabilities are wholly or partially paid out of any
proceeds received in respect of or on account of the Mezzanine
Liabilities owing to one or more Mezzanine Beneficiaries, those
Mezzanine Beneficiaries (pro rata to their respective interests in such
Mezzanine Liabilities) will to that extent be subrogated to the Senior
Liabilities so paid (and all securities and guarantees for those Senior
Liabilities) but the rights of subrogation so arising cannot (and shall
not) be exercised before the Senior Discharge Date (ignoring for these
purposes that part of the Senior Debt so paid out), save with the prior
written consent of the Majority Senior Lenders. After the Senior
Discharge Date (ignoring for these purposes that part of the Senior
Debt so paid out), to the extent that the Mezzanine Beneficiaries are
entitled to exercise rights of subrogation in accordance with the
foregoing, each Senior Beneficiary (subject to it being indemnified, by
cash collateral if so requested, to its reasonable satisfaction against
any resulting costs, expenses and liabilities) will give such
assistance to enable such rights to be exercised as the Mezzanine Agent
and/or the Security Trustee may reasonably request.
36. EXPENSES
36.1 ENFORCEMENT EXPENSES
Each of the Intercreditor Obligors shall, forthwith on demand, pay to
each Senior Beneficiary and each Mezzanine Beneficiary the amount of all
costs and expenses properly incurred by that Senior Beneficiary and/or
that Mezzanine Beneficiary in connection with the enforcement against
that Intercreditor Obligor (as the case may be) of such person's rights
against it under this Deed.
36.2 LEGAL COSTS AND TAX
The costs and expenses referred to above include, without limitation,
the fees and expenses of legal advisers and any value added tax or
similar tax, and are payable in the currency in which they are incurred.
37. GOVERNING LAW
This Deed shall be governed by, construed and interpreted in accordance
with, the laws of England.
38. JURISDICTION
38.1 ENGLISH COURTS
The Courts of England have exclusive jurisdiction to settle any dispute
(a "DISPUTE") arising out of or in connection with this Deed (including
a dispute regarding the existence, validity or termination of this Deed
or the consequences of its nullity).
38.2 CONVENIENT FORUM
The parties agree that the Courts of England are the most appropriate
and convenient courts to settle Disputes between them, and, accordingly,
that they will not argue to the contrary.
38.3 NON-EXCLUSIVE JURISDICTION
The Clause 38 is for the benefit of the Beneficiaries only. As a result
and notwithstanding Clause 38.1 (ENGLISH COURTS), it does not prevent
any Beneficiary from
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taking proceedings relating to a Dispute ("PROCEEDINGS") in any other
Courts with jurisdiction. To the extent allowed by law, the
Beneficiaries may take concurrent Proceedings in any number of
jurisdictions.
38.4 SERVICE OF PROCESS
Each Intercreditor Obligor agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served on it on Messer UK Limited at Cedar
House, 39 London Road, Reigate, Surrey RH2 9QE or, if different, its
registered office.
If any Intercreditor Obligor ceases to have a place of business in Great
Britain or, as the case may be, the appointment of the person mentioned
in this Clause 38 (or, as the case may be, the relevant Deed of
Accession) ceases to be effective, the relevant Intercreditor Obligor
shall immediately appoint another person in England to accept service of
process on its behalf in England. If an Intercreditor Obligor fails to
do so (and such failure continues for a period of not less than fourteen
days), the Senior Agent or Mezzanine Agent shall be entitled to appoint
such a person by notice to such Intercreditor Obligor. Nothing contained
herein shall restrict the right to serve process in any other manner
allowed by law. This Clause 38 applies to Proceedings in England and to
Proceedings elsewhere.
38.5 WAIVER OF JURY TRIAL
Each of the Beneficiaries and the Intercreditor Obligors irrevocably
waives trial by jury in any proceeding relating to this Deed or any
other Finance Document to which it is party.
IN WITNESS whereof this Deed has been executed by the parties hereto the day and
year first above written.
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SCHEDULE 1
THE ORIGINAL LENDERS
PART A
THE ORIGINAL SENIOR LENDERS
Bayerische Hypo- und Vereinsbank AG
The Chase Manhattan Bank
Goldman Sachs Credit Partners, L.P.
The Royal Bank of Scotland plc
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PART B
THE ORIGINAL MEZZANINE LENDERS
Hypovereinsbank Luxembourg Societe Anonyme
Goldman Sachs Credit Partners, L.P.
The Royal Bank of Scotland plc
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SCHEDULE 2
THE ORIGINAL HEDGE COUNTERPARTIES
Goldman Sachs Capital Markets, L.P.
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SCHEDULE 3
THE ORIGINAL SENIOR BORROWERS
Messer Griesheim GmbH
Messer Griesheim Industries, Inc.
Messer Finance S.A.
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SCHEDULE 4
THE ORIGINAL GUARANTORS
PART A
THE ORIGINAL SENIOR GUARANTORS
Messer Griesheim GmbH
Messer Griesheim Industries, Inc.
Messer Finance S.A.
Messer UK Limited
Messer Griesheim Industriegase GmbH
Messer Medical GmbH
Messer International GmbH
Messer France S.A.
Messer Nederland B.V.
MG Generon, Inc.
GVP, Inc.
Messer Austria GmbH
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PART B
THE ORIGINAL MEZZANINE GUARANTORS
Messer Griesheim GmbH
Messer Griesheim Industries, Inc.
Messer Finance S.A.
Messer UK Limited
Messer Griesheim Industriegase GmbH
Messer Medical GmbH
Messer International GmbH
Messer France S.A.
Messer Nederland B.V.
MG Generon, Inc.
GVP, Inc.
Messer Austria GmbH
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SCHEDULE 5
INTRA GROUP LENDERS AND BORROWERS
PART A
INTRA-GROUP LENDERS
Messer Griesheim GmbH
Messer Griesheim Industries, Inc.
Messer Finance S.A.
Messer UK Limited
Messer Griesheim Industriegase GmbH
Messer Medical GmbH
Messer International GmbH
Messer France S.A.
Messer Nederland B.V.
MG Generon, Inc.
GVP, Inc.
Messer Austria GmbH
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PART B
INTRA-GROUP BORROWERS
Messer Griesheim GmbH
Messer Griesheim Industries, Inc.
Messer Finance S.A.
Messer UK Limited
Messer Griesheim Industriegase GmbH
Messer Medical GmbH
Messer International GmbH
Messer France S.A.
Messer Nederland B.V.
MG Generon, Inc.
GVP, Inc.
Messer Austria GmbH
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SCHEDULE 6
FORM OF DEED OF ACCESSION
THIS Deed dated [ ] is supplemental to an intercreditor deed (the
"INTERCREDITOR DEED") dated * 2001 between, amongst others, the Borrowers and
the Guarantors, the Security Trustee, the Senior Agent, the Senior Lenders,
the Hedge Counterparties, the Mezzanine Agent, the Mezzanine Lenders and the
Intra-Group Lenders and Intra-Group Borrowers referred to therein.
Words and expressions defined in the Intercreditor Deed have the same meaning
when used in this Deed.
[Name of New Intercreditor Obligor/Hedge Counterparty/Intra-Group Lender/
Intra-Group Borrower hereby agrees with each other person who is or
who becomes a party to the Intercreditor Deed that with effect on and from
the date hereof it will be bound by the Intercreditor Deed as
[an Intercreditor Obligor, an Intra-Group Lender and an Intra-Group
Borrower(1)/Hedge Counterparty/Intra-Group Lender/Intra-Group Borrower]
as if it had been party to the Intercreditor Deed in that capacity.
Address for notice of [Name of Intercreditor New Intercreditor Obligor/Hedge
Counterparty/Intra-Group Lender/Intra-Group Borrower] for the purposes of Clause
31 (NOTICES) of the Intercreditor Deed is: -
[Address]
This Deed and the Intercreditor Deed shall be read and construed as one
document.
This Deed is governed by English law.
EXECUTED AS A DEED )
by [Name of New Party] )
acting by [ ] )
in the presence of: )
Name:
Address:
(1) All Intercreditor Obligors should accede as Intra-Group Lenders and
Intra-Group Borrowers, even if they currently have neither made any
intra-group loans nor have any intra-group borrowings.
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THE SECURITY TRUSTEE
EXECUTED AS A DEED )
by CHASE MANHATTAN )
INTERNATIONAL LIMITED ) JAMES B. TREGER
acting by its duly authorised officers )
acting in its capacity as security trustee )
for the purposes hereof and )
on behalf of the Beneficiaries
THE SENIOR AGENT
EXECUTED AS A DEED )
by CHASE MANHATTAN )
INTERNATIONAL LIMITED ) JAMES B. TREGER
acting by its duly authorised officers )
acting in its capacity as agent )
on behalf of the Senior Lenders )
THE GLOBAL CO-ORDINATOR
EXECUTED AS A DEED
by GOLDMAN SACHS INTERNATIONAL ) SIM0N PARRY-WINGFIELD
acting by its duly authorised officers )
)
THE SENIOR ARRANGERS
EXECUTED AS A DEED )
by GOLDMAN SACHS INTERNATIONAL ) SIMON PARRY-WINGFIELD
acting by its duly authorised officers )
)
EXECUTED AS A DEED ) CHRISTIAN FEDERSPIELER
by BAYERISCHE HYPO- UND )
VEREINSBANK AG ) MATTHIAS MAGNUS
acting by its duly authorised officers )
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EXECUTED AS A DEED )
by J.P. MORGAN PLC ) JAMES YU
acting by its duly authorised officers )
)
THE SENIOR LENDERS
EXECUTED AS A DEED ) CHRISTIAN FEDERSPIELER
by BAYERISCHE HYPO- UND )
VEREINSBANK AG ) MATTHIAS MAGNUS
acting by its duly authorised officers )
EXECUTED AS A DEED )
by THE CHASE MANHATTAN BANK ) JAMES B. TREGER
acting by its duly authorised officers )
)
EXECUTED AS A DEED )
by GOLDMAN SACHS CREDIT ) SIMON PARRY-WINGFIELD
PARTNERS, L.P. )
acting by its duly authorised officers )
EXECUTED AS A DEED )
by THE ROYAL BANK OF ) GERD BIEDING
SCOTLAND PLC )
acting by its duly authorised officers ) FRANK SCHAUZ
THE MEZZANINE AGENT
EXECUTED AS A DEED )
by HYPOVEREINS BANK LUXEMBOURG )
SOCIETE ANONYME ) CHRISTIAN FEDERSPIELER
acting by its duly authorised officers )
) MATTHIAS MAGNUS
acting in its capacity as agent
on behalf of the Mezzanine Lenders
For purpose of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters,
signed in Brussels on September 27, 1968 and without prejudice to the foregoing
execution of this Agreement by the parties
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hereto, HYPOVEREINS BANK LUXEMBOURG SOCIETE ANONYME, expressly and specifically
confirms its agreement to the provisions of Clause38 (JURISDICTION CLAUSE) of
this Agreement.
CHRISTIAN FEDERSPIELER
MATTHIAS MAGNUS
THE MEZZANINE ARRANGERS
EXECUTED AS A DEED )
by GOLDMAN SACHS INTERNATIONAL ) SIMON PARRY-WINGFIELD
acting by its duly authorised officers )
)
EXECUTED AS A DEED ) CHRISTIAN FEDERSPIELER
by BAYERISCHE HYPO- UND )
VEREINSBANK AG ) MATTHIAS MAGNUS
acting by its duly authorised officers )
EXECUTED AS A DEED )
by THE ROYAL BANK OF ) GERD BIEDING
SCOTLAND PLC )
acting by its duly authorised officers ) FRANK SCHAUZ
THE MEZZANINE LENDERS
EXECUTED AS A DEED ) CHRISTIAN FEDERSPIELER
by HYPOVEREINSBANK LUXEMBOURG )
SOCIETE ANONYME ) MATTHIAS MAGNUS
acting by its duly authorised officers )
For purpose of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters,
signed in Brussels on September 27, 1968 and without prejudice to the foregoing
execution of this Agreement by the parties hereto, HYPOVEREINS BANK LUXEMBOURG
SOCIETE ANONYME, expressly and specifically confirms its agreement to the
provisions of Clause 38 (JURISDICTION CLAUSE) of this Agreement
CHRISTIAN FEDERSPIELER
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MATTHIAS MAGNUS
EXECUTED AS A DEED )
by GOLDMAN SACHS CREDIT ) SIM0N PARRY-WINGFIELD
PARTNERS, L.P. )
acting by its duly authorised officers )
EXECUTED AS A DEED )
by THE ROYAL BANK OF ) GERD BIEDING
SCOTLAND PLC )
acting by its duly authorised officers ) FRANKSCHAUZ
THE BORROWERS
EXECUTED AS A DEED )
By MESSER FINANCE S.A. ) PETER STOWASSER
acting by )
)
For purpose of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters,
signed in Brussels on September 27, 1968 and without prejudice to the foregoing
execution of this Agreement by the parties hereto, MESSER FINANCE S.A.,
expressly and specifically confirms its agreement to the provisions of Clause 38
(JURISDICTION CLAUSE) of this Agreement
PETER STOWASSER
EXECUTED AS A DEED )
by MESSER GRIESHEIM GMBH ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
by MESSER GRIESHEIM INDUSTRIES, )
INC. ) JAMES F. ANDERSON
acting by )
) WILLIAM J. CARR
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THE GUARANTORS
EXECUTED AS A DEED )
by MESSER GRIESHEIM GMBH ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
by MESSER INDUSTRIES, INC. ) JAMES F. ANDERSON
acting by )
) WILLIAM J. CARR
EXECUTED AS A DEED )
by MESSER FINANCE S.A. ) PETER STOWASSER
acting by )
)
For purpose of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters,
signed in Brussels on September 27, 1968 and without prejudice to the foregoing
execution of this Agreement by the parties hereto, MESSER FINANCE S.A.,
expressly and specifically confirms its agreement to the provisions of Clause 38
(JURISDICTION CLAUSE) of this Agreement
PETER STOWASSER
EXECUTED as a deed by: ) PETER STOWASSER
acting as attorney-in-fact for and on
behalf of MESSER UK LIMITED
in the presence of: ) LUKE BRISTOW
Signature of witness: )
Name of witness: )
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Address of witness: ) c/o CLIFFORD CHANCE
PUNDER
D-60323 FRANKFURT AM MAIN
EXECUTED AS A DEED )
by MESSER GRIESHEIM )
INDUSTRIEGASE GMBH ) PETER STOWASSER
acting by )
) THOMAS INGENHOVEN
EXECUTED AS A DEED )
by MESSER MEDICAL GMBH ) PETER STOWASSER
acting by )
) OLAF GEBLER
EXECUTED AS A DEED )
by MESSER INTERNATIONAL GMBH ) PETER STOWASSER
acting by )
) CHRISTINA UNGEHEUER
EXECUTED AS A DEED )
by MESSER FRANCE S.A. ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
by MESSER NEDERLAND B.V. ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
by MG GENERON, INC. ) JAMES F. ANDERSON
acting by )
) WILLIAM J. CARR
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EXECUTED AS A DEED )
by GVP, INC. ) WILLIAM J. CARR
acting by )
) MARK A. FRANK
THE INTRA-GROUP LENDERS
EXECUTED AS A DEED )
By MESSER GRIESHEIM GMBH ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
By MESSER GRIESHEIM INDUSTRIES, ) JAMES F. ANDERSON
INC. acting by )
) WILLIAM J. CARR
EXECUTED AS A DEED )
By MESSER FINANCE S.A. ) PETER STOWASSER
acting by )
)
For purpose of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters,
signed in Brussels on September 27, 1968 and without prejudice to the foregoing
execution of this Agreement by the parties hereto, MESSER FINANCE S.A.,
expressly and specifically confirms its agreement to the provisions of Clause 38
(JURISDICTION CLAUSE) of this Agreement
PETER STOWASSER
EXECUTED as a deed by: ) PETER STOWASSER
acting as attomey-in-fact for and on
behalf of MESSER UK LIMITED
in the presence of: ) LUKE BRISTOW
Signature of witness: )
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Name of witness: )
Address of witness: ) c/o CLIFFORD CHANCE
PUNDER
4-60323 FRANKFURT AM MAIN
EXECUTED AS A DEED )
By MESSER GRIESHEIM ) PETER STOWASSER
INDUSTRIEGASE GMBH )
acting by )
) THOMAS INGENHOVEN
EXECUTED AS A DEED )
By MESSER MEDICAL GMBH ) PETER STOWASSER
acting by )
) OLAF GEBLER
EXECUTED AS A DEED )
By MESSER INTERNATIONAL GMBH ) PETER STOWASSER
acting by )
) CHRISTINA UNGEHEUER
EXECUTED AS A DEED )
By MESSER FRANCE S.A. ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
By MESSER NEDERLAND B.V. ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
By MG GENERON, INC. ) JAMES F. ANDERSON
acting by )
) WILLIAM J. CARR
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EXECUTED AS A DEED )
By GVP, INC. ) WILLIAM J. CARR
acting by )
) MARK A. FRANK
THE INTRA-GROUP BORROWERS
EXECUTED AS A DEED )
By MESSER GRIESHEIM GMBH ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
By MESSER GRIESHEIM INDUSTRIES, ) JAMES F. ANDERSON
INC. acting by )
) WILLIAM J. CARR
EXECUTED AS A DEED )
By MESSER FINANCE S.A. ) PETER STOWASSER
acting by )
)
For purpose of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters,
signed in Brussels on September 27, 1968 and without prejudice to the foregoing
execution of this Agreement by the parties hereto, MESSER FINANCE S.A.,
expressly and specifically confirms its agreement to the provisions of Clause 38
(JUTISDICTION CLAUSE) of this Agreement
PETER STOWASSER
EXECUTED as a deed by: ) PETER STOWASSER
acting as attorney-in-fact for and on
behalf of MESSER UK LIMITED
in the presence of: ) LUKE BRISTOW
Signature of witness: )
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Name of witness: )
Address of witness: ) c/o CLIFFORD CHANCE
PUNDER
D-60323 FRANKFURT AM MAIN
EXECUTED AS A DEED )
By MESSER GRIESHEIM ) PETER STOWASSER
INDUSTRIEGASE GMBH )
acting by )
) THOMAS INGENHOVEN
EXECUTED AS A DEED )
By MESSER MEDICAL GMBH ) PETER STOWASSER
acting by )
) OLAF GEBLER
EXECUTED AS A DEED )
By MESSER INTERNATIONAL GMBH ) PETER STOWASSER
acting by )
) CHRISTINA UNGEHEUER
EXECUTED AS A DEED )
By MESSER FRANCE S.A. ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
By MESSER NEDERLAND B.V. ) PETER STOWASSER
acting by )
)
EXECUTED AS A DEED )
By MG GENERON, INC. ) JAMES F. ANDERSON
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acting by )
) WILLLAM J. CARR
EXECUTED AS A DEED )
By GVP, INC. ) WILLIAM J. CARR
acting by )
) MARK A. FRANK
THE ORIGINAL HEDGE COUNTERPARTY
EXECUTED AS A DEED )
by GOLDMAN SACHS CAPITAL ) OLIVER DUFF
MARKETS, L.P. )
acting by its duly authorised officers )
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