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EXHIBIT 10.6
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CONFORMED COPY
MESSER GRIESHEIM HOLDING AG
AS SUBORDINATED LENDER
MESSER GRIESHEIM GMBH
AS COMPANY
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HIGH YIELD SUBORDINATION AGREEMENT
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CONTENTS
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<Caption>
CLAUSE PAGE
1. Interpretation........................................................2
2. Subordination (RANGRUCKTRITT) of Subordinated Liabilities.............6
3. Covenants of the Subordinated Creditors...............................7
4. Permitted Payments....................................................7
5. Enforcement...........................................................8
6. Waiver................................................................9
7. Other Security and Dealings...........................................9
8. Benefit of the Agreement.............................................10
9. Notices, Amendments, Waiver..........................................10
10. Counterparts.........................................................10
11. Partial Invalidity; Waiver...........................................11
12. Law..................................................................11
13. Jurisdiction.........................................................11
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SUBORDINATION AGREEMENT is made the 16th day of May 2001
BETWEEN:
(1) MESSER GRIESHEIM HOLDING AG, a stock corporation (AKTIENGESELLSCHAFT)
organised under the laws of the Federal Republic of Germany, which is
registered in the commercial register of the local court (AMTSGERICHT)
of Frankfurt am Main under HRB 42291 (the "SUBORDINATED LENDER"); and
(2) MESSER GRIESHEIM GMBH, a limited liability company organised under the
laws of the Federal Republic of Germany, having its business address at
Frankfurt Airport Center 1, C9, 60547 Frankfurt am Main, Germany, which
is registered in the commercial register (HANDELSREGISTER) of the local
court (AMTSGERICHT) of Frankfurt under HRB 7812 (the "COMPANY").
WHEREAS:
(A) Pursuant to a senior multi-currency term and revolving facilities
agreement dated 28 April 2001 between, INTER ALIA, Cornelia
Verwaltungsgesellschaft mbH, Goldman Sachs International as
co-ordinating bank (the "CO-ORDINATING BANK"), Goldman Sachs
International, Bayerische Hypo-und Vereinsbank AG, J.P. Morgan plc and
The Royal Bank of Scotland plc as joint lead arrangers (the "SENIOR
ARRANGERS"), Chase Manhattan International Limited as senior agent and
as security trustee, and certain banks and financial institutions (the
"LENDERS") and others (as amended, varied, novated, supplemented,
superseded, increased or extended from time to time the "SENIOR CREDIT
AGREEMENT"), the Lenders have agreed to grant certain facilities to
those persons who become borrowers under the Senior Credit Agreement
(the "SENIOR BORROWERS") and the Senior Borrowers together with those
persons who become guarantors under the Senior Credit Agreement (the
"SENIOR GUARANTORS") are the "OBLIGORS" and each an "OBLIGOR".
(B) Pursuant to a mezzanine loan agreement dated 28 April 2001 between,
INTER ALIA, Cornelia Verwaltungsgesellschaft mbH, Goldman Sachs
International as co-ordinating bank (the "MEZZANINE CO-ORDINATING
BANK"), Goldman Sachs International, Bayerische Hypo-und Vereinsbank AG
and The Royal Bank of Scotland plc as mezzanine joint lead arrangers
(the "MEZZANINE ARRANGERS"), HypoVereinsbank Luxembourg Societe Anonyme
as mezzanine agent (the "MEZZANINE AGENT") and Chase Manhattan
International Limited as security trustee and certain banks and
financial institutions (the "MEZZANINE LENDERS") and others (as
amended, varied, novated, supplemented, superseded, increased or
extended from time to time, the "MEZZANINE FACILITY AGREEMENT"), the
Mezzanine Lenders have agreed to grant certain facilities to those
persons who become borrowers under the Mezzanine Facility Agreement
(the "MEZZANINE
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BORROWERS") and the Mezzanine Borrowers together with those persons
who become guarantors under the Mezzanine Facility Agreement (the
"MEZZANINE GUARANTORS") are the "MEZZANINE OBLIGORS".
(C) Pursuant to an intercreditor deed dated 28 April 2001 and entered into
between, INTER ALIA, the Lenders, the Mezzanine Lenders and the Company
(as amended, varied, novated, supplemented, superseded, increased or
extended from time to time the "INTERCREDITOR DEED"), the Mezzanine
Outstandings (as defined below) have been subordinated behind claims of
the Lenders under the Finance Documents (as defined below) as set out
therein.
(D) By an indenture (the "INDENTURE") dated as of May 16, 2001 and made
between the Subordinated Lender as issuer and The Bank of New York as
trustee, the Subordinated Lender constituted up to EUR 550,000,000 of
its senior notes due 2011 (the "HIGH YIELD NOTES", which term shall
include any Exchange Notes and Additional Notes, in each case as
defined in the Indenture), the gross proceeds of which are to be lent
to the Borrower pursuant to the High Yield Proceeds Loan Agreement (as
defined below) in order to allow the Borrower to prepay in full the
Mezzanine Outstandings (as defined below) and EUR 60,000,000 principal
amount of the Term A Facility and EUR 55,000,000 principal amount of
the Term C Euro Facility (each as defined in the Senior Credit
Agreement).
(E) The Subordinated Lender has entered into a subordinated loan agreement
dated the same date as this Agreement with the Company (as amended,
novated, supplemented, superseded or extended from time to time the
"HIGH YIELD PROCEEDS LOAN AGREEMENT") in the form attached hereto as
Schedule 1 (FORM OF HIGH YIELD PROCEEDS LOAN).
(F) It has been agreed between the parties hereto that any payment claims
of the Subordinated Lender against the Company in relation to the High
Yield Proceeds Loan Agreement shall be regulated and/or subordinated in
the manner set out herein.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
"ANCILLARY LIABILITIES" in relation to any of the Subordinated
Liabilities and the Liabilities means:
(a) any refinancing, novation (not being a transfer permitted by
any Finance Document), refunding, deferral or permitted
extension of any of the Subordinated Liabilities or the
Liabilities;
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(b) any permitted further advance which may be made under any
agreement supplemental to any relevant facilities agreement
relating to the Subordinated Liabilities or the Liabilities
plus all interest, fees and costs in connection therewith;
(c) any claim against any Obligor flowing from any recovery by an
Obligor of a payment or discharge in respect of the
Subordinated Liabilities or the Liabilities on the grounds of
preference or otherwise; and
(d) 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.
"ASSIGNMENT AGREEMENT" means the assignment agreement
(SICHERUNGSABTRETUNG) dated on or about the date hereof between the
Subordinated Lender as assignor and the Trustee as assignee.
"BENEFICIARIES" means the Finance Parties.
"DISCHARGE DATE" means the date on which all Liabilities have been
fully paid and discharged to the satisfaction of the Security Trustee
(acting reasonably), whether or not as a result of an enforcement.
"HIGH YIELD PAYMENT DEFAULT" means a payment default under the High
Yield Documents, relating to principal, premium, interest or otherwise,
which is continuing. For clarification purposes, this does not include
a cross-default under the High Yield Documents due to a non-payment of
other debt.
"HIGH YIELD PAYMENT DEFAULT DATE" means the date on which a High Yield
Payment Default has occurred.
"INSOLVENCY EVENT" means:
(a) the appointment of an insolvency administrator in respect of
the Company or any of its assets:
(b) the shareholders of the Company pass a resolution for its
dissolution, liquidation or winding up; or
(c) the Company having commenced negotiations with its third-party
creditors with a view to rescheduling or restructuring its
indebtedness VIS-A-VIS such third party creditors (in whole or
in part) by reason of its inability to meet payments of all
such indebtedness on its due date for payment.
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"LIABILITIES" means all present and future sums, liabilities and
obligations payable or owing by any Obligor to any of the Beneficiaries
(whether contractual or by operation of law) under, pursuant to or
otherwise in connection with the Finance Documents together with all
Ancillary Liabilities relating thereto.
"MAJORITY BENEFICIARIES" means Majority Lenders as defined in the
Senior Credit Agreement.
"PAYMENT BLOCKAGE PERIOD" means the period for which the Security
Trustee has issued a blockage notice to the Company (copied to the
Subordinated Lender and to the Trustee) specifying that no payments may
be made in respect of the Subordinated Liabilities for a specific
period as a result of the occurrence of an Event of Default, PROVIDED
THAT:
(a) such blockage shall only last whilst such Event of Default is
continuing;
(b) such blockage will last for no longer than 179 days from the
date such notice was served;
(c) there can be no more than one such blockage notice served in
any period of 365 days; and
(d) no Event of Default that existed when a blockage notice was
given can be the basis of a subsequent blockage notice.
"PERMITTED PAYMENTS" means (i) interest payments under the High Yield
Proceeds Loan at a rate no greater than the cash interest rate under
the High Yield Notes (including, without limitation, after giving
effect to any additional amounts payable under applicable tax gross-up
provisions of the High Yield Notes and any special interest payable in
the event of a registration default in respect of the High Yield
Notes), (ii) the payment of principal amount due under the High Yield
Proceeds Loan Agreement on the Repayment Date (as defined in the High
Yield Proceeds Loan Agreement) and (iii) indemnity payments in
accordance with Clause 6.1 of the High Yield Proceeds Loan Agreement.
"SECURITY" means any encumbrance, hypothecation, guarantee, indemnity
or other security or preferential arrangement, present or future,
actual or contingent.
"SECURITY TRUSTEE" means Chase Manhattan International Limited and any
substitute or replacement trustee then acting on behalf of the
Beneficiaries.
"SENIOR PAYMENT DEFAULT" means a payment default under the Finance
Documents which is continuing and relating to (i) the non-payment of
principal
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or interest or (ii) the non-payment of any other amount which, when
aggregated with all other amounts not paid, exceeds EUR 1,000,000.
"STANDSTILL PERIOD" means a period which begins on the High Yield
Payment Default Date and ends on the first to occur of:
(a) the expiry of 120 days from the date the Company or the
Trustee has notified the Security Trustee in writing that
there has been a High Yield Payment Default; and
(b) the date upon which an Insolvency Event occurs.
"SHARE PLEDGE" means all pledges over shares in the Company granted as
security for any of the Liabilities.
"SUBORDINATED LIABILITIES" means all present and future sums,
liabilities and obligations payable or owed by the Company to the
Subordinated Lender under, pursuant to or in connection with the High
Yield Proceeds Loan Agreement together with all Ancillary Liabilities
relating thereto.
"TRUSTEE", in relation to the High Yield Notes at any point in time,
means The Bank of New York and any substitute or replacement trustee
then acting on behalf of the holders of the High Yield Notes under the
Indenture.
1.2 Terms and expressions defined in the Senior Credit Agreement shall have
the same meaning in this Agreement except as otherwise defined herein.
1.3 Unless the context or the express provisions of this Agreement
otherwise require, all references to a party include references to its
permitted assignees and transferees and its successors in title and
(where applicable) to any replacement or additional agent or Security
Trustee.
1.4 Save where the contrary is indicated, any reference in this
Agreement to:
1.4.1 this Agreement or any other agreement or document shall be construed as
a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time to
time be, amended, varied, novated or supplemented;
1.4.2 a statute shall be construed as a reference to such statute as the same
may have been, or may from time to time be, amended or re-enacted.
1.5 Clause headings are for ease of reference only.
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2. SUBORDINATION (RANGRUCKTRITT) OF SUBORDINATED LIABILITIES
2.1 In consideration of the Beneficiaries making or continuing to make
advances or giving credit or granting other facilities or accommodation
pursuant to the Senior Credit Agreement, the Subordinated Lender and
the Company hereby agree and declare as follows:
2.2 Until the Discharge Date, the Subordinated Liabilities shall be
irrevocably subordinated (TRETEN IM RANG ZURUCK) to all Liabilities and
subject in right of payment to the extent and in the manner hereinafter
set forth. The subordination effected hereunder shall also apply upon
and after the application for the commencement of insolvency
proceedings in relation to the Company (ANTRAG AUF EROFFNUNG DES
INSOLVENZVERFAHRENS). The subordination shall continue to be effective
upon any amendment, supplement, variation or novation of any of the
Finance Documents.
2.3 Save to the extent permitted by Clause 4 (PERMITTED PAYMENTS), until
the Discharge Date the Company will not make any prepayment or payment
(whether in cash, by way of transfer of assets or otherwise) on account
of or grant or permit to subsist any Security in respect of the
Subordinated Liabilities other than Permitted High Yield Security nor
shall the Subordinated Lender, save to the extent permitted by Clause 5
(ENFORCEMENT), be entitled to demand or receive any such payment or
prepayment or Security other than Permitted High Yield Security or to
commence any proceedings against the Company or take any action in
respect of the Subordinated Liabilities or any part thereof (including,
without limitation, the exercise of any right of set-off, counterclaim
or lien or any action or step with a view to winding-up the Company).
2.4 In the event of payment or prepayment of principal, interest or
otherwise (whether in cash, by way of transfer of assets or otherwise)
being made to, or Security being held by the Subordinated Lender in
breach of Clause 2.3, the Subordinated Lender will forthwith return to
the Company any sum or other assets which shall have been received by
it from the Company in consequence of such breach (which sum or other
assets shall be deemed not to have reduced the liability of the Company
to the Subordinated Lender) and until such payment or transfer the
Subordinated Lender will hold such sums or other assets or such
Security (as the case may be) on trust (TREUHANDERISCH) for the Company
provided, however, that these provisions shall not constitute or create
or be deemed to constitute or create any encumbrance or other security
interest of any kind.
2.5 Other than as permitted under any of the Finance Documents neither the
Subordinated Lender nor the Company shall knowingly take or omit to
take any action whereby the subordination of the Subordinated
Liabilities (or any part
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thereof) as contemplated in this Clause 2 might be terminated, impaired
or adversely affected.
3. COVENANTS OF THE SUBORDINATED CREDITORS
3.1 The Subordinated Lender hereby covenants that until the Discharge Date
it will not, save to the extent permitted by Clause 4 (PERMITTED
PAYMENTS) or Clause 5 (ENFORCEMENT) and save as expressly permitted by
the Senior Credit Agreement (i) assign, pledge or otherwise dispose of
the Subordinated Liabilities or any part thereof (except under
Permitted High Yield Security); (ii) purport to set off at any time any
amount payable by it to the Company against any amount of the
Subordinated Liabilities; and (iii) enforce any of the Subordinated
Liabilities if this would lead to the insolvency of the Company
according to German law.
3.2 The Subordinated Lender and the Company hereby agree that the
Subordinated Liabilities shall be personal liabilities (PERSONLICHE
FORDERUNGEN) and as such shall not be assignable other than by way of
the Assignment Agreement or as otherwise expressly permitted in this
Agreement.
3.3 The Subordinated Lender and the Company hereby agree not to amend,
supplement, release, cancel or waive, any term of the High Yield
Proceeds Loan Agreement or this Agreement, save as permitted under
Clause 23.24 of the Senior Credit Agreement, without the prior written
consent of the Majority Beneficiaries, except as expressly set forth
herein.
3.4 The Subordinated Lender and the Company hereby agree not to amend,
supplement, release, cancel or waive, any term of the High Yield
Proceeds Loan Agreement or this Agreement without the prior written
consent of the Trustee (acting in accordance with the terms of the
Indenture), except as expressly set forth herein.
4. PERMITTED PAYMENTS
4.1 Prior to the Discharge Date and subject to Clauses 4.2 and 4.3 below,
the Subordinated Lender shall be entitled to request a Permitted
Payment and the Company shall be entitled to make a Permitted Payment
to the extent that the payment or receipt is a payment in accordance
with the terms of the High Yield Proceeds Loan Agreement, provided that
any such Permitted Payment shall not be permitted to be made by the
Company more than five Business Days prior to the corresponding payment
due date under the High Yield Notes.
4.2 If a Senior Payment Default has occurred which is continuing, then no
payments may be made or received in respect of any Subordinated
Liability until the Senior Payment Default has been remedied or waived
in writing or has ceased to exist.
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4.3 If any other Event of Default has occurred, no payments may be made
during the Payment Blockage Period in respect of any Subordinated
Liability.
4.4 The suspension of payments pursuant to this Agreement shall not be
construed as a waiver by the Subordinated Lender of the Subordinated
Liabilities, but shall mean that any payments not permitted shall be
deferred (EINREDE DER STUNDUNG) as set out and to the extent set forth
in Clause 5.2 of the High Yield Proceeds Loan Agreement until the first
date thereafter on which such payment is permitted by this Agreement,
at which date such payment shall fall due.
4.5 A failure to make any payments under the High Yield Notes by reason of
any provision in this Agreement or in the High Yield Proceeds Loan
Agreement shall not be construed as preventing or waiving the
occurrence of a default under the High Yield Notes.
5. ENFORCEMENT
If at any time before the Discharge Date there occurs an event or
circumstance which entitles the Subordinated Lender to terminate or
accelerate the Subordinated Liabilities, or any event giving rise to an
obligation of the Company to repay the Subordinated Liabilities, the
Subordinated Lender shall promptly notify the Security Trustee of such
event but the Subordinated Lender shall not, without the prior written
consent of the Security Trustee (for and on behalf of the
Beneficiaries):
(a) terminate or accelerate any of the Subordinated Liabilities or
otherwise declare any of the Subordinated Liabilities
prematurely payable or due;
(b) enforce the Subordinated Liabilities by attachment, execution
or by initiating or supporting any insolvency proceedings;
(c) demand or receive any Security in respect of the Subordinated
Liabilities;
(d) commence any proceedings against the Company in respect of the
Subordinated Liabilities; or
(e) take any other enforcement action in respect of the
Subordinated Liabilities or any part thereof,
unless (in the case of each of (a) through (e) above):
(i) a High Yield Payment Default has occurred which is continuing;
and
(ii) the Standstill Period relating to such High Yield Payment
Default has expired.
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PROVIDED THAT upon the occurrence and during the continuance of a
Senior Payment Default or a Payment Blockage Period, the Company will
not be permitted to make, and the Subordinated Lender will not be
permitted to retain, payment of any amount under the High Yield
Proceeds Loan (except for the issuing of securities in lieu of payments
that are subordinated at least to the same extent that the High Yield
Proceeds Loan is subordinated to the Liabilities).
6. WAIVER
The Subordinated Lender hereby explicitly and irrevocably waives any
and all of its rights and claims against the Company arising under or
in relation to the Subordinated Liabilities upon the suspensive
conditions (AUFSCHIEBENDE BEDINGUNGEN) of (i) the receipt of a notice
by the Subordinated Lender from the Security Trustee (acting on behalf
of the Beneficiaries) confirming that the shares in the Company which
are secured pursuant to the Share Pledge have been sold pursuant to the
enforcement of the Share Pledge, (ii) receipt of payment of the
purchase price owing from the purchaser of such shares in the Company
by the Security Trustee on behalf of the Beneficiaries and, to the
extent the purchase price exceeds the Liabilities, receipt of such
excess amount by the Subordinated Lender or, following the enforcement
by the Trustee of its rights under the Assignment Agreement, by the
Trustee (on behalf of the holders of the High Yield Notes) and (iii)
the written explicit and irrevocable release by the Beneficiaries (or
the Security Trustee on behalf of the Beneficiaries) of any and all
Liabilities that remain outstanding following the application of
proceeds from such sale of such shares in the Company towards
satisfaction of the Liabilities.
7. OTHER SECURITY AND DEALINGS
The Subordinated Lender and the Company hereby agree that the
subordination hereby effected shall be in addition to and shall not
prejudice or affect any Security or any right or remedy of the
Beneficiaries in respect of the Liabilities whether from the Company,
Subordinated Lender (or any of them) or any other person nor shall the
provisions hereof be prejudiced or affected by:
(a) any Security or right or remedy of the Beneficiaries in
respect of the Liabilities;
(b) any time or indulgence granted by the Beneficiaries to the
Company or to any other person;
(c) any variation, amendment, supplement or extension of the terms
of any Security in respect of the Liabilities;
(d) any arrangement or compromise made between the Beneficiaries
and any of the Company or any other person;
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(e) any dealing with, exchange, release or invalidity of any
Security in respect of the Liabilities;
(f) any omission on the part of the Beneficiaries to enforce any
of their rights against any of the Company or any other person
or any Security in respect of the Liabilities;
(g) the filing for insolvency proceedings in relation to
Subordinated Lender and/or the Company; and
(h) any other fact or circumstance whatsoever whether or not
similar to any of the foregoing which could or might in any
way diminish the Subordinated Lender's or the Company's
obligations or the rights of the Beneficiaries under this
Agreement.
8. BENEFIT OF THE AGREEMENT
This Agreement is a contract for the benefit of the Beneficiaries
(VERTRAG MIT SCHUTZWIRKUNG FUR DRITTE). The Subordinated Lender and the
Company agree that upon an assignment and/or transfer of any rights and
benefits of any Beneficiary under the Finance Documents the relevant
assignee or transferee shall become a beneficiary under this Agreement.
9. NOTICES, AMENDMENTS, WAIVER
9.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by facsimile or letter. Each
communication shall be in German or English and if in German shall be
accompanied by a translation thereof into English certified as being
true and accurate by an officer of the person making or delivering the
same if so requested.
9.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has
by written notice to the other parties hereto specified another
address) be made or delivered to that other person at the addresses as
set out on the execution pages hereof.
9.3 All amendments or supplements to this Agreement or any waiver with
regard to this Agreement (including this Clause 9.3) shall be made in
writing.
10. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which, when
so executed and delivered, shall be an original but all the
counterparts shall together constitute but one and the same instrument.
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11. PARTIAL INVALIDITY; WAIVER
11.1 If at any time, one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under the law of any
jurisdiction, such provision shall as to such jurisdiction, be
ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions
hereof or of such provisions in any other jurisdiction. The parties
agree that such illegal, invalid or unenforceable provision shall be
deemed replaced by such provision which comes as close as possible to
the purpose of this Agreement.
11.2 No failure to exercise, nor any delay in exercising, on the part of the
Security Trustee or the Trustee, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and remedies
provided hereunder are cumulative and not exclusive of any rights or
remedies provided by law.
12. LAW
This Agreement shall be governed by and construed in accordance with
German law.
13. JURISDICTION
13.1 The Subordinated Lender and the Company irrevocably agree that the
place of jurisdiction for any and all disputes arising under or in
connection with this Agreement shall be Frankfurt am Main and, for such
purposes, irrevocably submit to the jurisdiction of such courts.
13.2 The submission to the jurisdiction of the courts referred to in Clause
13.1 shall not (and shall not be construed so as to) limit the right of
any party hereto to take proceedings in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not.
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SCHEDULE 1
FORM OF HIGH YIELD PROCEEDS LOAN
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Execution Copy
MESSER GRIESHEIM HOLDING AG
AS LENDER
AND
MESSER GRIESHEIM GMBH
AS BORROWER
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HIGH YIELD PROCEEDS LOAN AGREEMENT
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NOTE: THIS AGREEMENT IS SUBJECT TO THE TERMS OF A HIGH YIELD SUBORDINATION
AGREEMENT
NOTE: ALL PAYMENT CLAIMS DUE TO THE LENDER UNDER THIS AGREEMENT HAVE BEEN
ASSIGNED TO THE TRUSTEE IN RESPECT OF THE HIGH YIELD NOTES (AS THOSE TERMS ARE
DEFINED HEREIN) PURSUANT TO AN ASSIGNMENT AGREEMENT DATED ON OR ABOUT THE DATE
HEREOF.
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CONTENTS
CLAUSE PAGE
ERROR! NO TABLE OF CONTENTS ENTRIES FOUND.
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THIS AGREEMENT is made on the 16th day of May 2001
BETWEEN
(1) MESSER GRIESHEIM HOLDING AG, a stock corporation (AKTIENGESELLSCHAFT)
organised under the laws of the Federal Republic of Germany, which is
registered in the commercial register of the local court (AMTSGERICHT)
Frankfurt am Main under HRB 50040 (the "LENDER"); and
(2) MESSER GRIESHEIM GMBH, a limited liability company organised under the
laws of the Federal Republic of Germany, having its business address at
Frankfurt Airport Center 1, C-9, 60547 Frankfurt am Main, Germany which
is registered in the commercial register of the local court
(AMTSGERICHT) of Frankfurt am Main under HRB 7812 or, during the Debtco
Structure Period, Debtco (the "BORROWER").
WHEREAS:
(A) Pursuant to a mezzanine loan agreement dated 28 April 2001 between,
INTER ALIA, Cornelia Verwaltungsgesellschaft mbH, Goldman Sachs
International as co-ordinating bank (the "MEZZANINE CO-ORDINATING
BANK"), Goldman Sachs International, Bayerische Hypo-und Vereinsbank AG
and The Royal Bank of Scotland plc as mezzanine joint lead arrangers
(the "MEZZANINE ARRANGERS"), HypoVereinsbank Luxembourg Societe Anonyme
as mezzanine agent (the "MEZZANINE AGENT") and Chase Manhattan
International Limited as security trustee and certain banks and
financial institutions (the "MEZZANINE LENDERS") and others (as
amended, varied, novated, supplemented, superseded, increased or
extended from time to time, the "MEZZANINE FACILITY AGREEMENT"), the
Mezzanine Lenders have agreed to grant certain facilities to those
persons who become borrowers under the Mezzanine Facility Agreement
(the "MEZZANINE BORROWERS") and the Mezzanine Borrowers together with
those persons who become guarantors under the Mezzanine Facility
Agreement (the "MEZZANINE GUARANTORS") are the "MEZZANINE OBLIGORS".
(B) By an indenture (the "INDENTURE") dated as of May 16, 2001 and made
between the Lender as issuer and The Bank of New York as trustee, the
Lender constituted up to EUR 550,000,000 of its senior notes due 2011
(the "HIGH YIELD NOTES", which term shall include any Exchange Notes
and Additional Notes, in each case as defined in the Indenture). The
gross proceeds of the High Yield Notes are lent to the Borrower
pursuant to this Agreement in order to allow the Borrower to prepay in
full the Outstandings (as defined in the Mezzanine Facility Agreement)
and to allow the Borrower to prepay EUR 60,000,000 principal amount of
the Term A Facility and EUR 55,000,000
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principal amount of the Term C Euro Facility (each as defined in the
Senior Credit Agreement).
1. DEFINITIONS AND LANGUAGE
1.1 In this Agreement:
"HIGH YIELD DOCUMENTS" has the meaning given to that term in the Senior
Credit Agreement.
"HIGH YIELD SUBORDINATION AGREEMENT" means the subordination agreement
dated on or about the date hereof between the Lender as subordinated
lender and the Borrower as company by which any payment claims of the
Lender arising under this Agreement are subordinated to the claims of
the Finance Parties (as defined in the Senior Credit Agreement) under,
pursuant to or otherwise in connection with any of the Finance
Documents (as defined in the Senior Credit Agreement).
"PAYMENT INSTRUCTIONS" means the instruction letter dated the date of
this Agreement and annexed hereto as Annex A, from the Borrower to the
Lender relating to the payment of certain amounts of the Loan, as
specified therein.
"SENIOR CREDIT AGREEMENT" means the senior multi-currency term and
revolving facilities agreement dated 28 April 2001 between, INTER ALIA,
Cornelia Verwaltungsgesellschaft mbH, Goldman Sachs International as
co-ordinating bank, Goldman Sachs International, Bayerische Hypo- und
Vereinsbank AG, J.P. Morgan plc and The Royal Bank of Scotland plc as
joint lead arrangers, Chase Manhattan International Limited as agent
and as security trustee and certain banks and financial institutions
and others (as amended, varied, novated, supplemented, superseded or
extended from time to time).
1.2 Terms used but not otherwise defined herein shall have the meaning
ascribed thereto in the Senior Credit Agreement or the High Yield
Subordination Agreement.
2. LOAN PRINCIPAL AND DRAWDOWN
The Lender shall, on the date of this Agreement, advance to the
Borrower upon the terms hereof a loan in the amount of EUR 550,000,000
(in words: Euro five hundred and fifty million) (the "LOAN"). The Loan
shall be made available by the Lender to the Borrower for value on the
date of this Agreement to such accounts as specified in the Payment
Instructions.
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3. TERM OF THE LOAN
3.1 Subject to Clause 5, the Loan shall be repaid in one sum five Business
Days prior to June 1, 2011 (the "REPAYMENT DATE").
3.2 Subject to Clause 5, the Borrower shall procure that an amount equal to
the aggregate principal amount of any High Yield Notes required to be
repurchased, redeemed or repaid (whether at maturity, upon acceleration
or otherwise or at the option of the Lender or otherwise) in accordance
with the terms and conditions thereof shall be paid by the Borrower in
prepayment of the Loan together with all other amounts (including,
without limitation, interest) relating to the aggregate principal
amount of such High Yield Notes owing by the Borrower. Any prepayment
required to be made under this Clause 3.2 shall be made no earlier than
five Business Days prior to the date upon which the Lender is required
(or, as the case may be, wishes) to make such repurchase, redemption or
repayment and the Lender hereby undertakes to notify the Borrower of
such repurchase, redemption or repayment as soon as reasonably
practicable after the date upon which it becomes aware of such
repurchase, redemption or repayment.
3.3 The Borrower may not prepay or repay any or all of the Loan save as set
forth in this Clause 3.
4. INTEREST
4.1 The Loan shall accrue interest at a rate of 10.375% per annum
(calculated on the basis of a 360-day year of twelve 30-day months);
provided, however, that such rate shall be adjusted if and to the
extent necessary to match any additional interest accruing on the High
Yield Notes in respect of additional amounts payable under applicable
tax gross-up provisions of the High Yield Notes and any special
interest payable in the event of a registration default in respect of
the High Yield Notes.
4.2 Subject to Clause 5, interest will be payable semi-annually in arrears
no earlier than five Business Days prior to June 1 and December 1 of
each year.
4.3 Payment of interest which has accrued but cannot be paid by reason of
any restriction under Clause 5 below, shall be deferred as set out in
Clause 5.2 below until the first date thereafter on which such payment
is not so restricted, at which date it shall be due for payment.
5. RESTRICTION ON PAYMENTS
5.1 Until the Discharge Date and notwithstanding any other provision of
this Agreement, this Loan shall be subject to the terms of the High
Yield Subordination Agreement, in particular neither the Lender nor the
Borrower
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shall be entitled to make, receive or request any payment under this
Agreement except as permitted in each case under the Senior Credit
Agreement and the High Yield Subordination Agreement.
5.2 Subject to the second sentence of this Clause 5.2, any payment (whether
principal, interest or otherwise) which would be due but cannot be paid
by reason of Clause 5.1 shall be deferred (EINREDE DER STUNDUNG) until
the first date thereafter on which such payment is not restricted under
Clause 5.1, at which date it shall be due for payment. After the end of
any Standstill Period (as defined in the High Yield Subordination
Agreement), such payment shall cease to be so deferred in relation to
an amount due and owing under this Agreement equal to the lesser of (i)
the then outstanding amount due and owing under this Agreement and (ii)
EUR 2,500,000, it being understood that any payment restrictions set
out in the High Yield Subordination Agreement shall apply to such
amount notwithstanding such exemption from the deferral.
6. MISCELLANEOUS
6.1.1 The Borrower shall promptly indemnify the Lender against any reasonable
cost or expense incurred by the Lender (A) in order to meet its
obligations to pay (i) fees, (ii) costs and expenses relating to the
offering, sale and exchange, financial reporting, listing, SEC
registration and reporting and ongoing administration under any
agreement related to the High Yield Notes, (iii) audit fees, (iv) legal
expenses, (v) management fees and other expenses, or (B) in order to
pay any other proper and necessary incidental expenses and other
payments to enable the Lender to meet its obligations for the payment
of administrative costs under any registration rights agreement and the
purchase agreement, both entered into or to be entered into by the
Lender in relation to the High Yield Notes, the Indenture and a paying
agency agreement to be entered into by the Lender and a certain paying
agent, in connection with the High Yield Notes.
6.1.2 The Borrower shall have the right to discharge the indemnity under this
Clause 6.1 by directing the Lender in writing to pay (or direct the
payment of) any such aforementioned costs and expenses directly or
indirectly out of the proceeds of issue of the High Yield Notes
(including, but without limitation, through the giving of Payment
Instructions).
6.1.3 For the avoidance of doubt, the Borrower is not obliged under this
Clause 6.1 to indemnify the Lender for any cost, expense or other
payment either of, or relating to, interest or principal under the High
Yield Notes.
6.2 Each of the parties hereby agrees not to amend, modify, release, cancel
or waive any term of this High Yield Proceeds Loan Agreement without
the prior written consent of the Trustee (acting in accordance with
instructions from a majority of
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beneficial owners of the Notes), except as expressively provided for
in the High Yield Subordination Agreement.
6.3 This Agreement shall be governed by and construed in accordance with
German Law.
6.4 Exclusive place of jurisdiction for any disputes arising from or in
connection with this Agreement shall be Frankfurt am Main.
6.5 All amendments to this Agreement or any waiver with regard to this
Agreement (including this Clause 6.5) shall be made in writing.
6.6 If, at any time, one or more provisions hereof is or become invalid,
illegal or unenforceable in any respect under the laws of any
jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the provisions hereof or of
such provision in any other jurisdiction. The parties agree that such
illegal, invalid or unenforceable provision shall be deemed replaced by
such provision which comes as close as possible to the purpose of this
Agreement.
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- ------------------------ ------------------------
Place, Date Place, Date
MESSER GRIESHEIM HOLDING AG MESSER GRIESHEIM GMBH
By: ______________________ By: ________________________
Name: Klaus-Jurgen Schmieder*
Title: Member of the Management Board
*ON BEHALF OF ALL MEMBERS OF THE By: ________________________
MANAGEMENT BOARD PURSUANT TO A
RESOLUTION UNDER Section 78 IV 1 AKTG
DATED MAY 11, 2001
Clause 6.2 is acknowledged and agreed as of 16 May 2001:
By: ________________________________
The Bank of New York
as Trustee
THIS AGREEMENT has been executed by the parties the day and year first above
written.
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[ANNEX A TO THE
HIGH YIELD PROCEEDS
LOAN AGREEMENT]
MESSER GRIESHEIM GMBH
Frankfurt Airport Center 1, C9
D-60547 Frankfurt am Main
Germany
May 16, 2001
MESSER GRIESHEIM HOLDING AG
Frankfurt Airport Center 1, C9
D-60547 Frankfurt am Main
Germany
Re: PAYMENT INSTRUCTIONS
Ladies and Gentlemen:
We refer to the high yield proceeds loan agreement dated 16
May 2001 (the "HIGH YIELD PROCEEDS LOAN AGREEMENT"), between Messer Griesheim
Holding AG and Messer Griesheim GmbH and the Purchase Agreement dated 11 May
2001 (the "PURCHASE AGREEMENT"), between Messer Griesheim Holding AG and
Goldman Sachs International, as representative of the several purchasers
named therein. Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed thereto in the High Yield Proceeds Loan Agreement.
With regard to Section 2 of the High Yield Proceeds Loan
Agreement, we hereby instruct you to advance the Loan on the date hereof
according to the following instructions:
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<Table>
<Caption>
- ---------------------------------------------- -------------------------------- --------------------------------------
Payee Amount Payment details
- ---------------------------------------------- -------------------------------- --------------------------------------
Chase Manhattan International Limited (as E115,271,552.06 Swift Code: CHASDEFX
agent for the lenders under the Senior Chase Manhattan International Ltd,
Facilities Agreement) Frankfurt
A/C 6001600037
Favour: Chase Manhattan
International Ltd, London
Swift Code: CHASGB22
HypoVereinsbank, Luxembourg S.A. (as agent
for the lenders under the Mezzanine Facility E401,579,333.33 Swift Code: HYVEDEMM
Agreement) HypoVereinsbank Munich
A/C 68104360
For: HypoVereinsbank, Luxembourg
Swift Code: HYVELULL
Reference FKA-SFB
Goldman Sachs International (as E14,375,000 Swift Code: BOFAGB22
representative of the several Purchasers Bank of America N.A. London
named in Schedule I to the Purchase A/C 16383028
Agreement in respect of our obligations Acct: Goldman Sachs International
under Clause 6.1 of the High Yield Proceeds Ref: Messer Gresheim Mezz
Loan Agreement) Refinancing Fees
Swift Code: DEUTDEFF
Messer Griesheim GmbH E18,774,114.61 Deutsche Bank
A/C 0944488
- ---------------------------------------------- -------------------------------- --------------------------------------
</Table>
[signature pages follow]
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<Page>
Very truly yours,
MESSER GRIESHEIM GMBH
By:
Name: Dr. Klaus-Jurgen Schmieder
Title: Chief Executive Officer
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<Page>
MESSER GRIESHEIM HOLDING AG
ON BEHALF OF ALL MEMBERS OF THE MANAGEMENT BOARD PURSUANT TO A RESOLUTION UNDER
Section 78 IV 1 AKTG DATED MAY 11, 2001
By: /s/ DR. KLAUS-JURGEN SCHMIEDER
Name: Dr. Klaus-Jurgen Schmieder
Title: Member of the Management Board
Address: Frankfurt Airport Center 1, C9
D-60547 Frankfurt am Main
Germany
Fax: +49 69 508 205
Attention: Vorstand
MESSER GRIESHEIM GMBH
By: /s/
By: /s/ S MESSER
Address: Frankfurt Airport Center 1, C9
D-60547 Frankfurt am Main
Germany
Fax: +49 69 508 205
Attention: Geschaftsfuhrung
Clauses 3.4, 4.5, 6 (ii), 9, 10, 11, 12 and 13 are acknowledged and agreed as of
16 May 2001:
By: /s/ SUNJEEVE PATEL
The Bank of New York
as Trustee
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