EXHIBIT 10.7
CONFORMED COPY
SECURITY TRUST AGREEMENT
between
BHF BANK AKTIENGESELLSCHAFT
as Security Trustee
IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH
as Borrower
IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH
IFCO EUROPE BETEILIGUNGS-GmbH
and others
as Chargors
BHF BANK AKTIENGESELLSCHAFT
as Senior Agent
BARCLAYS BANK PLC
as Senior Subordinated Agent
and
Others
CONTENTS
Clause Page
1. Definition and Interpretation....................................................... 2
2. Appointment of the Security Trustee................................................. 6
3. Declaration of Trust and Appointment as Administrator............................... 6
4. The Security Trustee, an Instructing Group and the Lenders.......................... 6
5. Enforcement of Security............................................................. 7
6. The Security Recoveries Account..................................................... 8
7. Application of Proceeds............................................................. 8
8. Distributions to the Beneficiaries.................................................. 10
9. The Security Trustee's Rights, Powers and Discretions............................... 11
10. Release and Sale of Security........................................................ 16
11. Resignation of Security Trustee..................................................... 17
12. Appointment of Additional Security Trustees......................................... 17
13. Benefit of Agreements............................................................... 18
14. Fees, Costs and Expenses and Indemnity.............................................. 18
15. Notices............................................................................. 20
16. Information and directions.......................................................... 20
17. Partial Invalidity; Remedies and Waivers............................................ 20
18. Amendments.......................................................................... 21
19. Order of Enforcement................................................................ 21
20. Termination......................................................................... 21
21. Counterparts........................................................................ 22
22. Governing Law....................................................................... 22
23. Jurisdiction........................................................................ 22
SCHEDULE
Form of Accession Agreement.............................................................. 23
THIS SECURITY TRUST AGREEMENT is made this 27th day of February 1998
BETWEEN:
(1) BHF BANK AKTIENGESELLSCHAFT (in its capacity as trustee (Treuhander) and
administrator of the Security for the Beneficiaries, the "Security
Trustee");
(2) IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH as borrower under the
Facility Agreements referred to below (the "Borrower")
(3) IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH, IFCO EUROPE
BETEILIGUNGS GmbH, GISO VERWALTUNGSGESELLSCHAFT mbH & CO. BEHALTERLEASING
KG, SCHOELLER PLAST INDUSTRIES GmbH, MR. THEODOR MAURER, MR. WERNER ZINGG
and MR. LUITPOLD ROEVER (the "Chargors");
(4) BARCLAYS BANK PLC, DG BANK DEUTSCHE GENOSSENSCHAFTSBANK and BHF BANK
AKTIENGESELLSCHAFT as joint arrangers of the Senior Facility Agreement (the
"Joint Arrangers");
(5) BARCLAYS BANK PLC, BHF BANK AKTIENGESELLSCHAFT, DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, CREDITANSTALT AG, DEUTSCHE BANK AKTIENGESELLSCHAFT,
NORDDEUTSCHE HYPOTHEKEN-UND WECHSELBANK AG and OLDENBURGISCHE LANDESBANK AG
as co-arrangers of the Senior Facility Agreement (together with the Joint
Arrangers the "Arrangers");
(6) BHF BANK AKTIENGESELLSCHAFT in its capacity as agent under the Senior
Facility Agreement referred to below (the "Senior Agent");
(7) BARCLAYS BANK PLC in its capacity as agent under the Senior Subordinated
Facility Agreement referred to below (the "Senior Subordinated Agent");
(8) INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH (the "Company
Counterparty"); and
(9) THE FINANCIAL INSTITUTIONS whose names are set out as Senior Lenders and
Senior Subordinated Lenders on the execution pages of this Agreement (the
"Lenders").
WHEREAS
(A) Pursuant to a facility agreement dated on or about the date hereof and made
between inter alia the Borrower, the Arrangers, the Senior Agent, the
Security Trustee and the Senior Lenders (the "Senior Facility Agreement")
the Senior Lenders have agreed to make available to the Borrower term and
revolving loan facilities upon the terms and subject to the conditions set
out therein.
(B) Certain Banks and/or Senior Subordinated Lenders (together with any other
Bank or Senior Subordinated Lender entering into a Hedging Agreement, the
"Hedge Counterparties") have entered into or have agreed to or may enter
into interest rate and/or currency hedging agreements with the Company
Counterparty pursuant to and in accordance with the terms of the Facility
Agreements (such agreements together with any additional agreements entered
into by the Borrower in relation to Permitted Treasury Transactions being
hereinafter referred to as the "Hedging Agreements").
(C) By a subordinated facility agreement (the "Senior Subordinated Facility
Agreement") dated on or about the date hereof and made between, inter alia,
the Senior Subordinated Agent, the Security Trustee, the Senior
Subordinated Lenders, the Borrower and IFCO Europe, the Senior Subordinated
Lenders have agreed to make available to the Borrower of such amount and on
the terms referred to in the Senior Subordinated Facility Agreement for the
purposes therein mentioned.
(D) Pursuant to the Security Documents, security is to be granted in favour of
the Security Trustee as trustee and/or in favour of the Beneficiaries as
security for the obligations of the Borrower under the Facility Agreements
and the obligations of the Company Counterparty under any Hedging
Agreements.
(E) In consideration of the Lenders making the facilities available to the
Borrower, the Chargors have agreed to provide certain security in the
amounts and to the extent set out in the Security Documents and the
security purposes declarations respectively agreed in relation thereto.
(F) It is a condition precedent to the Facility Agreements that this Agreement
is entered into and is performed and fulfilled in accordance with the
provisions hereof.
NOW THIS SECURITY TRUST AGREEMENT is made as follows:
1. Definition and Interpretation
1.1 Terms defined or to which a meaning is ascribed in the Senior Facility
Agreement shall, unless otherwise defined herein or unless the context requires
otherwise, have the same meaning in this Agreement.
1.2 In this Agreement including the recitals:
"Accession Agreement" means an accession agreement substantially in the form set
out in the Schedule hereto with such amendments as the Security Trustee may
require;
"Beneficiaries" means the Security Trustee, the Senior Agent, the Senior
Lenders, the Hedge Counterparties, the Senior Subordinated Agent, the Senior
Subordinated Lenders, the Fronting Bank and the Arrangers and "Beneficiary"
means any of them;
"Chargor" means each Chargor and each person who, from time to time, becomes a
party to this Agreement pursuant to Clause 13 as a Chargor;
"Enforcement Notice" means a notice in writing to the Security Trustee from the
Senior Agent (or, where the Senior Discharge Date has occurred or the Senior
Subordinated Agent is otherwise permitted, pursuant to the terms of the
Intercreditor Agreement, to instruct the Security Trustee to enforce the
Security, the Senior Subordinated Agent) acting on the instructions of the
Majority Lenders (or, in the case where such notice is served by the Senior
Subordinated Agent pursuant to the terms of the Intercreditor Agreement before
the Senior Discharge Date, an Instructing Group (as that term is defined in the
Senior Subordinated Facility Agreement)):
(i) certifying that either (i) a Senior Default has occurred or that (ii)
a Senior Subordinated Default has occurred and pursuant to the terms
of the Intercreditor Agreement, the Senior Subordinated Agent is
entitled to instruct the Security Trustee to enforce the Security; and
(ii) directing the Security Trustee to enforce the Security and outlining
the action which the Majority Lenders wish to take;
"Facility Agreements" means the Senior Facility Agreement and the Senior
Subordinated Facility Agreement and "Facility Agreement" means either of them;
"Facility Documents" means the Senior Facility Documents and the Senior
Subordinated Facility Documents;
"Hedging Liabilities" shall have the same meaning ascribed to it in the
Intercreditor Agreement;
"Lenders" means the Senior Lenders and the Senior Subordinated Lenders;
"Majority Lenders" shall have the meaning ascribed to it in the Intercreditor
Agreement;
"Majority Senior Lenders" shall have the meaning ascribed to it in the
Intercreditor Agreement;
"Majority Senior Subordinated Lenders" shall have the meaning ascribed to it in
the Intercreditor Agreement;
"Proceeds" means all amounts or other recoveries received or made by or on
behalf of the Security Trustee in its capacity as Security Trustee for or on
behalf of the Beneficiaries, all amounts or recoveries received or made by the
Security Trustee pursuant to, or upon enforcement of, any of the Security and in
each case after deducting (to the extent not already deducted or retained prior
to such receipt or recovery by the Security Trustee):
(i) all sums which are by law or contract payable to any Receiver;
(ii) all sums which the Security Trustee is required by the terms of the
Security Documents to pay to any other person or authority before
distributing any such receipts or recoveries to any of the
Beneficiaries; and
(iii) all sums which the Security Trustee is by law required to retain or
to pay to any person or authority in priority to the Beneficiaries;
"Receiver" means a Konkursverwalter or similar officer appointed by any court
for the purpose of realising, getting in or disposing of any of the assets or
revenues the subject of any of the Security Documents;
"Relevant Agent" means, (i) with respect to the Security, until the Senior
Discharge Date, the Senior Agent and at any time after the Senior Discharge
Date, shall mean the Senior Subordinated Agent and (ii) in each other respect,
the term "Relevant Agent" shall mean either the Senior Agent and/or the Senior
Subordinated Agent as the context may require;
"Secured Assets" means the assets which from time to time are the subject of the
Security or which are otherwise encumbered pursuant to any Security Document;
"Security" means any security assumed and accepted by or through the Security
Trustee or the Beneficiaries, as the case may be, pursuant to any Security
Document and held or administered by the Security Trustee on behalf of or in
trust for the Beneficiaries hereunder and any addition or replacement or
substitution thereof;
"Security Distribution Amount" means the aggregate amounts standing to the
credit of the Security Recoveries Accounts as at close of business in Frankfurt
on the date falling eleven business days prior to the Security Distribution
Date;
"Security Distribution Date" means each business day on which the Security
Trustee is to make a distribution to the Beneficiaries pursuant to Clause 8;
"Security Distribution Entitlement" means:
(a) in the case of the Senior Liabilities, the Hedging Liabilities and the
Senior Agent and each Hedge Counterparty, the amount payable to it (in
the case of the Senior Agent for distribution amongst the Senior
Lenders) pursuant to Clause 7.1(i);
(b) in the case of the Senior Subordinated Liabilities and the Senior
Subordinated Agent, the amount payable to it (in the case of the
Senior Subordinated Agent for distribution amongst the Senior
Subordinated Lenders), pursuant to Clause 7.1(ii); and
(c) in the case of the Postponed Senior Liabilities (as defined in the
Intercreditor Agreement) and the Senior Agent, the amount payable to
it (for distribution amongst the Senior Lenders), pursuant to Clause
7.1(iii)
"Security Documents" means each of the Senior Security Documents (as that term
is defined in the Senior Facility Agreement) and the Senior Subordinated
Security Documents (as that term is defined in the Senior Subordinated Facility
Agreement));
"Security Purpose Declaration" means, in relation to any Security, the
description of the secured claims for which such Security is granted;
"Security Recoveries Account" means the account in the name of the Security
Trustee designated "Security Recoveries Account" maintained by the Security
Trustee and each account or sub-account established pursuant to the provisions
hereof and designated accordingly;
"Senior Default" shall have the meaning ascribed to it in the Intercreditor
Agreement;
"Senior Discharge Date" shall have the meaning ascribed to it in the
Intercreditor Agreement;
"Senior Facility Documents" shall have the meaning ascribed to it in the
Intercreditor Agreement;
"Senior Lenders" means each person who, from time to time, is a party to the
Senior Facility Agreement as a Bank;
"Senior Liabilities" shall have the meaning ascribed to it in the Intercreditor
Agreement; and
"Senior Subordinated Default" shall have the meaning ascribed to it in the
Intercreditor Agreement;
"Senior Subordinated Facility Documents" shall have the meaning ascribed to it
in the Intercreditor Agreement;
"Senior Subordinated Lenders" means each person who from time to time is a party
to the Senior Subordinated Facility Agreement as a Bank (as that term is defined
in the Senior Subordinated Facility Agreement);
"Senior Subordinated Liabilities" shall have the same meaning ascribed to it in
the Intercreditor Agreement;
"Total Outstandings" means, in relation to each Beneficiary, the aggregate
amount outstanding or owed to it under the Facility Documents, as notified by it
upon the request of the Security Trustee.
1.3 Except to the extent that the context otherwise requires, any reference to
this "Agreement" shall be construed as a reference to this Agreement as amended,
restated or supplemented from time to time in accordance with Clause 18 and
shall include any document which is supplemental to, is expressed to be
collateral with or is entered into pursuant to or in accordance with the terms
of, this Agreement.
1.4 Headings shall be ignored in construing this Agreement.
1.5 References to and definitions of any of the Facility Documents and any
other documents or instruments referred to herein shall (subject to the
provisions of the Intercreditor Agreement) be deemed to include any documents or
instruments amending, varying, supplementing, novating or replacing the terms
respectively thereof from time to time.
1.6 Save where the contrary is indicated, or the context otherwise requires,
the singular of any defined term includes the plural, and vice versa.
1.7 References to parties herein shall also be deemed to include references to
their respective successors, transferees and assigns. References to the Chargors
shall be construed to include a reference to any Chargor which provides
additional security in relation to any Finance Document and accedes to this
Agreement.
2. Appointment of the Security Trustee
2.1 Each of the parties hereto appoints the Security Trustee as trustee
(Treuhander) and administrator for the purpose of holding on trust (Treuhand)
and accepting and administering the Security for and on behalf of Beneficiaries.
2.2 The Security Trustee accepts its appointment as a trustee (Treuhander),
agent and administrator of the Security on the terms and subject to the
conditions set out in this Agreement.
3. Declaration of Trust and Appointment as Administrator
3.1 The Security Trustee shall
(i) hold and administer any 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
(ii) administer any Security which is pledged (Verpfandung) or otherwise
transferred to any Beneficiary under an accessory security right
(akzessorische Sicherheit).
3.2 Each Beneficiary hereby authorises the Security Trustee to accept as its
representative (Stellvertreter) any pledge or other creation of any accessory
right made to such Beneficiary in relation to the Facility Documents.
3.3 The Security Trustee shall act in relation to all Security in accordance
with the terms and subject to the conditions of this Agreement and the relevant
Security Document. Each Beneficiary hereby ratifies and approves all acts
previously done by the Security Trustee on such Beneficiary's behalf.
3.4 Each relevant Chargor and each relevant Beneficiary agree that the Security
Documents entered into between them in addition to this Agreement shall be
subject to the relevant terms of this Agreement.
4. The Security Trustee, an Instructing Group and the Lenders
4.1 Notwithstanding anything to the contrary which may be contained in any of
the Facility Documents the Security Trustee shall be entitled to (and shall)
assume that the interests of each Beneficiary in connection with this Agreement
and the Facility Documents are for all purposes represented by the relevant
Majority Lenders (or, where the Facility Documents so provide, the Lenders) and
the Borrower, IFCO Europe, each Chargor and each Beneficiary submits to the
instructions of the Majority Lenders (or, where the Facility Documents so
provide, the Lenders) given in accordance with this Agreement and the Facility
Documents.
4.2 The Security Trustee shall, save as otherwise provided in Clause 5 and
subject to the provisions of the Facility Documents:
(i) act as trustee and, as the case may be, as administrator under this
Agreement in accordance with any instructions given to it by the
Relevant Agent acting on the instructions of the Majority Lenders or
the Lenders, as appropriate having regard to the provisions of the
Facility Documents, which instructions shall be binding on each
Chargor and Beneficiary, provided that where any provision of any of
the Facility Documents requires the consent of the Relevant Agent or
the Security Trustee to any matter or thing and such provision
provides that such consent of the Relevant Agent or the Security
Trustee shall not be unreasonably withheld, then the Majority Lenders
or the Lenders (as appropriate) having regard to the provisions of the
Facility Documents, shall not be entitled to give directions to the
Relevant Agent or the Security Trustee to withhold its consent (and
shall direct the Relevant Agent or the Security Trustee to give its
consent accordingly) if in all the circumstances it would be
unreasonable for the Relevant Agent or the Security Trustee to
withhold such consent; and
(ii) if so instructed by the Relevant Agent (acting on the instructions of
the Majority Lenders), refrain from exercising any right, power or
discretion vested in it as trustee and administrator under the
Facility Documents.
4.3 The Security Trustee shall not in any way or to any extent be liable or
responsible to the Borrower, IFCO Europe, any Chargor, any Beneficiary or any
other person for any loss, liability, costs, damages or expenses arising from
any action which it takes, or refrains from taking, with regard to the Facility
Documents in accordance with their terms (including, without limitation, any
direction contained in an Enforcement Notice to enforce any Security), in
accordance with the provisions of this Clause 4, the other provisions of this
Agreement or the other Facility Documents save in the case of gross negligence
or wilful misconduct or the failure by the Security Trustee to comply with the
standard of care which could reasonably be expected to be given by any similar
person in similar circumstances.
4.4 Without prejudice to Clause 4.2, the Security Trustee may, whenever it
considers it necessary or expedient to do so, refer any question in relation to
the exercise and performance of its rights, powers and discretions under this
Agreement or any of the other Facility Documents to the Relevant Agent (acting
on the instructions of the Majority Lenders or the Majority Senior Subordinated
Lenders or Lenders (where appropriate)) or otherwise seek clarification or
amplification from the Relevant Agent (acting on the instructions of the
Majority Lenders or the Majority Senior Subordinated Lenders or Lenders (where
appropriate)) of any direction given to it and, if so directed by the Relevant
Agent (acting on the instructions of the Majority Lenders or the Majority Senior
Subordinated Lenders or Lenders (where appropriate)) in response to such
referral, shall exercise (or refrain from exercising) any such right, power or
discretion in accordance with such directions.
5. Enforcement of Security
5.1 Subject to Clause 9.1(vi) and the terms of the Intercreditor Agreement the
Security Trustee shall not take any action to initiate the enforcement of any of
the Security unless and until it shall have received an Enforcement Notice
directing it to do so. Upon receipt of an Enforcement Notice and upon
instruction of the Relevant Agent (acting on the instructions of the Majority
Lenders) the Security Trustee shall, subject to the terms and conditions of such
Enforcement Notice and hereof, commence with and initiate such measures as the
Security Trustee may deem permissable, necessary or advisable for the
enforcement of all or part (as instructed) of the Security.
5.2 The parties hereto hereby acknowledge and agree that:
(i) no Beneficiary shall exercise any independent power to enforce any of
the Security or to exercise any rights, remedies, discretions or
powers or to grant any consents or releases under or pursuant to the
Facility Documents or otherwise have direct recourse to any of the
Security; and
(ii) no Beneficiary (other than in its capacity as a Beneficiary comprising
all or part of the Majority Lenders (or where the Facility Documents
otherwise provide, the Lenders)) shall be entitled to require the
Security Trustee to take any action or proceedings under or in
relation to any of the Facility Documents or to exercise any of the
rights, powers or discretions conferred on it by this Agreement or any
of the Facility Documents.
6. The Security Recoveries Account
6.1 The Security Trustee shall establish a separate Security Recoveries Account
for each currency in which Proceeds are, or are to be, received.
6.2 Subject to Clause 6.3, the Security Trustee shall credit the Proceeds
received by it to the relevant Security Recoveries Account.
6.3 With the consent of the Majority Lenders the Security Trustee shall be
entitled to convert or exchange any Proceeds (or part thereof) into one or more
other currencies prior to crediting the relevant Security Recoveries Account.
6.4 Interest shall accrue on each Security Recoveries Account at such rate, and
shall be payable by crediting such interest to such Security Recoveries Account
on such dates, as may be reasonably determined by the Security Trustee to be the
market rate applicable to deposits in substantially the same amounts and same
currencies as the amounts credited to the Security Recoveries Account. Amounts
credited to any Security Recoveries Account in respect of interest shall be
treated as Proceeds.
7. Application of Proceeds
7.1 After the Security Trustee shall have received an Enforcement Notice the
Security Trustee shall, to the extent permitted by applicable law, apply on such
date (each a "Security Distribution Date") as the Security Trustee shall select
(and in any event, no less frequently than quarterly) Proceeds standing to the
credit of the Security Recoveries Account(s) after providing for all of its
outgoings, costs, charges, expenses and liabilities in connection with acting as
Security Trustee (and after setting aside such sums as it considers will or may
become payable in the future and which it considers will not or may not be
discharged out of future receipts from the enforcement of any Security and after
providing for payments ranking in priority as a matter of law):
(i) prior to the Senior Discharge Date, in or towards payment pro rata of
the Senior Liabilities (but excluding the Postponed Senior
Liabilities) and the Hedging Liabilities, including, without
limitation any amounts required by way of cash collateral in respect
thereof by payment to the Senior Agent and each Hedge Counterparty in
rateable proportions to the amounts then due to the Senior Lenders
and the Hedge Counterparties (and the Senior Agent shall apply any
monies so received by it from the Security Trustee in accordance with
the terms of the Senior Facility Agreement);
(ii) after the Senior Discharge Date, in or towards payment of the Senior
Subordinated Liabilities by payment to the Senior Subordinated Agent
and the Hedge Counterparties in rateable proportions to the amounts
then due to the Senior Subordinated Lenders and the Hedge
Counterparties (and the Senior Subordinated Agent shall apply any
monies so received by it from the Security Trustee in accordance with
the terms of the Senior Subordinated Facility Agreement); and
(iii) after the Senior Subordinated Discharge Date (as defined in the
Intercreditor Agreement) in or towards payment pro rata to the Senior
Agent for distribution in accordance with the Senior Facility
Agreement, for application towards the Postponed Senior Liabilities
which are then due in rateable proportions.
7.2 Any balance shall be held by the Security Trustee and shall be subsequently
applied in accordance with 7.1 above as and when relevant amounts become due and
may be so applied. Any balance held by the Security Trustee after 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
amounts the Security Trustee shall be entitled to rely on a written certificate
from the Senior Agent and the Hedge Counterparties (as the case may be)), shall
(after providing for payments ranking in priority as a matter of law) be paid in
accordance with Clauses 7.1(ii) and 7.1(iii) above and otherwise to such person
(in the reasonable opinion of the Security Trustee) as may be entitled thereto.
7.3 The Security Trustee shall be entitled to make any currency conversions
necessary for the purpose of making any of the payments referred to in Clause
7.1 in the currency/currencies in which the liabilities are denominated at the
time of such payments.
7.4 The Security Trustee shall be entitled to make the deductions and
withholdings (on account of tax or otherwise) from payments to the Beneficiaries
hereunder which it is required by any applicable law to make, and to pay all tax
which may be assessed against it in respect of any of the Security, in respect
of anything done by it in its capacity as Security Trustee or otherwise by
virtue of its capacity as such. Each Chargor agrees that amounts outstanding
under any of the Facility Documents shall only be discharged by virtue of
receipt or recovery by the Security Trustee of Proceeds and to the extent that
the ultimate recipient actually and effectively receives monies from the
Security Trustee hereunder sufficient to satisfy the share of the relevant
recipient of any amount outstanding under any of the Facility Documents.
7.5 If any Chargor receives any sum from any person which, pursuant to the
Facility Documents, should have been paid to the Security Trustee, such sum
shall be held on trust for the Security Trustee (for the benefit of the
Beneficiaries). Such Chargor undertakes to pay to the Security Trustee such sum
for application in accordance with this Clause 7.
7.6 For the avoidance of doubt, Clause 31 of the Senior Facility Agreement
applies mutatis mutandis to this Agreement.
8. Distributions to the Beneficiaries
8.1 Prior to the Security Trustee making any distribution to the Beneficiaries
pursuant to Clause 7 hereof, the Security Trustee shall no later than ten
business days prior to the Security Distribution Date (such tenth business day
hereafter referred to as the "Distribution Notification Date") notify the
Borrower on behalf of the Chargors and the Beneficiaries of:
(i) the Security Distribution Amount; and
(ii) the Security Distribution Date;
and request the Beneficiaries or the Relevant Agent on their behalf each to
notify the Security Trustee (such notification (which shall be binding on the
Beneficiary giving it) to be received by the Security Trustee at least five
business days prior to the proposed Security Distribution Date and copied to the
Borrower) of the aggregate amount outstanding to it (or, in the case of
notification by a Relevant Agent, the amount outstanding to those Beneficiaries
on whose behalf such notification is given) under the Facility Documents
calculated as at the Distribution Notification Date.
8.2 Four business days prior to the Security Distribution Date the Security
Trustee shall calculate the Security Distribution Entitlement for each
Beneficiary (or group of Beneficiaries) and shall notify on the next business
day each Beneficiary of its Security Distribution Entitlement.
8.3 Once the Security Trustee has effected such calculations referred to in
Clause 8.2 above, the Security Trustee shall be entitled to effect such currency
conversions and exchanges as the Security Trustee may determine to be necessary
to provide for any Security Distribution Entitlement to be distributed in
accordance with Clause 8.4 below in the currency in which the obligations of the
Borrower are denominated. The Security Trustee shall be entitled to apply such
amount of such other currency as the Security Trustee may determine standing to
the credit of any of the Security Recoveries Account(s) as may be required to
fund each such currency exchange or conversion.
8.4 On each Security Distribution Date, the Security Trustee shall distribute
the Security Distribution Amount by paying to each Beneficiary (or, in the case
of the Senior Lenders and, where applicable, the Senior Subordinated Lenders, to
the Senior Agent or the Senior Subordinated Agent (as applicable), on their
behalf) an amount equal to the Security Distribution Entitlement for such
Beneficiary (or group of Beneficiaries (as appropriate)) and in the relevant
currency or currencies for application against each Beneficiary's share of
amounts outstanding under the Facility Documents.
8.5 Any payment made pursuant to Clause 8.4 above shall be made by the Security
Trustee to such account as such Beneficiary (or the Relevant Agent on its
behalf) may have notified to the Security Trustee for that purpose. It is hereby
acknowledged and agreed that the Security Trustee shall not be concerned to, and
shall have no duty or responsibility to, see to or enquire as to the application
by any Beneficiary of any payments so made to it by the Security Trustee.
8.6 The Security Trustee shall promptly and in any event within seven business
days thereafter forward to the Beneficiaries and to the Borrower on behalf of
the Chargors details of the amounts of all
distributions made in accordance with Clauses 7 and 8 hereof.
8.7 In making any calculation or payment pursuant to this Clause 8 the Security
Trustee shall be entitled to rely upon the information supplied to it by the
Beneficiaries and/or the Chargors (including without limitation, information as
to amounts outstanding under the Facility Documents) and shall be entitled to
make distributions hereunder based on such calculations. In case of any
discrepancy between a Beneficiary's and any Chargor's information the
Beneficiary's information shall prevail, save for manifest error.
9. The Security Trustee's Rights, Powers and Discretions
9.1 The Security Trustee may:
(i) assume unless it has, in its capacity as Security Trustee, actual
knowledge or actual notice to the contrary, that:
(a) any representation made by any Chargor in, or pursuant to, any
of the Facility Documents to which it is expressed to be a party
is true;
(b) no Event of Default or Potential Event of Default (each as
defined in each Facility Document) has occurred;
(c) no Chargor is in breach of or default under its obligations
under any of the Facility Documents to which it is expressed to
be a party;
(d) the identity of the Senior Agent and the Senior Subordinated
Agent is as notified to it at the date of this Agreement or
subsequently notified to it in writing by the Relevant Agent;
(e) a person purporting to be an authorised signatory of any of the
Chargors or any other person is duly authorised to act in that
capacity by or on behalf of such Chargor or other person; and
(f) any direction (including, without limitation, any direction
contained in an Enforcement Notice) received by it from a
Relevant Agent or the Majority Lenders is correct;
(ii) rely as to any matters of fact which might reasonably be expected to
be within the knowledge of any Chargor upon a certificate signed by
or on behalf of such Chargor;
(iii) rely upon any communication or document believed by it to be genuine;
(iv) refrain from acting in accordance with an Enforcement Notice or any
other any instruction until it shall have received such security as
it may require for itself (whether by way of payment in advance or
otherwise) for all costs, claims, expenses (including legal fees) and
liabilities which it will or may expend or incur in complying with
such instructions;
(v) engage and pay for the advice or services of, and rely and act on
the opinion or advice (howsoever given) of, or any information
obtained from, any lawyers, accountants, surveyors or other
professional advisers or experts whose advice or services may to it
seem necessary, expedient or desirable;
(vi) refrain from exercising any right, power or discretion vested in it
under any of the Facility Documents unless and until instructed by a
Relevant Agent (acting on the instructions of the Majority Senior
Lenders (or, where appropriate, the Majority Senior Subordinated
Lenders or the Lenders)) as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised, as to
the manner in which it should be exercised;
(vii) other than the actual realisation of any Security, do any act or
thing in the exercise of any of its duties under the Facility
Documents which in its absolute discretion (in the absence of any
instructions of the Relevant Agent (acting on the instructions of
the Majority Lenders (or, where appropriate, the Majority Senior
Subordinated Lenders) as to the doing of such act or thing) it deems
advisable for the protection and benefit of all the Beneficiaries,
including in matters of urgency the commencement of required action
for the enforcement (to which the Security Trustee is expressly
authorised herewith); this shall include the giving of information
in relation to the Security or the Secured Assets to the Relevant
Agent; and
(viii) upon a disposal of any Secured Assets by any Receiver, or by any of
the Chargors (where the Security Trustee has consented to such
disposal) to any third party, release on its own behalf and on
behalf of the Beneficiaries such Secured Assets from Security,
provided that, without the consent of the relevant Beneficiaries, no
Security shall be released where any claim secured by such Security
as described in the Security Purpose Declaration for such Security
is still outstanding and not effectively paid.
9.2 The Security Trustee may (in accordance with the provisions of the
Intercreditor Agreement), subject to the proviso hereto and unless the express
provisions of any such Security Document provide otherwise, if authorised by the
Relevant Agent (acting on the instructions of the Majority Lenders amend or vary
the terms of or waive breaches of or defaults under, or otherwise excuse
performance of any of the Security Documents; any such amendments, variation,
waiver or consent so authorised shall be binding on all the parties hereto and
the Security Trustee shall be under no liability whatsoever in respect thereof
provided that the Security Trustee shall not be authorised, except with the
prior written consent of all the Beneficiaries:
(a) (without prejudice to Clause 9.1(viii) above) to agree to any change
which would affect the nature or the scope of or to release any of
the Secured Assets or the manner in which Proceeds are distributed
thereunder or hereunder; or
(b) to agree to any amendment to this Clause 9.2.
9.3 Notwithstanding anything to the contrary expressed or implied herein, the
Security Trustee shall not:
(i) be bound to enquire as to the occurrence of any Senior Default,
Senior Subordinated Default or Potential Event of Default (as
defined in any of the Facility Agreements);
(ii) be bound to enquire as to whether or not any representation made by
any of the Chargors under or in connection with any of the Facility
Documents is true;
(iii) be liable for any losses to any Beneficiary, howsoever caused, as a
result of taking or omitting to take any action whatsoever in
relation to any of the Facility Documents or otherwise, save in the
case of gross negligence of wilful misconduct;
(iv) be bound to account to any Beneficiary for any sum or the profit
element of any sum received by it for its own account whether in
connection with the Facility Documents or otherwise;
(v) be bound to disclose to any other person any information relating to
any Chargor if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person or is prohibited under the
Facility Documents; or
(vi) be under any obligations other than those for which express
provision is made herein or in any of the Facility Documents.
9.4 The Security Trustee accepts no responsibility for the accuracy and/or
completeness of any information supplied by any of the Chargors or any other
person in connection with, or for the legality, validity, effectiveness,
adequacy or enforceability of, any of the Facility Documents and shall not be
liable or responsible for any losses to any person, howsoever caused, as a
result of taking or omitting to take any action whatsoever in relation to any of
the Facility Documents or otherwise, save in the case of gross negligence or
wilful misconduct.
9.5 Each of the Beneficiaries agrees that it will not assert or seek to assert
against any director, officer or employee of the Security Trustee any claim it
might have against any of them in respect of the matters referred to in Clause
9.4.
9.6 Each Beneficiary agrees that the liability of the Security Trustee in
performing its duties hereunder shall be limited only to claims arising out of
the Security Trustee's own gross negligence or wilful misconduct; further, with
respect to any claim, the Security Trustee shall not be liable for any indirect
or consequential loss or damage suffered by any person.
9.7 The Security Trustee may accept deposits from, lend money to, and generally
engage in any kind of banking or other business with, each of the Chargors.
9.8 It is understood and agreed by each Beneficiary that it has itself been,
and will continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition, creditworthiness,
condition, affairs, status and nature of each of the Chargors and, accordingly,
each Beneficiary warrants to the Security Trustee that is has not relied and
will not hereafter rely on the Security Trustee:
(i) to check or enquire on such Beneficiary's behalf into the adequacy,
accuracy or
completeness of any information provided by any of the Chargors or any
other person in connection with any of the Facility Documents or the
transactions therein contemplated (whether or not such information has
been or is hereafter circulated to such Beneficiary by the Security
Trustee);
(ii) to check or enquire on such Beneficiary's behalf into the adequacy,
accuracy or completeness of any communication delivered to the
Security Trustee under any of the Facility Documents, any legal or
other opinions, reports, valuation, certificates, appraisals or other
documents delivered or made or required to be delivered or made at any
time in connection with any of the Facility Documents, any security to
be constituted thereby or any other report or other document,
statement or information circulated, delivered or made, whether orally
or otherwise and whether before, on or after the date of this
Agreement;
(iii) to check or enquire on such Beneficiary's behalf into the due
execution, delivery, validity, legality, adequacy, suitability,
performance, enforceability or admissibility in evidence of any
guarantee, indemnity or security given or created by the Facility
Documents or any obligations imposed thereby or assumed thereunder;
(iv) to check or enquire on such Beneficiary's behalf into the ownership,
value or sufficiency of any of the Secured Assets, the priority of any
of the Security, the right or title of any person in or to any
property comprised therein or the existence of any encumbrance
affecting the same; or
(v) to assess or keep under review on such Beneficiary's behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of any Chargor.
9.9 The Security Trustee, and every attorney, agent or other person appointed
by it under any of the Facility Documents, shall have the right to be
indemnified out of the Proceeds against all claims, demands, liabilities,
proceedings, costs, fees, charges, losses and expenses incurred by any of them
in relation to or arising out of the taking or holding of any of the Security,
the exercise or purported exercise of any of the rights, trusts, powers and
discretions vested in any of them or any other matter or thing done or omitted
to be done in connection with any of the Facility Documents or pursuant to any
law or regulation (otherwise than as a result of its gross negligence or wilful
misconduct or the failure by the Security Trustee to comply with the standard of
care which could reasonably be expected to be given by any similar person in
similar circumstances).
9.10 The Security Trustee may:
(i) whenever it thinks fit, delegate by power of attorney or otherwise to
any prudently selected person or persons, all or any of the rights,
powers, authorities and discretions vested in it by any of the
Facility Documents and such delegation may be made upon such terms
and subject of such conditions (including the power to sub-delegate)
and subject to such regulations as it may think fit and it shall not
be bound to supervise, or be in any way responsible for any loss
incurred by reason of any misconduct or default on the part of, any
such delegate or sub-delegate;
(ii) accept without enquiry, requisition or objection such right and title
as any of the
Chargors or any other person may have to any of the Secured Assets
belonging to such Chargor or such other person (or any part thereof),
and the Security Trustee shall not be bound or concerned to
investigate or make any enquiry into the right or title of such
Chargor or other person to such property (or any part thereof) or,
without prejudice to the foregoing, to require such Chargor or other
person to remedy any defect in its right or title as aforesaid;
(iii) refrain from doing anything which would or might in its opinion be
contrary to any relevant law, directive or regulation of any
jurisdiction or which would or might otherwise render it liable to
any person, and the Security Trustee may do anything which is, in its
opinion, necessary to comply with any such law, directive or
regulation;
(iv) determine all questions and doubts arising in relation to the
interpretation or application of any provisions of any Security
Document as it affects the Security Trustee (and any 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); and
(v) 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 Security
Documents for the time being in its hands in any safe deposit, safe
or receptacle selected by the Security Trustee or with any reputable
bankers or banking company (including the Security Trustee, the
Senior Agent or the Senior Subordinated Agent or any of the
Beneficiaries) or reputable company whose business includes
undertaking the safe custody of documents or reputable lawyers and/or
notaries and may on the instructions of the Senior Agent or, subject
to the terms hereof, the Senior Subordinated Agent make any such
arrangements as they think fit for allowing the relevant Chargor 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.
9.11 Without prejudice to the provisions of any of the Facility Documents, the
Security Trustee shall not be under any obligation to insure any Facility
Documents, to insure any of the Secured Assets or to require any other person to
maintain any such insurance and shall not be responsible for any loss which may
be suffered by any person as a result of the lack of or inadequacy or
insufficiency of any such insurance.
9.12 Each of the Chargors and the Beneficiaries hereby relieves the Relevant
Agent to the full extent necessary from the restrictions of Section 181 of the
German Civil Code (BGB) to perform its duties and obligations as Security
Trustee hereunder.
9.13 The powers, trusts, authorities and discretions conferred upon the
Security Trustee by this Agreement shall be in addition to any which may from
time to time be vested in the Security Trustee by general law or otherwise.
9.14 The Security Trustee shall promptly after receipt thereof provide to each
of the Senior Agent
and the Senior Subordinated Agent (the "Agents") a copy of any notice or
information received by it under or pursuant to the Facility Documents from any
person other than such Agent and shall provide to the Agents at the time of
giving such notice a copy of any notice given by the Security Trustee hereunder
or in relation hereto to any person other than such Agent.
10. Release and Sale of Security
10.1 The Security Trustee shall and is hereby authorised by each of the Senior
Lenders, the Hedge Counterparties and the Senior Subordinated Lenders (and to
the extent it may have any interest therein, every other party hereto) to
execute on behalf of itself and each Senior Lender, Hedge Counterparty, Senior
Subordinated Lender and other party hereto where relevant without the need for
any further referral to, or authority from, any Senior Lender, Hedge
Counterparty, Senior Subordinated Lender or other person all necessary releases
of any security or guarantees given by any Chargor under any Facility Document
in relation to the disposal of any asset which is permitted or required under or
consented to in accordance with the Facility Documents including, without
limitation:
(i) any formal release of any asset which the Security Trustee is,
pursuant to the Facility Documents, required to give or which, in its
absolute discretion considers necessary or desirable in connection
with that disposal; and
(ii) any release of any security given by any Chargor which is or is a
subsidiary of a company which is sold in accordance with the terms of
and without any breach of the Facility Documents.
10. If:
(i) pursuant to an enforcement of any of the Security Documents, the
Security Trustee on the instructions or with the consent of the
Majority Lenders sells or otherwise disposes of any assets; or
(ii) the Chargor concerned sells or otherwise disposes of such asset at
the request of the Security Trustee on the instructions or with the
consent of the Majority Lenders after a Senior Default, or, if after
the Senior Discharge Date after a Senior Subordinated Default,
the Security Trustee is hereby authorised by each of the Senior Lenders,
the Hedge Counterparties and the Senior Subordinated Lenders to execute on
behalf of itself and each such Senior Lender and Hedge Counterparty (if
prior to the Senior Discharge Date) and each Senior Subordinated Lender and
Senior Subordinated Hedge Counterparty, without the need for any further
referral to or authority from such Senior Lender, Hedge Counterparty or
Senior Subordinated Lender, any release of the security created by the
Security Documents over that asset provided that in each such case the
proceeds are to be applied in the manner provided for in this Agreement.
11. Resignation of Security Trustee
11.1 The Security Trustee may resign as such hereunder at any time without
assigning any reason therefore by giving not less than ten days' prior written
notice to that effect upon satisfaction in full of all liabilities under the
Facility Documents (the "Liabilities") and at any other time by giving not less
than thirty days' prior written notice to that effect to each of the other
parties hereto; or a Relevant Agent (acting on the instructions of the Majority
Senior Lenders and the Majority Senior Subordinated Lenders acting together) may
at any time terminate the appointment of the Security Trustee hereunder by
giving not less than sixty days' prior written notice to each of the other
parties hereto, provided that no such resignation or termination shall be
effective until (i) a successor to the Security Trustee is appointed in
accordance with the succeeding provisions of this Clause 11, (ii) all of the
Security and title to the Secured Assets and all of the Security Trustee's
rights, benefits and obligations under the Facility Documents have been validly
transferred to such successor; (iii) such successor has confirmed its agreement
to be bound by the provisions of this Agreement and all other related agreements
to which the Security Trustee is a party; and (iv) all amounts then due or owing
to the Security Trustee (whether in respect of fees, costs, expenses or
otherwise) have been duly paid and no other amounts are then outstanding to the
Security Trustee hereunder.
11.2 If the Security Trustee gives notice of its resignation or its appointment
is terminated pursuant to Clause 11.1, any reputable bank or other financial
institution may be appointed as a successor to the Security Trustee by Majority
Senior Lenders and Majority Senior Subordinated Lenders (acting together) but,
if no such successor is so appointed within a reasonable time, the Security
Trustee may appoint such a successor itself.
11.3 If a successor to the Security Trustee is appointed under the provisions
of Clause 11.2, (i) the resigning Security Trustee shall be discharged from any
further obligation hereunder but shall remain entitled to the benefit of the
provisions of Clauses 5, 9, this Clause 11 and Clause 13 and (ii) such successor
and each of the other parties hereto shall have the same rights and obligations
amongst themselves as they would have had if such successor had been an original
party hereto.
12. Appointment of Additional Security Trustees
The Security Trustee may at any time in its sole discretion appoint any person
to act either as a separate trustee or as a co-trustee jointly with it (i) if it
considers such appointment to be in the interests of the Beneficiaries or (ii)
for the purposes of conforming to any legal requirements, restrictions or
conditions which the Security Trustee deems relevant for the purposes hereof,
and the Security Trustee shall give prior notice to each Chargor of any such
appointment. Any person so appointed shall have such powers, authorities and
discretions and such duties and obligations as shall be conferred or imposed on
such person by the instrument of appointment and shall have the same benefits
under Clauses 5, 9, 11 and 13 as the Security Trustee. The Security Trustee
shall have power in like manner to remove any person so appointed. Such
reasonable remuneration as the Security Trustee may pay to any person so
appointed, and any costs, charges and expenses incurred by such person in
performing its functions pursuant to such appointment, shall for the purposes
hereof be treated as costs, charges and expenses incurred by the Security
Trustee in performing its function as trustee hereunder and shall not be
considered part of any fee the Security Trustee may charge for its acting in
such capacity.
13. Benefit of Agreements
13.1 This Agreement shall be binding on and enure to the benefit of each party
hereto and its successors in title.
13.2 No party hereto may assign all or any of its rights or transfer any of its
obligations hereunder except as expressly permitted by the Facility Documents or
as may be required by law and any such transfer or assignment which may be so
permitted shall not take effect unless the transferee or assignee has delivered
to the Security Trustee a duly completed Accession Agreement.
13.3 Each Chargor authorises each Beneficiary to effect an assignment of the
security interests created by any Chargor to or for the benefit of such
Beneficiary to any Lender or the Security Trustee unless any such assignment is
not effected in order to protect or with a view to protecting the interests of
the relevant Beneficiary. It is understood that in relation to security
interests which are accessory security interests under the laws under which they
are created such security interests would automatically follow the assignment
and transfer of the relevant secured claim under the relevant Facility Agreement
or any other Facility Document.
13.4 Each Chargor authorizes and approves any assignment and transfer effected
to any Transferee pursuant to Clause 41 of the Senior Facility Agreement or
Clause 34 of the Senior Subordinated Facility and agrees to be bound towards
each Transferee (as defined in each Facility Agreement) as if such Transferee
were an original party to the relevant Facility Agreement and this Agreement.
13.5 Each person entering into this Agreement as Chargor after the date of
first execution hereof pursuant to the requirements of additional security under
any Facility Document or otherwise, and who endorses a conformed copy hereof
countersigned by the Security Trustee (for itself and on behalf of all other
parties hereto), shall be bound by the terms hereof as if it were an original
party hereto.
13.6 The Security Trustee shall be entitled, at its discretion, to require any
person granting security for the obligations of the Borrower under the Facility
Documents, any person who replaces or succeeds any party hereto, any Hedge
Counterparty or Company Counterparty, any person becoming a Lender under the
Facility Agreements or any person who is party to a security pool agreement
contemplated by the Facility Documents to enter into an Accession Agreement to
become a party hereto and the Borrower and IFCO Europe agree to procure that any
Group Entity who provides any security, guarantee or other surety in respect of
the obligations of the Borrower in respect of any of the Facility Documents
shall, if so required by the Security Trustee, become a party hereto by
delivering to the Security Trustee a duly completed Accession Agreement.
14. Fees, Costs and Expenses and Indemnity
14.1 Each Chargor shall, from time to time on demand of the Security Trustee,
reimburse the Security Trustee for all out of pocket costs and expenses
reasonably incurred by the Security Trustee in acting as such hereunder and in
relation to the Security Documents, including all costs of convening and holding
any meeting of the Beneficiaries (or any part thereof) for any purpose
whatsoever and all professional fees.
14.2 Each Chargor shall, from time to time on demand of the Security Trustee,
reimburse the
Security Trustee for all costs and expenses (including professional fees)
incurred in or in connection with the preservation, protection and/or
enforcement of the Security or any part thereof.
14.3 Each Chargor shall indemnify the Security Trustee and every attorney,
agent or other person appointed by it against all claims, demands, liabilities,
proceedings, costs, fees, charges, losses and expenses incurred by any of them
in relation to or arising out of the taking or holding of any of the Security in
the exercise of the rights, trusts, powers and discretions vested in any of them
or in respect of any matter or thing done or omitted to be done in connection
with this Agreement or pursuant to any law or regulation (otherwise than as a
result of its gross negligence or wilful misconduct or the failure by the
Security Trustee or such other person to comply with the standard of care which
could reasonably be expected to be given by any similar person in similar
circumstances).
14.4 Each Chargor shall pay all fees and other taxes to which this Agreement
or any of the Security Documents or any judgment given in connection therewith
is or at any time may be subject and shall, from time to time on demand of the
Security Trustee, indemnify the Security Trustee and each Beneficiary against
all liabilities, costs, claims and expenses resulting from any failure to pay or
any delay in paying any such fee or tax.
14.5 Each Chargor shall pay to the Security Trustee for its services hereunder
a reasonable fee as determined by the Security Trustee in case any other
Security than that specified in the Schedule hereto is taken or administered by
the Security Trustee.
14.6 All fees payable by the Chargors under this Clause 14 shall be exclusive
of value added tax or any similar tax, which, if applicable, shall be payable by
the Chargors at the relevant rate from time to time in addition to such fees.
14.7 The Chargors shall, from time to time on demand of the Security Trustee,
reimburse the Security Trustee for its own account at such daily and/or hourly
rates as the Security Trustee shall from time to time determine, acting
reasonably, for the cost of utilising its management time and/or other resources
in connection with taking all such steps or other action in its capacity as
trustee which the Security Trustee may deem appropriate, which the Beneficiaries
or the Majority Lenders (or, where appropriate, the Lenders) require or which
any of the Chargors requests in connection with:
(i) the granting or proposed granting of any waiver, consent or release
hereunder or under any of the Security Documents;
(ii) any amendment or proposed amendment hereto or to any of the
Security Documents;
(ii) the occurrence of any Senior Default or Senior Subordinated Default
or any investigation as to whether any such default under any of
the Facility Agreements may have occurred; or
(iv) the preservation and/or enforcement of any of the rights of the
Beneficiaries under any of the Facility Documents.
14.8 If the Chargors fail to perform any of their obligations under any of
Clauses 14.1 to 14.7 each Beneficiary shall, in the proportion borne by its
share of the Total Outstandings to the aggregate of the Total Outstandings of
all the Beneficiaries for the time being (or, if the Total Outstandings of all
the
Beneficiaries are zero, immediately prior to their being reduced to zero),
indemnify the Security Trustee against any loss incurred by it as a result of
such failure and the Chargors shall jointly and severally indemnify each
Beneficiary against, and forthwith reimburse to each Beneficiary the amount of,
any payment made by it pursuant to this Clause 14.8.
14.9 The obligations of each Chargor under this Clause 14 shall be joint and
several.
14.10 Nothing in this Clause 14 shall prejudice the rights of the Security
Trustee in respect of any fees, costs and expenses payable to the Security
Trustee under any of the other Facility Documents.
15. Notices
15.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by telex, facsimile or letter.
15.2 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
fifteen days' written notice to the Security Trustee or, in the case of the
Security Trustee, to the Beneficiaries, and the Chargors specified another
address) be made or delivered to that other person at the address set out below
and shall be deemed to have been made or delivered when despatched, with
appropriate answerback received (in the case of any communication made by
telex), when received (in the case of any communication made by facsimile) or
(in the case of any communication made by letter) when left at that address or
(as the case may be) ten days after being deposited in the post postage prepaid
in an envelope addressed to it at that address provided that any communication
or document to be made or delivered to the Security Trustee shall be effective
only when received by it.
The notice address for each party shall be the address identified with its
signature below.
15.3 Each Chargor shall appoint an agent for the receipt of notices and for
the service of process under or in relation hereto.
15.4 Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or accompanied by a
translation thereof into English.
16. Information and directions
The parties hereto shall furnish to the Security Trustee such information and
directions as the Security Trustee may reasonably specify as being necessary or
desirable or which it may require for the purpose of enabling the Security
Trustee to perform its functions as such.
17. Partial Invalidity; Remedies and Waivers
17.1 If at any time any one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect such provision shall be
ineffective to the extent necessary without affecting or impairing the validity,
legality and enforceability of the remaining provisions hereof or affect the
validity or enforceability of such provision in any other jurisdiction or in
relation to any other parties hereto and the relevant provision shall be
replaced with a new provision reflecting the commercial intent of the parties
which provision shall be legal, valid and enforceable under the law of
the relevant jurisdiction.
The parties hereto shall replace such illegal, invalid or unenforceable
provision by such provision which comes as close as legally possible to the
purpose of this Agreement.
17.2 No failure to exercise, nor any delay in exercising, on the part of the
Beneficiaries or any of them, 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 herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
18. Amendments
Other than in the case of an amendment or supplement to correct a manifest error
(which may be made by the Security Trustee) any amendment variation, waiver,
consent or supplement to this Agreement (including this Clause 18) may be made
only with the agreement of all the parties in writing.
19. Order of Enforcement
Each of the Chargors hereby waives, to the extent permitted under applicable
law, all rights it may otherwise have to require that any Security be enforced
in any particular order or manner or that any sum received or recovered from any
person, or by virtue of the enforcement of the Security or any other encumbrance
of any nature over any assets or revenues, which is capable of being applied in
or towards discharge of any amounts outstanding under any of the Facility
Documents or any other obligations the discharge of which is secured by any of
the Senior Security Documents, is so applied.
20. Termination
20.1 If the Security Trustee, with the approval of the Majority Senior Lenders
and Majority Senior Subordinated Lenders shall determine that all amounts
outstanding under any of the Facility Documents and all related liabilities have
been fully and finally discharged, the trust created hereunder shall be
terminated, whereupon each Chargor and the Security Trustee shall be released
from its obligations hereunder (save for those which arose prior to such
winding-up).
20.2 The Security Trustee shall following a determination referred to in
Clause 20.1, in accordance with the terms of the Security Documents or otherwise
if so directed in writing by a Relevant Agent (acting on the instructions of the
Majority Senior Lenders or Majority Senior Subordinated Lenders (as appropriate)
as soon as reasonably practical release any Security and/or release from
Security any of the Secured Assets and/or reassign to the relevant Chargor
and/or such other person as may be entitled thereto any property or rights
assigned or put into trust by such Chargor and/or such other person to the
Security Trustee as security in accordance with the provisions of the Security
Documents or, as the case may be, such written directions.
21. Counterparts
This Agreement may be executed in any number of counterparts each of which shall
constitute an original.
22. Governing Law
This Agreement shall be governed by, and construed in accordance with, German
law.
23. Jurisdiction
23.1 Each of the parties hereto irrevocably agrees for the benefit of each of
the Beneficiaries that the District Court (Landgericht) of Frankfurt am Main
shall have jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in connection with this
Agreement and, for such purposes, irrevocably submits to the jurisdiction of
such courts.
23.2 Each party to this agreement irrevocably waives any objection which it
might now or hereafter have to the courts referred to in Clause 23.1 being
nominated as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with this
Agreement and agrees not to claim that any such court is not a convenient or
appropriate forum.
23.3 The submission to the jurisdiction of the courts referred to in Clause
23.1 shall not (and shall not be construed so as to) limit the right of the
Beneficiaries or any of them to take proceedings against any of the Chargors 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) if and to the extent permitted by
applicable law.
23.4 Each of the parties hereto hereby waives trial by jury in any judicial
proceeding involving, directly or indirectly, any matter (whether sounding in
tort, contract or otherwise) in any way arising out of, related to, or connected
with this Agreement or the relationships established hereunder and whether
arising or asserted before or after the date hereof or before or after the
payment, observance and performance in full of such party's obligations
hereunder.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto the
day and year first above written.
SCHEDULE
Form of Accession Agreement
THIS Agreement dated [ ], [ ] is supplemental to a security trust
agreement (the "Security Trust Agreement") dated [ ] between, amongst others,
the Security Trustee, the Senior Lenders and the Senior Subordinated Lenders.
Words and expressions defined in the Security Trust Agreement have the same
meaning when used in this Agreement.
[Name of new Chargor/Lender/Agent/Security Trustee/Hedge Counterparty] hereby
agrees with each other person who is or who becomes a party to the Security
Trust Agreement that with effect on and from the date hereof it will be bound by
the Security Trust Agreement as [a Hedge Counterparty/Senior Lender/Senior
Subordinated Lender/Senior Agent/Senior Subordinated Agent/Security
Trustee/Chargor] as if it had been party to the Security Trust Agreement in that
capacity.
Address for notice of [Name] for the purposes of Clause 15 (Notices) of the
Security Trust Agreement is:-
[
].
This Agreement is governed by German law. The provisions of Clause 23 of the
Security Trust Agreement shall apply hereto mutatis mutandis as if set out
herein.
By [Name of Acceding Party]
Name:
Address:
As Borrower, Chargor and Company Counterparty
IFCO INTERNATIONAL FOOD CONTAINER ORGANISATION GmbH
By: /s/ GUNTER GERLAND /s/ DR. FRANK TOFFLINGER
Address: Zugspitzstrasse 15
D-82049 Pullach
Germany
Telephone:
Facsimile: +49 89 74491-239
Attention: Dr. Frank Tofflinger; copy to Martin
and Christoph Schoeller: Fax: (+49) (89) 74491-298
As Chargor
IFCO EUROPE BETEILIGUNGS-GmbH
By: /s/ MARTIN SCHOELLER
Address: Zugspitzstrasse 15
D-82049 Pullach
Germany
Telephone:
Facsimile: +49 89 74491-239
Attention: Dr. Frank Tofflinger; copy to Martin
and Christopher Schoeller: Fax: (+49) (89) 74491-298
GISO VERWALTUNGSGESELLSCHAFT mbH & CO. BEHALTERLEASING KG
By: /s/ E. WILCKE
Address: c/o Luitpold Roever
Widenmayerstrasse 28/IV
D-80538
Germany
Telephone:
Facsimile: +49 89 74491-239
Attention: Dr. Frank Tofflinger; copy to Martin
and Christoph Schoeller: Fax: (+49) (89) 74491-298
SCHOELLER PLAST INDUSTRIES GmbH
By: /s/ E. WILCKE
Address: Zugspitzstrasse 15
D-82049 Pullach
Germany
Telephone:
Facsimile: +49 89 74491-239
Attention: Dr. Frank Tofflinger; copy to Martin
and Christopher Schoeller: Fax: (+49) (89) 74491-298
T. MAURER
By: /s/ E. WILCKE
Address: Neugutstrasse 54
CH 8600 Dubendorf
Telephone:
Facsimile:
W. ZINGG
By: /s/ E. WILCKE
Address: Arnistrasse 6
CH 8908 Hedingen
Telephone:
Facsimile:
LUITPOLD ROEVER
By: /s/ E. WILCKE
Address: Wieden mayerstrasse 28/IV
D80538 Munich
Telephone:
Facsimile:
The Security Trustee
BHF BANK AKTIENGESELLSCHAFT
By: /s/ MICHAEL FOCKING /s/ BARBARA BACH
Address: Bockenheimer Landstrasse 10
60323 Frankfurt am Main
Germany
Telephone:
Facsimile: + 49 69 718 4480
Attention:
The Arrangers
BARCLAYS BANK PLC
By: /s/ TIM TAYLOR
Address: 5 The North Colonnade
Canary Wharf
London E14 4BB
Telephone:
Facsimile:
Attention:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
By: /s/ MARKUS KASCH /s/ ANDREAS THONHAUSER
Address: Deurtenstrasse 16
80268 Munich
Germany
Telephone:
Facsimile: + 49 89 2134 2639
Attention:
BHF BANK AKTIENGESELLSCHAFT, HEAD OFFICE, FRANKFURT/MAIN
By: /s/ BARBARA BACH /s/ MICHAEL FOCKING
Address: Niederlassung Munchen
Max-Joseph-Strasse 6
8033 Munchen
Telephone: + 49 89 551 73267
Facsimile: + 49 89 551 73292
Attention: Jorg Salven
CREDITANSTALT AG
By: /s/ HANS-GUNTHER NORDHUES
Address: Brienner Str. 9
D-80333
Munich
Telephone:
Facsimile: + 49 89 290 74588
Attention:
NORDDEUTSCHE HYPOTHEKEN-UND WECHSELBANK AG
By: /s/ HANS-GUNTHER NORDHUES
Address: Postflach 10
Domstrasse 9
20033 Hamburg
Telephone:
Facsimile: + 49 40 32 4122
Attention:
DEUTSCHE BANK AKTIENGESELLSCHAFT, MUNICH BRANCH
By: /s/ HANS GUNTHER NORDHUES
Address: Unternehmen und Institutionen
Riesstrasse 25
80992 Munich
Germany
Telephone:
Facsimile: +49 89 23902-033
Attention: Mr. Manfred Graeff
OLDENBURGISCHE LANDESBANK AG
By: /s/ HANS GUNTHER NORDHUES
Address: Postflach 26
26016 Oldenburg
Telephone:
Facsimile: + 49 441 210 362
Attention:
The Senior Agent
BHF BANK AKTIENGESELLSCHAFT, HEAD OFFICE, FRANKFURT/MAIN
By: /s/ BARBARA BACH /s/ MICHAEL FOCKING
Address: Max-Joseph - Strasse 6
80333 Munchen
Germany
Telephone: +49 89 55173-267
Facsimile: +49 89 55173-292
Attention: Jorg Salven
The Senior Subordinated Agent
BARCLAYS BANK PLC
By: /s/ TIM TAYLOR
Address: Bockenheimer Landstrasse 38-40
60323 Frankfurt am Main
Telephone: + 49 69 7161 1862
Facsimile: + 49 69 7161 1889
Attention:
The Senior Lenders
BARCLAYS BANK PLC
By: /s/ TIM TAYLOR
Address: Bockenheimer Landstrasse 38-40
60323 Frankfurt am Main
Telephone: + 49 69 7161 1862
Facsimile: + 49 69 7161 1889
Attention:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
By: /s/ ANDREAS THONHAUSER MARKUS KASCH
Address: Deurtenstrasse 16
80268 Munich
Germany
Telephone:
Facsimile: +49 89 21342-639
Attention: Mr. Markus Kasch
BHF BANK AKTIENGESELLSCHAFT, HEAD OFFICE, FRANKFURT/MAIN
By: /s/ BARBARA BACH /s/ MICHAEL FOCKING
Address: Max-Joseph - Strasse 6
80333 Munchen
Germany
Telephone: +49 89 55173-267
Facsimile: +49 89 55173-292
Attention: Jorg Salven
CREDITANSTALT AG
By: /s/ HANS GUNTHER NORDHUES
Address: Brienner Str. 9
D-80333
Munich
Germany
Telephone:
Facsimile: +49 89 29074-588
Attention: Mr. Klaus Butscher
NORDDEUTSCHE HYPOTHEKEN-UND WECHSELBANK AG
By: /s/ HANS GUNTHER NORDHUES
Address: Postflach 10
Domstrasse 9
20033 Hamburg
Germany
Telephone:
Facsimile: +49 40 324-122
Attention: Mr. Klaus Bruning
DEUTSCHE BANK AKTIENGESELLSCHAFT, MUNICH BRANCH
By: /s/ HANS GUNTHER NORDHUES
Address: Unternehmen und Institutionen
Riesstrasse 25
80992 Munich
Germany
Telephone:
Facsimile: +49 89 23902-033
Attention: Mr. Manfred Graeff
OLDENBURGISCHE LANDESBANK AG
By: /s/ HANS GUNTHER NORDHUES
Address: Postflach 26
26016 Oldenburg
Germany
Telephone:
Facsimile: +49 44 1210-362
Attention: Mr. Heinrich Rawe
The Senior Subordinated Lenders
BARCLAYS BANK PLC
By: /s/ TIM TAYLOR
Address: Bockenheimer Landstrasse 38-40
60323 Frankfurt am Main
Telephone: + 49 69 7161 1862
Facsimile: + 49 69 7161 1889
Attention: Rolf-Peter Ruoff/Diva Cortellini