Exhibit 4.21
Dated 20 April 2001
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NOBIA AB
as Parent
THE COMPANIES NAMED HEREIN
as Borrowers and/or Guarantors
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Senior Lenders
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Mezzanine Lenders
ENODIS PLC
as Subordinated Lender
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INTERCREDITOR DEED
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ASHURST MORRIS CRISP
London
CONTENTS
CLAUSE PAGE
1. INTERPRETATION ................................................ 1
2. RANKING OF DEBT ............................................... 7
3. COVENANT TO PAY BY OBLIGORS ................................... 7
4. SENIOR DEBT ................................................... 8
5. MEZZANINE DEBT ................................................ 9
6. SUBORDINATED DEBT ............................................. 13
7. PRIORITY OF SECURITY .......................................... 16
8. ENFORCEMENT OF SECURITY ....................................... 16
9. SUBORDINATION ON INSOLVENCY ................................... 17
10. APPLICATION OF RECOVERIES ..................................... 18
11. PROTECTION OF SUBORDINATION ................................... 19
12. STATUS OF OBLIGORS ............................................ 20
13. CONSENTS AND WAIVERS UNDER FINANCE DOCUMENTS .................. 20
14. REPRESENTATIONS AND WARRANTIES ................................ 20
15. INFORMATION AND CO-OPERATION .................................. 21
16. ATTORNEY ...................................................... 22
17. APPOINTMENT AND DUTIES OF SECURITY AGENT ...................... 22
18. COSTS AND EXPENSES ............................................ 24
19. NOTICES ....................................................... 24
20. CHANGES TO PARTIES ............................................ 25
21. MISCELLANEOUS ................................................. 26
22. GOVERNING LAW AND SUBMISSION TO JURISDICTION .................. 27
SCHEDULE 1 ........................................................... 28
Part 1 - Original Borrowers .......................................... 28
Part 2 - Original Guarantors ......................................... 29
Part 3 - Senior Creditors ............................................ 30
Part 4 - Mezzanine Creditors ......................................... 31
Part 5 - Principal Companies ......................................... 32
SCHEDULE 2 ........................................................... 33
Creditor Accession Deed .............................................. 33
THIS DEED is made on 20 April 2001
BETWEEN:-
(1) NOBIA AB (a company incorporated in Sweden with registered number
556628-2752) (the "Parent");
(2) THE COMPANIES listed in part 1 of schedule 1 (the "Original
Borrowers");
(3) THE COMPANIES listed in part 2 of schedule 1 (the "Original
Guarantors");
(4) THE FINANCIAL INSTITUTIONS listed in part 3 of schedule 1 (the "Senior
Lenders");
(5) THE FINANCIAL INSTITUTIONS listed in part 4 of schedule 1 (the
"Mezzanine Lenders");
(6) ENODIS PLC (a company incorporated in England with registered number
109849) (the "Original Subordinated Lender");
(7) SVENSKA HANDELSBANKEN AB (publ) as agent for the Senior Lenders in its
capacity as Facility Agent (the "Facility Agent");
(8) INTERMEDIATE CAPITAL GROUP PLC as agent for the Mezzanine Lenders in
its capacity as Mezzanine Facility Agent (the "Mezzanine Facility
Agent"); and
(9) SVENSKA HANDELSBANKEN AB (publ) as security agent for itself the Senior
Lenders and the Mezzanine Lenders in its capacity as Security Agent
(the "Security Agent").
THE PARTIES TO THIS AGREEMENT AGREE as follows:-
1. INTERPRETATION
1.1 Definitions
In this deed:-
"Acquisition Documents" means the agreement for the acquisition of
(inter alia) Magnet Ltd by Newco from the Vendor, the agreement for
the on-lending of the Vendor Loan in accordance with its terms by the
Guarantor to the Borrower, the agreement for the lending of (inter
alia) the Vendor Loan by the Borrower to Newco for that purpose
pursuant to clause 2.1(A) of the Senior Credit Agreement and any and
all documents executed pursuant to any one or more of these documents;
"Additional Liabilities" in relation to any obligation or liability
means any refinancing (in respect of the Senior Debt within the
parameters set out in clause 4.2 (Limits on priority of Senior Debt)
and in respect of the Mezzanine Debt within the parameters set out in
clause 5.13 (Limits on Priority of Mezzanine Debt)), novation (not
being a transfer permitted by the Finance Documents), refunding,
deferral or extension of those liabilities;
"Affiliate" means a Subsidiary of a Holding Company of another person
or any other Subsidiary of a Holding Company of that other person;
"Agents" means the Facility Agent, the Mezzanine Facility Agent and
the Security Agent;
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"Beneficiary" means a Finance Party in its capacity as a beneficiary
of security held on its behalf by the Security Agent;
"Contingent Liability" means the actual and/or contingent liability of
a Senior Lender under Credit Facility C at any time;
"Creditors" means each Finance Party and each Subordinated Lender;
"Creditor Accession Deed" means a deed substantially in the form set
out in schedule 2 under which a Creditor becomes a party to this deed;
"Debt" means the Senior Debt, the Mezzanine Debt and the Subordinated
Debt;
"Default" means a Senior Default or a Mezzanine Default;
"Default Notice" has the meaning given to it in clause 15.1
(Defaults);
"Default Rate" means:-
(a) until (and including) the Senior Discharge Date, the rate at
which default interest is payable under clause 4.5
(Interest) of the Senior Credit Agreement; and
(b) after the Senior Discharge Date, the rate at which default
interest is payable under clause 3.4 (Interest) of the
Mezzanine Credit Agreement;
"Deferred Mezzanine Debt" has the meaning given to it in clause 5.13
(Limits on Priority of Mezzanine Debt);
"Deferred Senior Debt" has the meaning given to it in clause 4.2
(Limits on priority of Senior Debt);
"Deferred Subordinated Debt" has the meaning given to it in clause
6.11 (Limits on Priority of Subordinated Debt);
"Enforcement Action" means:-
(a) in relation to any Debt, any action whatsoever to:-
(i) demand payment, declare prematurely due and
payable or otherwise seek to accelerate payment of
or place on demand all or any part of the Debt;
(ii) recover all or any part of the Debt (including by
exercising any right of set-off or combination of
accounts);
(iii) exercise or enforce any security right against
sureties or any other rights under any other
document or agreement in relation to (or given in
support of) all or any part of the Debt (including
under the Security Documents); or
(iv) petition for (or take any other steps which may
lead to) an Insolvency Event in relation to any
Group Company; or
(v) commence legal proceedings against any Obligor;
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"Enforcement Date" means the date on which the Facility Agent or the
Security Agent first takes Enforcement Action;
"Final Discharge Date" means the first date on which both the Senior
Discharge Date and the Mezzanine Discharge Date have occurred;
"Finance Documents" means the Senior Finance Documents and the
Mezzanine Finance Documents;
"Finance Parties" means the Senior Finance Parties and the Mezzanine
Finance Parties;
"Group Company" means a member of the Guarantor's Group and/or a
member of the Borrower's Group (as the case may be);
"Holding Company" means a holding company as defined in section 736 of
the Companies Act 1985;
"Insolvency Event" means a court making a winding up order or an order
for the dissolution or liquidation of the relevant Group Company or a
liquidator or administrator or equivalent (but not a receiver,
manager, or equivalent appointed by the holder of a Encumbrance) is
appointed to the relevant Group Company;
"Majority Mezzanine Lenders" has the meaning given to it in the
Mezzanine Credit Agreement;
"Majority Senior Creditors" means, at any time, Senior Finance Parties
whose Senior Commitments at that time aggregate more than 60 per cent.
of the total Senior Commitments at that time;
"Major Mezzanine Default" means a Mezzanine Default under:
(a) clause 10.1(b) of the Mezzanine Credit Agreement occurring
by reason of a breach of any of the covenants contained in
clauses 13.1(b), (d)(i) to (iv) and (vi) to (ix) and (e) of
the Mezzanine Credit Agreement;
(b) clause 10.1(c) of the Mezzanine Credit Agreement occurring
by reason of a breach of any of the representations and
warranties contained in clauses 12.1(b), (d), (e) and (f) of
the Mezzanine Credit Agreement (and for these purposes the
"Subject Documents" referred to in those clauses shall be
deemed to be a reference to the Mezzanine Finance Documents
and the Acquisition Documents only);
(c) clauses 10.1(d), (e), (f), (g), (h), (i), (j) and (k) of the
Mezzanine Credit Agreement;
"Major Senior Default" means a Senior Default under:
(a) clause 11.1(c) of the Senior Credit Agreement occurring by
reason of a breach of any of the covenants contained in
clauses 14.1(b), (c), (d)(i) to (iv) and (vi) to (ix), (e),
(f), (g), (h), (i), (j) and (l) of the Senior Credit
Agreement;
(b) clause 11.1(d) of the Senior Credit Agreement occurring by
reason of a breach of any of the representations and
warranties contained in clauses 13.1(b), (d), (e), (f), (h)
and (j) of the Senior Credit Agreement;
(c) clauses 11.1(e), (f), (g), (h), (i), (j), (k) and (l) of the
Senior Credit Agreement;
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"Mezzanine Credit Agreement" means the loan agreement dated 30
September 1996 as amended and restated pursuant to a restatement
agreement to be dated prior to the first Drawdown Date between (1) the
Parent, (2) the Mezzanine Lenders and (3) the Mezzanine Facility Agent
under which the Mezzanine Lenders agreed to make available a loan
facility of SEK150,000,000 to the Parent;
"Mezzanine Debt" means all money and liabilities now or in the future
due, owing or incurred to any Mezzanine Finance Party by any Obligor
under any Mezzanine Finance Document in any currency, whether actual
or contingent, whether incurred solely or jointly with any other
person and whether as principal or surety, together with all accruing
interest and all related losses and charges and any Additional
Liabilities;
"Mezzanine Declared Default" means a Mezzanine Default which has
resulted in the Mezzanine Facility Agent exercising any of its rights
under clause 10 (Default) of the Mezzanine Credit Agreement;
"Mezzanine Default" means an Event of Default as defined in the
Mezzanine Credit Agreement;
"Mezzanine Discharge Date" means the date on which all Mezzanine Debt
has been fully discharged and all commitments of the Mezzanine Finance
Parties to the Obligors have come to an end in accordance with the
Mezzanine Finance Documents;
"Mezzanine Finance Documents" means the Mezzanine Credit Agreement,
the Mezzanine Security Documents, this deed, the Warrant Instrument
(as defined in the Mezzanine Credit Agreement), any warrants issued
pursuant to the Warrant Instrument and any and all documents executed
pursuant to any one or more of these documents;
"Mezzanine Finance Parties" means Intermediate Capital Group Plc as
Lead Manager and Arranger under the Mezzanine Credit Agreement, the
Mezzanine Agent and each Mezzanine Lender;
"Mezzanine Payment Default" means a failure by an Obligor to pay any
sum (excluding fees, costs or expenses not exceeding (pound)5,000)
under any Mezzanine Finance Document on its due date;
"Mezzanine Security Documents" means the Security Documents as defined
in the Mezzanine Credit Agreement and all other documents creating or
evidencing a Encumbrance for the benefit of any Mezzanine Finance
Party in respect of the obligations of any Obligor under any Mezzanine
Finance Document;
"New Money Commitments" means credit facilities (or other facilities
under which credit exposures may arise) provided by any Senior Finance
Party to a Group Company after the date of this deed in addition to
those which the Senior Finance Parties are committed to provide under
the Senior Finance Documents in force as at the date of this deed;
"Obligors" means the Parent, each Borrower, each Guarantor and each
other Group Company which has any obligation to any Finance Party
under any Finance Document;
"Other Mezzanine Default" means a Mezzanine Default under:
(a) clause 10.1(b) of the Mezzanine Credit Agreement occurring
by reason of a breach of any of the covenants contained in
clauses 13.1(a), (c), (d)(v) and (x), (k) and (l);
(b) clause 10.1(c) of the Mezzanine Credit Agreement occurring
by reason of a breach of any of the representations and
warranties in clauses 12.1(a), (c) and (g) to (j) of the
Mezzanine Credit Agreement (and for these purposes the
"Subject Documents" referred to in those clauses
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shall be deemed to be a reference to the Mezzanine Finance
Documents and the Acquisition Documents only);
"Outstandings" means, in relation to a Senior Lender at any time, the
aggregate of that Senior Lender's participation in all Loans
outstanding at that time (including interest on those Loans and all
Contingent Liabilities and amounts due and payable (but unpaid) by an
Obligor under Credit Facility C);
"Principal Companies" means each of the companies listed in part 5 of
schedule 1;
"Priority Mezzanine Debt" means Mezzanine Debt (provided that the
principal amount thereof does not exceed SEK150,000,000) other than
Deferred Mezzanine Debt;
"Priority Senior Debt" means Senior Debt (provided that the principal
amount thereof does not exceed SEK2,500,000,000 together with any New
Money Commitment not exceeding SEK150,000,000) other than Deferred
Senior Debt;
"Priority Subordinated Debt" means Subordinated Debt (provided that
the principal amount thereof does not exceed (pound)20,000,000) other
than Deferred Subordination Debt;
"Recovery" means any monies received or recovered by a Senior Lender
in any manner whatsoever in respect or on account of any Senior Debt
after deducting:-
(a) all reasonable costs and expenses (if any) incurred by that
Senior Lender in effecting such recovery; and
(b) any sums required by law or court order to be paid to third
parties on account of claims preferred by law over claims of
the Senior Lenders;
"Relevant Mezzanine Default" has the meaning given to it in clause
5.5(d) (Permitted Enforcement Action);
"Security Documents" means the Senior Security Documents and the
Mezzanine Security Documents;
"Senior Commitment" means in relation to a Senior Lender the aggregate
of its Contributions under the Senior Credit Agreement;
"Senior Credit Agreement" means the credit agreement dated on or about
the date of this deed between (1) the Senior Lenders; (2) the Facility
Agent; (3) Nobia Nordisk Bygginterior AB (as senior borrower and
guarantor) and (4) the Parent (as guarantor) under which the Senior
Lenders agreed to make available credit facilities of SEK
2,500,000,000 to, inter alia, the Borrower (as defined therein);
"Senior Debt" means all money and liabilities now or in the future
due, owing or incurred to any Senior Finance Party by any Obligor
under any Senior Finance Document in any currency, whether actual or
contingent, whether incurred solely or jointly with any other person
and whether as principal or surety, together with all accruing
interest and all related losses and charges and any Additional
Liabilities;
"Senior Declared Default" means a Senior Default which has resulted in
the Facility Agent exercising any of its rights under clause 11
(Default) of the Senior Credit Agreement;
"Senior Default" means an Event of Default as defined in the Senior
Credit Agreement;
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"Senior Discharge Date" means the date on which all Senior Debt has
been fully discharged and all commitments of the Senior Finance
Parties to the Obligors have expired in accordance with the Senior
Finance Documents;
"Senior Finance Documents" means the Senior Credit Agreement, the
Senior Security Documents, this deed and any and all documents
executed pursuant to one or more of these documents;
"Senior Finance Parties" means the Facility Agent and each Senior
Lender;
"Senior Payment Default" means a failure by an Obligor to pay any sum
(excluding fees, costs or expenses not exceeding (pound)5,000) under
any Senior Finance Document on its due date;
"Senior Security Documents" means the Security Documents as defined in
the Senior Credit Agreement and all other documents creating or
evidencing an Encumbrance for the benefit of any Senior Finance Party
in respect of the obligations of any Obligor under any Senior Finance
Document;
"Standstill Period" has the meaning given to it in clause 5.5(d)(ii)
(Permitted Enforcement Action);
"Subordinated Debt" means all money and liabilities now or in the
future due, owing or incurred to any Subordinated Lender by any Group
Company under any Subordinated Document in any currency, whether
actual or contingent, whether incurred solely or jointly with any
other person and whether as principal or surety, together with all
accruing interest and all related costs, charges and expenses;
"Subordinated Documents" means the Vendor Loan Agreement, this deed
and any other document or agreement providing for the payment of any
amount by any Group Company to a Subordinated Lender;
"Subsidiary" means a subsidiary and a subsidiary undertaking as
defined in sections 736 and 258 of the Companies Act 1985
respectively;
"Transferee" has the meaning given to it in clause 20.2(a)
(Assignments and transfers by Creditors); or
"Transferor" has the meaning given to it in clause 20.2(a)
(Assignments and transfers by Creditors).
"Vendor Loan Agreement" means the vendor loan agreement dated on or
about the date of this deed by which the Original Subordinated Lender
agrees that part of the consideration payable under the Acquisition
Documents in the amount of (pound)20,000,000 can remain outstanding as
a loan by the Original Subordinated Lender to the Parent.
1.2 Construction
In this deed, unless a contrary intention appears:-
(a) a reference to any person is, where relevant, deemed to be a
reference to or to include, as appropriate, that person's
successors and permitted assignees or transferees;
(b) references to clauses and schedules are references to,
respectively, clauses of and schedules to this deed and
references to this deed include its schedules;
(c) a reference to (or to any specified provision of) any
agreement or document (including a Finance Document) is to
be construed as a reference to that agreement or document
(or that
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provision) as it may be amended from time to time,
but excluding for this purpose any amendment which is
contrary to any provision of any Finance Document;
(d) a reference to a statute, statutory instrument or accounting
standard or any provision thereof is to be construed as a
reference to that statute, statutory instrument or
accounting standard or such provision thereof, as it may be
amended or re-enacted from time to time;
(e) a time of day is a reference to London time;
(f) the index to and the headings in this deed are inserted for
convenience only and are to be ignored in construing this
deed; and
(g) the terms of the documents under which the Senior Debt, the
Mezzanine Debt and the Subordinated Debt arises and of any
side letters between an Obligor and the Creditors (or any of
them) relating thereto are incorporated in this deed to the
extent required for any purported disposition of the Charged
Property contained in this deed to be a valid disposition
under section 2(1) of the Law of Property (Miscellaneous
Provisions) Act 1989;
(h) the parties intend that this document shall take effect as a
deed;
(i) words importing the plural shall include the singular and
vice versa; and
(j) words and expressions defined in the Senior Credit Agreement
shall have the same meanings when used in this deed until
(and including) the Senior Discharge Date, and, after the
Senior Discharge Date, words and expressions defined in the
Mezzanine Credit Agreement shall have the same meanings when
used in this deed.
1.3 Majority consents
Any consent required to be given under this deed by the Facility Agent
and/or the Mezzanine Facility Agent will only be given upon the
instructions of the Majority Senior Creditors and/or the Majority
Mezzanine Lenders (as the case may be) unless otherwise specified in
any of the Finance Documents.
2. RANKING OF DEBT
The Debt will rank for all purposes and at all times in the following
order:-
(a) first, the Priority Senior Debt;
(b) second, the Priority Mezzanine Debt;
(c) third, the Priority Subordinated Debt;
(d) fourth, the Deferred Senior Debt;
(e) fifth, the Deferred Mezzanine Debt; and
(f) sixth, the Deferred Subordinated Debt.
3. COVENANT TO PAY BY OBLIGORS
Subject to the provisions of this deed, each Obligor party to this
deed covenants in favour of the Security Agent to pay the Senior Debt
and the Mezzanine Debt to the Security Agent when the same
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falls due for payment provided that payment of the Senior Debt direct
to the Facility Agent and the Mezzanine Debt direct to the Mezzanine
Facility Agent (as the case may be) under the relevant Finance
Documents will be a good discharge of this covenant.
4. SENIOR DEBT
4.1 Amendments to Senior Finance Documents
No Obligor party to this deed will and will procure that none of its
Subsidiaries will nor any Senior Finance Party will, without the prior
consent of the Mezzanine Facility Agent:-
(a) agree to or take any action which would increase the rate of
interest payable under any Senior Finance Document other
than as contemplated by the terms of the Senior Credit
Agreement as at the date of this deed (including under
clause 8 (Indemnity) and clause 9 (Payments and Currency
Option) of the Senior Credit Agreement;
(b) change the basis on which interest or other amounts
(including fees) are calculated under any Senior Finance
Document as at the date of this deed, other than as a result
of minor procedural or administrative changes arising in the
ordinary course of the administration of the Senior Debt;
(c) agree to or take any action which would make any principal
or interest or other amount payable under any Senior Finance
Document on a date earlier or more frequently than that
provided in the relevant Senior Finance Document at the date
of this deed, other than (i) as a result of procedural or
administrative changes arising in the ordinary course of the
administration of the Senior Debt or (ii) as a result of a
Senior Default;
(d) agree to or take any action to amend any Senior Finance
Document which would result in any Obligor being subject to
more onerous obligations (including financial covenants) as
a whole than those existing at the date of this deed or
which would conflict with any provision of this deed;
(e) agree to or take any action which would be a waiver or
release of any mandatory prepayment obligation under clauses
6.1 or 6.2 (Compulsory and Voluntary Repayment, Market
Disruption and Cancellation) of the Senior Credit Agreement;
or
(f) charge, assign or otherwise transfer rights and/or
obligations under any Senior Finance Document unless,
simultaneously with that charge, assignment or transfer, the
relevant transferee agrees to be bound by the provisions of
this deed by entering into a Creditor Accession Deed.
4.2 Limits on priority of Senior Debt
(a) The Senior Finance Parties may make available New Money
Commitments without the prior consent of the Mezzanine
Facility Agent or any other person provided that such New
Money Commitments are made available under the Senior Credit
Agreement by way of increasing the principal amount
thereunder.
(b) If and to the extent that:-
(i) the total principal amount of the New Money
Commitments exceeds SEK150,000,000; and/or
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(ii) any principal amount of the New Money Commitments
has a scheduled repayment date later than the
sixth anniversary of the date of this deed;
then that excess and/or extended indebtedness will be
"Deferred Senior Debt" for the purpose of this deed.
5. MEZZANINE DEBT
5.1 Prohibited payments, guarantees and security
Subject to clause 5.2 (Permitted payments), until after the Senior
Discharge Date:-
(a) no Obligor will, and each Obligor will procure that none of
its Subsidiaries will, make, and no Mezzanine Finance Party
will receive, any payment or distribution of any kind
whatsoever in respect or on account of the Mezzanine Debt;
and
(b) no Obligor will, and each Obligor will procure that none of
its Subsidiaries will, create or permit to subsist, and no
Mezzanine Finance Party will receive from any Group Company,
any Encumbrances over any asset of any Group Company or give
or permit to subsist any guarantee in respect of any part of
the Mezzanine Debt other than under the Security Documents
or the Mezzanine Credit Agreement,
in each case, without the prior consent of the Facility Agent.
5.2 Permitted payments
Subject to clause 5.3 (Suspension of permitted payments), the Obligors
may pay interest on the principal amount of the Mezzanine Debt
together with any other amounts (including legal fees and taxes but
not including any element of principal) under the Mezzanine Finance
Documents (as in force at the date of this deed subject to any
amendments which are permitted by this deed).
5.3 Suspension of permitted payments
No payment which would otherwise be permitted under clause 5.2
(Permitted payments) may be made without the prior consent of the
Facility Agent if a Major Senior Default has occurred and the
Mezzanine Facility Agent has received a corresponding Default Notice
from the Facility Agent until the earliest of:-
(a) the date on which the Mezzanine Facility Agent receives
notice from the Facility Agent that the relevant Major
Senior Default has been waived or remedied;
(b) the Senior Discharge Date; and
(c) subject to clause 5.8(b) the date on which a Mezzanine
Finance Party takes Enforcement Action permitted by clauses
5.5 (Permitted Enforcement Action).
5.4 Restrictions on Enforcement Action
Subject to clause 5.5 (Permitted Enforcement Action), until after the
Senior Discharge Date, no Mezzanine Finance Party may take Enforcement
Action in relation to any Mezzanine Debt without the prior consent of
the Facility Agent.
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5.5 Permitted Enforcement Action
The restriction in clause 5.4 (Restrictions on Enforcement Action)
will not apply to the Mezzanine Finance Parties if:-
(a) an Insolvency Event has occurred in respect of:
(i) the Parent; or
(ii) any of the Principal Companies and the Mezzanine
Facility Agent has obtained a valuation and made
the determination in each case as contemplated by
and in accordance with clause 5.5(d)(iii),
and in each case for so long as it is continuing;
(b) the Senior Lenders or the Facility Agent demand payment of
or prematurely declare payable all or part of the Senior
Debt owed to them, except that in these circumstances the
Mezzanine Finance Parties may only exercise the rights set
out in paragraph (a)(i) of the definition of Enforcement
Action in clause 1.1 (Definitions);
(c) the Majority Senior Creditors have enforced or instructed
the Security Agent to enforce the security conferred by any
Security Document; or
(d) a Mezzanine Default (the "Relevant Mezzanine Default") has
occurred (otherwise than under clause 10.1(h) (Default) of
the Mezzanine Credit Agreement by reason of a Senior
Default) and:-
(i) the Facility Agent has received a corresponding
Default Notice from the Mezzanine Facility Agent;
(ii) a period of not less than:
(A) 60 days in the case of a Mezzanine
Payment Default;
(B) 90 days in the case of any Mezzanine
Default under clause 10.1(b) of the
Mezzanine Credit Agreement occurring by
reason of a breach of the financial
covenants contained in clauses 13.1(f)
to (j) of the Mezzanine Credit Agreement
unless the continuing payment of
interest under clause 3 of the Mezzanine
Credit Agreement has been approved by
the Senior Lenders by notice in writing
from the Facility Agent to the Mezzanine
Facility Agent;
(C) 90 days in the case of any Major
Mezzanine Default; or
(D) 120 days in the case of any Other
Mezzanine Default,
has passed from the date of receipt by the
Facility Agent of the relevant Default Notice (a
"Standstill Period");
(iii) the Mezzanine Facility Agent:
(A) has obtained from an independent
investment bank and/or firm of
accountants, in each case of
international standing, a valuation of
the Guarantor's Group;
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(B) provided a copy of that valuation to the
Facility Agent; and
(C) on the basis of that valuation
determines (acting reasonably) having
consulted with the Facility Agent (also
acting reasonably) that the value of the
Guarantor's Group if sold or otherwise
disposed of at that time at the value
shown in the valuation would be
sufficient to repay the Senior Debt in
full and to repay in whole or in part
the Mezzanine Debt; and
(iv) at the end of the relevant Standstill Period, the
Relevant Mezzanine Default is continuing and has
not been waived by the Majority Mezzanine Lenders.
5.6 Subsequent Mezzanine Defaults
The Mezzanine Finance Parties will have the right to take Enforcement
Action under clause 5.5 (Permitted Enforcement Action) in relation to
a Relevant Mezzanine Default notwithstanding that, at the time
referred to in clause 5.5(d)(ii) (Permitted Enforcement Action) or at
any later time, another Standstill Period has commenced as a result of
a further Mezzanine Default.
5.7 Financial covenant defaults
For the purposes of clause 5.5(d)(ii) (Permitted Enforcement Action),
if the Relevant Mezzanine Default arose as a result of a breach of the
financial covenants contained in clauses 13.1(f) to (j) of the
Mezzanine Credit Agreement, it will be deemed remedied if the Parent
has re-established compliance with all the provisions of clauses
13.1(f) to (j) as if the date (being the date on which compliance with
such financial covenants was tested in accordance with the Mezzanine
Credit Agreement) at which the covenant was in fact breached was
deemed postponed to fall immediately prior to the point in time the
Mezzanine Finance Parties (or any of them) propose to take Enforcement
Action. For the avoidance of doubt, nothing in this clause 5.7 will
prevent the Mezzanine Finance Parties from implementing the provisions
of clause 5.5 (Permitted Enforcement Action) in respect of subsequent
breaches of clauses 13.1(f) to (j) occurring after such full
compliance has been re-established.
5.8 Turnover
If at any time on or before the Senior Discharge Date:-
(a) any Mezzanine Finance Party receives or recovers a payment
or distribution of any kind whatsoever in respect or on
account of any Mezzanine Debt which is not permitted by
clause 5.2 (Permitted payments);
(b) any Mezzanine Finance Party receives or recovers proceeds
pursuant to any Enforcement Action;
(c) any Group Company makes any payment or distribution of any
kind whatsoever in relation to the purchase or other
acquisition of any Mezzanine Debt; or
(d) any Mezzanine Debt is discharged by set-off, combination of
accounts or otherwise,
the recipient or beneficiary of that payment, distribution, set-off or
combination will promptly pay all amounts and distributions received
to the Security Agent for application under clause 10.1 (Application)
after deducting the costs, liabilities and expenses (if any)
reasonably incurred in recovering or receiving that payment or
distribution and, pending that payment, will hold those amounts and
distributions on trust for the Security Agent.
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5.9 No reduction or discharge
As between the Obligors and the Mezzanine Finance Parties, the
Mezzanine Debt will be deemed not to have been reduced or discharged
to the extent of any payment or distribution to the Security Agent
under clause 5.8 (Turnover).
5.10 Indemnity
The Obligors party to this deed will fully indemnify each Mezzanine
Finance Party upon demand for the amount of any payment or
distribution to the Security Agent under clause 5.8 (Turnover).
5.11 Subrogation of Mezzanine Lenders
(a) If the Senior Debt is wholly or partially paid out of any
proceeds received in respect or on account of the Mezzanine
Debt owing to one or more of the Mezzanine Finance Parties,
those Mezzanine Finance Parties will to that extent be
subrogated to the rights of the Senior Lenders in respect of
the Senior Debt so paid, including all Encumbrances and
guarantees for that Senior Debt, but the Mezzanine Finance
Parties may not exercise those subrogation rights on or
before the Senior Discharge Date without the prior written
consent of the Facility Agent.
(b) Each Senior Finance Party will give such assistance to the
Mezzanine Finance Parties as the Mezzanine Facility Agent
and/or the Security Agent may reasonably require in
exercising those rights of subrogation (to the extent
possible under applicable law), provided that each such
Senior Finance Party is indemnified on demand to its
reasonable satisfaction by the Mezzanine Finance Parties
against any costs, expenses and liabilities that it incurs
in relation to giving that assistance.
5.12 Amendments to Mezzanine Finance Documents
Until after the Senior Discharge Date, no Obligor and each Obligor
will procure that none of its Subsidiaries will nor any Mezzanine
Finance Party will, without the prior written consent of the Facility
Agent:-
(a) agree to or take any action which would increase the rate of
interest payable under any Mezzanine Finance Document or
otherwise increase the cost to the Obligors of the Mezzanine
Debt other than as contemplated by the terms of the
Mezzanine Credit Agreement as at the date of this deed
(including under clauses 7 (Indemnity) and 8 (Payments) of
the Mezzanine Credit Agreement);
(b) change the basis on which interest or other amount
(including fees) is calculated under any Mezzanine Finance
Document, other than as a result of minor procedural or
administrative changes arising in the ordinary course of the
administration of the Mezzanine Debt;
(c) agree to or take any action which would make any principal
or interest or other amount payable under any Mezzanine
Finance Document on a date earlier or more frequently than
that provided in the relevant Mezzanine Finance Document at
the date of this deed, other than (i) as a result of minor
procedural or administrative changes arising in the ordinary
course of the administration of the Mezzanine Debt, or (ii)
Enforcement Action permitted in accordance with clause 5.5
(Permitted Enforcement Action);
(d) agree to or take any action to amend any Mezzanine Finance
Document which would result in any Obligor being subject to
more onerous obligations (including financial covenants) as
a
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whole than those existing at the date of this deed or which
would conflict with any provision of this deed; or
(e) charge, assign or otherwise transfer rights and/or
obligations under any Mezzanine Finance Document, unless
simultaneously with that charge, assignment or transfer the
relevant transferee agrees to be bound by the provisions of
this deed by entering into a Creditor Accession Deed.
5.13 Limits on Priority of Mezzanine Debt:
If and to the extent that:
(a) the total principal amount of the Mezzanine Debt exceeds
SEK150,000,000;
(b) any principal amount of the Mezzanine Debt has a scheduled
repayment date later than the Final Maturity Date (as
defined in the Vendor Loan Agreement as at the date of this
deed),
then that excess and/or extended indebtedness will be the "Deferred
Mezzanine Debt" for the purpose of this deed.
6. SUBORDINATED DEBT
6.1 Prohibited payments, guarantees and security
Subject to clause 6.2 (Permitted payments), until after the Final
Discharge Date:-
(a) no Obligor will, and each Obligor will procure that none of
its Subsidiaries will, make, and no Subordinated Lender will
receive, any payment or distribution of any kind whatsoever
in respect or on account of the Subordinated Debt; and
(b) no Obligor will, and each Obligor will procure that none of
its Subsidiaries will, create or permit to subsist, and no
Subordinated Lender will receive from any Group Company, any
Encumbrance over any asset of any Group Company or give or
permit to subsist any guarantee in respect of any part of
the Subordinated Debt,
in each case, without the prior consent of the Mezzanine Facility
Agent and (if on or before the Senior Discharge Date) the Facility
Agent.
6.2 Permitted payments
Subject to clause 6.3 (Suspension of permitted payments), the Obligors
may pay interest on the principal amount of the Subordinated Debt.
6.3 Suspension of permitted payments
No payment which would otherwise be permitted under clause 6.2
(Permitted payments) may be made without the prior consent of the
Mezzanine Facility Agent and (if on or before the Senior Discharge
Date) the Facility Agent, if a Major Senior Default, a Major Mezzanine
Default, an Other Mezzanine Default but only in relation to any of
clauses 12.1(h) and (j) and 13.1(c) and (l) and/or a Mezzanine Default
in relation to any of clauses 13.1(f), (g), (h), (i) and (j) of the
Mezzanine Credit Agreement has occurred until the earliest of:
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(a) the date on which the Subordinated Lenders receive notice
from each of the Facility Agent and the Mezzanine Facility
Agent that:
(i) the relevant Default has been waived or remedied;
and
(ii) the Parent has demonstrated at any time thereafter
to the satisfaction of the Agents (acting
reasonably) that:
(A) if the relevant Default(s) arose as a
result of a breach of the financial
covenants contained in clauses 14.1(f)
to (j) of the Senior Credit Agreement
and/or clauses 13.1(f) to (j) of the
Mezzanine Credit Agreement, it has
re-established compliance with all the
provisions of clause 14.1(f) to (j) of
the Senior Credit Agreement and/or
clause 13.1(f) to (j) of the Mezzanine
Credit Agreement (as the case may be);
(B) all the provisions of clauses 14.1(f) to
(i) of the Senior Credit Agreement and
clauses 13.1(f) to (i) of the Mezzanine
Credit Agreement will be complied with,
in the case of clauses 14.1(f), (g) and
(i) of the Senior Credit Agreement and
clauses 13.1(f), (g) and (i) of the
Mezzanine Credit Agreement for the then
current financial year and in the case
of clause 14.1(h) of the Senior Credit
Agreement and clause 13.1(h) of the
Mezzanine Credit Agreement for the then
current quarter and each subsequent
quarter remaining in that financial
year;
(C) in the event that there is any dispute
between either of the Agents and the
Parent as to whether the clauses
referred to in paragraphs (A) and (B)
above have been or will be complied with
as referred to in those paragraphs, such
dispute shall be referred to the
Parent's auditors and the parties to
this agreement agree that any
determination of the Parent's auditors
as to such compliance will be conclusive
and binding on such parties except in
the case of manifest error;
(b) the Final Discharge Date.
6.4 Restrictions on Enforcement Action
Subject to clause 6.5 (Permitted Enforcement Action), until after the
Final Discharge Date, no Subordinated Lender may take Enforcement
Action in relation to any Subordinated Debt without the prior consent
of the Mezzanine Facility Agent and (if on or before the Senior
Discharge Date) the Facility Agent.
6.5 Permitted Enforcement Action
The restriction in clause 6.4 (Restrictions on Enforcement Action)
will not apply to the Subordinated Lenders if:
(a) no Default is continuing which has not been waived or
remedied; and
(b) the Parent has failed to pay interest in respect of the
Subordinated Debt in accordance with clause 6 of the Vendor
Loan Agreement,
except that in these circumstances the Subordinated Lenders may only:
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(i) demand, claim and commence legal proceedings
against the Parent in respect of the amount of
such interest; and
(ii) file claims and proofs upon the occurrence of an
Insolvency Event in relation to the Parent;
6.6 Turnover
If at any time on or before the Final Discharge Date:-
(a) any Subordinated Lender receives or recovers a payment or
distribution of any kind whatsoever in respect or on account
of any Subordinated Debt which is not permitted by clause
6.2 (Permitted payments);
(b) any Subordinated Lender receives or recovers proceeds
pursuant to any Enforcement Action;
(c) any Group Company makes any payment or distribution of any
kind whatsoever in respect or on account of the purchase or
other acquisition of any Subordinated Debt; or
(d) any Subordinated Debt is discharged by set-off, combination
of accounts or otherwise,
the recipient or beneficiary of that payment, distribution, set-off or
combination will promptly pay all amounts and distributions received
to the Security Agent for application under clause 10.1 (Application)
after deducting the costs, liabilities and expenses (if any)
reasonably incurred in recovering or receiving that payment or
distribution and, pending that payment, will hold those amounts and
distributions on trust for the Security Agent.
6.7 No reduction or discharge
As between the Obligors and the Subordinated Lender, the Subordinated
Debt will be deemed not to have been reduced or discharged to the
extent of any payment or distribution to the Security Agent under
clause 6.6 (Turnover).
6.8 Indemnity
The Obligors party to this deed will fully indemnify each Subordinated
Lender upon demand for the amount of any payment or distribution to
the Security Agent under clause 6.6 (Turnover).
6.9 No subrogation of Subordinated Lenders
The Subordinated Lenders will not in any circumstances be subrogated
to any right of the Senior Lenders or the Mezzanine Lenders or any
Encumbrance or guarantee arising under the Finance Documents.
6.10 Amendments to Subordinated Documents
No Obligor and each Obligor will procure that its Subsidiaries will
not nor any Subordinated Lender will, on or before the Final Discharge
Date, without the prior written consent of the Mezzanine Facility
Agent and (if on or before the Senior Discharge Date) the Facility
Agent:-
(a) agree to or take any action which would make any principal,
interest, distribution or other sum payable under any
Subordinated Document on a date earlier or more frequently
than that provided in the relevant Subordinated Document at
the date of this deed;
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(b) agree to or take any action to amend any Subordinated
Document which would result in any Obligor being subject to
more onerous obligations (including financial covenants) as
a whole than those existing at the date of this deed or
which would conflict with any provision of this deed; or
(c) charge, assign or otherwise transfer rights and/or
obligations under any Subordinated Document, unless
simultaneously with that charge, assignment or transfer the
relevant transferee agrees to be bound by the provisions of
this deed by entering into a Creditor Accession Deed;
6.11 Limits on Priority of Subordinated Debt:
If and to the extent that:
(a) the total principal amount of the Subordinated Debt
exceeds(pound)20,000,000;
(b) any principal amount of the Subordinated Debt has a
scheduled repayment date later than the Final Maturity Date
(as defined in the Vendor Loan Agreement as at the date of
this deed),
then that excess and/or extended indebtedness will be "Deferred
Subordinated Debt" for the purposes of this deed.
7. PRIORITY OF SECURITY
7.1 Senior Debt and Mezzanine Debt
All security conferred on the Finance Parties by the relevant Security
Documents will for all purposes and at all times:-
(a) secure the Senior Debt in priority to the Mezzanine Debt;
and
(b) rank as security for the Senior Debt in priority to the
security for the Mezzanine Debt, regardless of the date or
order of registration or execution of the relevant Security
Document.
8. ENFORCEMENT OF SECURITY
8.1 Enforcement on or before Senior Discharge Date
Until after the Senior Discharge Date, the Security Agent shall act in
relation to the Security Documents in accordance with the instructions
of the Majority Senior Creditors which shall override any conflicting
instructions given by or on behalf of the Majority Mezzanine Lenders,
provided that where, under clause 5.5 (Permitted Enforcement Action)
the Mezzanine Finance Parties are permitted to take Enforcement Action
and the Senior Finance Parties have taken no Enforcement Action in
relation to the Security Documents, the Security Agent shall act in
accordance with the instructions of the Majority Mezzanine Lenders in
relation to the relevant Security Documents.
8.2 Enforcement after Senior Discharge Date
After the Senior Discharge Date but until after the Mezzanine
Discharge Date, the Security Agent shall act in accordance with the
instructions of the Majority Mezzanine Lenders in relation to the
Security Documents.
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8.3 Exemption
No Senior Finance Parties shall be responsible to the Mezzanine
Finance Parties or the Subordinated Lenders, and no Mezzanine Finance
Party shall be responsible to the Subordinated Lenders (as the case
may be), for any instructions given or not given to the Security Agent
in relation to the Security Documents, provided in each case they act
in good faith.
8.4 Authority of Security Agent
(a) If in connection with any Enforcement Action:-
(i) the Security Agent sells or otherwise disposes of
(or proposes to sell or otherwise dispose of) any
asset under any Security Document; or
(ii) a Group Company sells or otherwise disposes of (or
proposes to sell or otherwise dispose of) any
asset at the request of the Security Agent,
the Security Agent is hereby authorised by each Creditor:-
(A) to release in any manner whatsoever any
Encumbrance created by the Security
Documents over the relevant asset; and
(B) (if the relevant asset comprises all of
the shares in the capital of a Group
Company) to release in any manner
whatsoever that Group Company from all
past, present and future liabilities
(both actual and contingent) and/or the
obligations in its capacity as a
guarantor or borrower of the whole or
any part of the Debt and to release any
Encumbrance granted by that Group
Company over any asset under any
Security Document.
(b) Each Creditor hereby undertakes in favour of the Security
Agent to execute any releases or other documents and take
any action which the Security Agent may reasonably require
in order to give effect to the provisions of clause 8.4(a).
(c) The release of any Group Company as contemplated in clause
8.4(a) will not affect or otherwise reduce the obligations
and/or liabilities of any other Group Company to the
Creditors.
9. SUBORDINATION ON INSOLVENCY
9.1 Subordination
Upon the occurrence of an Insolvency Event in relation to an Obligor,
the claims against that Obligor:-
(a) in respect of Priority Mezzanine Debt will be subordinate in
right of payment to the claims against that Obligor in
respect of Priority Senior Debt;
(b) in respect of Priority Subordinated Debt will be subordinate
in right of payment to the claims against that Obligor in
respect of Priority Senior Debt and Priority Mezzanine Debt;
(c) in respect of Deferred Senior Debt will be subordinate in
right of payment to the claims against that Obligor in
respect of Priority Senior Debt, Priority Mezzanine Debt and
Priority Subordinated Debt;
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(d) in respect of Deferred Mezzanine Debt will be subordinate in
right of payment to the claims against that Obligor in
respect of Priority Senior Debt, Priority Subordinated Debt,
and Deferred Senior Debt;
(e) in respect of Deferred Subordinated Debt will be subordinate
in right of payment to the claims against that Obligor in
respect of Priority Senior Debt, Priority Mezzanine Debt,
Priority Subordinated Debt, Deferred Senior Debt and
Deferred Mezzanine Debt.
Nothing in this Deed shall be interpreted to the effect that the Debt
(or any part thereof) shall rank after such other unsecured debt as an
Obligor may have from time to time
9.2 Distributions
Upon the occurrence of an Insolvency Event in relation to an Obligor,
the trustee in bankruptcy, liquidator, assignee or other person
distributing the assets of that Obligor or their proceeds shall be
directed by the Mezzanine Finance Parties and the Subordinated Lenders
to pay distributions of any kind in relation to the Mezzanine Debt and
the Subordinated Debt respectively direct to the Security Agent until
the Senior Debt and the Mezzanine Debt are paid in full.
10. APPLICATION OF RECOVERIES
10.1 Application
All proceeds of enforcement of the security conferred by the Security
Documents, all recoveries by the Security Agent under guarantees of
the Debt and all amounts paid to the Security Agent under this deed
(whether under the turnover provisions or otherwise) shall be applied
in the following order:-
(a) first, in payment of unpaid fees, costs and expenses
(including interest on them recoverable under the Security
Documents) incurred by or on behalf of the Security Agent
(and any receiver, adviser or agent appointed by it) and the
remuneration of the Security Agent and its advisers and
agents under the Security Documents;
(b) second, in payment of unpaid costs and expenses incurred by
or on behalf of the Senior Finance Parties in connection
with enforcement of the Security Documents;
(c) third, in payment to the Facility Agent for application
towards unpaid and outstanding Priority Senior Debt
(including amounts due to the Facility Agent);
(d) fourth, in payment of unpaid costs and expenses incurred by
or on behalf of the Mezzanine Finance Parties in connection
with enforcement of the Mezzanine Security Documents;
(e) fifth, in payment to the Mezzanine Facility Agent for
application towards unpaid and outstanding Priority
Mezzanine Debt (including amounts due to the Mezzanine
Facility Agent);
(f) sixth, in payment to the Subordinated Lenders for
application towards unpaid and outstanding Priority
Subordinated Debt;
(g) seventh, in payment to the Facility Agent for application
towards outstanding Deferred Senior Debt; and
(h) eighth, in payment to the Mezzanine Facility Agent for
application towards outstanding Deferred Mezzanine Debt;
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(i) ninth, in payment to the Subordinated Lenders for
application towards outstanding Deferred Subordinated Debt;
(j) tenth, in payment of the surplus (if any) to the relevant
Obligors or other person entitled to it,
and pending that application shall be held on trust by the Security
Agent for the beneficiaries entitled to it.
10.2 Appropriations
Each Senior Finance Party (until after the Senior Discharge Date) and
each Mezzanine Finance Party (until after the Mezzanine Discharge
Date) may (subject in each case to the provisions of this deed and the
other Finance Documents):-
(a) apply any moneys received under this deed to any item of
account or liability in respect of the Senior Debt and the
Mezzanine Debt (as the case may be) in any order or manner
which it may determine; and
(b) hold any moneys received under this deed in a suspense
account (bearing interest at a market rate usual for
accounts of that type) unless and until those moneys are
sufficient in aggregate in order to bring about the Senior
Discharge Date or the Mezzanine Discharge Date (as the case
may be).
11. PROTECTION OF SUBORDINATION
11.1 Continuing subordination
The subordination provisions in this deed constitute a continuing
subordination and benefit to the ultimate balance of the Senior Debt
and the Mezzanine Debt respectively regardless of any intermediate
payment or discharge of the Senior Debt or the Mezzanine Debt (as the
case may be) in whole or in part.
11.2 Waiver of defence
The subordination and priority provisions in this deed will not be
affected by any act, omission or circumstance which (but for this
provision) may operate to release or otherwise exonerate the Mezzanine
Finance Parties, the Subordinated Lenders, and/or the Obligors from
their obligations under this deed or otherwise affect those
subordination and priority provisions, including:-
(a) any time or indulgence granted to or composition with any
Obligor or any other person;
(b) the taking, amendment, compromise, renewal or release of or
refusal to enforce any rights, remedies or securities
against or granted by any Obligor or other Group Company or
any other person;
(c) any legal limitation, disability, incapacity or other
circumstance relating to any Obligor or any other person or
any amendment to the terms of this deed or any other
document or security (including the Finance Documents and
the Subordinated Documents); or
(d) any fluctuation in or partial repayment or prepayment of the
Senior Debt or the Mezzanine Debt.
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12. STATUS OF OBLIGORS
12.1 Obligors' role
Each Obligor, and Subordinated Lender is party to this deed in order
to acknowledge the priorities, rights and obligations set out in this
deed and undertakes not to take or agree to take any action which may
in any way prejudice or affect the enforcement of the provisions of
this deed or do anything which would be inconsistent with any
provision of this deed.
12.2 No rights
No Obligor, or (other than as expressly set out in this agreement)
Subordinated Lender shall have any rights under this deed and none of
the undertakings in this deed on the part of the Senior Finance
Parties or the Mezzanine Finance Parties are given (or deemed to be
given) to or for the benefit of any Obligor, or Subordinated Lender.
13. CONSENTS AND WAIVERS UNDER FINANCE DOCUMENTS
13.1 Senior consents
If a Senior Finance Party or the Majority Senior Creditors (as the
case may be) give a consent or waive a right under or in relation to
any Senior Finance Document in circumstances where the relevant
Obligor is required to obtain a corresponding consent or waiver under
or in relation to the provisions of any Subordinated Document, that
consent or waiver, if given under the relevant Senior Finance
Document, shall automatically operate as a consent or waiver (as the
case may be) given under the relevant Subordinated Document.
13.2 Mezzanine consents
If a Mezzanine Finance Party or the Majority Mezzanine Lenders (as the
case may be) give a consent or waive a right under or in relation to
any Mezzanine Finance Document in circumstances where the relevant
Obligor is required to obtain a corresponding consent or waiver under
or in relation to the provisions of any Subordinated Document, that
consent or waiver, if given under the relevant Mezzanine Finance
Document, shall automatically operate as a consent or waiver (as the
case may be) given under the relevant Subordinated Document.
14. REPRESENTATIONS AND WARRANTIES
Each party to this deed represents and warrants to and for the benefit
of each of the other parties to this deed that it:-
(a) is duly established and (if a company) duly incorporated and
validly existing with limited liability under the laws of
the place of its incorporation and has the power to own its
assets and carry on its business;
(b) has the power and capacity to enter into and comply with its
obligations under this deed; and
(c) has taken all necessary action:-
(i) to authorise the entry into and compliance with
its obligations under this deed;
(ii) to ensure that its obligations under this deed are
valid, legally binding and enforceable in
accordance with their terms; and
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(iii) to make this deed admissible in evidence in the
courts of England.
15. INFORMATION AND CO-OPERATION
15.1 Defaults
Upon the Facility Agent or the Mezzanine Facility Agent becoming aware
of the occurrence of a Default, that Agent will promptly notify the
other Agent in writing of that Default (a "Default Notice") and will
promptly notify the Vendor (but excluding for this purpose any
Transferee of the Vendor) in writing of that Default;
15.2 Waiver of Defaults
Upon the waiver or remedy of a Default in accordance with the Finance
Documents, the Facility Agent or the Mezzanine Facility Agent (as the
case may be) will promptly notify the other Agent, and the Vendor (but
excluding for this purpose any Transferee of the Vendor) in writing of
that waiver or remedy.
15.3 Other Information
The Parent (on behalf of itself and each other Group Company)
authorises each Creditor to disclose to each other Creditor all
information relating to it or the Guarantor's Group and/or the
Borrower's Group in each case as a whole coming into the possession of
that Creditor in connection with any Finance Document or Subordinated
Document (including the respective amounts of Debt outstanding from
time to time).
15.4 Co-operation
Each party to this deed undertakes to use all reasonable endeavours to
ensure that any and all Encumbrances now or in the future held or
obtained from any Group Company in relation to the Senior Debt or the
Mezzanine Debt shall be constituted by the relevant Security
Documents.
15.5 Consultation
The Agents shall, so far as practicable in the circumstances, consult
with each other:-
(a) before taking any formal steps to exercise any remedy
against any Group Company or take other Enforcement Action;
and
(b) generally with regard to significant matters affecting the
rights of the parties as regulated by this deed, but nothing
in this clause 15.5 or elsewhere in this deed will
invalidate or otherwise affect any action or step taken
without any such consultation,
provided that if either Agent fails to consult with the other Agent no
party to this deed shall have any recourse whatsoever to such Agent as
a result of such failure whether by the commencement of legal
proceedings or otherwise.
15.6 Ranking overseas
Each party to this deed undertakes to use all reasonable endeavours to
ensure that the provisions of this deed as to the relative ranking of
priorities and subordination as between the Creditors shall be given
effect to in all relevant jurisdictions.
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15.7 Notification of breach
Each party to this deed will notify each Agent and the Subordinated
Lenders of any breach of the provisions of this deed promptly upon
that party becoming aware of that breach.
16. ATTORNEY
16.1 Facility Agent
Each Mezzanine Finance Party, and each Subordinated Lender irrevocably
and by way of security appoints the Facility Agent as its attorney
(with full power of substitution and delegation) in its name and on
its behalf to do anything which it has authorised the Security Agent
to do under this deed and/or is required and legally able to do under
this deed but has failed to do.
16.2 Mezzanine Facility Agent
Each Subordinated Lender, and each Obligor irrevocably and by way of
security appoints the Mezzanine Facility Agent as its attorney (with
full power of substitution and delegation) in its name and on its
behalf to do anything which it has authorised the Mezzanine Facility
Agent or the Security Agent to do under this deed and/or is required
and legally able to do under this deed but has failed to do, provided
that the Mezzanine Facility Agent shall not exercise or purport to
exercise that power until after the Senior Discharge Date without the
prior written consent of the Facility Agent.
17. APPOINTMENT AND DUTIES OF SECURITY AGENT
17.1 Appointment
(a) Each Finance Party:-
(i) appoints Svenska Handelsbanken AS (publ) as
Security Agent to act as its security agent for
the purposes of the relevant Security Documents
and this deed; and
(ii) irrevocably authorises the Security Agent for and
on its behalf to exercise the rights, powers and
discretions which are specifically delegated to it
by the terms of the Security Documents and this
deed, together with all rights, powers and
discretions which are incidental thereto and to
give a good discharge for any moneys payable under
the Security Documents.
(b) The Security Agent will act solely as agent for the Finance
Parties in carrying out its functions as agent under the
relevant Security Documents and this deed and will exercise
the same care as it would in dealing with a credit for its
own account.
(c) The relationship between the Finance Parties and the
Security Agent is that of principal and agent only. The
Security Agent shall not have, nor be deemed to have,
assumed any obligations to, or trust or fiduciary
relationship with, any party to this deed other than those
for which specific provision is made by the Security
Documents and this deed.
17.2 Security Agent's duties
The Security Agent shall:-
(a) send to each Beneficiary details of each communication
delivered to it by an Obligor for that Beneficiary under
this deed or any Security Document as soon as reasonably
practicable after receipt;
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(b) subject to those provisions of this deed which require the
consent of all Beneficiaries or all of a particular category
of the Beneficiaries, act in accordance with any
instructions given as provided in clause 8 (Enforcement of
security) or, if so instructed under clause 8 (Enforcement
of security), refrain from exercising a right, power or
discretion vested in it under this deed or any Security
Document; and
(c) have only those duties, obligations and responsibilities
expressly specified in this deed or the Security Documents.
17.3 Communications and information
All communications to an Obligor in connection with the Security
Documents are to be made by or through the Security Agent. Each
Beneficiary will notify the Security Agent of, and provide the
Security Agent with a copy of, any communication between that
Beneficiary, an Obligor or any other Finance Party on any matter
concerning this deed or the Security Documents.
17.4 Termination and resignation of Security Agent
(a) The Security Agent may resign its appointment at any time by
giving notice to the Beneficiaries and the Parent.
(b) A successor Security Agent shall be selected:-
(i) by the retiring Security Agent nominating one of
its Affiliates following consultation with the
Parent as successor Security Agent in its notice
of resignation;
(ii) if the retiring Security Agent makes no such
nomination, by the Beneficiaries nominating a
Beneficiary acting through an office in Sweden as
successor Security Agent (following consultation
with the Parent); or
(iii) if the Beneficiaries have failed to nominate a
successor Security Agent within 30 days of the
date of the retiring Security Agent's notice of
resignation, by the retiring Security Agent
(following consultation with the Parent)
nominating a financial institution of good
standing acting through an office in Sweden to be
the successor Security Agent.
(c) The Majority Senior Creditors may and (after the Senior
Discharge Date) the Majority Mezzanine Lenders may, at any
time with the consent of the Parent (such consent not to be
unreasonably withheld or delayed) by 30 days prior notice to
the Security Agent and the Parent terminate the appointment
of the Security Agent and appoint a successor Security
Agent.
(d) The resignation of the retiring Security Agent and the
appointment of the successor Security Agent will become
effective only upon the successor Security Agent accepting
its appointment as Security Agent, and upon the execution of
all deeds and documents necessary to substitute the
successor as holder of the security comprised in the
Security Documents, at which time:-
(i) the successor Security Agent will become bound by
all the obligations of the Security Agent and
become entitled to all the rights, privileges,
powers, authorities and discretions of the
Security Agent under this deed;
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(ii) the agency of the retiring Security Agent will
terminate (but without prejudice to any
liabilities which the retiring Security Agent may
have incurred prior to the termination of its
agency);
(iii) the retiring Security Agent will be discharged
from any further liability or obligation under or
in connection with this deed or the Security
Documents.
(e) The retiring Security Agent will co-operate with the
successor Security Agent in order to ensure that its
functions are transferred to the successor Security Agent
without disruption to the service provided to the
Beneficiaries and the Parent and will promptly make
available to the successor Security Agent the documents and
records which have been maintained in connection with this
deed and the Security Documents in order that the successor
Security Agent is able to discharge its functions.
(f) The provisions of this deed will continue in effect for the
benefit of any retiring Security Agent in respect of any
actions taken or omitted to be taken by it or any event
occurring before the termination of its agency.
17.5 Role of the Security Agent
The Security Agent and the Beneficiaries will apply all payments and
other benefits received by it under the relevant Security Documents in
accordance with this deed.
17.6 Change of office of Security Agent
The Security Agent may at any time in its sole discretion by notice to
each Beneficiary and the Parent designate a different office in Sweden
from which its duties as Security Agent will be performed from the
date of notification.
18. COSTS AND EXPENSES
18.1 Indemnity
The Obligors party to this deed will indemnify each of the Creditors
on demand from and against any loss which any such party may incur in
connection with the negotiation, preparation, execution, amendment,
release and/or enforcement or attempted enforcement of, or
preservation of any such parties rights' under this deed, including
any present or future stamp or other taxes or duties and any penalties
or interest with respect thereto which may be imposed by any competent
jurisdiction in connection with the execution or enforcement of this
deed or in consequence of any payment being made under this deed
(whether made by an Obligor or a third person) being impeached or
declared void for any reason whatsoever.
18.2 Interest
Amounts payable under clause 18.1 (Indemnity) which are not paid on
demand shall carry default interest at the Default Rate both before
and after judgment, from the date of demand and shall form part of the
relevant Debt. All such default interest shall be compounded with
monthly rests.
19. NOTICES
19.1 Mode of service
(a) Except as specifically provided otherwise in this deed, any
notice, demand, consent, agreement or other communication (a
"Notice") to be served under or in connection with this
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deed will be in writing and will be made by letter or by
facsimile transmission to the party to be served.
(b) The address and facsimile number of each party to this deed
for the purposes of clause 19.1(a) are:-
(i) the address and facsimile number shown immediately
after its name on the signature pages of this deed
(in the case of any person who is a party as at
the date of this deed);
(ii) the address and facsimile number notified by that
party for this purpose to the Security Agent on or
before the date it becomes a party to this deed
(in the case of any person who becomes a party
after the date of this deed); or
(iii) any other address and facsimile number notified by
that party for this purpose to the Security Agent
by not less than five Business Days' notice.
(c) Any Notice to be served by any Obligor on a Finance Party
will be effective only if it is expressly marked for the
attention of the department or officer (if any) specified in
conjunction with the relevant address and facsimile number
referred to in clause 19.1(b).
19.2 Deemed service
(a) Subject to clause 19.2(b), a Notice will be deemed to be
given as follows:-
(i) if by letter, when delivered personally or on
actual receipt; and
(ii) if by facsimile, when delivered.
(b) A Notice given under clause 19.2(a) but received on a
non-working day or after business hours in the place of
receipt will only be deemed to be given on the next working
day in that place.
20. CHANGES TO PARTIES
20.1 Assignment and transfers by the Obligors
No Obligor may assign or transfer all or any part of its rights,
benefits or obligations under this deed.
20.2 Assignments and transfers by Creditors
(a) A Creditor (in this capacity the "Transferor") may at any
time assign any of its rights under this deed or transfer
any of its rights and obligations under this deed to any
person (a "Transferee") to whom a Transferor is permitted to
assign or transfer rights, benefits and obligations under
the Finance Documents or the Subordinated Documents (as the
case may be) provided that a Subordinated Lender may not
assign any of its rights under this deed or transfer any of
its rights under this deed to a potential Transferee without
the prior written consent of each of the Agents, such
consent not to be unreasonably withheld or delayed. It is
agreed that it will be reasonable for each of the Agents to
withhold its consent if it considers that the potential
Transferee is not a reputable financial institution.
(b) An assignment or transfer will only be effective if the
Security Agent executes a Creditor Accession Deed duly
completed and signed on behalf of the Transferee under which
the
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Transferee agrees to be bound by all of the terms of this
deed as if it had originally been party to this deed as a
Finance Party or a Subordinated Lender (as the case may be).
(c) Each of the parties to this deed (other than the Transferee)
irrevocably authorises the Security Agent to execute on its
behalf any Creditor Accession Deed which has been duly
completed and executed on behalf of the Transferee.
(d) The Security Agent will promptly notify the other parties to
this deed of the receipt and execution by it on their behalf
of any Creditor Accession Deed.
20.3 Benefit of deed
This deed will be binding upon, and enure for the benefit of, each
party to it and its or any subsequent successors or assigns.
21. MISCELLANEOUS
21.1 Certificates conclusive
Save as expressly provided otherwise in any Finance Document, a
certificate, determination, notification or opinion of the Security
Agent any Finance Party stipulated for in this deed or any Finance
Document as to any rate of interest or any other amount payable under
any Finance Document will be conclusive and binding on each Obligor,
except in the case of manifest error.
21.2 No implied waivers
(a) No failure or delay by any Finance Party in exercising any
right, power or privilege under this deed will operate as a
waiver of that right, power or privilege, nor will any
single or partial exercise of any right, power or privilege
preclude any other or further exercise of that right, power
or privilege, or the exercise of any other right, power or
privilege.
(b) The rights and remedies provided in this deed are cumulative
and not exclusive of any rights and remedies provided by law
and all those rights and remedies will, except where
expressly provided otherwise in this deed, be available to
the Finance Parties severally and any Finance Party shall be
entitled to commence proceedings in connection with those
rights and remedies in its own name.
(c) A waiver given or consent granted by any Finance Party under
this deed will be effective only if given in writing and
then only in the instance and for the purpose for which it
is given.
21.3 Invalidity of any provision
(a) If any provision of this deed is or becomes invalid, illegal
or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions
shall not be affected or impaired in any way.
(b) Without prejudice to the generality of paragraph (a) above,
the obligations of any Obligor under this deed will not
extend beyond a point where they would cause the
infringement of section 151 of the Companies Act 1985 (in
the case of an Obligor incorporated in the United Kingdom)
or any similar enactments or provisions in any other
jurisdiction (in the case of an Obligor incorporated outside
the United Kingdom).
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21.4 Counterparts
This deed may be executed in any number of counterparts and all of
those counterparts taken together shall be deemed to constitute one
and the same instrument.
21.5 Perpetuity period
The perpetuity period applicable to the trusts created by this deed is
80 years.
21.6 Failure to execute
Failure by one or more parties ("Non-Signatories") to execute this
deed on the date of this deed will not invalidate the provisions of
this deed as between the other parties who do execute this deed. Any
Non-Signatories may execute this deed (or a counterpart of this deed)
on a subsequent date and will thereupon become bound by its
provisions.
21.7 Third party rights
The Contracts (Rights of Third Parties) Act 1999 shall not apply to
this deed and no person other than the parties to this deed shall have
any rights under it, nor shall it be enforceable under that Act by any
person other than the parties to it.
22. GOVERNING LAW AND SUBMISSION TO JURISDICTION
22.1 Governing law
This deed (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this deed)
shall be governed by, and construed in accordance with, English law.
22.2 Submission to jurisdiction
For the benefit of each party to this deed, each other party to this
deed irrevocably submits to the jurisdiction of the courts in England
for the purpose of hearing and determining any dispute arising out of
this deed and for the purpose of enforcement of any judgment against
its assets.
22.3 Freedom of choice
The submission to the jurisdiction of the courts referred to in clause
22.2 (Submission to Jurisdiction) shall not (and shall not be
construed so as to) limit the right of the Security Agent or any
Finance Party to take proceedings against any Obligor 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.
22.4 Service of process
Without prejudice to any other permitted mode of service, each Obligor
agrees that service of any claim form, notice or other document for
the purpose of any proceedings in such courts shall be duly served
upon it if delivered or sent by registered post to Vinge at 42 New
Broad Street, London EC2M 1JD (marked for the attention of Maria-Pia
Midenback Hope) or such other address in England or Wales as the
Parent may notify from time to time to the Facility Agent.
IN WITNESS whereof this deed has been duly executed on the date first above
written.
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SCHEDULE 1
Part 1 - Original Borrowers
Name Place of incorporation Registered number
Nobia AB Sweden 55628-2752
Nobia Nordisk Bygginterior AB Sweden 556060-1006
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Part 2 - Original Guarantors
Name Place of incorporation Registered number
Nobia AB Sweden 55628-2752
Nobia Nordisk Bygginterior AB Sweden 556060-1006
-29-
Part 3 - Senior Creditors
Name Place of incorporation
Svenska Handelsbanken AB (publ) Sweden
Swedbank (Foreningssparbanken AB Sweden
(publ))
Nordbanken AB (publ) Sweden
Landesbank Schleswig-Holstein Germany
Girozentrale, Copenhagen Branch
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Part 4 - Mezzanine Creditors
Name Place of incorporation
Intermediate Capital Group Plc England
Intermediate Capital Limited England
Alpinvest Mezzanine BV The Netherlands
-31-
Part 5 - Principal Companies
Name Place of incorporation Registered number
Nobia Bygginterior AB Sweden 556060-1006
Invita A/S Denmark 61486
Norema A/S Norway 929700295
Myresjokok AB Sweden 556048-3256
Poggenpohl Mobelwerka GmbH Germany HRB 1545
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SCHEDULE 2
Creditor Accession Deed
THIS DEED is made on .
BETWEEN:-
(1) . (the "New [Senior/Mezzanine Finance Party/Subordinated Lender]");
and
(2) . in its capacity as Security Agent under the Intercreditor Deed.
RECITALS:-
(A) This deed is supplemental to an intercreditor deed dated . (the
"Intercreditor Deed") between ..
(B) This deed has been entered into to record the accession of the New
[Senior/Mezzanine Finance Party/Subordinated Lender] as a
[Senior/Mezzanine Finance Party/Subordinated Lender] under the
Intercreditor Deed.
IT IS AGREED as follows:-
1. DEFINITIONS
Words and expressions defined in the Intercreditor Deed have the same
meanings when used in this deed.
2. ACCESSION OF NEW CREDITOR
2.1 The New [Senior/Mezzanine Finance Party/Subordinated Lender] agrees to
become, with immediate effect, a party to, and agrees to be bound by
the terms of, the Intercreditor Deed as if it had originally been
party to the Intercreditor Deed as a [Senior/Mezzanine Finance
Party/Subordinated Lender].
2.2 The New [Senior/Mezzanine Finance Party/Subordinated Lender] confirms
that its address details for notices in relation to clause 19
(Notices) are as follows:-
Address: .
Facsimile: .
Attention of: .
2.3 The Security Agent for itself and the other parties to this deed other
than the New [Senior/Mezzanine Finance Party/Subordinated Lender]
confirms the acceptance of the New [Senior/Mezzanine Finance Party
Lender/Subordinated Lender] as a [Senior/Mezzanine Finance
Party/Subordinated Lender] for the purposes of the Intercreditor Deed.
3. COUNTERPARTS
The deed may be executed in any number of counterparts and all of
those counterparts taken together shall be deemed to constitute one
and the same instrument.
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4. LAW
This deed (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this deed)
shall be governed by and construed in accordance with English law.
IN WITNESS whereof this deed has been duly executed on the date first above
written.
Signatories to the Creditor Accession Deed
The New [Senior/Mezzanine Finance Party/Subordinated Lender]
Executed as a deed by )
[Name] )
acting by [a director and its )
secretary/two directors] )
Director
-----------------------
Director/Secretary
-----------------------
The Security Agent
Executed as a deed by )
[Name] )
acting by [a director and its )
secretary/two directors] )
Director
-----------------------
Director/Secretary
-----------------------
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Signatories to the Intercreditor Deed
The Parent
Executed as a deed by )
NOBIA AB )
acting by )
Authorised Signatory FREDRIK CAPPELEN
Authorised Signatory LENNART RAPPE
Notice Details
Address: P.O. Box 5436
SE-40229 Goteborg
Sweden
Facsimile: + 46 31 703 5360
Attention of: Finance Director
The Original Obligors
Executed as a deed by )
NOBIA AB )
acting by )
Authorised Signatory FREDRIK CAPPELEN
Authorised Signatory LENNART RAPPE
Notice Details
Address: P.O. Box 5436
SE-40229 Goteborg
Sweden
Facsimile: + 46 31 703 5360
Attention of: Finance Director
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Executed as a deed by )
NOBIA BYGGINTERIOR AB )
acting by )
Authorised Signatory FREDRIK CAPPELEN
Authorised Signatory LENNART RAPPE
Notice Details
Address: Drakegatan 6
PO Box 5436
SE-40229 Gothenburg
Sweden
Facsimile: + 46 31 703 5360
Attention of: Finance Director
The Senior Lenders
Executed as a deed by )
SVENSKA HANDELSBANKEN )
AB (PUBL) )
acting by )
Authorised Signatory BENGT K G GUSTAFASSON
Authorised Signatory MATS LITTORIN
Notice Details
Address: Ostra Hamngatan 23
SE-405 40 Gothenburg
Sweden
Facsimile: + 46 31 774 8308
Attention of: Bengt KG Gustafsson/Jan Magnusson
-36-
Executed as a deed by )
SWEDBANK )
(FORENINGSSPARBANKEN )
AB (PUBL)) )
acting by )
Authorised Signatory MIKAEL SANDERSSON
Authorised Signatory
-----------------------
Notice Details
Address: Kopmansgatan
SE-404 80 Gothenburg
Sweden
Facsimile: + 46 31 15 20 88
Attention of: Mikael Sandersson
Executed as a deed by )
NORDBANKEN AB (PUBL) )
acting by )
Authorised Signatory CLAES FRIDEN
Authorised Signatory LARS LUNDH
Notice Details
Address: Ostra Hamngatan 16
SE-405 09 Gothenburg
Sweden
Facsimile: + 46 31 771 6150
Attention of: Claes Friden/Lars Lundh
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Executed as a deed by )
LANDESBANK )
SCHLESWIG-HOLSTEIN ) OVE JUVEN
GIROZENTRALE, COPENHAGEN )
BRANCH )
acting by )
Authorised Signatory .................
Authorised Signatory .................
Notice Details
Address: Kalvebod Brygge 39-41
DK - 1560 Copenhagen V
Denmark
Facsimile: + 45 33 44 99 99
Attention of: Ove Juven/LAD
The Mezzanine Lenders
Executed as a deed by )
INTERMEDIATE CAPITAL )
GROUP PLC )
acting by its attorney under a power of )
attorney )
Attorney DENIS VIET-JACOBSEN
Witnessed by RACHEL PICKERING
Notice Details
Address: 62-63 Threadneedle Street
London EC2R 8HE
Facsimile: + 44 (0) 20 7628 2268
Attention of: Denis Viet Jacobsen/Tony Payne
-38-
Executed as a deed by )
INTERMEDIATE CAPITAL )
LIMITED )
acting by its attorney under a power of )
attorney )
Attorney DENIS VIET-JACOBSEN
Witnessed by RACHEL PICKERING
Notice Details
Address: 62-63 Threadneedle Street
London EC2R 8HE
Facsimile: + 44 (0) 20 7628 2268
Attention of: Denis Viet Jacobsen/Tony Payne
Executed as a deed by )
ALPINVEST MEZZANINE BV )
acting by its attorney under a power of )
attorney )
Attorney DENIS VIET-JACOBSEN
Witnessed by RACHEL PICKERING
Notice Details
Address: 62-63 Threadneedle Street
London EC2R 8HE
Facsimile: + 44 (0) 20 7628 2268
Attention of: Denis Viet Jacobsen/Tony Payne
-39-
The Original Subordinated Lender
Executed as a deed by )
ENODIS PLC )
acting by a director and its )
secretary/two directors )
Director ANDREW ALLNER
Director/Secretary DAVID HOOPER
Notice Details
Address: 1 Farnham Road
Guildford GO2 4RG
Facsimile: + 44 (0) 1483 549580
Attention of: Andrew Allner/David Hooper
The Facility Agent
Executed as a deed by )
SVENSKA HANDELSBANKEN )
AB (PUBL) )
acting by )
Authorised Signatory BENGT K G GUSTAFSSON
Authorised Signatory MATS LITTORIN
Notice Details
Address: Ostra Hamngatan 23
SE-405 40 Gothenburg
Sweden
Facsimile: + 46 31 774 8308
Attention of: Bengt KG Gustafsson/Jan Magnusson
-40-
The Mezzanine Facility Agent
Executed as a deed by )
INTERMEDIATE CAPITAL )
GROUP PLC )
acting by its attorney under a power of )
attorney )
Attorney DENIS VIET-JACOBSEN
Witnessed by RACHEL PICKERING
Notice Details
Address: 62-63 Threadneedle Street
London EC2R 8HE
Facsimile: + 44 (0) 20 7628 2268
Attention of: Denis Viet Jacobsen/Tony Payne
The Security Agent
Executed as a deed by )
SVENSKA HANDELSBANKEN )
AB (PUBL) )
acting by )
Authorised Signatory BENGT K G GUSTAFSSON
Authorised Signatory MATS LITTORIN
Notice Details
Address: Ostra Hamngatan 23
SE-405 40 Gothenburg
Sweden
Facsimile: + 46 31 774 8308
Attention of: Bengt KG Gustafsson/Jan Magnusson
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