EXHIBIT 99.6
EXECUTION COPY
COLLATERAL RANKING AGREEMENT, dated as of
November 13, 2002, among MDCP ACQUISITIONS
LIMITED, a company incorporated in Ireland
with registered number 357957 (the "PARENT"),
MDP ACQUISITIONS PLC, a company incorporated
in Ireland with registered number 357958
("NEWCO I"), MDCP Acquisitions I, a company
incorporated in Ireland with registered number
358039 (the "COMPANY"), the Subsidiaries of
the Company identified on the signature pages
hereto (collectively with the Parent, Newco I
and the Company, the "LOAN PARTIES"), JPMorgan
Chase Bank, as trustee under the Indenture,
and Deutsche Bank AG London, as collateral
agent.
W I T N E S S E T H :
WHEREAS, the Parent, Newco I, the Company and certain Subsidiaries of
the Company have entered into or agreed to enter into from time to time the
Security Documents in order to induce the Finance Parties (other than the
Hedging Banks) to enter into the Credit Agreement, the Hedging Banks to enter
into the Hedging Documents and the Spanish Bond Creditors to enter into the
Spanish Bond Debt Documents;
WHEREAS, amounts outstanding under the Senior Finance Documents, the
Hedging Documents and the Spanish Bond Debt Documents are, or will from time to
time be, secured by Security Interests in the Collateral described in the
Security Documents;
WHEREAS, Deutsche Bank AG London is the Security Agent under the
Security Documents and, pursuant to the Priority Agreement, has been authorized
to enter into this Agreement on behalf of the Senior Agreement Creditors
(including the Hedging Banks and the Spanish Bond Creditors);
WHEREAS, the Indenture requires that the Senior Note Obligations
benefit from certain security interests, specified more fully in the Indenture;
WHEREAS, the amounts outstanding under the Senior Note Obligations
are, or will from time to time be, secured by Security Interests in the
Collateral described in the Bond Security Documents;
WHEREAS, JPMorgan Chase Bank is the trustee under the Indenture
(together with any successors thereto, the "SENIOR NOTE TRUSTEE") and has agreed
to become a party to this Agreement for the sole purpose of facilitating the
validity of the Bond Security Documents and the enforceability thereof by the
Collateral Agent;
WHEREAS, the Company, the Loan Parties and the Senior Note Trustee
have requested the Collateral Agent to hold security for the Bond Creditors and
the Collateral Agent holds or will hold the security for the Senior Agreement
Creditors (including the Hedging Banks and the Spanish Bond Creditors);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and to induce the Finance Parties (other than the
Hedging Banks) to enter into the Credit Agreement, to induce the Hedging Banks
to enter into the Hedging Documents, and to induce the Spanish Bond Creditors to
enter into the Spanish Bond Debt Documents, and in order to comply with the
requirements of the Indenture, each Loan Party, Deutsche Bank AG London (as
Security Agent on behalf of the Senior Agreement Creditors and as Collateral
Agent hereunder) and the Senior Note Trustee hereby agree as follows:
ARTICLE I. DEFINED TERMS
SECTION 1.01. DEFINITIONS.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
(b) The following terms shall have the respective meanings set forth
below:
"2005 BONDS" means the 6.75% Guaranteed Notes due 2005 of Smurfit
Capital Funding PLC issued pursuant to the Indenture.
"2005 OBLIGATIONS" means the unpaid principal of, and premium, if any,
and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the 2005
Bonds, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, and all other monetary
obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of Smurfit Capital Funding PLC,
the Company or any of their respective affiliates under the Indenture or
the 2005 Bonds.
"2025 BONDS" means the 7.5% Guaranteed Debentures due 2025 of Smurfit
Capital Funding PLC issued pursuant to the Indenture.
"2025 OBLIGATIONS" means the unpaid principal of, and premium, if any,
and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the 2025
Bonds, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, and all other monetary
obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of Smurfit Capital Funding PLC,
the Company or any of their respective affiliates under the Indenture or
the 2025 Bonds.
"ADDITIONAL DEBT" in relation to any obligation or liability means:
(i) any refinancing, novation, deferral or extension of any of those
obligations or liabilities;
(ii) any further advance made under any agreement supplemental to any
relevant finance document plus all related interest, fees and costs;
(iii) any claim for damages or restitution in the event of rescission
of any such obligations or liabilities or otherwise in connection with any
relevant finance document;
(iv) any claim against any Obligor flowing from any recovery by an
Obligor or any other person or a payment or discharge in respect of those
obligations or liabilities on the grounds of preference or otherwise; and
(v) any amounts (such as post-insolvency interest) which would
otherwise be included in any such liability but for any discharge,
non-provability, unenforceability or non-allowability of the same in any
Insolvency or other proceedings.
"BOND CREDITOR" means any noteholder under the 2005 Bonds or the 2025
Bonds and the Senior Note Trustee.
"BOND SECURITY DOCUMENTS" means the security documents granting
security in favor of the Bond Creditors or the Collateral Agent for the
benefit of the Bond Creditors in respect of the Senior Note Obligations, a
schedule of which shall be kept by the Company and provided to the
Collateral Agent and Senior Note Trustee upon request from time to time.
"COLLATERAL" means all assets or property of the Loan Parties, now
owned or hereafter acquired, upon which a Security Interest is purported to
be created by any Security Document or Bond Security Document.
"COLLATERAL ACCOUNT" has the meaning assigned to such term in Section
3.01.
"COLLATERAL AGENT" means Deutsche Bank AG London, in its capacity as
collateral agent hereunder and as Security Agent for the Senior Agreement
Creditors in each case under this Agreement, and any successor collateral
agent appointed hereunder.
"COLLATERAL ESTATE" has the meaning assigned to such term in Section
2.01(b).
"CREDIT AGREEMENT" means the credit facility agreement, dated as of
September 12th, 2002 (as amended, supplemental or otherwise modified from
time to time), between, among others, the Company, certain Subsidiaries of
the Company, MDCP Acquisitions Limited (formerly known as MDCP Acquisitions
plc) and MDP Acquisitions plc, the Lenders from time to time thereto,
Deutsche Bank AG London, as Facility Agent and Security Agent, and Deutsche
Bank AG London and Xxxxxxx Xxxxx International, as Arrangers.
"DEED OF ACCESSION" means a deed of accession substantially in the
form of Schedule I.
"DISTRIBUTION DATE" means each date fixed by the Collateral Agent in
its sole discretion for a distribution pursuant to the applicable
provisions of this Agreement of any funds held in the Collateral Account.
"EXCHANGE RATE" means, at any date of determination thereof with
respect to any currency, the spot rate of exchange for the conversion of
such currency into the Euro (or U.S. Dollars where a payment is required to
be made in U.S. Dollars under this Agreement) determined by reference to
such rate publishing service as is customarily utilized by the Collateral
Agent for such purpose; PROVIDED that, to the extent that "Exchange Rate"
is used herein to refer to an actual exchange by the Collateral Agent of
one currency for another, "Exchange Rate" shall be deemed to refer to the
rate at which such exchange actually occurs so long as such exchange is
effected under customary market conditions. Any such determination of the
Exchange Rate by the Collateral Agent shall be conclusive absent manifest
error.
"HEDGING BANK" has the meaning given to it in the Priority Agreement.
"HEDGING DEBT" has the meaning given to it in the Priority Agreement.
"HEDGING DOCUMENT" has the meaning given to it in the Priority
Agreement.
"HEDGING SECURITY DOCUMENTS" means the guarantee and debenture
entered, or to be entered, into by the Parent and others as chargors in
favor of the Security Agent under the Credit Agreement (as same may be
amended and supplemented from time to time by a deed of accession thereto)
as security for obligations under the Hedging Documents.
"INDENTURE" means the Indenture, dated November 15, 1995, by and among
Smurfit Capital Funding PLC (as issuer), Jefferson Smurfit Group Public
Limited Company (as guarantor), Smurfit International B.V. (as guarantor),
Packaging International Finance (as guarantor) and JPMorgan Chase Bank
(formerly known as Chemical Bank) (as trustee), as amended from time to
time.
"INSTRUCTING GROUP" means, at any time, Senior Agreement Creditors and
Bond Creditors the aggregate of whose shares in (a) the amount of Senior
Debt (other than Hedging Debt), (b) the amount of Hedging Debt, (c) the
amount of Spanish Bond Debt (or if none of the Spanish Bonds have been
issued, in the aggregate face amount (the "SPANISH BOND AMOUNT") of all
Spanish Bonds which the Spanish Bond Creditors have unconditionally
committed to issue under the Spanish Bond Counter-Indemnities) and (d) the
amount of Senior Note Debt, at that time exceeds 50.0% of the aggregate of
(i) the Senior Debt (other than the Hedging Debt), (ii) the Hedging Debt,
(iii) the Spanish Bond Debt or (as the case may be) the Spanish Bond Amount
and (iv) the Senior Note Debt, at that time. The amount of Hedging Debt
shall be calculated in accordance with Schedule 8 of the Priority
Agreement.
"OBLIGATIONS" means, collectively, the Senior Agreement Obligations
and the Senior Note Obligations.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel satisfactory to the Collateral Agent, who may be counsel regularly
retained by the Collateral Agent.
"PRIORITY AGREEMENT" means the Priority Agreement, dated September 16,
2002, between, amongst others, the Senior Agreement Creditors, the
Investors (as defined therein), MDCP Acquisitions plc and certain of its
Subsidiaries, as amended, supplemented or otherwise modified from time to
time.
"SECURED INSTRUMENTS" means at any time (a) the Senior Finance
Documents (including the Hedging Documents), (b) the Spanish Bond Debt
Documents and (c) the Indenture and the Senior Notes.
"SECURED PARTIES" means the holders or creditors from time to time of
the Obligations; and, when used with reference to any Loan Party, "Secured
Parties" means the holders or creditors from time to time of the
Obligations with respect to which such Loan Party has liability; and when
used with respect to the Senior Note Obligations, includes the Senior Note
Trustee.
"SENIOR AGREEMENT CREDITORS" means the Finance Parties (including the
Hedging Banks) and the Spanish Bond Creditors.
"SENIOR AGREEMENT OBLIGATIONS" means all present and future
obligations and liabilities (actual or contingent) of the Company and any
other member of the Group under the Senior Finance Documents (including the
Hedging Documents) and the Spanish Bond Debt Documents, whether or not
matured and whether or not liquidated, together with any Additional Debt
related thereto.
"SENIOR DEBT" means all present and future liabilities (actual or
contingent) payable or owing by any Obligor to any Senior Agreement
Creditor under or in connection with the Senior Finance Documents
(including the Hedging Documents), whether or not matured and whether or
not liquidated, together with any Additional Debt relating thereto.
"SENIOR NOTE DEBT" means all present and future Senior Note
Obligations (actual and contingent), whether or not matured and whether or
not liquidated, together with any Additional Debt relating thereto.
"SENIOR NOTE OBLIGATIONS" means the 2005 Obligations and the 2025
Obligations.
"SENIOR NOTES" means the 2005 Bonds and the 2025 Bonds.
"SENIOR NOTE TRUSTEE" means, with respect to the Indenture, the entity
acting as Trustee under the Indenture, being JPMorgan Chase Bank at the
date of this Agreement, and any successor thereto in such capacity.
"SPANISH BOND" has the meaning given to it in the Priority Agreement.
"SPANISH BOND COUNTER - INDEMNITIES" has the meaning given to it in
the Priority Agreement.
"SPANISH BOND CREDITORS" has the meaning given to it in the Priority
Agreement.
"SPANISH BOND DEBT" means all present and future liabilities (actual
and contingent) payable or owing by any member of the Group to any Spanish
Bond Creditor under or in connection with the Spanish Bond Debt Documents,
whether or not matured and whether or not liquidated, together with any
Additional Debt relating thereto.
"SPANISH BOND DEBT DOCUMENTS" has the meaning given to it in the
Priority Agreement.
(c) The rules of construction specified in Section 1.2 of the Credit
Agreement (other than Section 1.2(d)(iv)) shall be applicable to this Agreement.
(d) It is intended by the parties that this Agreement take effect as a
deed notwithstanding that a party only executes it under hand.
ARTICLE II. AUTHORITY OF COLLATERAL AGENT
SECTION 2.01. GENERAL AUTHORITY OF THE COLLATERAL AGENT OVER THE
COLLATERAL.
(a) In consideration of the Loan Parties granting or agreeing to grant
the security under the Security Documents and the Bond Security Documents, and
the other Secured Parties agreeing to the terms of this Agreement, each Secured
Party shall be deemed irrevocably (i) to consent to the appointment of the
Collateral Agent as its agent hereunder, (ii) to confirm that the Collateral
Agent shall have the authority to act as the exclusive agent (or to the extent
Section 6.17 is applicable, joint creditor) of such Secured Party for
enforcement of any provisions of this Agreement, the Security Documents and the
Bond Security Documents against any Loan Party or the exercise of remedies
hereunder or thereunder, (iii) to agree that, except as provided in this
Agreement, such Secured Party shall not, unless requested to by the Collateral
Agent, take any action to enforce any provisions of any Security Document or
Bond Security Document against any Loan Party or to exercise any remedy
thereunder, (iv) to agree to be bound by the terms of this Agreement, and (v) to
authorize the Collateral Agent to perform such duties and exercise such rights
and powers under this Agreement, the Security Documents and the Bond Security
Documents as are delegated to the Collateral Agent hereunder or thereunder,
together with such rights and powers as are reasonably incidental thereto. By
acceptance of, and as a condition to participating in, the benefits of this
Agreement and the Bond Security Documents, each Bond Creditor shall be deemed to
have irrevocably agreed to and further shall be deemed irreversibly to authorize
the Collateral Agent to enter into the Bond Security Documents on its behalf (or
in its capacity as joint creditor under Section 6.17 with the Bond Creditors).
The Senior Note Trustee on behalf of the Bond Creditors irrevocably agrees and
authorizes the Collateral Agent to enter into the Bond Security Documents on its
behalf or in its capacity as joint creditor with the Bond Creditors under
Section 6.17.
(b) The Collateral Agent hereby agrees that it holds and will hold all
of its right, title and interest in, to and under the Security Documents and the
Bond Security Documents and
the Collateral granted to the Collateral Agent thereunder whether now existing
or hereafter arising, and whether or not the Collateral Agent is referred to as
holding such Collateral as trustee or agent (all such right, title and interest
being hereinafter referred to as the "COLLATERAL ESTATE") under and subject to
the conditions set forth in this Agreement; and the Collateral Agent further
agrees that it will hold such Collateral Estate on trust or, to the extent
required by applicable local law, as agent (or as agent or proxy for the
Security Agent in the case of the German security trust agreement entered into
in connection with the Credit Agreement and any security relating thereto) for
the benefit of the relevant Secured Parties, for the enforcement of the payment
of all Obligations secured by the relevant Collateral (subject to the
limitations and priorities set forth herein and in the respective Security
Documents and the Bond Security Documents) and as security for the performance
of and compliance with the covenants and conditions of this Agreement and each
of the Security Documents and the Bond Security Documents.
(c) The provisions of this Agreement, to the extent relating to the
Senior Agreement Creditors and the Loan Parties are in addition to those set out
in the Priority Agreement. Except to the extent inconsistent with the terms of
this Agreement, the terms of the Priority Agreement continue to govern the
agreement between the Senior Agreement Creditors and the Loan Parties with
respect to the matters provided for therein.
SECTION 2.02. ENFORCEMENT INSTRUCTIONS.
(a) The Collateral Agent may refrain from enforcing the security
conferred by the Security Documents and Bond Security Documents unless and until
instructed by an Instructing Group.
(b) Subject to such security having become enforceable, an Instructing
Group may give or refrain from giving instructions to the Collateral Agent to
enforce or refrain from enforcing the security conferred by the Security
Documents and Bond Security Documents as they see fit.
(c) The Secured Parties shall not have any right separately to enforce
any of the Security Documents or Bond Security Documents or to instruct or
require the Collateral Agent to enforce any of the Security Documents or Bond
Security Documents or give any notice, withdraw any consent or take any other
action under any of the Security Documents or Bond Security Documents or
crystallize any floating charge, except as part of an Instructing Group (or in
the case of the Hedging Banks save as provided for in Clause 12.2 of the
Priority Agreement).
(d) Any instructions given to the Collateral Agent by an Instructing
Group (and which are within the powers of an Instructing Group) will override
any conflicting instructions given by any other party. The Collateral Agent will
be fully protected in complying with the instructions of an Instructing Group.
(e) In the absence of any such instructions and/or any relevant
contrary requirement contained in this Agreement, the Collateral Agent may act
or refrain from acting with respect to any right, power or discretion and as to
any matter not expressly provided for in this Agreement, the Security Documents
or the Bond Security Documents as it shall see fit.
(f) Any such instructions by an Instructing Group (and which are
within the powers of an Instructing Group) shall be binding on all the Secured
Parties.
(g) For the purpose of calculating an Instructing Group or determining
whether or not an instruction has been given under this Agreement by an
Instructing Group the Collateral Agent may rely:
(i) On a certificate from the Facility Agent as to the share in the
Senior Debt of any Senior Agreement Creditors voting in favor of any
particular instruction or request and as to the amount of the outstanding
Senior Debt;
(ii) On a certificate from a Hedging Bank as to the amount of
outstanding Hedging Debt (calculated in accordance with Schedule 8 to the
Priority Agreement) held by such Hedging Bank and whether such Hedging Bank
is voting in favor of any particular instruction or request.
(iii) On a certificate from a Spanish Bond Creditor as to the share in
the Spanish Bond Debt or Spanish Bond Amount of any Spanish Bond Creditors
voting in favor of any particular instruction or request and as to the
amount of the outstanding Spanish Bond Debt or Spanish Bond Amount; and
(iv) On a certificate from the Senior Note Trustee as to the share in
the Senior Note Debt of any Bond Creditor voting in favor of any particular
instruction or request and as to the amount of the outstanding Senior Note
Debt.
For avoidance of doubt, any action to be taken hereunder by Bond
Creditors as part of an Instructing Group may only be taken by the Senior Note
Trustee on behalf of such Bond Creditors. The Collateral Agent shall not incur
any liability in relying on any such certificate or certificates.
(h) The Collateral Agent shall enforce the security conferred by the
Security Documents and the Bond Security Documents in such manner (if then
enforceable) as an Instructing Group shall instruct or, in the absence of such
instructions, as it sees fit.
(i) No Secured Party shall be responsible to any Loan Party for the
Collateral Agent's failure to enforce any security over the Collateral (except
to the extent arising from such person's gross negligence or willful default)
and the Collateral Agent may cease any such enforcement at any time.
SECTION 2.03. RELEASE OF SECURITY.
(a) If: (i) on an enforcement of any of the Security Documents or Bond
Security Documents, the Collateral Agent (or any receiver) sells or otherwise
disposes of any asset or shares; or (ii) a Loan Party sells or otherwise
disposes of an asset or shares at the request of an Instructing Group after an
event of default (howsoever described ) under any of the Secured Instruments has
occurred which is continuing, then the Collateral Agent may execute on behalf of
each Secured Party and each Loan Party, without the need for any further
referral to or authority from such Secured Party or Loan Party, any release of
the security created by the
Security Documents or Bond Security Documents over that asset or shares,
provided that the net proceeds of the sale or disposal are applied in payment of
Obligations in the order set out in Section 3.03.
(b) If a disposal to a person or persons outside the Group of assets
or shares owned by any Loan Party over which security has been created by the
Security Documents or Bond Security Documents is permitted by the terms of
Clause 23.6 (Disposals) of the Credit Agreement and will not result directly in
any breach of the terms of the Credit Agreement, the Collateral Agent shall on
the completion of the disposal release (at the expense of the relevant Loan
Party) from the Security Documents and Bond Security Documents the assets or
shares which are subject to that disposal and (where the disposal is such that a
Loan Party ceases to be a member of the Group) the assets of or shares owned by
that entity.
(c) The Collateral Agent shall (at the reasonable request and at the
expense of the Company) following a release of security under Section 2.03(a) or
(b) above provide confirmation of the release of any asset or shares from the
security under the Security Documents and Bond Security Documents or (where
relevant) confirmation of non-crystallization of a floating charge, such
confirmation to be in such form as the Collateral Agent may determine. Each
Secured Party will execute such releases as the Collateral Agent may reasonably
require to give effect to this Section 2.03, any such release given by the
Senior Note Trustee to be without recourse or warranty. No such release will
affect the obligations and liabilities of any other Loan Party under the Secured
Instruments.
SECTION 2.04. RIGHT TO INITIATE JUDICIAL PROCEEDINGS. The Collateral
Agent (a) shall have the right and power to institute and maintain such actions,
suits and proceedings (each a "suit") as it may deem appropriate to protect and
enforce the rights vested in it by this Agreement and each Security Document and
each Bond Security Document and (b) may, either after entry, or without entry,
proceed by suit or suits at law or in equity to enforce such rights and to
foreclose upon the Collateral and to sell all or, from time to time, any of the
Collateral under the judgment or decree of a court of competent jurisdiction.
The Collateral Agent shall not be required to institute or maintain any such
suits or enforce such rights or foreclose upon and sell the Collateral unless it
has been fully indemnified to its satisfaction (acting reasonably) by the
Secured Parties.
SECTION 2.05. EXERCISE OF POWERS. All of the powers, remedies and
rights of the Collateral Agent as set forth in this Agreement may be exercised
by the Collateral Agent in respect of any Security Document or any Bond Security
Document as though set forth in full therein and all of the powers, remedies and
rights of the Collateral Agent as set forth in any Security Document or any Bond
Security Document may be exercised from time to time as herein and therein
provided.
SECTION 2.06. REMEDIES NOT EXCLUSIVE.
(a) No remedy conferred upon or reserved to the Collateral Agent
herein or in the Security Documents and Bond Security Documents is intended to
be exclusive of any other remedy or remedies, but every such remedy shall be
cumulative and shall be in addition to every
other remedy conferred herein or in any Security Document or any Bond Security
Document or now or hereafter existing at law or in equity or by statute.
(b) No delay or omission by the Collateral Agent to exercise any
right, remedy or power hereunder or under any Security Document or any Bond
Security Document shall impair any such right, remedy or power or shall be
construed to be a waiver thereof, and every right, power and remedy given by
this Agreement or any Security Document or any Bond Security Document to the
Collateral Agent may be exercised from time to time and as often as may be
deemed expedient by the Collateral Agent.
(c) All rights of action and of asserting claims upon or under this
Agreement and the Security Documents and Bond Security Documents may be enforced
by the Collateral Agent without the possession of any instrument evidencing any
Obligation or the production thereof at any trial or other proceeding relative
thereto, and any suit or proceeding instituted by the Collateral Agent shall be,
subject to the applicable provisions of Article V, brought in its name as
Collateral Agent and any recovery of judgment shall be held as part of the
Collateral Estate.
SECTION 2.07. LIMITATION ON COLLATERAL AGENT'S DUTY IN RESPECT OF
COLLATERAL. Beyond its duties to account to the Secured Parties and the Loan
Parties for moneys and other property received by it hereunder or on an
enforcement of the security under any Security Document or Bond Security
Document, the Collateral Agent shall not have any duty to the Loan Parties or to
the Secured Parties under this Agreement or as to any Collateral in its
possession or control or in the possession or control of any of its agents or
nominees, or any income thereon or as to the preservation of rights against
prior parties or any other rights pertaining thereto. The Collateral Agent's
duties under this Agreement, the Security Documents and/or the Bond Security
Documents are of a mechanical and administrative nature.
SECTION 2.08. LIMITATION BY LAW. All rights, remedies and powers
provided in this Agreement or any Security Document or Bond Security Document
may be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law, and all the provisions hereof are intended to
be subject to all applicable mandatory provisions of law which may be
controlling and to be limited to the extent necessary so that they will not
render this Agreement invalid, unenforceable in whole or in part or not entitled
to be recorded, registered or filed under the provisions of any applicable law.
SECTION 2.09. RIGHTS OF SECURED PARTIES IN RESPECT OF OBLIGATIONS.
Notwithstanding any other provision of this Agreement or any Security Document
or Bond Security Document but subject in the case of the Senior Agreement
Obligations to the Priority Agreement, the right of each Secured Party to
receive payment of the Obligations held by or owed to such Secured Party when
due (whether at the stated maturity thereof, by acceleration or otherwise), as
expressed in the instruments evidencing or agreements governing such
Obligations, or to institute suit for the enforcement of such payment on or
after such due date, shall not be impaired or affected without the consent of
such Secured Party given in the manner prescribed by the instruments evidencing
or agreements governing such Obligations.
SECTION 2.10. EQUAL AND RATABLE SECURITY. This Agreement, the Security
Documents and the Bond Security Documents (a) are intended to secure the Senior
Note
Obligations equally and ratably with the Senior Agreement Obligations and
otherwise comply with Section 1009 of the Indenture and the Credit Agreement and
Priority Agreement and (b) shall be construed and enforced as provided in this
Agreement to give effect to such intention. The Collateral Agent (as agent
hereunder and on behalf of the Senior Agreement Creditors) (i) consents, subject
to the terms of this Agreement, to the execution and enforcement of the Bond
Security Documents, including any Bond Security Documents entered into after the
date hereof for purposes of complying with Section 1009 of the Indenture, and
any amendments to such Bond Security Documents necessary for such purposes, and
(ii) agrees to take no action which will impair the right of the holders of the
Senior Notes to be secured as required by Section 1009 of the Indenture
(provided that for the avoidance of doubt this shall not prevent or restrict the
taking of any action to enforce any of the Collateral or any Security Document
or Bond Security Documents in accordance with this Agreement). The failure of
any Bond Creditor to take any action required of it hereunder shall not
constitute a waiver of its rights under Section 1009 of the Indenture.
ARTICLE III. COLLATERAL ACCOUNT: DISTRIBUTIONS
SECTION 3.01. THE COLLATERAL ACCOUNT. At such time as the Collateral
Agent deems appropriate, there shall be established and, at all times thereafter
until this Agreement shall have terminated, there shall be maintained with the
Collateral Agent in London an interest bearing account which shall be entitled
the "JSG Collateral Account" (the "COLLATERAL ACCOUNT"). All moneys which are
received by the Collateral Agent or any agent or nominee of the Collateral Agent
on an enforcement of any security conferred by the Security Documents or the
Bond Security Documents, whether in connection with the exercise of the remedies
provided in this Agreement or any Security Document or Bond Security Document,
shall be deposited in the Collateral Account and held by the Collateral Agent as
part of the Collateral Estate and applied in accordance with the terms of this
Agreement. All interest and income received thereon shall be held in the
Collateral Account as part of the Collateral Estate. The Collateral Agent shall
maintain such sub-accounts and records with respect to the Collateral Account as
will permit the segregation and allocation of proceeds of Collateral in
accordance with Section 3.03. In the event that an amount is received by the
Collateral Agent or any agent or nominee of the Collateral Agent on an
enforcement of any security conferred by the Security Documents or the Bond
Security Documents and such amount is denominated in any currency other than
Euro, the Collateral Agent shall (unless such amount is required by this
Agreement to be paid to the Senior Note Trustee) convert such amount into an
amount of Euro on or prior to the Distribution Date for such amount based upon
the relevant Exchange Rate in effect on the date of such conversion.
SECTION 3.02. CONTROL OF COLLATERAL ACCOUNT. All right, title and
interest in and to the Collateral Account shall vest in the Collateral Agent,
and funds on deposit in the Collateral Account shall constitute part of the
Collateral Estate. The Collateral Account shall be subject to the exclusive
operation and control of the Collateral Agent.
SECTION 3.03. APPLICATION OF MONEYS.
(a) Subject to the rights of any creditor with prior security or
preferential claims (other than rights under the Secured Instruments), the
proceeds of enforcement of the security over any Collateral conferred by the
Security Documents and the Bond Security Documents shall
be paid to the Collateral Agent. Those proceeds and all other amounts paid to
the Collateral Agent under this Agreement shall be applied in the following
order, subject to the provisions of Sections 3.04 and 3.05:
FIRST in payment of the fees of the Collateral Agent and of all costs,
expenses and liabilities (and all interest thereon) reasonably
incurred by or on behalf of the Collateral Agent and any
receiver, attorney or agent in connection with carrying out its
duties and exercising its powers and discretions under the
Security Documents, the Bond Security Documents or this Agreement
and the remuneration of the Collateral Agent and every receiver
under the Security Documents and the Bond Security Documents and
all amounts payable under Section 4.03;
SECOND in payment of all costs and expenses reasonably incurred by or on
behalf of any Senior Agreement Creditor or Bond Creditor in
connection with such enforcement;
THIRD in payment to the Security Agent for application towards the
unpaid balance of the Senior Agreement Obligations as provided
for in the Priority Agreement and in payment to the Senior Note
Trustee for application towards the unpaid balance of the Senior
Note Obligations, equally, ratably and pari passu between
themselves; provided that all payments made to the Senior Note
Trustee to the extent reasonably possible shall be made in U.S.
Dollars with any non-U.S. Dollar amounts being converted to U.S.
Dollars by the Collateral Agent, at the Exchange Rate, with the
cost of such conversion being netted against payments made to the
Senior Note Trustee;
FOURTH the payment of the surplus (if any) to the Loan Party concerned
or other person entitled thereto.
(b) No such proceeds or amounts shall be applied in payment of any
amounts specified in any of the sub paragraphs in paragraph (a) above until all
amounts specified in any earlier sub paragraph have been paid in full.
(c) An acknowledgement of receipt signed by the relevant person to
whom payments are to be made under paragraph (a) above shall be a good discharge
of the Collateral Agent.
(d) The term "unpaid" as used in Section 3.03(a) refers, with respect
to the relevant Loan Party or Loan Parties, to all amounts of the relevant
Obligations (other than contingent indemnification and other contingent
obligations as to which the applicable grantor has not received a notice of
claim) outstanding as of a Distribution Date (provided that for the purpose of
this provision, the amount of the Senior Agreement Obligations then outstanding
shall include the undrawn face amount of, and any unreimbursed drawings under,
any Documentary Credit or Spanish Bond), to the extent that prior distributions
have not been made in respect thereof.
(e) The Collateral Agent shall make all payments and distributions
under this Section 3.03: (i) on account of Senior Agreement Obligations to the
Security Agent, for redistribution to the holders of the Senior Agreement
Obligations as provided for in the Priority Agreement; and (ii) on account of
Senior Note Obligations (subject to Section 3.04) to the Senior Note Trustee,
pursuant to directions of the Senior Note Trustee, for redistribution to the
holders of the applicable Senior Note Obligations.
SECTION 3.04. APPLICATION OF MONEYS DISTRIBUTABLE TO SENIOR NOTE
TRUSTEE. If at any time any moneys collected or received by the Collateral Agent
pursuant to this Agreement are distributable pursuant to Section 3.03 to the
Senior Note Trustee, and if the Senior Note Trustee shall notify the Collateral
Agent in writing that no provision is made under the Indenture for the
application by such Senior Note Trustee of such moneys (whether because the
obligations issued under the Indenture have not become due and payable or
otherwise) and the Indenture does not effectively provide for the receipt and
the holding by the Senior Note Trustee of such moneys pending the application
thereof, then the Collateral Agent, after receipt of such notification, may, at
the option of the Senior Note Trustee, pay such moneys over to the applicable
Loan Party, or hold such amounts in the Collateral Account, and (unless paid to
the applicable Loan Party) shall hold all such amounts so distributable and all
investments thereof (which investments shall be made at the direction of the
Senior Note Trustee) and the net proceeds thereof in trust solely for the Senior
Note Trustee (in its capacity as trustee) and for no other purpose until such
time as the Senior Note Trustee shall request in writing the delivery thereof by
the Collateral Agent for application pursuant to the Indenture. If no
instruction is received from the Senior Note Trustee, the Collateral Agent may
(but shall not be obligated to) pay such money to the applicable Loan Party.
Notwithstanding the foregoing, if, at any time, all the Obligations in respect
of which any moneys (and proceeds thereof) are held in trust by the Collateral
Agent pursuant to this Section 3.04 cease to be outstanding for any reason, then
such moneys will be applied by the Collateral Agent in accordance with Section
3.03(a). The Collateral Agent shall not be responsible for any diminution in
funds resulting from investments made at the direction of the Senior Note
Trustee or from holding such moneys uninvested.
SECTION 3.05. COLLATERAL AGENT'S CALCULATIONS. For the purposes of
making the allocations required by Section 3.03 with respect to any amount that
is denominated in any currency other than Euros, or in the case of payments to
be paid to the Senior Note Trustee in U.S. Dollars in accordance with paragraph
THIRD of Section 3.03, the Collateral Agent shall, on or prior to the applicable
Distribution Date, convert such amount into an amount of Euros, or in the case
of payments to be paid to the Senior Note Trustee in U.S. Dollars in accordance
with paragraph THIRD of Section 3.03, based upon the relevant Exchange Rate as
of a recent date specified by the Collateral Agent in its reasonable discretion.
ARTICLE IV. AGREEMENTS WITH COLLATERAL AGENT
SECTION 4.01. DELIVERY OF SECURED INSTRUMENTS. On or prior to the date
hereof, the Company delivered to the Collateral Agent true and complete copies
of (a) the Credit Agreement and the Spanish Bond Documents, and (b) the
Indenture. The Company shall deliver to the Collateral Agent, promptly upon the
execution thereof, a true and complete copy of any amendment, modification or
supplement to any of the foregoing documents entered into after the date hereof.
SECTION 4.02. INFORMATION AS TO SECURED PARTIES, FACILITY AGENT AND
SENIOR NOTE TRUSTEE. The Company shall deliver to the Collateral Agent (and to
the Senior Note Trustee, with respect to the list referred to in clause (ii))
from time to time after the date hereof upon request of the Collateral Agent,
acting reasonably, a list setting forth as of a date not more than 10 days prior
to the date of such delivery, (i) the aggregate unpaid principal amount of
Senior Agreement Obligations outstanding (and, if requested by the Collateral
Agent, the amount of Obligations outstanding under Hedging Documents with each
Secured Party), (ii) the aggregate unpaid principal amount of Senior Note
Obligations outstanding under the Indenture, and (iii) to the extent known to
the Company, the respective names and addresses of the Facility Agent, the
Security Agent, the Senior Note Trustee and each counterparty to a Hedging
Document. Promptly following the request of the Collateral Agent that it do so,
the Company will request the Senior Note Trustee to deliver to the Collateral
Agent the names of the officers thereof authorized to give directions hereunder
on behalf of such party. If the Collateral Agent does not promptly receive the
names of the officers of the Senior Note Trustee authorized to give directions
hereunder on behalf of such party, the Collateral Agent may rely on any person
purporting to be authorized to give directions hereunder on behalf of such party
to give directions hereunder on behalf of the Senior Note Trustee. If the
Collateral Agent is not informed of changes of the officers of the Senior Note
Trustee authorized to give directions hereunder on behalf of such party, the
Collateral Agent may rely on the information previously provided to the
Collateral Agent. If the Senior Note Trustee disagrees with any figures
contained in the list referred to in clause (ii) and furnishes the Collateral
Agent with its own list, the list provided by the Senior Note Trustee shall
supersede the list provided by the Company.
SECTION 4.03. INDEMNIFICATION.
(a) Each Loan Party agrees to pay, indemnify, and hold the Collateral
Agent (and its directors, officers, agents and employees) harmless from and
against any and all Losses of the Collateral Agent (and its directors, officers,
agents and employees). For purposes of this Agreement, "LOSSES" means any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including the reasonable fees and expenses of legal
counsel, advisors and agents and any related VAT) or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the Security Documents and the
Bond Security Documents or any action taken or omitted to be taken by the
Collateral Agent hereunder or under the Security Documents or the Bond Security
Documents, unless arising from the gross negligence, bad faith or willful
misconduct of the indemnified party. In any suit, proceeding or action brought
by the Collateral Agent under or with respect to any contract, agreement,
interest or obligation constituting part of the Collateral (including, without
limitation, under the Security Documents and the Bond Security Documents) for
any sum owing or secured thereunder, or to enforce any provisions thereof, the
Company and each other Loan Party will save, indemnify and keep the Collateral
Agent and the other Secured Parties harmless from and against all expense
(including the reasonable fees and expenses of legal counsel, advisors and
agents, and any related VAT), loss or damage suffered by reason of any defense,
setoff, counterclaim, recoupment or reduction of liability whatsoever of the
obligor thereunder, arising out of a breach by any Loan Party of any obligation
thereunder or arising out of any other agreement, indebtedness or liability at
any time owing to or in favor of such obligor or its successors from any Loan
Party, and all such obligations of each Loan Party shall be and remain
enforceable against and only against each
Loan Party and shall not be enforceable against the Collateral Agent or any
other Secured Party. The agreements in this Section 4.03 shall survive the
termination of the other provisions of this Agreement and the resignation or
removal of the Collateral Agent hereunder. The directors, officers, agents and
employees of the Collateral Agent may rely on this Section 4.03(a).
(b) In consideration of the Loan Parties granting or agreeing to grant
the security under the Security Documents and the Bond Security Documents, and
the Collateral Agent agreeing to act in such capacity, and without prejudice to
the obligations of the Loan Parties under paragraph (a) above, each Secured
Party (other than the Senior Note Trustee) must indemnify the Collateral Agent
for such Secured Party's pro rata share of all Losses; provided, that the
Collateral Agent's only recourse for payment of such indemnification amounts
against the Secured Parties shall be to offset indemnification amounts owing
against the proceeds from the disposition of Collateral otherwise distributable
to the Secured Parties, as per the FIRST paragraph of Section 3.03(a). For this
purpose a Secured Party's pro rata share shall be its pro rata share of the
aggregate amount of the Senior Debt, Hedging Debt, Spanish Bond Debt and Senior
Note Debt outstanding at the time the Loss is incurred or, if none is then
outstanding, pro rata to the aggregate amount thereof immediately prior to the
repayment or prepayment thereof in full. Each Secured Party may recover any
amount paid by it or any loss or cost incurred by it under this paragraph (b)
from the Loan Parties.
ARTICLE V. THE COLLATERAL AGENT
SECTION 5.01. EXCULPATORY PROVISIONS.
(a) The Collateral Agent shall not be responsible in any manner
whatsoever for the correctness of any recitals, statements, representations or
warranties herein or in the Security Documents or Bond Security Documents, all
of which are made solely by the Loan Parties. The Collateral Agent makes no
representations or warranties as to the value or condition of the Collateral
Estate or any part thereof, or as to the title of the Loan Parties thereto or as
to the security afforded by this Agreement or any Security Document or Bond
Security Document, or as to the validity, execution (except its execution),
enforceability, legality or sufficiency of this Agreement, the Security
Documents, the Bond Security Documents or the Obligations, or any of them, and
the Collateral Agent shall incur no liability or responsibility in respect of
any such matters.
(b) The Collateral Agent shall not be required to ascertain or inquire
as to the performance by the Loan Parties of any of the covenants or agreements
contained herein, in any Security Document or Bond Security Document, or in any
other Secured Instrument. Whenever it is necessary, or in the opinion of the
Collateral Agent advisable, for the Collateral Agent to ascertain the amount of
Obligations then held by any of the Secured Parties or the amount of any
distribution or payment to be made hereunder, the Collateral Agent may rely on a
certificate of such Secured Parties or the Facility Agent, in the case of the
Obligations under the Senior Finance Documents (other than the Hedging Documents
or Spanish Bond Debt Documents), or a certificate of the Senior Note Trustee in
the case of Senior Note Obligations, and, if such Secured Party or such Facility
Agent or the Senior Note Trustee, as applicable, shall not give such information
to the Collateral Agent, such Person shall not be entitled to receive
distributions hereunder (in which case distributions to those Persons who have
supplied such information to
the Collateral Agent shall be calculated by the Collateral Agent using, for
those Persons who have not supplied such information, the list then most
recently delivered by the Company pursuant to Section 4.02), and the amount so
calculated to be distributed to the Person who fails to give such information
shall be held in trust for such Person until such Person does supply such
information to the Collateral Agent, whereupon on the next Distribution Date the
amount distributable to such Person shall be recalculated using such information
and distributed to it, with any undistributed balance being distributed as
otherwise provided herein. Nothing in the preceding sentence shall prevent any
Loan Party from contesting any amounts claimed by any Secured Party in any
certificate so supplied.
(c) The Collateral Agent shall be under no obligation or duty to take
any action under this Agreement, any Security Document or any Bond Security
Document if taking such action would in its reasonable opinion constitute a
breach of law or regulation, or if taking such action (i) would subject the
Collateral Agent to a tax in any jurisdiction where it is not then subject to a
tax or increase the amount of tax payable by the Collateral Agent in any
jurisdiction, or (ii) would require the Collateral Agent to qualify to do
business in any jurisdiction where it is not then so qualified, unless the
Collateral Agent receives security or indemnity satisfactory to it against such
tax (or equivalent liability), or any liability resulting from such
qualification, in each case as results from the taking of such action under this
Agreement, any Security Document or any Bond Security Document.
(d) The Collateral Agent shall have the same rights with respect to
any Obligation held by it as any other Secured Party and may exercise such
rights as though it were not the Collateral Agent hereunder, and may accept
deposits from, lend money to, and generally engage in any kind of banking or
trust business with, any of the Loan Parties as if it were not the Collateral
Agent.
(e) The Collateral Agent shall not be liable for any action taken or
omitted to be taken under this Agreement, the Security Documents or the Bond
Security Documents except for its own gross negligence, bad faith or willful
misconduct. No person may take any proceedings against any officer, employee or
agent of the Collateral Agent in respect of any claim it might have against the
Collateral Agent or in respect of any act or omission of any kind by that
officer, employee or agent in connection with this Agreement, any Security
Document or any Bond Security Document. Any officer, employee or agent of the
Collateral Agent may rely on the preceding sentence.
SECTION 5.02. DELEGATION OF DUTIES. The Collateral Agent may execute
any of the powers herein or in any Security Document or Bond Security Document
and perform any duty hereunder or under any Security Document or Bond Security
Document either directly or by or through agents or attorneys-in-fact. The
Collateral Agent shall be entitled to rely on advice of counsel concerning all
matters pertaining to such powers and duties. The Collateral Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it without gross negligence or willful misconduct.
SECTION 5.03. RELIANCE BY COLLATERAL AGENT.
(a) Whenever in the administration of this Agreement, the Security
Documents or the Bond Security Documents the Collateral Agent shall deem it
necessary or desirable that a factual matter be proved or established by any
Loan Party, other Secured Party or other Person in connection with the
Collateral Agent taking, suffering or omitting any action hereunder or
thereunder, such matter (unless other evidence in respect thereof is herein
specifically prescribed) may be deemed to be conclusively proved or established
by a certificate of a responsible officer of the Company, such other Secured
Party or such other Person delivered to the Collateral Agent ("responsible
officer," insofar as relating to the Senior Note Trustee, having the same
meaning for this purpose as the term "Responsible Officer" in the Indenture).
The Collateral Agent may rely on any such certificate and shall have no
obligation or liability for any action taken, suffered or omitted in reliance
thereon, subject, however, to the provisions of Section 5.04.
(b) The Collateral Agent may (at the cost of the Company, which shall
promptly on request reimburse the Collateral Agent for the reasonable fees and
expenses (and any related VAT) of any such counsel) consult with counsel, and
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder or under any
Security Document or Bond Security Document in accordance therewith. The
Collateral Agent shall have the right at any time to seek instructions
concerning the administration of this Agreement, the Security Documents or the
Bond Security Documents from any court of competent jurisdiction.
(c) The Collateral Agent may rely, and shall be fully protected in
acting, upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document which
it believes to be genuine and to have been signed or presented by the proper
party or parties or, in the case of cables, telecopies telexes, faxes or
electronic communications, to have been sent by the proper party or parties. In
the absence of its own gross negligence, bad faith or willful misconduct, the
Collateral Agent may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Agent and conforming to the requirements of
this Agreement. The Collateral Agent is not obliged to carry out any
investigation or enquiry as to the genuineness, truth, adequacy or correctness
of any statements, certificates, opinions or other documents delivered or
furnished to it.
(d) The Collateral Agent shall not be under any obligation to exercise
any of the rights or powers vested in the Collateral Agent by this Agreement,
the Security Documents or the Bond Security Documents unless the Collateral
Agent shall have been provided with security and indemnity in each case
reasonably satisfactory to the Collateral Agent against the costs, expenses and
liabilities which may be incurred by the Collateral Agent, including such
reasonable advances as may be requested by the Collateral Agent.
(e) Any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate of a responsible officer of the Company or
representations made by a responsible officer of the Company in writing filed
with the Collateral Agent.
SECTION 5.04. LIMITATIONS ON DUTIES OF COLLATERAL AGENT.
(a) The Collateral Agent shall be obligated to perform such duties and
only such duties as are specifically set forth in this Agreement, the Security
Documents or the Bond Security Documents, and no implied covenants or
obligations shall be read into this Agreement, any Security Document or any Bond
Security Document against the Collateral Agent. By acceptance of the benefits
under this Agreement, the Security Documents and the Bond Security Documents,
the holders or creditors of Obligations (other than the Collateral Agent in its
capacity as such) shall be deemed to have agreed that they shall not be entitled
to, and shall not, (i) save as expressly provided for in this Agreement or, in
the case of the Senior Agreement Creditors to the extent not inconsistent with
this Agreement and the Priority Agreement, direct the actions of the Collateral
Agent hereunder or under any Security Document or Bond Security Document, (ii)
have the right to object to, contest or oppose any release of Collateral, and
they shall be deemed to have approved any such release where the release of such
Collateral is otherwise permitted or provided for by this Agreement, the
Priority Agreement and the Credit Agreement, (iii) take any action, or commence
any legal proceeding seeking, to require, compel or cause the Collateral Agent
to enforce any of the provisions of this Agreement or any Security Document or
Bond Security Document against any Loan Party or to exercise any remedy
hereunder or thereunder unless such provision is then enforceable or remedy
exercisable under the terms of this Agreement or the Security Documents or Bond
Security Documents and an Instructing Group has instructed the Collateral Agent
to enforce such provision or exercise such remedy in accordance with this
Agreement (or, in the case of the Hedging Banks and the enforcement of the
Hedging Security Documents, Clause 12.2 of the Priority Agreement applies), (iv)
take any action, or commence any legal proceeding seeking, to prevent or enjoin
the Collateral Agent from taking any action (including the enforcement of any
provisions of this Agreement or any Security Document or Bond Security Documents
against any Loan Party, the exercise of any remedy hereunder or thereunder, the
release of any Security Document or Bond Security Document, the release of any
Collateral, the consent to any amendment or modification of this Agreement or
any Security Document or Bond Security Document or the grant of any waiver
hereunder or thereunder), or refraining from taking any such action, where such
action or inaction is in accordance with this Agreement or any Security Document
or Bond Security Document, as the case may be, or (v) otherwise take any action,
or commence any legal proceeding seeking, to delay, hinder or otherwise impair
the Collateral Agent in taking any such action in accordance with this Agreement
or any Security Document or Bond Security Document.
(b) Except as herein otherwise expressly provided, the Collateral
Agent shall not be under any obligation to take any action which is subject to
the Collateral Agent's discretion under the provisions hereof or of any Security
Document or Bond Security Document.
(c) No provision of this Agreement or of any Security Document or Bond
Security Document shall be deemed to impose any duty or obligation on the
Collateral Agent to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it, in any jurisdiction in which it shall
be illegal, or in which the Collateral Agent shall be unqualified or
incompetent, to perform any such act or acts or to exercise any such right,
power, duty or obligation or if such performance or exercise would constitute
doing business by the Collateral Agent in such jurisdiction or impose a tax or
an additional amount of tax on the
Collateral Agent by reason thereof or to risk its own funds or otherwise incur
any financial liability in the performance of its duties hereunder.
SECTION 5.05. MONEYS TO BE HELD IN TRUST. All moneys received by the
Collateral Agent under or pursuant to any provision of this Agreement or any
Security Document or Bond Security Documents (except collateral agent fees)
shall be held in trust (or, if required by applicable law or regulation, as
agent for the Secured Parties) for the purposes for which they were paid or are
held.
SECTION 5.06. RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT.
(a) The Collateral Agent may at any time, by giving written notice to
the Company, the Facility Agent and the Senior Note Trustee, resign and be
discharged of the responsibilities hereby created, such resignation to become
effective upon (i) the appointment of a successor Collateral Agent and (ii) the
acceptance of such appointment by such successor Collateral Agent. After the
giving of any such notice, an Instructing Group, after consultation with the
Company, may appoint a successor Collateral Agent. If no successor Collateral
Agent shall be appointed and shall have accepted such appointment within 60 days
after the Collateral Agent (the "RESIGNING AGENT") gives the aforesaid notice of
resignation, the Resigning Agent or the Facility Agent may apply to any court of
competent jurisdiction to appoint a successor Collateral Agent to act until such
time, if any, as a successor Collateral Agent shall have been appointed as
provided in this Section 5.06. On the appointment of any successor Collateral
Agent the Resigning Agent shall automatically resign and be discharged. Any
successor so appointed by such court shall immediately and without further act
be superseded by any successor Collateral Agent appointed by the Instructing
Group as provided in Section 5.06(b). An Instructing Group may, at any time upon
the Facility Agent giving 30 days' prior written notice thereof to the
Collateral Agent, remove the Collateral Agent and appoint a successor Collateral
Agent after consultation with the Company, such removal to be effective upon the
acceptance of such appointment by the successor.
(b) If at any time the Collateral Agent shall resign or be removed or
become incapable of acting, or if at any time a vacancy shall occur in the
office of the Collateral Agent for any other cause, a successor Collateral Agent
may be appointed by an Instructing Group, after consultation with the Company.
The powers, duties, authority and title of the predecessor Collateral Agent
shall be terminated and cancelled without procuring the resignation of such
predecessor and without any other formality (except as be required by applicable
law) than appointment and designation of a successor in writing duly
acknowledged and delivered to the predecessor and the Company. Such appointment
and designation shall be full evidence of the right and authority to make the
same and of all the facts therein recited, and this Agreement, the Security
Documents and the Bond Security Documents shall vest in such successor, without
any further act, deed or conveyance, all the estates, properties, rights,
powers, duties, authority and title of its predecessor; but such predecessor
shall at the expense and cost of the Company and the Loan Parties who shall
indemnify such predecessor against any reasonable cost or expense it incurs,
nevertheless, on the written request of the Facility Agent, the Company, or the
successor Collateral Agent, execute and deliver an instrument or instruments
(together with such board resolutions or other corporate authorizations
reasonably required by the Facility Agent, the Company or the successor
Collateral Agent) transferring to such successor all the estates,
properties, rights, powers, duties, authority and title of such predecessor
hereunder and under the Security Documents and the Bond Security Documents and
shall deliver all Collateral held by it or its agents to such successor
Collateral Agent. Should any deed, conveyance or other instrument in writing
from any Loan Party be required by any successor Collateral Agent for more fully
and certainly vesting in such successor the estates, properties, rights, powers,
duties, authority and title vested or intended to be vested in the predecessor
Collateral Agent, any and all such deeds, conveyances and other instruments in
writing shall, on request of such successor Collateral Agent, be promptly
executed, acknowledged and delivered to the Collateral Agent (together with such
board resolutions or other corporate authorizations reasonably required by the
Facility Agent, the Company or the successor Collateral Agent) by such Loan
Party. If such Loan Party shall not have executed and delivered any such deed,
conveyance or other instrument within 10 days after it receives a written
request from the successor Collateral Agent to do so, or if an event of default
(howsoever described in any of the Secured Instruments) shall have occurred and
be continuing, the predecessor Collateral Agent may execute the same on behalf
of such Loan Party. Each Loan Party hereby appoints any predecessor Collateral
Agent as its agent and attorney to act for it as provided in the next preceding
sentence.
(c) The Loan Parties shall take such action as the successor
Collateral Agent may consider necessary and the predecessor Collateral Agent at
the request (and cost) of the Company shall take such action as may be
reasonably practicable in order that the Security Documents or Bond Security
Documents or replacements therefore shall provide for perfected and enforceable
security in favour of any successor Collateral Agent and the Secured Parties,
including making available to the successor Collateral Agent such documents and
records as the successor Collateral Agent shall reasonably request to the extent
practical and enforceable under local laws, regulations and procedures.
(d) If the Senior Discharge Date (as defined in the Priority
Agreement) has occurred or in such other circumstances as the Security Agent is
entitled under the Priority Agreement to release and discharge all of the
security under the Security Documents, the Collateral Agent shall give notice to
the Company and the Senior Note Trustee. Following the giving of such notice,
the existing Collateral Agent may resign and (without any liability to the
Senior Note Trustee or any Bond Creditor or any other person) may release and
discharge all of the security under the Security Documents and the Bond Security
Documents or any of them (and the Senior Note Trustee and Bond Creditors shall
be deemed to have consented to any such release and discharge) and deliver to
the Company or the other Loan Parties all share certificates, title documents or
other agreements or instruments representing or evidencing any Collateral
charged or secured under the Security Documents or the Bond Security Documents
in the possession of the Collateral Agent, and the Senior Note Trustee or any
Bond Creditor or any other person shall have no claim against the Collateral
Agent in respect of any such release and discharge of the security and the
Security Documents or Bond Security Documents. On any such release and discharge
the Collateral Agent shall have no further obligations or liabilities under this
Agreement or the Security Documents or Bond Security Documents. This provision
is without prejudice to Section 6.12.
SECTION 5.07. MERGER OF THE COLLATERAL AGENT. Any Person into which
the Collateral Agent may be merged, or with which it may be consolidated, or any
Person resulting from any merger or consolidation to which the Collateral Agent
shall be a party, shall be the
Collateral Agent under this Agreement, the Security Documents and the Bond
Security Documents without the execution or filing of any paper or any further
act on the part of the parties hereto.
SECTION 5.08. CO-COLLATERAL AGENTS: SEPARATE COLLATERAL AGENTS.
(a) If at any time or times it shall be necessary or prudent in order
to conform to any law of any jurisdiction in which any of the Collateral shall
be located, or to avoid any violation of law or imposition on the Collateral
Agent of taxes by such jurisdiction not otherwise imposed on the Collateral
Agent, or the Collateral Agent shall be advised by counsel, satisfactory to it,
that it is necessary or prudent in the interest of any of the Secured Parties,
or the Collateral Agent shall deem it desirable for its own protection in the
performance of its duties hereunder or under any Security Document or Bond
Security Document, the Collateral Agent and the Company and any other Loan Party
requested by the Collateral Agent shall execute and deliver all instruments and
agreements necessary or proper to constitute another bank or trust company, or
one or more Persons approved by the Collateral Agent, either to act as
co-collateral agent or co-collateral agents of all or any of the Collateral
under this Agreement or under any of the Security Documents or Bond Security
Documents, jointly with the Collateral Agent originally named herein or therein
or any successor Collateral Agent, or to act as separate collateral agent or
collateral agents of any of the Collateral. If the Company or any other Loan
Party so requested by the Collateral Agent shall not have joined in the
execution of such instruments and agreements within 10 days after it receives a
written request from the Collateral Agent to do so, or if an event of default
(howsoever described) under any of the Secured Instruments shall have occurred
and be continuing, the Collateral Agent may act under the foregoing provisions
of this Section 5.08(a) without the concurrence of such Loan Parties and execute
and deliver such instruments and agreements on behalf of such Loan Parties. Each
of the Loan Parties hereby appoints the Collateral Agent as its agent and
attorney to act for it under the foregoing provisions of this Section 5.08(a) in
either of such contingencies.
(b) Every separate collateral agent and every co-collateral agent,
other than any successor Collateral Agent appointed pursuant to Section 5.06,
shall, to the extent permitted by law, be appointed and act and be such, subject
to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred upon the
Collateral Agent in respect of the custody, control and management of
moneys, papers or securities shall be exercised solely by the Collateral
Agent or any agent appointed by the Collateral Agent;
(ii) all rights, powers, duties and obligations conferred or imposed
upon the Collateral Agent hereunder and under the relevant Security
Documents and Bond Security Documents shall be conferred or imposed and
exercised or performed by the Collateral Agent and such separate collateral
agent or separate collateral agents or co-collateral agent or co-collateral
agents, jointly, as shall be provided in the instrument appointing such
separate collateral agent or separate collateral agents or co-collateral
agent or co-collateral agents, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Collateral Agent shall be incompetent or unqualified to perform such
act or acts, or unless the performance of such
act or acts would result in the imposition of any tax on the Collateral
Agent which would not be imposed absent such joint act or acts, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such separate collateral agent or separate collateral agents
or co-collateral agent or co-collateral agents;
(iii) no power given hereby or by the relevant Security Documents and
Bond Security Documents to, or which is provided herein or therein may be
exercised by, any such co-collateral agent or co-collateral agents or
separate collateral agent or separate collateral agents shall be exercised
hereunder or thereunder by such co-collateral agent or co-collateral agents
or separate collateral agent or separate collateral agents except jointly
with, or with the consent in writing of, the Collateral Agent, anything
contained herein to the contrary notwithstanding;
(iv) no collateral agent hereunder shall be personally liable by
reason of any act or omission of any other collateral agent hereunder; and
(v) the Collateral Agent, at any time by an instrument in writing, may
accept the resignation of or remove any such separate collateral agent or
co-collateral agent and, in that case by an instrument in writing, may
appoint a successor to such separate collateral agent or co-collateral
agent, as the case may be, anything contained herein to the contrary
notwithstanding.
SECTION 5.09. TREATMENT OF PAYEE OR INDORSEE BY COLLATERAL AGENT:
REPRESENTATIVES OF SECURED PARTIES.
(a) The Collateral Agent may treat the registered holder or, if none,
the payee or indorsee of any promissory note or debenture evidencing an
Obligation as the absolute owner thereof for all purposes and shall not be
affected by any notice to the contrary, whether such promissory note or
debenture shall be past due or not.
(b) If requested by the Collateral Agent, any Person which shall be
designated as the duly authorized representative of one or more Secured Parties
to act as such in connection with any matters pertaining to this Agreement or
the Collateral shall present to the Collateral Agent such documents, including
Opinions of Counsel, as the Collateral Agent may reasonably require, in order to
demonstrate to the Collateral Agent the authority of such Person to act as the
representative of such Secured Parties (it being understood that the holders or
creditors of the Obligations under the Credit Agreement are represented
hereunder by the Facility Agent and the holders of the Senior Notes Obligations
are represented hereunder by the Senior Note Trustee).
(c) The Collateral Agent shall have only those duties which are
expressly specified in this Agreement, the Security Documents or the Bond
Security Documents. The Collateral Agent's duties under this Agreement, the
Security Documents or the Bond Security Documents are of a mechanical and
administrative nature.
(d) The Collateral Agent shall not be liable to any Loan Party or
Secured Party for any breach by any other party of this Agreement or any of the
Security Documents or the Bond Security Documents.
(e) The Collateral Agent has no duty to provide any Secured Party with
any credit or other information relating to the business, assets or financial
condition of any Loan Party or any other member of the Group whenever coming
into its possession.
(f) The Collateral Agent need not disclose any information to any
person if such disclosure would or might in the reasonable opinion of the
Collateral Agent constitute a breach of any law or regulation or be otherwise
actionable by any person. Any information acquired by the Collateral Agent
which, in its opinion, is acquired by it otherwise than in its capacity as
Collateral Agent may be treated as confidential by the Collateral Agent and will
not be treated as information possessed by the Collateral Agent in its capacity
as such.
(g) The Collateral Agent shall not be liable (i) for any failure to
give notice to any third party or to register, file or record (or any defect in
such registration, filing or recording) any security under the Security
Documents or the Bond Security Documents, or (ii) to obtain any licence, consent
or other authority for the creation of any security or (iii) for any failure,
omission, or defect in creating, perfecting or protecting the security
constituted under the Security Documents or the Bond Security Documents or any
security created thereby.
(h) The Collateral Agent may accept without enquiry such title as any
Obligor may have to the Collateral over which security is intended to be created
by any Security Document or Bond Security Document.
(i) The Collateral Agent in its capacity as trustee, agent or
otherwise shall not be under any obligation to hold any title deeds, share
certificates or any other documents in connection with the Collateral charged by
any Security Document or Bond Security Document or any other such security in
its own possession or to take any steps to protect or preserve or insure the
same. The Collateral Agent may permit the relevant Obligor or any lawyer or firm
of lawyers to retain all such title deeds, share certificates and other
documents in its possession if it reasonably considers that it is appropriate in
all the circumstances.
(j) Save as otherwise provided in the Security Documents or Bond
Security Documents, all moneys which under the trusts herein or therein
contained are received by the Collateral Agent in its capacity as trustee or
otherwise may be invested in the name of or under the control of the Collateral
Agent in any investment for the time being authorised by English law for the
investment by trustees of trust money or in any other investments which may be
selected by the Collateral Agent. Additionally, the same may be placed on
deposit in the name of or under the control of the Collateral Agent at such bank
or institution (including itself) and upon such terms as the Collateral Agent
may think fit.
(k) If there is any conflict between the provisions of this Agreement
and any Security Document or Bond Security Document with regard to instructions
to or other matters affecting the Collateral Agent, this Agreement will prevail.
(l) Where there are any inconsistencies between the Trustee Xxx 0000
and the Trustee Xxx 0000 and the provisions of this Agreement, the provisions of
this Agreement shall, to the extent allowed by law, prevail. In the case of any
such inconsistency with the Trustee Xxx
0000 the provisions of this Agreement shall constitute a restriction or
exclusion for the purposes of the Act.
ARTICLE VI. MISCELLANEOUS
SECTION 6.01. REPRESENTATIONS. Each Loan Party represents and warrants
to the Collateral Agent that:
(a) This Agreement is its legally binding, valid and, subject to the
Reservations, enforceable obligation;
(b) It has the power to enter into and perform and has taken all
necessary action to authorize the entry into and performance of this Agreement
and the Security Documents and the Bond Security Documents to which it is or
will be a party and the transactions contemplated thereby;
(c) The entry into and performance by it of this Agreement and the
Security Documents and Bond Security Documents to which it is a party do not
conflict with:
(i) any law or regulation applicable to it;
(ii) its or any of its subsidiaries' constitutional documents;
(iii) any agreement or instrument binding on it or any of its
subsidiaries or its or any of its subsidiaries' assets or constitute a
default or termination event (however described) under any such agreement
or instrument, in each case to an extent or in a manner which would have a
Material Adverse Effect;
(d) It is in compliance with the terms of the Indenture and the entry
into and performance by it of its obligations under this Agreement, the Security
Documents and the Bond Security Documents do not breach or conflict with the
terms of the Indenture.
For the avoidance of doubt, the foregoing representations and warranties are
made as indicated by the Loan Parties and not by the Collateral Agent and the
Senior Note Trustee. In particular, and without limiting the preceding sentence,
the Collateral Agent and the Senior Note Trustee make no representation or
warranty that the performance by the parties hereto of their obligations under
this Agreement, the Security Documents and the Bank Security Documents does not
breach or conflict with the terms of the Indenture.
SECTION 6.02. NOTICES. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Clause 37 of the Credit Agreement. All communications and notices
hereunder to any Loan Party shall be given to the Company. All communications
and notices hereunder to the Senior Note Trustee shall be given to it as
provided in the Indenture and at the address specified therefor in writing by
the Senior Note Trustee to the Collateral Agent.
SECTION 6.03. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by any Loan Party herein and in the
certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement shall be considered to have been relied upon by the Collateral Agent
and shall continue in full force and effect until this Agreement shall
terminate.
SECTION 6.04. COUNTERPARTS. This Agreement may be executed in any
number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 6.05. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of any Loan Party or the Collateral Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
SECTION 6.06. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY ENGLISH LAW.
SECTION 6.07. WAIVERS: AMENDMENT.
(a) No failure or delay of the Collateral Agent in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Collateral Agent hereunder and of the other relevant Secured
Parties are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provisions of this Agreement or consent
to any departure by any Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice to or demand on any Loan Party in any case shall
entitle such Loan Party or any other Loan Party to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Loan Party or Loan Parties with
respect to which such waiver, amendment or modification is to apply. None of the
provisions of this Agreement, any Security Document or any Bond Security
Document shall require or be construed to require any consent of any Secured
Party (other than the Collateral Agent) to any such waiver, amendment or
modification.
(c) Notwithstanding the foregoing, if any amendment is entered into
with respect to any Security Document or Bond Security Document or any new
security document is executed that grants a Security Interest to any Secured
Party in any Collateral, then the Collateral Agent and the Loan Parties shall
enter into an amendment to this Agreement, the Security Documents or the Bond
Security Documents, as applicable, or enter into such additional Security
Documents or Bond Security Documents in form and substance reasonably
satisfactory to the Collateral Agent and the Loan Parties, providing for the
other Secured Parties to benefit from an equivalent Security Interest to the
extent required by the Indenture or the Credit Agreement; provided that
no consent of any Secured Party other than the Collateral Agent shall be
required for such amendments.
SECTION 6.08. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 6.09. HEADINGS. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 6.10. JURISDICTION.
(a) Subject to paragraph (c) below, the English courts have exclusive
jurisdiction to settle any dispute arising out of or in connection with this
Agreement and each party submits to the exclusive jurisdiction of the English
courts for purposes of resolving disputes arising out of or in connection with
this Agreement.
(b) The English courts are appropriate and convenient courts to settle
any such dispute and each Obligor and the Senior Note Trustee waives objection
to those courts on the grounds on inconvenient forum or otherwise in relation to
proceedings in connection with this Agreement.
(c) To the extent allowed by law the Collateral Agent may take
proceedings in any other court and concurrent proceedings in any number of
jurisdictions.
SECTION 6.11. SERVICE OF PROCESS.
(a) Each Loan Party not incorporated in England and Wales irrevocably
appoints Law Debenture Corporate Services Limited (whose address is Xxxxx Xxxxx,
000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX) as its agent under this Agreement for service
of process in any proceedings before the English courts.
(b) If any person appointed as process agent is unable for any reason
to act as agent for service of process, the Company (on behalf of all the Loan
Parties) shall promptly appoint another agent on terms acceptable to the
Collateral Agent. Failing this, the Collateral Agent may appoint another agent
for this purpose.
(c) Each Obligor agrees that failure by a process agent to notify it
of any process will not invalidate the relevant proceedings.
(d) This Clause does not affect any other method of service allowed by
law.
SECTION 6.12. TERMINATION.
(a) Upon the Senior Discharge Date (as defined in the Priority
Agreement) occurring and irrespective of whether any Senior Note Obligations
remain outstanding, the Collateral Agent shall (at the cost and expense of the
Loan Parties) release the Security Interests created by the Security Documents
and the Bond Security Documents and all right, title and interest of the
Collateral Agent in and to the Collateral shall revert to the Loan Parties,
their successors and assigns.
(b) Upon the release of the Collateral in accordance with Section
6.12(a), the Collateral Agent will promptly, at the Company's written request
and expense, (i) execute and deliver to the Company such documents as the
Company shall reasonably request to evidence the termination of such Security
Interest or the release of the Collateral and (ii) deliver or cause to be
delivered to the Loan Parties all property of the Loan Parties then held by the
Collateral Agent or any agent thereof.
(c) This Agreement (other than Section 4.03 and the provisions of
Article V) shall terminate when the Security Interests granted under the
Security Documents have terminated or been discharged or released, all moneys
held in the Collateral Account (if any) have been distributed to the Secured
Parties or released to the appropriate Loan Parties in accordance with Section
3.03 and the Collateral has been released.
(d) At any time when the Security Agent is entitled under the Priority
Agreement to release any Security Interest created by any of the Security
Documents, the Collateral Agent shall, at the same time as any such Security
Interest under any Security Document is released, release any Security Interest
under any Bond Security Document over the same asset or Collateral. All such
releases shall be at the cost of the relevant Loan Party.
(e) The Company shall give the Senior Note Trustee prompt notice of
the occurrence of the Senior Discharge Date.
SECTION 6.13. INSPECTION BY REGULATORY AGENCIES. The Collateral Agent
shall make available, and shall cause each custodian and agent acting on its
behalf in connection with this Agreement to make available, all Collateral in
such Person's possession at all times for inspection by any regulatory agency
having jurisdiction over the Collateral Agent or a Loan Party to the extent
required by such regulatory agency in its discretion.
SECTION 6.14. NEW LOAN PARTIES. If any member of the Group becomes
party to a Security Document or Bond Security Document, the Company will procure
that such member becomes a party to this Agreement as a Loan Party by the
execution and delivery to the Collateral Agent of a duly executed Deed of
Accession (together with such board resolutions and other corporate
documentation as the Collateral Agent may reasonably require).
SECTION 6.15. BOND SECURITY DOCUMENTS. Subject to Section 2.03, the
Company shall be responsible for filing and refiling and recording and
rerecording all documents and notices and taking any other action necessary or
advisable in any applicable jurisdiction to perfect and maintain the perfection
of the Bond Creditors' (or the Collateral Agent's on behalf of
the Bond Creditors) Security Interest in the Collateral provided for under the
Bond Security Documents to the extent practical and enforceable under local
laws, regulations and procedures. No failure to perfect or maintain the
perfection of any such Security Interest or any invalidity or insufficiency of
or failure to enter into any Bond Security Document shall impair the rights of
the Bond Creditors hereunder to share in the proceeds of the Collateral as
provided for in Section 3.03 hereof. The Company shall pay or procure the
payment of all stamp, registration, documentary and other similar fees, duties
and taxes payable on or in connection with the execution and delivery of this
Agreement and the Bond Security Documents.
In case any Bond Security Document provides that any action to be
taken thereunder may not be taken except with the consent or upon the direction
or request of the Bond Creditors, provided that no event of default (as defined
in the Indenture) has occurred and is continuing, and except for matters which
under this Agreement may only be taken upon the instructions, request or
direction of an Instructing Group, the Collateral Agent may instead act with the
consent or upon the direction or request of the applicable Loan Party, provided,
that the Collateral Agent shall have received from such Loan Party a certificate
to the effect that the applicable action does not violate the Indenture
(including the equal and ratable security provisions of Section 1009 thereof) or
otherwise adversely affect the interests of the Bond Creditors.
SECTION 6.16. LOAN PARTIES' UNDERTAKING
Each of the Loan Parties undertakes in favour of the Collateral Agent
and Smurfit Capital Funding PLC and each of the Guarantors (as defined in the
Indenture and, together with Smurfit Capital Funding PLC, the "BOND PARTIES")
that it will grant such security interests to the Collateral Agent in respect of
the Senior Note Obligations, including, but not limited to, the Bond Security
Documents, as are required to be granted by the terms of the Indenture.
SECTION 6.17. COLLATERAL AGENT CREDITOR
(a) Each of the Bond Parties, the Senior Note Trustee on behalf of
each of the Bond Creditors and the Collateral Agent agree that the Collateral
Agent shall be the joint and several creditor (together with the relevant Bond
Creditor) of each and every payment obligation of any Bond Party towards each
and any of the Bond Creditors under the Indenture and the Senior Notes, and that
accordingly the Collateral Agent will have its own independent right to demand
performance by the relevant Bond Party of that obligation when due (such
obligations owing to the Collateral Agent being the "COLLATERAL AGENT
OBLIGATIONS"). However, the Collateral Agent shall not by virtue of this Section
6.17 be entitled to pursue any Bond Party simultaneously with any Bond Creditor
for the same obligations.
(b) Without limiting or affecting the Collateral Agent's rights
against any Loan Party (whether under this paragraph or under any other
provision of the Secured Instruments), the Collateral Agent agrees (on a several
and divided basis) that, subject as set out in the next sentence, it will not
exercise its rights as a joint and several creditor with a Bond Creditor except
with the consent of that Bond Creditor. However, nothing in the previous
sentence shall limit to any extent the Collateral Agent's right in whatever
capacity to take any action to protect or preserve any rights under any Security
Document or Bond Security Document or to enforce any
Security Interest created thereby as contemplated by this Agreement and/or the
relevant Security Document or Bond Security Document (or to do any act
reasonably incidental to any of the foregoing).
(c) This Section applies except to the extent the Collateral Agent
specifies that it shall not apply in relation to a specific Loan Party or all
Loan Parties incorporated in a particular jurisdiction.
(d) For the purposes of paragraph (a) above under the law of The
Netherlands the Collateral Agent shall be a "hoofdelijk crediteur".
SECTION 6.18. THIRD PARTY BENEFICIARIES.
(a) Each Secured Party shall be a third party beneficiary of this
Agreement. Each Secured Party shall participate in the benefits of this
Agreement, the Security Documents and the Bond Security Documents, pursuant to
the terms of this Agreement, the Security Documents and the Bond Security
Documents.
(b) Notwithstanding paragraph (a) above this Agreement or any
provision hereof may be waived, amended or modified pursuant to Section 6.07(b).
(c) Except to the extent expressly provided to the contrary in this
Agreement, or in any Secured Instrument or Bond Security Document, a person who
is not a party to this Agreement, a Secured Instrument or a Bond Security
Document may not enforce any of its terms under the Contracts (Rights of Third
Parties) Xxx 0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
PRESENT when the common seal of MDCP
ACQUISITIONS I was hereunto affixed:-
/s/ Xxx Xxxxxx
----------------------------------------
Name:
Title: Director
/s/ Xxxxxx XxXxxxx-Xxxxx
----------------------------------------
Name:
Title: Director/Secretary
For and on behalf of
XXXXXXXX LIMITED, SECRETARY
PRESENT when the common seal of MDCP
Acquisitions LIMITED was hereunto affixed:-
/s/ Xxx Xxxxxx
----------------------------------------
Name:
Title: Director
----------------------------------------
Name:
Title: Director/Secretary
For and on behalf of
XXXXXXXX LIMITED, SECRETARY
PRESENT when the common seal of MDP
ACQUISITIONS PLC was hereunto affixed:-
/s/ Xxx Xxxxxx
----------------------------------------
Name:
Title: Director
/s/ Xxxxxx XxXxxxx-Xxxxx
----------------------------------------
Name:
Title: Director/Secretary
For and on behalf of
XXXXXXXX LIMITED, SECRETARY
Executed as a Deed by DEUTSCHE BANK
AG LONDON, as Collateral Agent acting
by its authorized signatories
By /s/ Xxxxx Xxxxx
--------------------------------------
Name
Title
By /s/ Xxxxx Xxxxxxx
--------------------------------------
Name
Title
acting under the authority of that
company
Executed as a Deed by DEUTSCHE BANK
AG LONDON, as Security Agent acting by
its authorized signatories
By /s/ X.X. Xxxx-Xxxxx
--------------------------------------
Name
Title
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name
Title
acting under the authority of that
company
Executed as a Deed by JPMORGAN
CHASE BANK, as Senior Note Trustee
By /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name
Title
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
BERMUDA
The common seal of
FIBRAS LIMITED Signed: /s/ Xxxxx Xxxxx
was hereunto affixed in the -------------------------------
presence of: Director
Date:
-------------------------------
Signed: /s/ Xxxxxxx Xxxx
-------------------------------
Director/Secretary
Date:
-------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed ad delivered as a deed as of the day and year first written above.
GERMANY
Schneverdinger Wellpappenwerk GmbH Granted as a deed by Schneverdinger
Wellpappenwerk GmbH acting by:
Name: /s/ Xxxxxxx Xxxxxx
-------------------------------
Signed:
-------------------------------
and,
Name:
-------------------------------
Signed:
-------------------------------
acting under the authority of that
company in the presence of:
Witness's Signature: /s/ Xxxxx X. Xxxxxxx
---------------------
Name:
Address:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed ad delivered as a deed as of the day and year first written above.
GERMANY
Wellit Wellpappenfabrik GmbH & Granted as a deed by Wellit
Co. KG Wellpappenfabrik GmbH & Co. KG acting by:
Name: /s/ Xxxxxxx Xxxxxx
-------------------------------
Signed:
-------------------------------
and,
Name:
-------------------------------
Signed:
-------------------------------
acting under the authority of that company
in the presence of:
Witness's Signature: /s/ Xxxxx X. Xxxxxxx
--------------------
Name:
Address:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed ad delivered as a deed as of the day and year first written above.
GERMANY
XX Xxxxx Papier und Papierfabrik Granted as a deed by XX Xxxxx Papier and
GmbH & Co KG Papierfabrik GmbH & Co KG acting by:
Name: /s/ Xxxxxxx Xxxxxx
-------------------------------
Signed:
-------------------------------
and,
Name:
-------------------------------
Signed:
-------------------------------
acting under the authority of that company
in the presence of:
Witness's Signature: /s/ Xxxxx X. Xxxxxxx
-------------------
Name:
Address:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed ad delivered as a deed as of the day and year first written above.
GERMANY
Papierverwaltungsgesellschaft Granted as a deed by
Wrexen GmbH Papierverwaltungsgesellschaft Wrexen GmbH
acting by:
Name: /s/ Xxxxxxx Xxxxxx
-------------------------------
Signed:
-------------------------------
and,
Name:
-------------------------------
Signed:
-------------------------------
acting under the authority of that company
in the presence of:
Witness's Signature: /s/ Xxxxx X. Xxxxxxx
-------------------
Name:
Address:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed ad delivered as a deed as of the day and year first written above.
GERMANY
Smurfit Holdings GmbH Granted as a deed by Smurfit Holdings GmbH
acting by:
Name: /s/ Xxxxxxx Van Der Weerden
-------------------------------
Signed:
-------------------------------
and,
Name:
-------------------------------
Signed:
-------------------------------
acting under the authority of that company
in the presence of:
Witness's
Signature: /s/ A. Van Der Weerden-Rowaan
-----------------------------
Name:
Address:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed ad delivered as a deed as of the day and year first written above.
GERMANY
Wellit Wellenpappenfabrik Granted as a deed by Wellit
Verwaltungs GmbH Wellenpappenfabrik Verwaltungs GmbH
acting by:
Name: /s/ Xxxxxxx Xxxxxx
-------------------------------
Signed:
-------------------------------
and,
Name:
-------------------------------
Signed:
-------------------------------
acting under the authority of that company
in the presence of:
Witness's Signature: /s/ Xxxxx X. Xxxxxxx
--------------------
Name:
Address:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
GIBRALTAR
EXECUTED as a deed by )
Wilshaw Investments Limited acting by ) Signed: /s/ Xxxxx Xxxxx
--------------------------
) For and on behalf of
) Wilshaw Investments Limited
and )
)
acting under the authority of that Signed: /s/ Xxxxxxxx Xxxxx Xxxxx
company in the presence of: --------------------------
For and on behalf of
Wilshaw Investments Limited
Witness's
Signature: /s/ Xxxxxxxxx Xxxxx
---------------------------
Name:
---------------------------------
Address:
------------------------------
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of JEFFERSON SMURFIT GROUP PLC
was affixed hereto:- /s/ Xxxxxxx Smurfit
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of AMISFIELD LIMITED
was affixed hereto:- /s/ Xxxx Xxxxxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of BELGRAY HOLDINGS
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of CRAYSIDE LIMITED
was affixed hereto:- /s/ Xxxxx Xxxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of DAMOUS LIMITED
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of GWEEBARRA LIMITED
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of XXXXXXX HOLDINGS
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of XXXX PRINT LIMITED
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of XXXXXXXXX SMURFIT & SONS LIMITED
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxx Xxxxxx
of SMURFIT CAPITAL
was affixed hereto:- /s/ Xxxxx Xxxxxxxx
PRESENT when the common seal /s/ Xxxxx Xxxxxx
of SMURFIT CAPITAL FUNDING PLC
was affixed hereto:- /s/ Xxxxx Xxxxxxxx
PRESENT when the common seal /s/ Xxxxx Xxxxxx
of SMURFIT CAPITAL LEASING
was affixed hereto:- /s/ Xxxxx Xxxxxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of SMURFIT INTERNATIONAL LIMITED
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of SMURFIT INVESTMENTS (IRELAND) LIMITED
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of SMURFIT IRELAND LIMITED
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxx Xxxxxx
of SMURFIT NEWS PRESS LIMITED
was affixed hereto:- /s/ Xxxxx Xxxxxxxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of SMURFIT SERVICES LIMITED
was affixed hereto:- /s/ Xxxxxx Xxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of THE KILDARE HOTEL & COUNTRY CLUB LIMITED
was affixed hereto:- /s/ Xxxx Xxxxxxxx
PRESENT when the common seal /s/ Xxxxxxx X'Xxxxxxx
of SMURFIT CORRUGATED IRELAND
was affixed hereto:- /s/ Xxxxx Xxxxxxxxxx
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
NETHERLANDS
EXECUTED as a deed by )
Packaging Investments Holdings (PIH) BV ) Signed: /s/ X.X. Xxxxx
acting by ) --------------------------
) For and on behalf of
) Packaging Investments
and ) Holdings (PIH) BV
)
)
acting under the authority of that Signed: /s/ X.X. Xxxxxxx
company in the presence of: --------------------------
For and on behalf of
Packaging Investments
Witness's Holdings (PIH) BV
Signature: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxx
---------------------------------
Address:
------------------------------
EXECUTED as a deed by )
Packaging Investments International ) Signed: /s/ X.X. Xxxxx
(PII) BV acting by ) --------------------------
) For and on behalf of
) Packaging Investments
) International (PII) BV
and )
)
)
acting under the authority of that Signed: /s/ X.X. Xxxxxxx
company in the presence of: ---------------------------
For and on behalf of
Packaging Investments
Witness's International (PII) BV
Signature: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
---------------------------------
Address: Xxxx Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
NETHERLANDS
EXECUTED as a deed by )
Packaging Investments Netherlands ) Signed: /s/ X.X. Xxxxx
(PIN) BV acting by ) --------------------------
) For and on behalf of
) Packaging Investments
) Netherlands(PIN) BV
and )
)
)
acting under the authority of that Signed: /s/ X.X. Xxxxxxx
company in the presence of: --------------------------
For and on behalf of
Packaging Investments
Netherlands (PIN) BV
Witness's
Signature: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
--------------------------------
Address: Xxxx Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
-----------------------------
EXECUTED as a deed by )
Smurfit Corrugated BV acting by ) Signed: /s/ X.X. Xxxxx
) --------------------------
) For and on behalf of
and ) Smurfit Corrugated BV
)
)
acting under the authority of that Signed: /s/ X.X. Xxxxxxx
company in the presence of: --------------------------
For and on behalf of
Smurfit Corrugated BV
Witness's
Signature: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
--------------------------------
Address: Xxxx Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
-----------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
NETHERLANDS
EXECUTED as a Deed by )
Smurfit Holdings BV acting by ) Signed: /s/ X.X. Xxxxx
) --------------------------
) For and on behalf of
and ) Smurfit Holdings BV
)
)
acting under the authority of that
company in the presence of: Signed: /s/ X.X. Xxxxxxx
--------------------------
For and on behalf of
Smurfit Holdings BV
Witness's
Signature: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
--------------------------------
Address: Xxxx Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
-----------------------------
EXECUTED as a deed by )
Smurfit International BV acting by ) Signed: /s/ X.X. Xxxxx
) --------------------------
) For and on behalf of
and ) Smurfit International BV
)
)
acting under the authority of that Signed: /s/ X.X. Xxxxxxx
company in the presence of: --------------------------
For and on behalf of
Smurfit International BV
Witness's
Signature: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
--------------------------------
Address: Xxxx Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
-----------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
NETHERLANDS
EXECUTED as a deed by )
Smurfit Investments BV acting by ) Signed: /s/ X.X. Xxxxx
) --------------------------
) For and on behalf of
) Smurfit Investments BV
and )
)
)
acting under the authority of that
company in the presence of: Signed: /s/ X.X. Xxxxxxx
--------------------------
For and on behalf of
Smurfit Investments BV
Witness's
Signature: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
--------------------------------
Address: Xxxx Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
-----------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
SWEDEN
EXECUTED as a deed by ) Signed: /s/ Xxxxxxx X'Xxxxxxx
Smurfit Holdings AB acting by ) --------------------------
) For and on behalf of
) Smurfit Holdings AB
)
and )
)
) Signed:
--------------------------
acting under the authority of that ) For and on behalf of
company in the presence of: Smurfit Holdings AB
Witness's
Signature: /s/ Xxxxx Xxxxxxxx
--------------------------
Name:
--------------------------------
Address:
-----------------------------
IN WITNESS WHEREOF,, the parties hereto have caused this Agreement to be duly
executed and delivered as a deed as of the day and year first written above.
VENEZUELA
EXECUTED as a deed by ) Signed: /s/ Xxxxxxxxx Xxxxxxx
Inversiones Isica C.A. acting by ) ---------------------
) For and on behalf of
) Inversiones Isica C.A.
)
and )
)
)
acting under the authority of that company in the
presence of:
Witness's
Signature: /s/ Xxxx X. Xxxxxxx, III
------------------------
Name:
--------------------------------
Address:
-----------------------------
SCHEDULE I
DEED OF ACCESSION
THIS DEED dated [ ], [ ] is supplemental to a collateral ranking agreement
(the "COLLATERAL RANKING AGREEMENT") dated [ ], [ ] between, inter alia,
MDCP Acquisitions Ltd as the Parent and certain of its Subsidiaries as Loan
Parties, JPMorgan Chase Bank as trustee under the Indenture and Deutsche Bank AG
London as collateral agent.
Words and expressions defined in the Collateral Ranking Agreement have the same
meaning when used in this Deed.
[NAME OF NEW LOAN PARTY] hereby agrees with each other person who is or who
becomes a party to the Collateral Ranking Agreement that with effect on and from
the date hereof it will be bound by the Collateral Ranking Agreement as a Loan
Party as if it had been party originally to the Collateral Ranking Agreement in
that capacity and that it shall perform all of the undertakings and agreements
set out in the Collateral Ranking Agreement and given by a Loan Party.
This document takes effect as a deed notwithstanding that the Collateral Agent
only executes under hand.
This deed is governed by English law.
[INSERT APPROPRIATE EXECUTION LANGUAGE]
*[ ] Delete as applicable
Acknowledged.
[COLLATERAL AGENT]
By:
