EXHIBIT 4.12
CONFORMED COPY
INTERCRIEDITOR AGREEMENT
DATED 26th November 2003
BETWEEN
PREMIER FINANCING LIMITED
as the Company
CERTAIN SUBSIDIARIES OF THE COMPANY
as Obligors
THE SENIOR FINANCE PARTIES AND THE
SENIOR SUBORDINATED FINANCE PARTIES
and
X.X. XXXXXX EUROPE LIMITED
as Senior Agent, Senior Subordinated Agent and Security Agent
relating, inter alia, to a Senior Facilities Agreement dated 10 August 1999
(as subsequently amended and restated)
and a Senior Subordinated Facility Agreement dated 17 November 2003
XXXXX & OVERY
London
CONTENTS
Clause Page
1. Interpretation 3
2. Ranking 9
3. Undertakings 9
4. Permitted Payments 10
5. Turnover 11
6. Subordination on Insolvency 12
7. Restrictions on Enforcement 13
8. Permitted Enforcement 14
9. Application of Proceeds of Enforcement 15
10. Enforcement of Security 16
11. Amendments 18
12, Hedging Debt 20
13. Consents and Limits 21
14. Warranties 23
15. Information 23
16. Subrogation 24
17. Protection of Subordination 24
18. Preservation of Debt 26
19. Expenses 28
20. Changes to the Parties 28
21. Notices 31
22. The Security Agent 32
23. Severability 34
24. Counterparts 34
25. Governing Law 34
26. Enforcement 34
Schedule
1. The Obligors 36
2. Senior Finance Parties 40
3. Senior Subordinated Finance Parties 45
4. Form of Deed of Accession 46
5. Security Agent 47
Signatories 57
2
THIS AGREEMENT is dated 26th November 2003
BETWEEN:
(I) PREMIER FINANCING LIMITED (registered number 3716362) with its
registered office at 00 Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx X00 0XX
(the Company);
(2) THE PERSONS named in Schedule I (Obligors) as Obligors;
(3) THE PERSONS named in Schedule 2 (Senior Finance Parties) as Senior
Finance Parties;
(4) THE PERSONS named in Schedule 3 (Senior Subordinated Finance Parties)
as Senior Subordinated Finance Parties;
(5) X.X. XXXXXX EUROPE LIMITED as Senior Agent;
(6) X.X. XXXXXX EUROPE LIMiTED as Senior Subordinated Agent; and
(7) X.X. XXXXXX EUROPE LIMITED as Security Agent.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement terms defined in or whose interpretation is provided
for in the Senior Facilities Agreement shall have the same meaning when
used in this Agreement (whether before or after the Senior Discharge
Date) unless separately defined or interpreted in this Agreement and:
Agents means the Senior Agent, the Senior Subordinated Agent and the
Security Agent.
Deed of Accession means a deed of accession substantially in the form
of Schedule 4 (Form of Deed of Accession), with such amendments as the
Security Agent may approve or reasonably require.
Enforcement Date means the date on which an Enforcement Event first
occurs.
Enforcement Event means the Senior Agent first exercising its rights
under paragraph (c) or paragraph (d) of subclause 12.2 (Acceleration)
of the Senior Facilities Agreement (except, in the case of such
paragraph (c), where it only declares that the relevant amounts have
become due for immediate discharge on demand) or, having exercised its
rights under paragraph (c) of subclause 12.2 (Acceleration) of the
Senior Facilities Agreement to declare that the relevant amounts have
become due for immediate discharge on demand, first making demand with
respect to all or part of any amounts outstanding under the Senior
Finance Documents under subclause 12,3 (Demand basis) of the Senior
Facilities Agreement.
Enforcement Notice has the meaning given to it in Clause 8 (Permitted
Enforcement).
Event of Default means a Senior Default or a Senior Subordinated
Default, as the context requires.
3
Existing Security Documents means the "Security Documents" as defined in the
Senior Facilities Agreement.
Hedge Counterpart'~' means each person (if any) named as a Hedge Counterparty in
Schedule 2 (Senior Finance Parties) and any other person which (a) is a "Hedge
Counterparty" for the purposes of the Senior Facilities Agreement and (b)
becomes a party to this Agreement as a Hedge Counterparty under Subclause 12.1
(Accession of Hedge Counterparties), in each case in its capacity as provider of
Hedging to any of the Obligors.
Hedging means any Derivatives Transaction.
Hedging Debt means all Liabilities of any Obligor to any Hedge Counterparty
under or in connection with the Hedge Documents.
InsoLvency means any winding-up, bankruptcy, liquidation, dissolution,
administration, receivership, administrative receivership, re-organisation,
moratorium or judicial composition of or in respect of any Obligor or any
analogous proceedings affecting any Obligor in any jurisdiction outside England
and Wales.
Insolvent Obligor means an Obligor to which or in respect of which any of the
events or circumstances referred to in subclauses 12.1(h) (Insolvency) to 12.10)
(Analogous proceedings) (inclusive) of the Senior Facilities Agreement occurs.
Instructing Group means at any time: (a)on or prior to the Senior Discharge
Date, the Majority Senior Banks; and (b)after the Senior Discharge Date, the
Majority Senior Subordinated Banks.
Liability means, in relation to any document or agreement, any present or future
liability (actual or contingent) payable or owing under or in connection with
that document or agreement whether or not matured and whether or not liquidated,
together with:
(a) any refinancing, novation, deferral or extension of that liability;
(b) any claim for breach of representation, warranty,
undertaking or on an event of default or under any indemnity in
connection with that document or agreement;
(c) any further advance made under any document or agreement supplemental
to that document or agreement, together with all related interest, fees
and costs;
(d) any claim for damages or restitution in the event of rescission of that
liability or otherwise in connection with that document or agreement;
(e) any claim flowing from any recovery of a payment or discharge in
respect of that liability on the grounds of preference or otherwise;
and
(0 any amount (such as post-insolvency interest) which would be included
in any of the above but for its discharge, non-provability,
unenforceability or non-allowability in any Insolvency or other
proceedings.
Majority Senior Banks means the "Majority Banks" as defined in the Senior
Facilities Agreement.
4
Majority Senior SUBORDINATED BANKS MEANS the "Majority Banks" as defined in the
Senior Subordinated Facility Agreement.
New Obligor has the meaning given to it in Subclause 20.3 (New Obligors).
New Security Documents means the "Security Documents" as defined in the Senior
Subordinated Facility Agreement.
Non-Payment Event means failure by any Obligor to pay on the due date:
(a) any amount of principal (whether falling due by reason of a scheduled
repayment, mandatory prepayment, acceleration or any other reason),
interest, fee or hedging payment; or
(b) any other amounts the Sterling Amount of which in aggregate
exceeds(pound)10,000, in either case representing Senior Debt.
Obligor means the Company, each other member of the Group specified in Schedule
I (The Obligors) and each New Obligor.
PARTY MEANS an Obligor, Senior Finance Party or Senior Subordinated Finance
Party, as the context requires.
Purchase Amount has the meaning given to it in Subclause 20.7 (Option to
Purchase).
Purchase Date has the meaning given to it in Subclause 20,7 (Option to
Purchase).
Report Provider has the meaning given to it in paragraph (h) of Subclause 7.1
(Restrictions).
Secured Creditor means a Senior Finance Party or a Senior Subordinated Finance
Party, as the context requires.
Secured Debt means the Senior Debt and the Senior Subordinated Debt.
Secured Debt Discharge Date means the later of the Senior Discharge Date and the
Senior Subordinated Discharge Date.
Secured Debt Finance Documents means the Senior Finance Documents and the Senior
Subordinated Finance Documents.
Security means any Encumbrance created, evidenced or conferred by or pursuant to
any Secured Debt Finance Document.
Security Agent means X.X. Xxxxxx Europe Limited in its capacity as agent and
trustee for the Secured Creditors of the security conferred under the New
Security Documents, and any sub-agent, sub-trustee or custodian appointed by it.
Security Documents means the Existing Security Documents and the New Security
Documents.
Senior Agent means X.X. Xxxxxx Europe Limited in its capacity as facility agent
for the Senior Banks under the Senior Facilities Agreement.
Senior Banks means the "Banks" as defined in the Senior Facilities Agreement.
5
Senior Debt means all Liabilities of any Obligor to any Senior Finance Party
under or in connection with the Senior Finance Documents, provided that, for the
purpose of this Agreement only and without prejudice to the liabilities secured
by the Security Documents, the term Senior Debt excludes (as against the Senior
Subordinated Finance Parties only and not as against any Obligor): (a) any
amount outstanding in excess of the limit imposed by Subclause 13.3 (Limit on
Senior Debt); and (b) any amount outstanding and owed to any Senior Finance
Party which would not have been outstanding but for a breach of the provisions
of this Agreement by that Senior Finance Party.
Senior Default means an "Event of Default" as defined in the Senior Facilities
Agreement.
Senior Discharge Date means the date on which the Senior Agent is satisfied that
all of the Senior Debt has been irrevocably paid and discharged and all
Commitments of the Senior Banks have been cancelled and all obligations of the
Hedge Counterparties under the Hedge Documents have been terminated.
Senior Facilities Agreement means the senior facilities agreement dated 10
August 1999, as amended on 20 August 1999 and 5 November 1999, amended and
restated on 27 May 2002 and last amended on 30 October 2003 and 17 November 2003
and made between, among others, the Company, X.X. Xxxxxx plc and Barclays
Capital (the investment banking division of Barclays Bank PLC) as Amendment
Arrangers, JPMorgan Chase Bank and Barclays Bank PLC as Amendment Underwriters,
the banks and financial institutions party thereto, and X.X. Xxxxxx Europe
Limited as the Agent and the Security Agent. Senior Finance Documents means the
"Finance Documents" (including the Hedge
Documents) as defined in the Senior Facilities Agreement.
Senior Finance Party means each of:
(a) the Senior Banks;
(b) the Arrangers, the Underwriters, the Senior Agent and (before and
including the Senior Discharge Date) the Security Agent; and
(c) the Hedge Counterparties.
Senior Headroom means at any time a principal amount the Sterling Amount of
which is (Pound)36,500,000 less:
(a) an amount equal to the aggregate amount which would have been required
to be prepaid under subclauses 6.6 (Mandatory prepayment), 6.10
(Application of disposal proceeds), 6.11 (Cash sweep) and 6.12 (Citadel
Insurance Company Limited) of the Senior Facilities Agreement prior to
that time, but which has not been prepaid because of waivers of that
requirement by the Majority Senior Banks (except where the Majority
Senior Subordinated Banks have also agreed to such waiver); and
(b) an amount equal to the aggregate amount of scheduled repayment
instalments in respect of Term Advances (as defined in the Senior
Facilities Agreement) which would have fallen due prior to that time
but for any deferral by more than six months of the due date for any
such scheduled repayment instalments by the Senior Banks (except where
the Majority Senior Subordinated Banks have agreed to that deferral) to
the extent that each such scheduled repayment instalment has not been
repaid at that time.
6
Senior Subordinated Agent means X.X. Xxxxxx Europe Limited in its capacity as
facility agent for the Senior Subordinated Banksunder the Senior Subordinated
Facility Agreement.
Senior Subordinated Banks means the "Banks" as defined in the Senior
Subordinated Facility Agreement.
Senior Subordinated Debt means all Liabilities of any Obligor to any Senior
Subordinated Finance Party under or in connection with any Senior Subordinated
Finance Document.
Senior Subordinated Default means an "Event of Default" as defined in the Senior
Subordinated Facility Agreement.
Senior Subordinated Discharge Date means the date on which the Senior
Subordinated Agent is satisfied that all of the Senior Subordinated Debt has
been irrevocably paid and discharged and all Commitments under (and as defined
in) the Senior Subordinated Facility Agreement cancelled.
Senior Subordinated Facility Agreement means the secured senior subordinated
term loan acquisition facility agreement dated 17 November 2003 between, amongst
others, the Company, the Senior Subordinated Banks, the Senior Subordinated
Agent and the Security Agent providing for a term loan facility.
Senior Subordinated Finance Documents means the "Finance Documents" as defined
in the Senior Subordinated Facility Agreement.
Senior Subordinated Finance Party means each of:
(a) the Senior Subordinated Banks; and
(b) the "Arranger" and "Underwriter" under and as defined in the Senior
Subordinated Facility Agreement, the Senior Subordinated Agent and
(after the Senior Discharge Date or to the extent of any claim by the
Security Agent as joint and several creditor with any other Senior
Subordinated Finance Party) the Security Agent.
Standstill Period has the meaning given to it in Clause 8 (Permitted
Enforcement).
Stop Notice has the meaning given to it in paragraph (b) of Clause 4 (Permitted
Payments).
Trust Property means, collectively, (a) the security, powers, rights, titles,
benefits and interests (both present and future) constituted by and conferred on
the Security Agent under or pursuant to the New Security Documents (including,
without limitation, the benefit of all covenants given in the New Security
Documents), (b) all moneys, property and other assets paid or transferred to or
vested in the Security Agent (or any agent of the Security Agent) or received or
recovered by the Security Agent (or any agent of the Security Agent) pursuant
to, or in connection with, any of the New Security Documents whether from any
Obligor or any other person and (c) all rights, benefits, interests, money,
investments, property and other assets at any time representing or deriving from
any of the foregoing, including all interest, income and other sums at any time
received or receivable by the Security Agent (or any agent of the Security
Agent) in respect of the same (or any part thereof).
Turnover Receipt has the meaning given to it in Clause 5 (Turnover).
7
1.2 Interpretation (
(a) References to any of the Security Agent, the Senior Agent, the Senior
Finance Parties, the Hedge Counterparties, the Senior Subordinated
Finance Parties, the Senior Subordinated Agent or the Obligors in
whatever capacity include their respective successors, assigns,
replacements, transferees and substitutes from time to time.
(b) The provisions of subclauses 1.2 (Headings) and 1.3 (Construction) of
the Senior Facilities Agreement apply to this Agreement as though they
were set out in full in this Agreement, except that references to the
Senior Facilities Agreement are to be construed asjefrrsnce&io~ this
Agreement.
(c) Save as otherwise specified in this Agreement, a reference to the
Senior Facilities Agreement, a Senior Finance Document, a Hedge
Document, the Senior Subordinated Facility Agreement or a Senior
Subordinated Finance Document is to that document or agreement as
amended from time to time in accordance with the terms of this
Agreement.
(d) In this Agreement, unless the context otherwise requires references to:
(i) an amendment includes an amendment, supplement, novation,
re-enactment, replacement, restatement, variation or waiver or
the giving of any waiver, release or consent having the same
commercial effect (and amend shall be construed accordingly);
(ii) give any financial support (or similar phrases) in connection
with any Secured Debt include the taking of any participation
in or in respect of such Secured Debt, the giving of any
guarantee or other assurance against loss in respect of such
Secured Debt, or the making of any deposit or payment in
respect of or on account of such Secured Debt;
(iii) a notice includes any notice, request, instruction, demand or
other communication;
(iv) an Everu of Default, Senior Default, Senior Subordinated
Default or Non-Payment Event being outstanding, is to such
Event of Default, Senior Default, Senior Subordinated Default
or Non-Payment Event having occurred and continuing
uniremedied and unwaived; and
(v) a payment include a distribution, prepayment or repayment and
references to pay include distribute, repay or prepay.
(e) In determining whether or not an amount of Senior Debt or Senior
Subordinated Debt has been irrevocably paid and discharged the Senior
Agent or Senior Subordinated Agent, as the case may be, will disregard
contingent liabilities (such as the risk of clawback flowing from a
preference) except to the extent that such Agent believes that there is
a reasonable likelihood that those contingent liabilities will become
actual liabilities.
(f) Unless expressly provided to the contrary in this Agreement, a person
who is not a Party may not enforce any of the terms of this Agreement
under the Contracts (Rights of Third Parties) Xxx 0000 and,
notwithstanding any term of this Agreement, no consent of any third
party is required for any amendment (including any release or
compromise of any liability) or termination of this Agreement.
(g) No part of this Agreement is intended to or shall create a registrable
Encumbrance.
8
(h) If there is any conflict between the terms of this Agreement and any
other Finance Document, the terms of this Agreement will prevail.
2. RANKING
(a) Unless expressly provided to the contrary in this Agreement:
(i) the Secured Debt shall rank in right and priority of payment;
and
(ii) the Security shall rank and secure the Secured Debt,
in each case in the following order:
First the Senior Debt; and
Second the Senior Subordinated Debt.
(b) The ranking and priority in paragraph (a) above applies regardless of:
(i) the order of registration, filing, notice or execution of any
document;
(ii) the date upon which such Secured Debt was incurred or arose;
(iii) whether a person is obliged to advance any such Secured Debt;
and
(iv) any fluctuations in the outstanding amount, or any
intermediate discharge in whole or in part of any Secured
Debt.
(c) Notwithstanding the fixed charges on bank accounts and Debts (as that
term is defined in the Group Debenture) contained in the Security
Documents, each Ancillary Facilities Bank may, subject to clause 15.6
of the Senior Facilities Agreement, continue to exercise its rights of
set-off or combination of accounts under any Group netting agreements.
3. UNDERTAKINGS
Prior to the Senior Discharge Date, except as the Majority Senior Banks
have agreed in writing, or to the extent permitted by Clause 4
(Permitted Payments), Subclause 6.2 (Filing of Claims) or Clause 8
(Permitted Enforcement):
(a) no Obligor will (and each Obligor will procure that none of
its Subsidiaries will) make any payment of or in respect of,
or purchase, redeem or acquire, any of the Senior Subordinated
Debt in cash or in kind;
(b) no Senior Subordinated Finance Party will demand or receive
payment of or in respect of any Senior Subordinated Debt in
cash or kind or apply any money or property in or towards the
discharge of any Senior Subordinated Debt;
(c) no Senior Subordinated Finance Party or Obligor will discharge
any Senior Subordinated Debt by set-off, any right of
combination of accounts or otherwise;
(d) no Obligor will (and each Obligor will procure that none of
its Subsidiaries will) create or permit to subsist any
Encumbrance over any of its assets for any of the Senior
Subordinated Debt except under the New Security Documents
granted for the
9
benefit of all the Secured Creditors in accordance with the
priority and ranking specified in this Agreement;
(e) no Obligor will (and each Obligor will procure that none of
its Subsidiaries will) give any financial support to any
person for or in connection with the Senior Subordinated Debt,
except as effected under the original terms of the Senior
Subordinated Finance Documents (as amended to the extent
permitted under Clause 11 (Amendments)) and in accordance with
the priority and ranking specified in this Agreement;
(1) no Obligor or Senior Subordinated Finance Party will allow any
Senior Subordinated Debt to be evidenced by a negotiable
instrument;
(g) no Senior Subordinated Finance Party will allow any Senior
Subordinated Debt to be subordinated to any person otherwise
than as may arise as a matter of law or in accordance with
this Agreement; and
(h) no Obligor or Senior Subordinated Finance Party will take or
omit to take any action whereby the ranking and/or
subordination of the Senior Subordinated Debt provided ,~ for
in this Agreement may be impaired.
4. PERMITTED PAYMENTS
(a) Prior to the Senior Discharge Date, but subject to paragraphs (b) and
(c) below and to Clause 5 (Turnover), unless the Majority Senior Banks
otherwise agree, no Obligor may pay, and no Senior Subordinated Finance
Party may receive and retain, payment, whether in cash or in kind, of
any amount of Senior Subordinated Debt unless the following conditions
are satisfied:
(i) the amount is then due and payable under the terms of the
Senior Subordinated Finance Documents;
(ii) the payment is of interest, fees or expenses;
(iii) no Non-Payment Event is outstanding; and
(iv) no Stop Notice is in force.
(b) A Stop Notice is in force during the period from the date on which the
Senior Agent (on the instructions of the Majority Senior Banks) serves
a notice (a Stop Notice) on the Company and the Senior Subordinated
Agent speci~ing that a Senior Default is outstanding and suspending
payment of the Senior Subordinated Debt, until the earlier of:
(i) the date 150 days after receipt by the Company and the Senior
Subordinated Agent of the Stop Notice;
(ii) if a Standstill Period is in effect at any time during that
period, the date on which that Standstill Period expires;
(iii) the date on which the Senior Default concerned ceases to be
outstanding, for which purpose a breach of a financial
covenant under the Senior Facilities Agreement will be treated
as remedied if that financial covenant is complied with when
next tested under the Senior Facilities Agreement;
10
(iv) the date on which the Senior Agent, acting on the instructions
of the Majority Senior Banks, by notice to the Company and the
Senior Subordinated Agent cancels the Stop Notice; or
(v) the Senior Discharge Date,
PROVIDED THAT no Stop Notice may be served by the Senior Agent in
reliance on a particular Senior Default more than six months after the
Senior Agent received notice from any Obligor, Senior Finance Party or
Senior Subordinated Finance Party specifying the event or circumstances
concerned and that it is a Senior Default and provided further that the
Senior Agent may only serve one Stop Notice in relation to each Senior
Default.
(c) No amount of principal of the Senior Subordinated Debt may be paid by
(or on behalf of) an Obligor prior to the Senior Discharge Date without
the prior consent of the Majority Senior Banks. The accrual of all
interest (and the capitalisation of interest) in accordance with the
terms of the Senior Subordinated Facility Agreement shall be permitted
notwithstanding service of a Stop Notice or any other provision of this
Subclause.
5. TURNOVER
(a) If, before the Senior Discharge Date, any Senior Subordinated Finance
Party receives or recovers a payment in cash or in kind (including by
way of set-off or combination of accounts):
(i) of any of the Senior Subordinated Debt which is prohibited by
Clause 4 (Permitted Payments) or not made in accordance with
Clause 9 (Application of Proceeds of Enforcement); or
(ii) from (or on behalf of) any member of the Group on account of
the purchase, redemption or acquisition of any Senior
Subordinated Debt,
(each such payment or distribution received or recovered prior to the
Senior Discharge Date being a Turnover Receipt) the receiving or
recovering Senior Subordinated Finance Party will promptly notify the
Security Agent.
(b) Each Senior Subordinated Finance Party shall, upon demand by the
Security Agent, pay to the Security Agent for application as provided
in Clause 9 (Application of Proceeds of Enforcement) an amount
determined by the Security Agent to be equal to the lesser of:
(i) the outstanding balance of the Senior Debt; and (ii) the
amount of such Turnover Receipt, less the third party costs
and expenses (if any) reasonably incurred by the Senior
Subordinated Finance Party concerned in receiving or recovering such
Turnover Receipt.
(c) Each Obligor shall indemnify each Senior Subordinated Finance Party (to
the extent of its liability for the Senior Subordinated Debt) for the
amount of any Turnover Receipt paid by that Senior Subordinated Finance
Party to the Security Agent and such third party costs and expenses
incurred by it, and the Senior Subordinated Debt will not be deemed to
have been reduced or discharged in any way or to any extent by the
receipt or recovery of the relevant Turnover Receipt.
11
6. SUBORDINATION ON INSOLVENCY
6.1 SUBORDINATION EVENTS
If any Event of Default specified in subclauses 12.1(h) (Insolvency) to
12.1(1) (Analogous proceedings) (inclusive) of the Senior Facilities
Agreement occurs to or in respect of any Obligor, then the Senior
Subordinated Debt owed by the Insolvent Obligor will be subordinate in
right of payment to the Senior Debt owed by such Insolvent Obligor.
6.2 FILING OF Claims
(a) Until the Senior Discharge Date, the Security Agent acting on the
instructions of the Majority Senior Banks may, and is irrevocably
authorised on behalf of the Senior Subordinated Finance Parties to:
(i) claim, enforce and prove for any Senior Subordinated Debt owed
by the Insolvent Obligor;
(ii) file claims and proofs, give receipts and take all such
proceedings and do all such things as the Security Agent
considers reasonably necessary to recover any Senior
Subordinated Debt owed by the Insolvent Obligor; and
(iii) receive all payments of or in respect of any Senior
Subordinated Debt owed by the Insolvent Obligor for
application in accordance with Clause 9 (Application of
Proceeds of Enforcement).
(b) Subject to paragraph (c) below, each of the Senior Subordinated Finance
Parties undertakes that it shall refrain from taking any of the actions
referred to in paragraph (a) above.
(c) If the Security Agent is not entitled or does not wish to do or take
any of the actions referred to in paragraph (a) above the Senior
Subordinated Finance Parties will each do so promptly when requested by
the Security Agent acting on the instructions of the Majority Senior
Banks, subject to the Senior Finance Parties giving an appropriate
indemnity for any costs and expenses which may be reasonably incurred
by the Senior Subordinated Finance Parties in doing or taking the
actions so requested.
6.3 Distributions
Until the Senior Discharge Date each Senior Subordinated Finance Party
will:
(a) upon demand by the Security Agent, pay an amount equal to all
payments of or in respect of any Senior Subordinated Debt in
cash or in kind received by or on behalf of it from any
Insolvent Obligor (or any liquidator, administrator, receiver
or similar official of such Insolvent Obligor or its assets)
to the Security Agent for application in accordance with
Clause 9 (Application of Proceeds of Enforcement); and
(b) direct the trustee in bankruptcy, liquidator, administrator,
receiver or other person distributing the assets of an
Insolvent Obligor or their proceeds to make payments on the
Senior Subordinated Debt direct to the Security Agent until
the Senior Debt has been paid in full.
12
7. RESTRICTIONS ON ENFORCEMENT
7.1 RestrIctions
Subject to Clause 6 (Subordination on Insolvency) and except as
permitted under Clause 8 (Permitted Enforcement), until the Senior
Discharge Date none of the Senior Subordinated Finance Parties will,
unless the Majority Senior Banks have previously agreed in writing:
(a) demand payment of any Senior Subordinated Debt;
(b) accelerate any of the Senior Subordinated Debt or otherwise
declare any of the Senior Subordinated Debt prematurely due or
payable on a Senior Subordinated Default or otherwise;
(c) enforce any of the Senior Subordinated Debt by attachment,
set-off, execution or otherwise;
(d) (or will give instructions to the Security Agent to)
crystallise any floating charge in the New Security Documents,
appoint an administrative receiver or a receiver or have an
administrator appointed or otherwise enforce the Security;
(e) petition for (or vote in favour of any resolution for) or
initiate, support or take any steps with a view to any
Insolvency or any voluntary arrangement or assignment for the
benefit of creditors or any similar proceedings involving an
Obligor;
(f) xxx or bring or support any legal proceedings against any
Obligor (or any of its Subsidiaries) in connection with the
Senior Subordinated Debt, except that nothing in this
paragraph (f) will restrict the bringing of proceedings solely
for injunctive relief (or analogous proceedings in
jurisdictions outside England and Wales) to restrain any
actual or putative breach of the Senior Subordinated Finance
Documents or for specific performance not claiming damages
where doing so would not conflict with any other provision of
this Agreement,
(g) otherwise exercise any remedy for the recovery of any Senior
Subordinated Debt; or
(h) xxx or bring or support proceedings against or make demand on
the provider of any of the Third Reports (a Report Provider)
in connection with the Third Reports or receive payment from
any of the Report Providers in connection with any such suit,
proceedings or demand if there is an aggregate limit on the
amount of claims which may be brought by any of the Parties
against such Report Provider and the aggregate amount of all
such claims against that Report Provider might exceed the
amount of any limitation of liability on which that Report
Provider is entitled to rely, provided that in any case:
(i) a Senior Subordinated Finance Party must notify the
Senior Agent before suing or bringing or supporting
proceedings against or making a demand on a Report
Provider in connection with the Third Reports; and
(ii) the Senior Finance Parties will be entitled to fill
payment of their claims against that Report Provider
in connection with any Third Report in priority to
the claims of the Senior Subordinated Finance Parties
against that Report Provider and each Senior
Subordinated Finance Party will on demand pay to the
Security Agent for application as provided in Clause
9 (Application of
13
Proceeds of Enforcement) an amount equal to any
amount received by it in breach of this Subclause.
7.2 Senior Subordinated Finance Party Actions
If any restriction in this Clause preventing a Senior Subordinated
Finance Party from suing or bringing or supporting proceedings against
any member of the Group or any Report Provider would result in such
Senior Subordinated Finance Party being prevented from suing or
bringing or supporting those proceedings by reason of the expiry of any
statutory limitation period, that Senior Subordinated Finance Party
shall be able to xxx or bring or support those proceedings against that
member of the Group or Report Provider, but only to the extent
necessary to prevent loss of the right to xxx or bring or support those
proceedings.
8- PERMITTED ENFORCEMENT
The Senior Subordinated Finance Parties may take any of the actions
otherwise prohibited by
Clause 7 (Restrictions on Enforcement) PROVIDED THAT:
(a) the Enforcement Date has occurred; or
(b) if any of the events referred to in Subclause 6.1
(Subordination Events) occurs in respect of an Obligor the
Senior Subordinated Finance Parties may if there is then a
Senior Subordinated Default outstanding take any such actions
against such Obligor but not against or in relation to any
other Obligor; or
(c) (i) the Senior Subordinated Agent has given notice in
writing (an Enforcement Notice) to the Senior Agent
specifying that a Senior Subordinated Default is
outstanding; and
(ii) a period (a Standstill Period) of not less than:
(A) 90 days, in the case of non-payment of:
I. any principal, interest or fees; or
II. any other amounts the Sterling
Amount of which in aggregate
exceeds(pound)10,000,
in each case representing Senior
Subordinated Debt;
(B) 120 days, in the case of breach of a
financial covenant in clause 10.3 (Financial
undertakings) of and schedule S (Financial
undertakings and accounting terms) to the
Senior Subordinated Facility Agreement; or
(C) 150 days, in any other case,
has elapsed from the date the Senior Agent received
the Enforcement Notice relating to such Senior
Subordinated Default; and
(iii) such Senior Subordinated Default is outstanding at
the end of the Standstill Period (for which purpose a
breach of a financial covenant under the Senior
Subordinated Facility Agreement will be treated as
remedied if that financial
14
covenant is complied with when next tested under the
Senior Subordinated Facility Agreement).
9. APPLICATION OF PROCEEDS OF ENFORCEMENT
9.1 Order of Application
Subject to the rights of any creditor with prior security or
preferential claims, the proceeds of enforcement of the Security shall
be paid to the Security Agent. Those proceeds and all other amounts
paid to the Security Agent under this Agreement shall be applied in the
following order:
(a) First as to a sum equivalent to the amounts payable to the
Security Agent under paragraph 16 of Schedule S and clauses
10.1 and 10.4 of the Group Debenture as defined in the Senior
Subordinated Facility Agreement and any equivalent or similar
provisions in any other New Security Document from time to
time (excluding any amounts received by the Security Agent
pursuant to paragraph 10 of Schedule 5), for the Security
Agent absolutely;
(b) Second as to a sum equivalent to the amounts standing to the
credit of any Cash Collateral Accounts in respect of Ancillary
Facilities Liabilities or otherwise standing to the credit of
any accounts which have been netted against Ancillary
Facilities Liabilities under the terms of the Ancillary
Facilities Letters which operate on a net limit basis in each
case from time to time and to the extent that for any reason
the relevant Ancillary Facilities Banks are unable to apply
such amounts in satisfaction of Ancillary Facilities
Liabilities, for such relevant Ancillary Facilities Banks
absolutely, pro-rata in respect of each such relevant
Ancillary Facilities Bank;
(c) Third as to a sum equivalent to the Senior Debt (other than
that owing to the Security Agent and (to the extent that they
are satisfied pursuant to Subclause 9.1(b) and/or Clause 9.2
(Ancillary Facilities Liabilities)) the Ancillary Facilities
Banks) (for the avoidance of doubt excluding the amount of any
Senior Debt referred to in the proviso to such term in
Subclause 1.1 (Definitions)), for the Senior Finance Parties
absolutely, and pro-rata (with the Security Agent obtaining a
good discharge in respect of the amounts expressed to be due
to the Senior Finance Parties (other than the Hedge
Counterparties) under the terms of the Senior Facilities
Agreement by paying such amounts to the Senior Agent for
distribution in accordance with clause 8.9 of the Senior
Facilities Agreement);
(d) Fourth as to a sum equivalent to the Senior Subordinated Debt,
for the Senior Subordinated Finance Parties absolutely, and
pro-rata (with the Security Agent obtaining a good discharge
by paying such amounts to the Senior Subordinated Agent for
distribution in accordance with clause 8.9 of the Senior
Subordinated Facility Agreement);
(e) Fifth in payment to the Senior Agent for application towards
any amounts of Senior Debt referred to in the proviso to such
term in Subclause 1.1 (Definitions) pro-rata between the
holders of such Senior Debt;
15
(0 SIXTH to such other persons (if any) as are legally entitled
thereto in priority to the Company and the Charging
Subsidiaries; and
(g) Seventh as to the balance (if any) for the Company and the
Charging Subsidiaries absolutely pro-rata to the respective
amounts paid, received or recovered from each of them.
9.2 Ancillary Facilities Liabilities
The other Secured Creditors agree with the Ancillary Facilities Banks
that any part of the Ancillary Facilities Liabilities in respect of
which amounts are standing to the credit of any Cash Collateral
Accounts in the name of the Ancillary Facilities Banks pursuant to the
Senior Facilities Agreement and/or any Ancillary Facilities Letter or
which have otherwise been netted against amounts standing to the credit
of any accounts under the terms of any Ancillary Facilities Letter
shall rank ahead of the Indebtedness owing under the Secured Debt
Finance Documents to the extent that the Ancillary Facilities Banks are
able to apply such amounts in satisfaction of such Ancillary Facilities
Liabilities.
10. ENFORCEMENT OF SECURITY
10.1 Enforcement Instructions
(a) The Security Agent may refrain from enforcing the Security unless
instructed otherwise by an Instructing Group or, if required under
paragraph (b) of Subclause 10.2 (Competing Instructions to Security
Agent), the Majority Senior Subordinated Banks.
(b) Subject to the Security having become enforceable, an Instructing Group
or, if permitted under Clause S (Permitted Enforcement), the Majority
Senior Subordinated Banks may give or refrain from giving instructions
to the Security Agent to enforce or refrain from enforcing the Security
as they see fit.
10.2 Competing Instructions to Security Agent
(a) Save as provided in paragraph (b) below, any instructions given to the
Security Agent by an Instructing Group will override any conflicting
instructions given by any other Parties.
(b) Prior to the Senior Discharge Date:
(i) if the Majority Senior Banks have instructed the Security
Agent not to enforce or to cease enforcing the Security; or
(ii) in the absence of instructions from the Majority Senior Banks,
the Security Agent shall give effect to any instructions to enforce the
Security which the Majority Senior Subordinated Banks are then entitled
to give to the Security Agent under Clause 8 (Permitted Enforcement).
(c) The Security Agent is entitled to rely on and comply with instructions
given in accordance with this Subclause.
103 Manner of Enforcement
(a) The Security Agent shall enforce the Security (if then enforceable) in
such manner as an Instructing Group or, if required by paragraph (b) of
Subclause 10.2 (Competing Instructions
16
to Security Agent), the Majority Senior Subordinated Banks shall
instruct or, in the absence of those instructions, as it sees fit and,
subject as required by applicable law, having regard first to the
interests of the Senior Finance Parties, but also having regard to the
interests of the Senior Subordinated Finance Parties save where to do
so could, in the opinion of the Security Agent or the Majority Senior
Banks (as the case may be), adversely affect the interests Of the
Senior Finance Parties.
(b) None of the Security Agent and the Senior Finance Parties shall be
responsible to any Senior Subordinated Finance Party or Obligor, and no
Senior Subordinated Finance Party shall be responsible to any Obligor,
for any enforcement or failure to enforce or to maximise the proceeds
of any enforcement of the Security, and any of the Security Agent, the
Senior Finance Parties and the Senior Subordinated Finance Parties,
as1h~ case may be, may cease any such enforcement at any time.
10.4 Sales by Security Agent
If a disposal to a person or persons outside the Group of any asset
owned by an Obligor over which Security has been created is:
(a) permitted by subclause 10.6(1) (Disposals) of the Senior
Facilities Agreement and subclause 10.6(1) (Disposals) of the
Senior Subordinated Facility Agreement;
(b) being effected at the request of an Instructing Group or, if
required under paragraph (b) of Subclause 10.2 (Competing
instructions to the Security Agent), the Majority Senior
Subordinated Banks, in circumstances where the Security has
become enforceable; or
(c) being effected by enforcement of the Security,
the Security Agent is irrevocably authorised to execute on behalf of
each Secured Creditor and each Obligor (and at the cost of the relevant
Obligor),
(i) any release of the Security over that asset; and
(ii) if that asset comprises all of the shares in the capital of
any Obligor (or any Holding Company of an Obligor) held by
members of the Group, a release of that Obligor and its
Subsidiaries from all present and future liabilities (both
actual and contingent and including any liability to any other
Obligor under the Senior Finance Documents or the Senior
Subordinated Finance Documents by way of contribution or
indemnity) in its capacity as a guarantor under the Senior
Finance Documents or the Senior Subordinated Finance Documents
and a release of any Security granted by that Obligor and its
Subsidiaries over any of their respective assets,
PROVIDED THAT:
(A) in the case of paragraph (a) above the Net Proceeds
of the disposal are to be applied as provided for in
the Senior Facilities Agreement and the Senior
Subordinated Facility Agreement; and
(B) otherwise the net cash proceeds of the sale or
disposal are applied in payment of Secured Debt in
the order set out in Clause 9 (Application of
Proceeds of Enforcement).
17
Each Secured Creditor will execute such releases as the Security Agent
may reasonably require to give effect to this Subclause. No such
release will affect the obligations and liabilities of any other
Obligor under the Secured Debt Finance Documents.
11. AMENDMENTS
11.1 Amendments
Subject to Subclause 11.2 (Permitted Amendments), no Party may amend
any term of any Secured Debt Finance Document in a manner or to an
extent which would result in:
(a) any increase in the amount of any payment under that Secured
Debt Finance Document not contemplated by the original terms
of the Secured Debt Finance Documents;
(b) any payment becoming due or being required to be paid earlier
or more frequently than originally provided for under or
contemplated by that Secured Debt Finance Document (but this
shall not restrict the operation of subclauses 12.2
(Acceleration) or 12.3 (Demand basis) of the Senior Facilities
Agreement or 11.2 (Acceleration) or 11.3 (Demand basis) of the
Senior Subordinated Facility Agreement);
(c) any deferral of any scheduled repayment of any Senior Debt:
(i) in an aggregate amount in excess of the Senior
Headroom, by more than 6 months from the original due
date; or
(ii) to a date falling after 31 March 2009;
(d) any deferral or waiver of a mandatory prepayment under clauses
6.6 (Mandatory prepayment), 6.10 (Application of disposal
proceeds), 6.11 (Cash sweep) or 6.12 (Citadel Insurance
Company Limited) of the Senior Facilities Agreement which
prepayment would otherwise be in an aggregate amount in excess
of the Senior Headroom;
(e) any change to the basis upon which an amount accrues or a
payment is calculated in accordance with, or any change in the
currency of any payment under, the original provisions of that
Secured Debt Finance Document;
(1) any representation, warranty, undertaking or event of default
under that Secured Debt Finance Document imposing an
additional material obligation on any Obligor or becoming more
onerous in any material respect for an Obligor;
(g) any Obligor becoming liable to make an additional payment or
any change from non-cash payment or capitalisation of any
amount to cash payment, not contemplated by the original terms
of that Secured Debt Finance Document; or
(h) a change to the priority, ranking or subordination achieved or
intended to be achieved by this Agreement.
11.2 permitted Amendments
Notwithstanding Subclause 11.1 (Amendments), the terms of a Secured
Debt Finance Document may be amended if the amendment:
18
(a) is agreed to by an Instructing Group (and if prior to the
Senior Discharge Date the Majority Senior Subordinated Banks
in the case of any amendment relating to the Senior Finance
Documents);
(b) constitutes a procedural or administrative change arising in
the ordinary course of administration of the relevant Secured
Debt and is not material;
(c) constitutes a deferral of any scheduled repayment of any
Senior Debt (not being Hedging Debt):
(i) in an amount not exceeding the Senior Headroom, by
not more than six months from the original due date;
and
(ii) to a date falling not later than 31 March 2009,
together with interest on the deferred principal amount at the
same rate (subject to Subclause 11.2(1)) as that payable under
the original provisions of the Senior Finance Documents;
(d) constitutes a capitalisation of interest, fees or expenses
into principal provided that (in ____~_the~case~~otan3L such
capitalisation~ofthe-SeniorDebt)~Subciause--1-1-~2(e)
4s-eornp1ied---~---- with;
(e) constitutes an increase in the principal amount of the Senior
Debt (excluding Hedging Debt) and the payment of fees and
expenses in connection with such increase together with
interest on the additional principal amount at the same rate
(subject to Subclause 11.2(1)) as that payable under the
original provisions of the Senior Finance Documents, but only
to the extent that such increased amount is scheduled to be
repaid on a date falling on or before 31 March 2009 and is not
in excess of the Senior Headroom
(0 (in the case of the Senior Facilities Agreement) increases, by
not more than one per cent., the applicable Margin in respect
of any amount outstanding under the Senior Facilities
Agreement and not constituting a breach of this Agreement by
reason only that it falls within the Senior Headroom; and/or
(g) (in the case of the Senior Subordinated Facility Agreement)
increases the Margin (as defined in the Senior Subordinated
Facility Agreement) to any rate which, on the date of any
amendment to the Senior Subordinated Facility Agreement
pursuant to this Subclause (g), is lower than the LIBOR
adjusted return, as calculated on such date, on Newco l's High
Yield Bonds to their maturity.
If the Senior Finance Parties or Senior Subordinated Finance Parties,
as the case may be, are requested to consent to any amendments of any
Senior Subordinated Finance Document or Senior Finance Document under
paragraph (a) above they shall use their reasonable endeavours to
consider and respond to such request in a timely manner.
11.3 Remedies Cumulative, Waivers
The rights of each Secured Creditor under this Agreement:
(a) are cumulative and not exclusive of its tights under the
general law;
(b) may be waived only in writing and specifically; and
19
(c) may be exercised as often as necessary.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
12. HEDGING DEBT
12.1 Accession of Hedge Counterparties
A person providing Hedging to any Obligor will only be entitled to
share in the Security in respect of that Hedging or benefit from this
Agreement if:
(a) that person and is specified in Schedule 2 (Senior Finance
Parties); or
(b) that person is a Senior Bank (or its Bank Affiliate) or the
Senior Agent and the Senior Subordinated Agent have agreed in
writing to the identity of that person. Upon the execution by
that person of a Deed of Accession and its delivery to the
Security Agent that person will become a Hedge Counterparty
under this Agreement.
12.2 Undertakings relating to Hedging Debt
Unless the Majority Senior Banks and Majority Senior Subordinated Banks
have agreed in writing no Hedge Counterparty will terminate or close
out any Hedge Transaction to which it is a party (each such Hedge
Transaction being a relevant Hedging Transaction) except:
(i) as a result of the non-payment by the relevant member
of the Group of any Indebtedness under any relevant
Hedging Transaction which has fallen due for payment
in the currency and manner stipulated in the relevant
Hedge Document before the expiry of any applicable
cure period (or, if no cure period is prescribed in
the relevant Hedge Document, 3 Banking Days);
(ii) as a result of the repudiation of any relevant
Hedging Transaction by the relevant member of the
Group;
(iii) upon the issue by the Senior Agent of a notice under
paragraphs (c) or (e) of subclause 12.2
(Acceleration) of the Senior Facilities Agreement;
(iv) upon:
(A) it becoming contrary to any law or
regulation for the relevant member of the
Group or such Hedge Counterparty to perform
the payment obligations expressed to be
assumed by it in respect of any relevant
Hedging Transaction or such obligations
become invalid or unenforceable against the
relevant member of the Group; or
(B) any provision of any Hedge Document to which
such Hedge Counterparty is a party relating
to the termination thereof (including,
without limitation, the calculation of or
obligation to pay amounts upon such
termination) becoming invalid or
unenforceable against the relevant member of
the Group;
(v) upon any exchange control, foreign currency or other
consent authorisation, licence or approval of, or
registration with or declaration to, governmental or
public bodies or authorities or courts required by
the relevant member of the Group to authorise, or
required by the relevant member of the Group in
20
connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of any
Hedge Document or the performance of its payment
obligations thereunder being modified in a manner
unacceptable to such Hedge Counterparty or not being
granted or being revoked or terminated or expiring
and not being renewed or otherwise ceasing to be in
fill force and effect, or
(vi) upon the winding-up of, or the administration of, or
the appointment of a receiver in respect of any part
of the assets and/or undertaking of, or the
dissolution of, the relevant member of the Group
party to the relevant Hedging Transaction (or any
analogous provision in any other jurisdiction).
123 Hedge Documents
Each Hedge Document shall be on the terms of the International Swaps &
Derivatives Association, Inc. 1992 Master Agreement
(Multicurrency-Cross Border) under which:
(a) "Second Method" and "Market Quotation" shall be specified as
the payment method applicable;
(b) no additional rights of set-off beyond those contained in the
Senior Facilities Agreement shall be specified; and
(c) the governing law is English law.
12.4 Termination payments
Each Hedge Counterparty and the Company agree that any termination
payment payable by a Hedge Counterparty to the Company in respect of
any relevant Hedge Document shall be payable in full without any
set-off or counterclaim whatsoever to the Company (irrespective of any
amounts that may at such time be due from the Company to any such Hedge
Counterparty under any Secured Debt Finance Document).
13. CONSENTS AND LIMITS
13.1 Waivers
If any waiver, release or consent is granted by the Majority Senior
Banks under the Senior Finance Documents on or prior to the Senior
Discharge Date, a corresponding waiver, release or consent will, if
necessary to avoid a breach or default under any other Secured Debt
Finance Document, be deemed to have been given by the Hedge
Counterparties and the Senior Subordinated Finance Parties (on the same
terms and conditions, mutatis mutandis) under the Hedge Documents or
Senior Subordinated Finance Documents, as the case may be, PROVIDED
THAT:
(a) no such deemed waiver, release or consent shall:
(i) extend the due date for or reduce the amount of or
change the currency of any payment due to any Hedge
Counterparty or Senior Subordinated Finance Party or
change the terms by reference to which any payment is
to be calculated or made under the relevant Secured
Debt Finance Documents;
(ii) be made to clause 11 (Events of Default) of the
Senior Subordinated Facility Agreement or any
provision of the Senior Subordinated Finance
Documents
21
which, under the Senior Subordinated Facility
Agreement (as originally in force), requires the
consent of all the Senior Subordinated Finance
Parties to waive, release or amend; or
(iii) be made to:
(A) paragraphs 1.1, 1.2 or 1.3 of schedule S
(Financial undertakings and accounting
terms) to the Senior Subordinated Facility
Agreement other than a waiver, release or
consent in relation to column B of each
thereof which has the effect of reducing the
financial covenant levels in such paragraphs
(so that the financial covenants are less
onerous for the Company) to not less than 90
per cent. of the levels at which they are
set at the date of this Agreement; or
(B) paragraphs 1.4 or 2 of schedule 8 (Financial
undertakings and accounting terms) to the
Senior Subordinated Facility Agreement; and
(b) (except as permitted by paragraph (a)(iii)(A)) any such deemed
waiver, release or consent not prohibited by paragraph (a)
must constitute a procedural or administrative change arising
in the ordinary course of administration of the relevant
Secured Debt and not be material.
13.2 Non-Objection
No Senior Finance Party, Senior Subordinated Finance Party or Obligor
shall have any claim or remedy against any of:
(a) the Senior Finance Parties by reason of any transaction
entered into between any of the Senior Finance Parties and any
member of the Group or any requirement or condition imposed by
or on behalf of the Senior Finance Parties on any member of
the Group; or
(b) the Senior Subordinated Finance Parties by reason of any
transaction entered into between any of the Senior
Subordinated Finance Parties and any member of the Group or
any requirement or condition imposed by or on behalf of the
Senior Subordinated Finance Parties on any member of the
Group,
which breaches or is or causes a default under any of the Secured Debt
Finance Documents, unless entered into in breach of the terms of this
Agreement.
13.3 Limit on Senior Debt
The Obligors and the Senior Finance Parties agree that, except as
otherwise agreed in writing by the Majority Senior Subordinated Banks,
the Sterling Amount of the principal amount of the outstanding Senior
Debt (excluding for this purpose only Hedging Debt and, in the case of
any Ancillary Facilities Bank, the amount (if any) by which its
Ancillary Facilities Liabilities exceed any net limit imposed under the
terms of the relevant Ancillary Facility) shall at no time exceed
(pound)365,000,000 (less repayments and prepayments of the Drawings
actually made after the date of this Agreement in circumstances where a
corresponding part of the Commitments is cancelled) plus the Senior
Headroom at such time.
22
14. WARRANTIES
Each Senior Subordinated Finance Party warrants to each Senior Finance
Party that:
(a) it is duly incorporated or established and validly existing
under the laws of the jurisdiction of its incorporation;
(b) this Agreement and the other Secured Debt Finance Documents to
which it is a party are within its powers and have been duly
authorised and executed by it
(c) the Secured Debt Finance Documents to which it is a party
copied to the Senior Agent at or before the signing of this
Agreement contain (when taken together with any amendments
permitted under Clause 11 (Amendments)) all the terms and
conditions of the Senior Subordinated Debt owed to it;
(d) it is the sole legal and beneficial o~ter of the Senior
Subordinated Debt owed to it free from any Encumbrance or
subordination in thvour of any person except any existing
under this Agreement; and
(e) this Agreement constitutes its legal, valid and binding
obligations and the entry into and performance of the
transactions contemplated by this Agreement does not conflict
with any law or regulation applicable to it or with its
constitutional documents or any other agreement binding on it
or its assets.
15. INFORMATION
15.1 Defaults
The Senior Subordinated Agent and the Senior Agent will promptly notify
each other of the occurrence of any Senior Subordinated Default or
Senior Default, as the case may be, on receipt by it of a notice from
an Obligor specifying the event concerned (and expressly identifying
it as a Senior Subordinated Default or Senior Default (as applicable)).
15.2 Amount of debt
Each of the Senior Agent, the Hedge Counterparties and the Senior
Subordinated Agent will on~written request by any of the others notify
the others in writing of details of the amount of the outstanding
Senior Debt, Hedging Debt or Senior Subordinated Debt, as the case may
be.
15.3 Other Information
(a) Subject to paragraph (b) of this Subclause, each Obligor
authorises each of the Secured Creditors to disclose to each
other and to the HMTF Group all information relating to that
Obligor, its Subsidiaries or related entities, and coming into
the possession of any of them in connection with the Secured
Debt Finance Documents.
(b) In the case of an acquisition funded by Senior Subordinated
Facility Advances the Senior Subordinated Finance Parties are
not authorised to disclose:
(i) the financial models referred to in paragraph 13 of
part 2 of schedule 3 to the Senior Subordinated
Facility Agreement to the Senior Finance Parties
before the times the Senior Finance Parties are
entitled to receive the information referred to in
subclause 10.6(s) paragraphs (B)(4) and (C)
(Acquisitions and joint-ventures) of the Senior
Facilities Agreement;
23
(ii) the Reports referred to in paragraph $ of part 2 of
schedule 3 to the Senior Subordinated Facility
Agreement (Documents and evidence required as
conditions precedent) until signing of the sale and
purchase agreement for the Acquisition in connection
with which such Reports have been prepared.
15.4 Consultation
The Agents shall, so far as practicable in the circumstances, consult
each other before taking any formal steps to exercise any remedy
against any Obligor or to take any enforcement action but nothing in
this Subclause will invalidate or otherwise affect any action or step
taken without such consultation.
15.5 Registration and Notice
The Agents will co-operate with each other with a view to reflecting
the priority of the security conferred by the Security Documents in:
(a) any required registration of any Security Document; and
(b) giving any notice under the Security Documents.
16. SUBROGATION
16.1 Subrogation of Senior Subordinated Finance Parties
(a) If any Senior Debt is paid out of any proceeds received in respect of
the Senior Subordinated Debt owing to one or more Senior Subordinated
Finance Parties, those Senior Subordinated Finance Parties (pro rats to
their respective interests in such Senior Subordinated Debt) will to
that extent be subrogated to the Senior Debt so paid (and all
securities and guarantees for that Senior Debt).
(b) Any rights of subrogation so arising cannot (and shall not) be
exercised before the Senior Discharge Date without the consent of the
Majority Senior Banks.
(c) After the Senior Discharge Date, to the extent that the Senior
Subordinated Finance Parties are entitled to exercise rights of
subrogation, each Senior Finance Party (subject to its being
indemnified to its reasonable satisfaction against any resulting costs,
expenses and liabilities) will give such assistance to enable such
rights so to be exercised as the Senior Subordinated Agent and/or the
Security Agent may reasonably request.
16.2 Non-Subrogation
Prior to the Secured Debt Discharge Date the Obligors will not under
any circumstances be subrogated to or entitled to exercise any of the
rights of the Secured Creditors or exercise or enforce any security
arising under any of the Security Documents.
17. PROTECTION OF SUBORDINATION
24
17.1 Continuing Subordination
The subordination provisions in this Agreement constitute a continuing
subordination and benefit to the ultimate balance of the Senior Debt
regardless of any intermediate payment or discharge of the Senior Debt
in whole or in part.
25
17.2 Waiver of Defences
The subordination in this Agreement and the obligations of each Senior
Subordinated Finance Party and each Obligor under this Agreement will
not be affected by any act, omission, matter or thing which, but for
this provision, would reduce, release or prejudice the subordination or
any of those obligations, including:
(a) any time or waiver granted to, or composition with, arty
person;
(b) any release of any person under the terms of any composition
or arrangement;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
person;
(d) any non-presentation or non-observance of any formality or
other requirement in respect of any instrument or any failure
to realise the fill value of any security;
(e) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of any person;
(1) any amendment (however fundamental) or replacement of any
Secured Debt Finance Document or any other document or
security; or
(g) any unenforceability, illegality, invalidity or
non-provability of any obligation of any person under any
Secured Debt Finance Document or any other document or
security or the failure by any member of the Group to enter
into or be bound by any Secured Debt Finance Document.
17.3 Appropriations
Until the Secured Debt Discharge Date, each Secured Creditor (or any
trustee or agent on its behalf) may:
(a) without affecting the liability of any Senior Subordinated
Finance Party or any Obligor under the Secured Debt Finance
Documents:
(i) refrain from applying or enforcing any moneys,
security or rights (other than moneys, security or
rights held or received under the Secured Debt
Finance Documents) held or received by that Secured
Creditor (or any trustee or agent on its behalf)
against the Secured Debt; or
(ii) apply and enforce them in such manner and order as it
sees fit (whether against the Secured Debt or
otherwise); and
(b) hold in an interest-bearing suspense account any moneys
received from any Senior Subordinated Finance Party or Obligor
or on account of that Senior Subordinated Finance Party's or
that Obligor's liability under the Secured Debt Finance
Documents.
18. PRESERVATION OF DEBT
26
(a) In spite of any term of this Agreement postponing, subordinating or
preventing the payment of any of the Senior Subordinated Debt, as
between the Obligors and the Senior Subordinated
27
Finance Parties, the Senior Subordinated Debt shall remain owing or
payable (and interest or default interest shall continue to accrue) in
accordance with the terms of the Senior Subordinated Finance Documents.
(b) No delay in exercising rights and remedies under any of the Senior
Subordinated Finance Documents by reason of any term of this Agreement
shall operate as a permanent waiver of any of those rights and
remedies.
19. EXPENSES
19.1 Enforcement Costs
Each Senior Subordinated Finance Party will within three Banking Days
of demand pay to each Senior Finance Party the amount of all reasonable
costs and expenses incurred by it in connection with the enforcement
against that Senior Subordinated Finance Party of such Senior Finance
Party's rights against it under this Agreement.
19.2 Legal Expenses and Taxes
The costs and expenses referred to above include the fees and expenses
of legal advisers and any value added tax or similar tax, and are
payable in the currency in which they are incurred.
20. CHANGES TO THE PARTIES
20.1 Successors and Assigns
This Agreement is binding on the successors and assigns of the Parties.
20.2 Obligors
No Obligor may assign or transfer any of its rights (if any) or
obligations under this Agreement.
20.3 New Obligors
The Company will procure that each member of the Group which is not
already an Obligor which becomes liable (whether actually or
contingently) for any Secured Debt (each such person being a New
Obligor) becomes an Obligor by the execution and delivery to the
Security Agent of a duly completed Deed of Accession (together with
such board resolutions and other corporate documentation as the
Security Agent may reasonably require).
20.4 New Creditors
No Secured Creditor will:
(a) assign, transfer or dispose of any of the Secured Debt owing
to it or its proceeds or any interest in that Secured Debt or
its proceeds to or in favour of any person or
(b) assign, transfer, novate or dispose of any of its rights or
obligations under any of the Secured Debt Finance Documents to
any person,
28
unless in each case that person agrees with the Parties that it is
bound by all the terms of this Agreement as a Senior Finance Party
(and, if appropriate, as a Hedge Counterparty) or Senior Subordinated
Finance Party, as the case may be, by executing and delivering to the
Security
29
Agent a duly completed Deed of Accession or, in the case of a Senior
Bank, by the execution and delivery to the Senior Agent of a
Substitution Certificate as contained in schedule 5 to the Senior
Facilities Agreement or, in the case of a Senior Subordinated Bank, by
the execution and delivery to the Senior Subordinated Agent of a
Substitution Certificate as contained in schedule 5 to the Senior
Subordinated Facility Agreement.
20.5 Resignation of Agents
(a) No Agent may resign or be removed except as specified in the Senior
Finance Documents or in the Senior Subordinated Finance Documents (as
the case may be) and only if a replacement Agent agrees with all the
other Parties to become party to and be bound by this Agreement as the
replacement Agent by the execution and delivery to the Security Agent
of a duly completed Deed of Accession.
(b) Notwithstanding anything to the contrary contained in any of the Senior
Subordinated Finance Documents, the Security Agent may not be removed
(or have his authority terminated) by the Senior Subordinated Finance
Parties or any of them prior to the Senior Discharge Date.
20.6 Supplements
Each of the other Parties appoints:
(a) the Senior Agent as its agent to sign on its behalf any
Substitution Certificate entered into under the Senior
Facilities Agreement; and
(b) the Senior Subordinated Agent as its agent to sign on its
behalf any Substitution Certificate entered into pursuant to
the Senior Subordinated Facility Agreement; and
(c) the Security Agent as its agent to sign on its behalf any Deed
of Accession,
in order that each such Substitution Certificate or Deed of Accession
may be supplemental to this Agreement and be binding on and enure to
the benefit of all the Parties.
20.7 Option to Purchase
(a) If:
(i) the Enforcement Date has occurred; or
(ii) the Majority Senior Banks have instructed the Security Agent
to enforce any material part of the Security,
the Senior Subordinated Banks may by giving not less than 10 Banking
Days' notice to the Senior Agent specifing the purchase date (the
Purchase Date) which shall be a Banking Day elect to purchase or
procure the purchase of all (and not part only) of the outstanding
Senior Debt, Any such notice once given is irrevocable.
(b) On the Purchase Date:
(i) the Senior Subordinated Banks shall pay to the Senior Agent in
cash and in the currency in which the Senior Debt is
denominated an amount (the Purchase Amount) determined by the
Senior Agent (acting reasonably) to be equal to the
30
outstanding Senior Debt (including all accrued interest, fees
and expenses together with any broken funding costs) on the
Purchase Date;
(ii) the Senior Banks shall, subject to payment to them of the
Purchase Amount, transfer the Senior Debt to the Senior
Subordinated Banks by means of Substitution Certificates or by
such other means as the Senior Banks and the Senior
Subordinated Banks may otherwise agree. Each of the Borrowers
under the Senior Facilities Agreement shall, if required by
the Senior Subordinated Agent, execute any such Substitution
Certificate;
(iii) each Senior Bank shall be deemed to have warranted to the
Senior Subordinated Banks that:
"It is the owner of the beneficial interest, free
from all Encumbrances and third party interests other
than any arising under the Senior Finance Documents
or by operation of law, in all rights and interests
under the Senior Finance Documents purporting to be
assigned or transferred by it by such transfer. It
has the corporate power to effect, and has taken all
necessary corporate action to authorise, such
assignment or transfer."
(c) Save as specified in sub-paragraph (iii) of paragraph (b) above, any
such transfer by the Senior Banks shall be without recourse to, or
representation or warranty from, the Senior Banks and the terms of
clause 16 of the Senior Facilities Agreement relating to the
substitution of Senior Banks shall apply to any such transfer.
The Senior Subordinated Banks shall provide an indemnity to each Senior
Bank from a person acceptable to all the Senior Banks and in a form
satisfactory to the Majority Senior Banks, for any and all costs,
losses and expenses which may be sustained or incurred by such Senior
Bank in consequence of any Purchase Amount being required (or it being
alleged that it is required) to be paid back by or clawed back from any
Senior Bank for any reason whatsoever.
21. NOTICES
21.1 In writing
(a) Any communication in connection with this Agreement must be in writing
and, unless otherwise stated, may be given:
(i) in person, by post, telex or fax; or
(ii) if between the Security Agent and a Secured Creditor and the
Security Agent and the Secured Creditor agree, by e-mail or
other electronic communication.
(b) For the purpose of this Agreement, an electronic communication will be
treated as being in writing.
(c) Unless it is agreed to the contrary, any consent or agreement required
under this Agreement must be given in writing.
31
2L2 Contact details
(a) Except as provided below, the contact details of each Party
for all communications in connection with this Agreement are
those notified by that Party for this purpose to the Security
Agent on or before the date it becomes a Party.
(b) The contact details of the Senior Finance Parties and Obligors
for this purpose are those originally provided for in the
Senior Facilities Agreement.
(c) The contact details of the Senior Subordinated Finance Parties
for this purpose are those originally provided for in the
Senior Subordinated Facility Agreement.
(d) The contact details of the Hedge Counterparties which are
Parties on the date of this Agreement are set out Schedule 2
(Senior Finance Parties).
(e) Any Party may change its contact details by giving five
Banking Days' notice to the Security Agent or (in the case of
the Security Agent) to the other Parties.
4) (0 Where a Party nominates a particular department or officer to
receive a communication, a communication will not be effective
if it fhils to speci& that department or officer.
213 Effectiveness
(a) Except as provided below, any communication in connection with
this Agreement will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
(ii) if posted, five days after being deposited in the
post, postage prepaid, in a correctly addressed
envelope;
(iii) if by telex, when despatched, but only if, at the
time of transmission, the correct answerback appears
at the start and at the end of the sender's copy of
the notice;
(iv) if by fax, when received in legible form; and
(v) if by e-mail or any other electronic communication,
when received in legible form.
(b) A communication given under paragraph (a) above but received
on a non-working day or after business hours in the place of
receipt will only be deemed to be given on the next working
day in that place.
(c) A communication to the Security Agent will only be effective
on actual receipt by it.
22. THE SECURITY AGENT
(a) Each Secured Creditor irrevocably appoints the Security Agent
as its agent under this Agreement and the New Security
Documents on the terms set out in Schedule 5 (Security Agent).
32
(b) Each Obligor and each other Secured Creditor agrees to the
terms set out in Schedule 5 (Security Agent).
33
23. SEVERABILITY
If a term of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction
in relation to any Party, that shall not affect:
(a) in respect of that Party the legality, validity or
enforceability in that jurisdiction of any other term of this
Agreement;
(b) in respect of any other Party the legality, validity or
enforceability in that jurisdiction of that or any other term
of this Agreement; or
(c) in respect of any Party the legality, validity or
enforceability in other jurisdictions of that or any other
term of this Agreement.
24. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same instrument.
25. GOVERNING LAW
This Agreement is governed by English law.
26. ENFORCEMENT
26.1 Jurisdiction
(a) The English courts have exclusive jurisdiction to settle any dispute in
connection with this Agreement.
(b) The English courts are the most appropriate and convenient courts to
settle any such dispute and each Senior Subordinated Finance Party and
Obligor waives objection to those courts on the grounds of inconvenient
forum or otherwise in relation to proceedings in connection with this
Agreement.
(c) This Clause is for the benefit of the Senior Finance Parties only. To
the extent allowed by
law, a Senior Finance Party may take:
(i) proceedings in any other court; and
(ii) concurrent proceedings in any number of jurisdictions.
26.2 WaIver of immunity
Each Senior Subordinated Finance Party and Obligor irrevocably and
unconditionally:
(a) agrees not to claim any immunity from proceedings brought by a
Senior Finance Party against it in relation to this Agreement
and to ensure that no such claim is made on its behalf;
(b) consents generally to the giving of any relief or the issue of
any process in connection with those proceedings; and
(c) waives all rights of immunity in respect of it or its assets.
34
(TH. 263 WaIver of trial by jury
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO HAVE A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED ON OR ARISING FROM THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED BY THIS AGREEMENT. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the
court.
This Agreement has been entered into on the date stated at the
beginning of this Agreement.
(4~
4)
35
SCHEDULE 1 THE OBLIGORS
English
Xxxxxx Group Limited (company number 1721453)
C & TH (XxXxx) Limited (company number 183952)
Xxxxxxx Xxxxxxx Limited (company number 2081705)
Country Farms Limited (company number 305182)
Curf Farms (Chatteris) Limited (company number 1461987)
FMC (Meat) Limited (company number 671705)
Formwood Group (UK) Limited (company number 2046126)
Formwood Group Limited (company number 2175715)
H (Barnstaple) Limited (company number 2047347)
IlL Foods Limited (company number 2560855)
Hillsdown Ambient Foods Group Limited (company number 1220754)
Hillsdown Europe Limited (company number 2662027)
Hillsdown International Limited (company number 1943509)
Hillsdown Investments Limited (company number 1871848)
Hillsdown UK Limited (company number 1638448)
Xxxxxx Limited (company number 1778744)
Horberry & Xxxxx Limited (company number 1428538)
36
Lamberde Properties Limited (company number 2277876)
MBM Mosspak Limited (company number 753373)
MBM Produce Limited (company number 426939)
Northwest Prime Investments Limited (company number 2641825)
Premier Ambient Products (UK) Limited (company number 4427006)
Premier Financing Limited (company number 3716362)
Premier International Foods UK Limited (company number 314272)
37
Xxxx, Manchett & Till Limited (company number 1746676) Rugby Securities Limited
(company number 1869278)
38
Scottish
Melroses Limited (company number 99843)
Premier Brands Limited (company number 96055)
Ridgways Limited (company number 105097)
Xxxxxx Xxxxxx & Sons (Est. 1849) Limited (company number 20563)
DUTCH
HILISDOWN HOLLAND WV.
Hillsdown International B.V.
Jonker Fris B.V.
FRENCH
Hillsdown Holdings France S.A.S.
Xxxxxxx Boin
39
SCHEDULE 2 SENIOR FINANCE PARTIES
Senior Banks
JPMorgan Chase Bank
Deutsche Bank Securities Inc.
San Paolo NI S.p.A, London Branch
Lloyds TSB Bank plc
Bank of Scotland
BNP Paribas
The Royal Bank of Scotland plc
Barclays Bank plc
KBC BankN.V., London Branch
The United Bank of Kuwait plc
Banco Espirito Santo, London Branch
Singer & Xxxxxxxxxxx Limited
Metropolitan Life Insurance Company
40
Harbourmaster Loan Corporation WV.
The Sumitomo Trust & Banking Co., Ltd
The Governor and Company of the Bank of Ireland
GMAC Commercial Credit Limited
Duchess I CDO SA
Leveraged Finance Europe Capital I B.V.
Leveraged Finance Europe Capital II B .V.
Duchess I CDO SA
Duchess II CDO SA
41
Intercontinental CDO
Rabobani International, London Branch
Skandinanviska Enskilda Xxxxxx XX (publ)
Bayerische Landesbank Girozentrale London Branch
NO Bank N.V. , London Branch
Allied Irish Bank plc
Banca Nazionale del Lavoro S .p.A, London Branch
Danske Bank A/S
HSBC Bank plc
Oak Hill Securities Fund, L.P.
Oak Hill Securities Fund II, L.P.
HPC Nominees Limited
Jubilee CDO I B.V.
Alliance & Leicester Commercial Bank Plc
Harbourmaster Loan Corporation B.V.
HPC Nominees Ltd
Ahli United Bank (UK) Plc
42
Arrangers
X.X. Xxxxxx plc
Barclays Capital (the investment banking division of Barclays Bank PLC)
Underwriters
JPMorgan Chase Bank
Barclays Bank PLC
Senior Agent
X.X. Xxxxxx Europe Limited
43
Security Agent X.X. Xxxxxx Europe Limited
Hedge Counterparties
JPMorgan Chase Bank
Barclays Bank plc
44
SCHEDULE 3
SENIOR SUBORDINATED FINANCE PARTIES
Senior Subordinated Banks
JPMorgan Chase Bank
Arranger
X.X. Xxxxxx plc
Underwriter
JPMorgan Chase Bank
Senior Subordinated Agent
X.X. Xxxxxx Europe Limited
45
SCHEDULE 4
FORM OF DEED OF ACCESSION
THIS DEED dated [ ], is supplemental to an
intercreditor agreement (the
Intercreditor Agreement) dated [ J, November 2003 between, amongst others,
Premier Financing Limited as the Company, certain of its Subsidiaries as
Obligors, the Senior Subordinated Finance Parties, the Senior Finance Parties
and X.X. Xxxxxx Europe Limited as Security Agent, Senior Agent and Senior
Subordinated Agent.
Words and expressions defined in the
Intercreditor Agreement have the same
meaning when used in this Deed.
[Name of new Party] hereby agrees with each other person who is or who becomes a
party to the
Intercreditor Agreement that with effect on and from the date
hereof it will be bound by the
Intercreditor Agreement as a[n] *[Obligor/Senior
Finance Party/Hedge Counterparty/Senior Subordinated Finance Party/Senior
Agent/Security Agent/Senior Subordinated Agent] as if it had been party
originally to the
Intercreditor Agreement in that capacity and that it shall
perform all of the undertakings and agreements set out in the
Intercreditor
Agreement and given by a[n] *[Obligor/Sethor Finance Party/Hedge
Counterparty/Senior Subordinated Finance Party/Senior Agent/Security
Agent/Senior Subordinated Agent].
The address for notices of *[obligor/Senior Finance Party/Hedge
Counterparty/Senior Subordinated Finance Party/Senior Agent/Security
Agent/Senior Subordinated Agent] for the purposes of Clause 21 (Notices) of the
Intercreditor Agreement is:
[
This document takes effect as a deed notwithstanding that the Security Agent
only executes under hand.
This Deed is governed by English law and Clause 26 (Enforcement) of the
Intercreditor Agreement is hereby incorporated in this Deed by reference
(mutatis mutandis).
[Insert appropriate execution language] Acknowledged.
[Security Agent]
By:
46
SCHEDULE 5
SECURITY AGENT
APPOINTMENT
Each Secured Creditor irrevocably appoints the Security Agent as its
trustee for the purposes of the New Security Documents and irrevocably
authorises the Security Agent in such capacity:
(a) to execute each of the New Security Documents and all such
further documents as may be approved by the Majority Senior
Banks and the Majority Senior Subordinated Banks for execution
by the Security Agent;
(b) (whether or not by or through employees or agents) to take
such action on such Secured Creditor's behalf and to exercise
such rights, remedies, powers and discretions as are
specifically delegated to the Security Agent by this Agreement
and the New Security Documents together with such powers and
discretions as are reasonably incidental thereto (but subject
to any restrictions or limitations specified in this Agreement
and the New Security Documents). The Security Agent shall,
however, not have any duties, obligations or liabilities
(whether fiduciary or otherwise) to the other Secured
Creditors beyond those expressly stated in this Agreement and
the New Security Documents; and
(c) to accept on behalf of the Secured Creditors the terms of any
reliance letter or engagement letter relating to the Third
Reports or any reports or letter provided by the Report
Providers in connection with the Secured Debt Finance
Documents or the transactions contemplated therein (including
any net asset letter in connection with financial assistance
procedures) and to bind the Secured Creditors in respect of
such Third Reports, reports or letters and to sign such
letters on their behalf and each Secured Creditor further
confirms that it accepts the terms and qualifications set out
in such letters.
Notwithstanding that the Senior Agent, the Senior Subordinated Agent
and the Security Agent may from time to time be the same entity, the
Security Agent has entered into this Agreement and the New Security
Documents in its separate capacity as Security Agent for the Secured
Creditors under and pursuant to this Agreement and as security trustee
for the Secured Creditors to hold the security created or to be created
by the New Security Documents on the terms set out in this Agreement
and the New Security Documents. However, where the Secured Debt Finance
Documents provide for the Senior Agent or the Senior Subordinated Agent
to communicate with or provide instructions to the Security Agent,
while the Senior Agent or the Senior Subordinated Agent and the
Security Agent are the same entity it will not be necessary for there
to be any such formal communications or instructions notwithstanding
that the Secured Debt Finance Documents provides in certain cases for
the same to be in writing.
2. SECURITY AGENT'S ACTIONS
Any action taken by the Security Agent under or in relation to this
Agreement and/or any New Security Document with the requisite
authority, or on the basis of appropriate instructions, received from
an Instructing Group or, if required by paragraph (b) of Subclause 10.2
(Competing Instructions to the Security Agent), the Majority Senior
Subordinated Banks (or as otherwise duly authorised) shall be binding
on all the Secured Creditors.
47
3. SECURITY AGENT'S RIGHTS
In respect of the New Security Documents, the Security Agent may:
(a) in the exercise of any right, remedy, power or discretion in
relation to any matter, or in any context, not expressly
provided for by this Agreement, act or, as the case may be,
refrain from acting in accordance with the instructions of an
Instructing Group (or the Majority Senior Subordinated Banks
where Subclause 10.2(b) (Competing Instructions to the
Security Agent) applies), and shall be fully protected in so
doing;
(b) unless and until it shall have received directions from an
Instructing Group (or the Majority Senior Subordinated Banks
where Subclause 10.2(b) (Competing Instructions to the
Security Agent) applies), take such action, or refrain from
taking such action, in respect of a Default, or a "Default" as
defined in the Senior Subordinated Facility Agreement, of
which the Security Agent has actual knowledge as it shall deem
advisable in the best interests of the Secured Creditors (but
shall not be obliged to do so);
(c) refrain from acting in accordance with any instructions of an
Instructing Group (or the Majority Senior Subordinated Banks
where Subclause 10.2(b) (Competing Instructions to the
Security Agent) applies) to institute any legal proceedings
arising out of or in connection with this Agreement and/or the
New Security Documents until IT has been indemnified and/or
secured to its satisfaction against any and all costs,
expenses or liabilities (including legal fees) which it would
or might incur as a result;
(d) deem and treat (i) each Senior Bank or Senior Subordinated
Bank as the person entitled to the benefit of the
Contribution, or the "Contribution" as defined in the Senior
Subordinated Facility Agreement, of such Secured Creditor for
all purposes of the Secured Debt Finance Documents unless and
until a Substitution Certificate, or a "Substitution
Certificate" under the Senior Subordinated Facility Agreement,
shall have been filed with the Senior Agent or, as applicable,
the Senior Subordinated Agent and shall have become effective,
and (ii) the office set opposite the name of a Senior Bank or
Senior Subordinated Bank in schedule 1 to the Senior
Facilities Agreement or the Senior Subordinated Facility
Agreement, as the case may be, or in any relevant Substitution
Certificate or Substitution Certificate under the Senior
Subordinated Facility Agreement, as such Senior Bank's or such
Senior Subordinated Bank's lending office unless and until a
written notice of change of lending office shall have been
received by the Senior Agent or, as applicable, the Senior
Subordinated Agent; and the Security Agent may act upon any
such notice unless and until the same is superseded by a
further such notice;
(e) rely as to matters of fact which might reasonably be expected
to be within the knowledge of any Obligor upon a certificate
signed by any director of such Obligor on behalf of such
Obligor; and
(f) refrain from doing anything which would, or might in its
opinion, be contrary to any law or regulation of any
jurisdiction and may do anything which is in its opinion
necessary or desirable to comply with any such law or
regulation.
4. NO LIABILITY OF SECURITY AGENT
Neither the Security Agent nor any of its employees and agents shall:
48
(a) be obliged to request any certificate or opinion under any
provision of the Secured Debt Finance Documents or to make any
enquiry as to the use of the proceeds of any facility under
the Secured Debt Finance Documents; or
(b) be obliged to make any enquiry as to any breach or default by
the Company or any Acquisition Party or any other member of
the Group in the performance or observance of any of the
provisions of any Secured Debt Finance Document or as to the
existence of a Senior Default or Senior Subordinated Default;
or
(c) be obliged to enquire whether or not any representation or
warranty made by the Company or any Acquisition Party or any
other member of the Group pursuant to any Secured Debt Finance
Document is true; or
(d) be obliged to do anything (including, without limitation,
disclosing any document or information) which would, or might
in its opinion, be contrary to any law or regulation or be a
breach of any duty of confidentiality or otherwise be
actionable or render it liable to any person; or
(e) be obliged to account to any Secured Creditor for any sum or
the profit element of any sum received by it for its own
account; or
(f) be obliged to institute any legal proceedings arising out of
or in connection with, or otherwise take steps to enforce, any
New Security Document other than on the instructions of an
Instructing Group (or the Majority Senior Subordinated Banks
where Subclause 10.2(b) (Competing Instructions to the
Security Agent) applies); or
(g) be liable to any Secured Creditor for any action taken or
omitted under or in connection with any Secured Debt Finance
Document unless caused by its gross negligence or wilful
misconduct.
For the avoidance of doubt, the Security Agent shall not be obliged to
become a mortgagee or heritable creditor in possession.
For the purposes of this paragraph 4 the Security Agent shall not be
treated as having actual knowledge of any matter of which the corporate
finance or any other division outside the agency department of the
person for the time being acting as the Security Agent may become aware
in the context of corporate finance, advisory or lending activities
from time to time undertaken by the Security Agent for the Company or
any of its Subsidiaries or Affiliates or associated companies or any
other person which may be a trade competitor of the Group or any member
of it or may otherwise have commercial interests similar to those of
the Group or any member of it.
5. NON-RELIANCE ON SECURITY AGENT
Each Secured Creditor acknowledges, by virtue of its execution of this
Agreement or, as the case may be, a Substitution Certificate or a
"Substitution Certificate" under the Senior Subordinated Facility
Agreement, that it has not relied on any statement, opinion, forecast
or other representation (including, without limitation, anything
contained in any information memoranda) made by the Security Agent to
induce it to enter into the Secured Debt Finance Documents and that it
has made and will continue to make, without reliance on the Security
Agent and based on such documents as it considers appropriate, its own
appraisal of the creditworthiness of the Company and the Group and its
own independent investigation of the financial condition, prospects and
affairs of the Company and the Group in connection with the making and
continuation of the facilities under the Secured Debt Finance
Documents. The
49
Security Agent not at any time be deemed to have had or have any duty
or responsibility, either historically, initially or on a continuing
basis, to provide any Secured Creditor with any credit or other
information with respect to the Company or any other member of the
Group whether coming into its possession before the making of any
advance under any facilities under the Secured Debt Finance Documents
or at any time or times thereafter.
6. NO RESPONSIBILITY ON SECURITY AGENT FOR CERTAIN MARTENS
The Security Agent shall not have any responsibility or liability to
any Secured Creditor:
(a) on account of the failure of any member of the Group or any
Acquisition Party to perform any of its obligations under any
of the Secured Debt Finance Documents; or
(b) for the financial condition of any member of the Group or any
Acquisition Party; or
(c) for the completeness, adequacy or accuracy of any statements,
representations or warranties made or any of the Secured Debt
Finance Documents or any document delivered under any of such
documents; or
(d) for the execution, effectiveness, adequacy, genuineness,
validity, enforceability or admissibility in evidence of the
Secured Debt Finance Documents or of any certificate, report
or other document executed or delivered under any of the
Secured Debt Finance Documents; or
(e) to ascertain whether all deeds and documents which should have
been deposited with it under or pursuant to any of the New
Security Documents have been so deposited; or
(f) to investigate or make any enquiry into the title of any
Obligor to any assets; or
(g) for the failure to register any of the New Security Documents
with the Registrar of Companies, the Patent Office, HJVF. Land
Registry, the Trade Marks Registry or any other public office;
or
(h) for the failure to register any of the New Security Documents
in accordance with the provisions of the documents of title of
any Obligor to any of the relevant assets; or
(i) for the failure to effect or procure the registration of any
floating charge created by any of the New Security Documents
by registering under the Land Registration Xxx 0000 any
notice, caution or other entry prescribed by or pursuant to
the provisions of the said Act against any land for the time
being forming part of the security; or
U) for the failure to take or require any Obligor to take any
steps to render any of the New Security Documents effective as
regards property or assets outside England or Wales or to
secure the creation of any ancillary charge under the laws of
the jurisdiction concerned; or
(Ic) (save as otherwise provided in this paragraph 6) for taking or
omitting to take any other action under or in relation to the
New Security Documents or any aspect thereof; or
(I) (save as otherwise provided in this paragraph 6) otherwise in
connection with the Secured Debt Finance Documents or their
negotiation or for acting (or, as the case may be, refraining
from acting) in accordance with the instructions of an
Instructing
50
Group (or the Majority Senior Subordinated Banks where
Subclause 10.2(b) (Competing Instructions to the Security
Agent) applies).
7. RELIANCE ON DOCUMENTS AND PROFESSIONAL ADVICE
The Security Agent shall be entitled to rely on any communication,
instrument or document believed by it to be genuine and correct and to
have been signed or sent by the proper person and shall be entitled to
rely as to legal or other professional matters on opinions and
statements of any legal or other professional advisers selected or
approved by it (including those in the Security Agent's employment).
8. OTHER DEALINGS
The Security Agent may, without any liability to account to the other
Secured Creditors, accept deposits from, lend money to, and generally
engage in any kind of banking or other business with, be the owner or
holder of any shares or other securities of, and provide advisory or
other services to, the Company or any Acquisition Party or any of their
respective Subsidiaries, Affiliates or associated companies or any of
the Secured Creditors as if it were not the Security Agent.
9. RIGHTS OF SECURITY AGENT AS SENIOR BANK AND SENIOR SUBORDINATED BANK;
NO PARTNERSHIP
With respect to its own Commitment and Contribution under the Senior
Facilities Agreement or the Senior Subordinated Facility Agreement (if
any) the Security Agent shall have the same rights and powers under the
Secured Debt Finance Documents as any other Senior Bank or Senior
Subordinated Bank and may exercise the same as though it were not
performing the duties and functions delegated to it under the Secured
Debt Finance Documents and the terms Senior Bank or Senior Subordinated
Bank shall, unless the context clearly otherwise indicates, include the
Security Agent in its individual capacity as lender. The Secured Debt
Finance Documents shall not and shall not be construed so as to
constitute a partnership between the parties or any of them.
10. REIMBURSEMENT AND INDEMNITY BY SECURED CREDITORS
(a) Each Secured Creditor shall reimburse the Security Agent
(rateably in accordance with the principal amount of the
Liabilities of the Obligors under the Senior Facilities
Agreement and the Senior Subordinated Facility Agreement
respectively or (in the case of enforcement) its recoveries in
respect of such Liabilities), to the extent that the Security
Agent is not reimbursed by any Obligor, for the costs, charges
and expenses incurred by the Security Agent in connection with
the negotiation, preparation, syndication and execution of
this Agreement and the New Security Documents and/or in
contemplation of, or otherwise in connection with, the
enforcement or attempted enforcement of, or the preservation
or attempted preservation of any rights under, or in carrying
out its duties under this Agreement and the New Security
Documents including (in each case) the fees and expenses of
legal or other professional advisers. Each Secured Creditor
shall on demand indemnify the Security Agent (rateably in
accordance with the principal amount of the Liabilities of the
Obligors under the Senior Facilities Agreement and the Senior
Subordinated Facility Agreement respectively or (in the case
of enforcement) its recoveries in respect of such Liabilities)
against all liabilities, damages, costs and claims whatsoever
incurred by the Security Agent in connection with this
Agreement and the New Security Documents or the performance of
its duties under this Agreement and the New Security Documents
or any action taken or omitted by the
51
Security Agent under this Agreement and the New Security
Documents, unless such liabilities, damages, costs or claims
arise from the Security Agent's own gross negligence or wilful
misconduct.
(b) The Company shall counter-indemnify the Secured Creditors
against all payments by them under this paragraph 10.
11. RETIREMENT OF SECURITY AGENT
(a) The Security Agent may (following consultation with the
Company) retire from its appointment as Security Agent having
given to the Company and each of the Secured Creditors not
less than 30 days' notice of its intention to do so, provided
that no such retirement shall take effect unless there has
been appointed by the Secured Creditors as a successor
security agent and trustee a Secured Creditor nominated by an
Instructing Group or, failing such a nomination, any reputable
and experienced bank or institution with offices in London
nominated by the Security Agent.
(b) Any corporation into which the Security Agent may be merged or
converted or any corporation with which the Security Agent may
be consolidated or any corporation resulting from any merger,
conversion, amalgamation, consolidation or other
reorganisation to which the Security Agent shall be a party
shall, to the extent permitted by applicable law, be the
successor Security Agent under this Agreement and the New
Security Documents without the execution or filing of any
document or any further act on the part of any of the Parties,
save that notice of any such merger, conversion, amalgamation,
consolidation or other reorganisation shall forthwith be given
to the Company and the Secured Creditors.
(c) Upon any such successor as aforesaid being appointed, the
Security Agent shall be discharged from any further obligation
under this Agreement and the New Security Documents (but shall
continue to have the benefit of the provisions contained in
this Schedule 5 in respect of any action it has taken or
refrained from taking prior to such discharge) and its
successor and each of the other Parties shall have the same
rights and obligations among themselves as they would have had
if such successor had been a party to this Agreement and the
New Security Documents in place of the retiring Security
Agent. The retiring Security Agent shall (at the expense of
the Company) provide its successor with copies of such of its
records as its successor reasonably requires to carry out its
functions as such.
(d) It is the intention that (except only as may be agreed in
writing between any retiring Security Agent and its successor
with the prior approval of an Instructing Group), upon the
appointment of any successor to the Security Agent, the
property, assets and rights vested in the retiring Security
Agent pursuant to the New Security Documents should, with
immediate effect, be vested in such successor Security Agent
under the provisions of the Trustee Xxx 0000, either by
operation of law or, failing that, by assignment or other form
of transfer or conveyance. At any time and from time to time
following the appointment of any such successor to the
Security Agent, the retiring Security Agent shall do and
execute all acts, deeds and documents reasonably required by
such successor in order to transfer to such successor Security
Agent (or its nominee, as such successor may direct) any such
property, assets and rights which shall not have vested in
such successor by operation of law. All such acts, deeds and
documents shall be done or, as the case may be, executed at
the cost of the Company.
52
12. DECLARATION OF TRUST
(a) To the extent that under applicable law it is able to hold the
Trust Property as trustee, the Security Agent hereby accepts
its appointment under paragraph I of this Schedule 5 as
trustee of the Trust Property with effect from the date of
this Agreement to hold the same on trust for itself and the
other Secured Creditors and to apply the same in accordance
with Clause 9 (Application of Proceeds of Enforcement). If
under applicable law it is not able to hold any part of the
Trust Property as trustee, the Security Agent shall accept and
hold that part in its own name to deal with that part in
accordance with this Agreement and the Security Agent
undertakes to apply that part in accordance with Clause 9
(Application of Proceeds of Enforcement).
(b) The Security Agent shall make each such application and/or
distribution as soon as is practicable after the relevant
moneys are received by, or otherwise become available to, the
Security Agent save that (without prejudice to any other
provision contained in this Agreement or any of the New
Security Documents) the Security Agent or any receiver or
administrator may credit any moneys received by it to a
suspense account for so long and in such manner as the
Security Agent or such receiver or administrator may from time
to time determine with a view to preserving the rights of the
Secured Creditors or any of them to prove for the whole of
their respective claims against the Obligors or any other
person liable.
13. PERPETUITIES
The trusts constituted or evidenced in or by this Agreement and the New
Security Documents
shall remain in full force and effect until whichever is the earlier
of:
(a) the expiration of a period of 80 years from the date of this
Agreement; and
(b) receipt by the Security Agent, at any time when it is
satisfied that all of the Charging Group are solvent, of
confirmation in writing from each of the Secured Creditors
that there is no longer outstanding any Indebtedness (actual
or contingent (unless such Indebtedness, being contingent, is
fully cash collateralised to the satisfaction of the relevant
Secured Creditor)), and no obligation on any Secured Creditor
to make available any Indebtedness which is secured or
guaranteed by or under any of the New Security Documents, or
such later date on which all of the New Security Documents
have been released in accordance with their terms,
and the Parties declare that the perpetuity period applicable to this
Agreement and the New Security Documents shall for the purposes of the
Perpetuities and Accumulations Xxx 0000 be the period of 80 years from
the date of this Agreement.
14. POWERS AND DUTIES OF THE SECURITY AGENT AS TRUSTEE OF THE SECURITY
In its capacity as trustee in relation to the New Security Documents,
the Security Agent:
(a) Powers generally: shall, without prejudice to any of the
powers, discretions and immunities conferred upon trustees by
law (and to the extent not inconsistent with the provisions of
this Agreement or any of the New Security Documents), have all
the same powers and discretions as a natural person acting as
the beneficial owner of such property and/or as are conferred
upon the Security Agent by this Agreement or any of the New
Security Documents, but so that the Security Agent may only
exercise such powers and discretions to the extent that it is
authorised to do so by the
53
provisions of this Agreement and, in exercising such powers
and discretions, the Security Agent shall have regard to and
comply with any applicable constraints and/or restrictions
imposed by this Agreement;
(b) Power to invest: shall (subject to paragraph 12 of this
Schedule 5) be entitled (in its own name or in the names of
nominees) to invest moneys from time to time forming part of
the Trust Property or otherwise held by it as a consequence of
any enforcement of the security constituted by the New
Security Documents which, in the opinion of the Security
Agent, it would not be practicable to distribute immediately
by placing the same on deposit in the name or under the
control of the Security Agent as the Security Agent may think
fit without being under any duty to diversify, the same and
the Security Agent shall not be responsible for any loss due
to interest rate or exchange rate fluctuations;
(c) Interpretation of provisions by Security Agent: shall have
full power to determine all questions and doubts arising in
relation to the interpretation or application of any of the
provisions of this Agreement or any of the New Security
Documents as it affects the Security Agent and every such
determination, in the absence of manifest error, (whether made
upon a question actually raised or implied in the acts or
proceedings of the Security Agent) shall be conclusive and
shall bind all the other Parties;
(d) Power to engage agents: may, in the conduct of its obligations
under and in respect of this Agreement and the New Security
Documents (otherwise than in relation to its right to make any
declaration, determination or decision), instead of acting
personally, employ and pay any agent (whether being a lawyer,
chartered accountant or any other person) to transact or
concur in transacting any business and to do or concur in
doing any acts required to be done by the Security Agent
(including the receipt and payment of money) and on the basis
that (i) any such agent engaged in any profession or business
shall be entitled to be paid all usual professional and other
charges for business transacted and acts done by him or any
partner or employee of his in connection with such employment
and (ii) the Security Agent shall not be bound to supervise,
or be responsible for any loss incurred by reason of any act
or omission of, any such agent if the Security Agent shall
have exercised reasonable care in the selection of such agent
(which, without limitation, shall conclusively be deemed to be
the case in respect of any agent approved in writing by an
Instructing Group); and
(e) Deposit of documents: may place all deeds, certificates and
other documents relating to the property and assets subject to
the New Security Documents which are from time to time
deposited with it pursuant to the New Security Documents in
any safe deposit, safe or receptacle selected by the Security
Agent or with any firm of solicitors and may make any such
arrangements as it thinks fit for allowing the Obligors access
to, or their solicitors or auditors possession of, such
documents when necessary or convenient and the Security Agent
shall not be responsible for any loss incurred in connection
with any such deposit, access or possession.
15. ALL ENFORCEMENT ACTION THROUGH THE SECURITY AGENT
(a) None of the other Secured Creditors shall have any independent
power to enforce any of the New Security Documents or to
exercise any rights, discretions or powers or to grant any
consents or releases under or pursuant to any of the New
Security Documents or otherwise have direct recourse to the
security and/or guarantees
54
constituted by any of the New Security Documents except
through the Security Agent.
(b) The other Secured Creditors shall co-operate with each other
and with the Security Agent and any receiver or administrator
appointed with respect to the New Security Documents in
realising the property and assets subject to the New Security
Documents and in ensuring that the net proceeds realised under
the New Security Documents after deduction of the expenses of
realisation are applied in accordance with Clause 9
(Application of Proceeds of Enforcement).
16. INDEMNITY FROM TRUST PROPERTY
The Security Agent and every employee, officer or agent appointed by it
in connection with its appointment under this Agreement and the New
Security Documents (each an Indemnified Party) shall be entitled to be
indemnified out of the Trust Property in respect of all liabilities,
damages, costs, claims, charges or expenses whatsoever properly
incurred or suffered by an Indemnified Party:
(a) in the execution or exercise or bona fide purported execution
or exercise of the trusts, rights, powers, authorities,
discretions and duties created or conferred by or pursuant to
the New Security Documents;
(b) as a result of any breach by an Obligor of any of its
obligations under any New Security Document; and/or
(c) in respect of any matter or thing done or omitted in any way
relating to the Trust Property or the provisions of any of the
New Security Documents.
The rights conferred by this paragraph 16 are without prejudice to any
right to indemnity by law given to trustees generally and to any
provision of the New Security Documents entitling the Security Agent or
any other person to an indemnity in respect of, and/or reimbursement
of, any liabilities, damages, costs, claims, charges or expenses
incurred or suffered by it in connection with any of the New Security
Documents or the performance of any duties under any of the New
Security Documents. Nothing contained in this paragraph 16 shall
entitle the Security Agent or any other person to be indemnified in
respect of any liabilities, damages, costs, claims, charges or expenses
to the extent that the same arise from such person's own gross
negligence or wilful misconduct.
17. SECURED CREDITORS TO PROVIDE INFORMATION
The Secured Creditors shall provide the Security Agent with such
written information as it may reasonably require for the purposes of
carrying out its duties and obligations under the New Security
Documents and, in particular, with such necessary directions in writing
so as to enable the Security Agent to apply amounts received under, and
the proceeds of realisation of, the New Security Documents on and afler
the Enforcement Date as contemplated by the New Security Documents.
18. SECURITY AGENT AS JOINT AND SEVERAL CREDITOR
(a) Each Obligor and each of the Secured Creditors agrees that the
Security Agent shall be the joint and several creditor
(together with the relevant Secured Creditor) of each and
every payment obligation of each Obligor towards each of the
Secured Creditors under each Secured Debt Finance Document and
that accordingly the Security Agent will have its own
independent right to demand payment by each Obligor in
55
satisfaction of those obligations, provided that it is
expressly acknowledged that any discharge of its payment
obligations to either of the Security Agent or the relevant
Secured Creditor shall to the same extent discharge the
corresponding obligations owing to the other. Each of the
Secured Creditors agrees to and acknowledges the provisions
set forth in clause 2 (Covenant to Pay) of the New Security
Documents governed by the laws of The Netherlands.
(b) Without limiting or affecting the Security Agent's rights
against the Obligors (whether under this paragraph 18 or under
any other provision of the Secured Debt Finance Documents) the
Security Agent agrees with each Secured Creditor that it will
not exercise its rights as a joint and several creditor with a
Secured Creditor under this paragraph 18, except with the
prior written consent of the relevant Secured Creditor.
However, for the avoidance of doubt, nothing in the previous
sentence shall in any way limit the Security Agent's rights to
act in the protection or preservation of rights under or to
enforce any New Security Document as contemplated by the
Secured Debt Finance Documents. Any amount recovered by the
Security Agent as a result of the operation of this paragraph
18 shall be held for the benefit of the Secured Creditors to
be applied in accordance with Clause 9 (Application of
Proceeds of Enforcement).
56
SIGNATORIES
COMPANY
Signed for and on behalf of ) XXXX XXXXXX
Premier Financing Limited )
BY: )
OBLIGORS
Signed for and on behalf of ) CI. XXXXXXX
Xxxxxx GROUP LIMITED )
BY: )
Signed for and on behalf of ) P.A. XXXXX
C & TH (XXXXX) Limited )
BY: )
Signed for and on behalf of ) XXXX XXXXXX
XXXXXXX XXXXXXX LIMITED )
BY: )
SIGNED FOR AND ON BEHALF OF ) X.X. XXXXXXX
COUNTRY FARMS LIMITED )
BY: )
SIGNED FOR AND ON behalf OF ) X.X. XXXXXXX
CUD FARMS (CHATTERIS) LIMITED )
BY: )
SIGNED FOR AND ON BEHALF OF ) P.A. XXXXX
FMC (MEAT) LIMITED )
BY: )
SIGNED FOR AND ON BEHALF OF ) P.A. XXXXX
FORMWOOD GROUP (UK) LIMITED )
BY: )
SIGNED FOR AND ON behalf OF ) P.A. XXXXX
FORMWOOD GROUP LIMITED )
BY: )
57
Signed for and on behalf of ) P.A. XXXXX
H (Barnstaple) Limited )
BY: )
Signed for and on behalf of ) XXXX XXXXXX
EL FOODS Limited )
By: )
Signed for and on behalf of ) P.A. XXXXX
HILLSDOWN AMBIENT FOODS GROUP )
LIMITED
BY: )
Signed FOR AND ON BEHALF OF ) P.A. XXXXX
HILLSDOWN EUROPE LIMITED )
BY: )
SIGNED FOR and ON BEHALF OF ) P.A. XXXXX
HILLSDOWN INTERNATIONAL LIMITED )
BY: )
SIGNED for AND ON behalf OF ) PA. XXXXX
HIFISDOWN INVESTMENTS LIMITED )
BY: )
SIGNED for AND ON BEHALF OF ) P.A. XXXXX
HILISDOWN UK LIMITED )
BY: )
SIGNED FOR and ON BEHALF OF ) P.A. XXXXX
XXXXXX LIMITED
BY: )
SIGNED FOR AND ON behalf OF ) CI. XXXXXXX
HORBERRY & XXXXX LIMITED )
BY: )
SIGNED FOR and ON BEHALF OF ) P.A. XXXXX
LAMBERDE PROPERTIES LIMITED )
BY: )
58
Signed for and ON BEHALF OF ) CI. XXXXXXX
MBM Mosspak Limited )
BY: )
Signed for and on behalf of ) Ci. XXXXXXX
MBM Produce Limited )
BY: )
Signed for and on behalf of ) P.A. XXXXX
NORTHWEST Prime Investments )
LIMITED )
BY: )
Signed for and on behalf of ) XXXX XXXXXX
PREMIER AMBIENT PRODUCTS (UK) )
LIMITED )
BY: )
SIGNED FOR and ON BEHALF OF ) XXXX XXXXXX
PREMIER INTERNATIONAL FOODS UK )
LIMITED )
BY: )
SIGNED FOR AND ON BEHALF OF ) X.X. XXXXXXX
XXXX, MANCHETT & Till LIMITED )
BY: )
SIGNED FOR AND ON BEHALF OF ) PA. XXXXX
RUGBY SECURITIES LIMITED )
BY: )
SIGNED FOR AND ON BEHALF OF ) P.A. XXXXX
MELROSES LIMITED
BY: )
SIGNED FOR AND ON BEHALF OF ) P.A. XXXXX
PREMIER BRANDS LIMITED )
BY: )
SIGNED FOR AND ON BEHALF OF ) P.A. XXXXX
RIDGWAYS LIMITED
BY: )
so
59
