INTERCREDITOR AGREEMENT BETWEEN REPSOL YPF, S.A. as the Seller and CREDIT SUISSE INTERNATIONAL GOLDMAN SACHS INTERNATIONAL BANK BNP PARIBAS BANCO ITAÚ EUROPA, S.A. SUCURSAL FINANCEIRA EXTERIOR (together with their assignees or successors) as the...
EXHIBIT
99.17
21
February 2008
REPSOL
YPF, S.A.
as
the Seller
and
CREDIT
SUISSE INTERNATIONAL
XXXXXXX
XXXXX INTERNATIONAL BANK
BNP
PARIBAS
BANCO
ITAÚ EUROPA, S.A. SUCURSAL FINANCEIRA EXTERIOR
(together
with their assignees or successors)
as
the Lenders
and
XXXXXXXX
ENERGÍA, S.A.
(SOCIEDAD
UNIPERSONAL) / (SOLE SHAREHOLDER COMPANY)
as
the Borrower
and
CREDIT
SUISSE, LONDON BRANCH
as
Senior Agent and Intecreditor Agent
and
HSBC
Bank plc
as
Collateral Agent
and
XXXXXXXX
ENERGÍA PTY, LTD.
relating,
inter
alia,
to a Senior Secured Term Loan Facility and a Seller Credit
Agreement
each
dated on the date of this Agreement
CONTENTS
|
Clause
|
Page
|
|
|
1.
|
Interpretation
|
3
|
|
2.
|
Ranking
|
8
|
|
3.
|
Nature
of Parties' Rights and Obligations
|
9
|
|
4.
|
Undertakings
|
9
|
|
5.
|
Payments
of Junior Debt
|
10
|
|
6.
|
Contractual
Subordination on Insolvency
|
11
|
|
7.
|
Turnover
|
13
|
|
8.
|
Protection
of Subordination
|
14
|
|
9.
|
Enforcement
|
15
|
|
10.
|
Proceeds
of Enforcement of Security
|
17
|
|
11.
|
The
Intercreditor Agent and Collateral Agent
|
18
|
|
12.
|
Co-Operation
between Creditors
|
21
|
|
13.
|
Expenses
|
21
|
|
14.
|
Amendments
and Waivers
|
22
|
|
15.
|
Changes
to the Parties
|
22
|
|
16.
|
Sharing
|
24
|
|
17.
|
Set
off
|
25
|
|
18.
|
Notices
|
25
|
|
19.
|
Miscellaneous
|
28
|
|
20.
|
Governing
Law
|
28
|
|
21.
|
Jurisdiction
|
29
|
|
Schedules
|
||
|
1.
|
Form
of Accession Agreement
|
30
|
|
Signatories
|
||
|
Signatories
|
31
|
|
THIS
INTERCREDITOR AGREEMENT
(the
Agreement)
is
executed by Deed before me, the Notary Public of Madrid. Xx. Xxxxxx
Xxxxx Xxxxxxx on this 21 February 2008 by and between
BETWEEN:
|
(1)
|
XXXXXXXX
ENERGÍA, S.A. (SOCIEDAD UNIPERSONAL),
a
company duly incorporated and existent under the Laws of Spain,
with
registered address in Madrid, Plaza de Xxxxx Xxxx Xxxxxxx, number
1,
Building Torre Picasso, floor 38. It was incorporated for an indefinite
period of time by means of Deed granted before the Notary Public
of
Madrid, Mr Xxxx Xxxx Xxxxxxxx-Xxx Xxxx, on 23 July 2007, with the number
2.918 of its registry. It is registered in the Commercial Registry
of
Madrid, at Tomo
24.588,
Libro
0,
Xxxxx
00,
Xxxxxxx
0x, Xxxx
number
M-442.504, inscripción
1.
Its Tax number is A-85.174.621 (the Borrower).
|
Acts
on
its behalf (i) Mr. Xxxxx Xxxxxx Xxxx Dacomo, of legal age, of Argentinean
nationality, with domicile at Cerrito 000, Xxxx 00, Xxxxxx Xxxxxxxx xx Buenos
Aires, holder of passport number 00000000-N; and (ii) Xx. Xxxxxxx Xxxx Xxxxx, of
legal age, of Argentinean nationality, with domicile at Cerrito 000, Xxxx
00,
Xxxxxx Xxxxxxxx xx Buenos Aires, holder of passport number 00000000X, by means
of a power of attorney granted by the Board of Director of the Company on
6
February 2008, a certification of which was notarised by deed executed before
the Notary of Madrid, Xx. Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx Valdecasas, on 11
February 2008, with the number 886 of its public registry.
|
(2)
|
XXXXXXXX
ENERGÍA PTY. LTD.,
a
company duly incorporated and existing under the Laws of Australia,
with
registered office in Xxxxx 00, Xxxxxx Xxxxxx 000, Xxxxxxx Xxxxxx,
Xxxxxxxxx, registered with the Securities and Investments Commission
with
the number of company 128.147.419, and with Spanish N.I.F. number
N-8001058J (in this capacity the Shareholder).
|
Acts
on
its behalf Xx. X. Xxxxxxx Xxxxxx Xxxxxx, of legal age, of Argentinean
nationality, with domicile for this purposes at Xxxxx 00, Xxxxxx Xxxxxx 000,
Xxxxxxx Xxxxxx, Xxxxxxxxx, holder of passport number 00000000X and (ii) Mr.
D.
Xxxxxx Xxxxxxxx Xxxxxx, of legal age, of Argentinean nationality, with domicile
for this purposes at Xxxxx 00, Xxxxxx Xxxxxx 000, Xxxxxxx Xxxxxx, Xxxxxxxxx,
holder of passport number 00000000X, acting as Directors of the Pledgor and
with
faculties to sign this documents as it is evidenced by the certificated issues
by the Notary Public of Queensland (Australia) on 29 January 2008, a copy
duly
apostilled of which I have examined and consider sufficient.
|
(3)
|
REPSOL
YPF, S.A.
(hereinafter, the Seller),
a company duly incorporated and existent under the Laws of Spain,
with
registered address in Madrid, Xxxxx xx xx Xxxxxxxxxx, xxxxxx 000. It is
registered in the Commercial Registry of Madrid, at Tomo
3.893,
Folio
175,
Hoja
number
M-65.289. Its Tax number is
X-00000000.
|
Acts
on
its behalf Xx. Xxxxxxxx Xxxxxxx Mazarredo, of legal age, married, of Spanish
nationality, with professional domicile at Madrid, Xxxxx xx xx Xxxxxxxxxx
000,
holder of identity card number 1.485.502-R, by virtue of the power of attorney
granted to him by means of a Deed executed before the Notary Public of Madrid,
Xxxxx Xxxxxxx Xxxxxxxx, on 20 June de 2005, under number 2.008 of his files,
which I have examined and consider sufficient.
The
granting of this document, and the rest of the documents related to the Credit
Agreement (as defined below) has been expressly approved by virtue of the
resolution of the Board of Directors of Repsol YPF, S.A., dated 19 December
2007. The certification of this resolution is attached to this
policy.
1
|
(4)
|
CREDIT
SUISSE INTERNATIONAL
(hereinafter, CS),
a company duly incorporated and existing under the laws of England,
with
registered office at 0 Xxxxx Xxxxxx, X00 0XX, and registered under
number
2500199. CIF number X0000000X.
|
Acts
on
its behalf Xx. Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx, of legal age,
lawyer, of Spanish nationality, with professional domicile in Madrid at street
Xxxxx xx Xxxxxxxx, number 10, holder of identity card number 51388757H, and
Xx.
Xxxxx Xxxxxx Xxxxxxxxx Abelenda, of legal age, lawyer, of Spanish nationality,
with professional domicile in Madrid at street Xxxxx xx Xxxxxxxx, number
10,
holder of identity card number 19.012.777B by virtue of the power of attorney
granted to him by means of a Deed executed before the Notary Public of London,
Xx. Xxxxxx Xxxxxxxx Xxxxxxx on February 6, 2008, which I have examined and
consider sufficient.
|
(5)
|
XXXXXXX
SACHS INTERNATIONAL BANK
(hereinafter, Goldman),
a company duly organized and existing under the law of England,
duly
registered in the England and Wales Company Registry Office, with
registered address at Xxxxxxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxx,
XX0X
0XX. CIF number X0000000X.
|
Acts
on
its behalf Xx. Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx, of legal age,
lawyer, of Spanish nationality, with professional domicile in Madrid at street
Xxxxx xx Xxxxxxxx, number 10, holder of identity card number 51388757H, and
Xx.
Xxxxx Xxxxxx Xxxxxxxxx Abelenda, of legal age, lawyer, of Spanish nationality,
with professional domicile in Madrid at street Xxxxx xx Xxxxxxxx, number
10,
holder of identity card number 19.012.777B by virtue of the power of attorney
granted to him by means of a Deed executed before the Notary Public of London,
Mr. Xxxxx Xxxx Xxxxxxxx on February 6, 2008, which I have examined and consider
sufficient.
|
(6)
|
BNP
PARIBAS
(hereinafter, BNP)
a
public company duly incorporated under the laws of France, with
registered
address at 00, Xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, registered
with the
Commercial and Companies Registry of Paris with registered number
662 042
449 RCS Paris.
|
Acts
on
its behalf Xx. Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx, of legal age,
lawyer, of Spanish nationality, with professional domicile in Madrid at street
Xxxxx xx Xxxxxxxx, number 10, holder of identity card number 51388757H, and
Xx.
Xxxxx Xxxxxx Xxxxxxxxx Abelenda, of legal age, lawyer, of Spanish nationality,
with professional domicile in Madrid at street Xxxxx xx Xxxxxxxx, number
10,
holder of identity card number 19.012.777B by virtue of the power of attorney
granted to him by means of a Deed executed before the Notary Public of Paris,
Xx. Xxxxxxx Xxxxxx on February 18, 2008, a copy of which duly apostilled
I have
examined and consider sufficient.
|
(7)
|
BANCO
ITAÚ EUROPA, S.A., acting
through its
SUCURSAL FINANCEIRA EXTERIOR
(hereinafter, BIE).
Banco Itaú Europa, S.A. is a public company duly incoroprated and existing
under Portuguese Law, with registered address at Rua Xxxxxx Xxxxxx, torre
tres, décimo primer piso, freguesia
of
Santa Xxxxxx, county of Lisboa, registered with the Conservatória
do Registro Comercial de Lisboa
under the number of identification of collective person 503.305.979.
Its
Sucursal Financeira Exterior is placed at Edificio Marina Fórum, Xxxxxxx
Xxxxxxx, xxxxxx 00, xxxxxxx xxxxx, xxxx 000. of Funchal, registered
with
the Conservatoria
do Registro Comercial da Zona Xxxxxx xx Xxxxxx
under the number of identification of collective person 980.103.878.
CIF
number X0000000X.
|
Acts
on
its behalf Xx. Xxxxxx Xxxxx Xxxxxxx Xxxxxxx, of legal age, of Spanish
nationality, with professional domicile at Paseo de la Castellana, Madrid,
holder of identity card number 24.271.916Q, by virtue of the power of attorney
granted to him by means of a Deed executed before the Notary Public of Lisbon,
Xxx. Xxxxx Xxxxxx Xxxxxx Letie on February 18, 2008, a copy of which duly
apostilled I have examined and consider sufficient.
2
|
(8)
|
CREDIT
SUISSE, LONDON BRANCH (in
its capacity as Senior
Agent
and Intercreditor
Agent),
branch duly incorporated under the English law, with registered
number
BR000469, of Credit Suisse, a bank duly incorporated and existing
under
the laws of Zurich, Switzerland, with the company number
CH-020.3.923.549-1. The branch has its registered office at 0,
Xxxxx
Xxxxxx, Xxxxxx, X00 0XX. CIF number
X0000000X.
|
Acts
on
its behalf Xx. Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx, of legal age,
lawyer, of Spanish nationality, with professional domicile in Madrid at street
Xxxxx xx Xxxxxxxx, number 10, holder of identity card number 51388757H, and
Xx.
Xxxxx Xxxxxx Xxxxxxxxx Abelenda, of legal age, lawyer, of Spanish nationality,
with professional domicile in Madrid at street Xxxxx xx Xxxxxxxx, number
10,
holder of identity card number 19.012.777B by virtue of the power of attorney
granted to him by means of a Deed executed before the Notary Public of London,
Mr. Xxxxxx Brookers Xxxxxxxx on February 15, 2008, a copy of which duly
apostilled I have examined and consider sufficient.
|
(9)
|
HSBC
BANK PLC,
a
limited liability company duly existing and incorporated under
the laws of
England, registered with the Office of the Companies Registry of
England
and Wales under the number 14259, with registered address at 0
Xxxxxx
Xxxxxx, Xxxxxx X00 0XX (hereinafter, together with any successors
or
assignees in such capacity, the Collateral
Agent).
|
Acts
on
its behalf Xx. Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx, of legal age,
lawyer, of Spanish nationality, with professional domicile in Madrid at street
Xxxxx xx Xxxxxxxx, number 10, holder of identity card number 51388757H, and
Xx.
Xxxxx Xxxxxx Xxxxxxxxx Abelenda, of legal age, lawyer, of Spanish nationality,
with professional domicile in Madrid at street Xxxxx xx Xxxxxxxx, number
10,
holder of identity card number 19.012.777B by virtue of the power of attorney
granted to him by means of a Deed executed before the Notary Public of London,
Mr. Xxxxxxx Xxxxxx Xxxxxx on February 18, 2008, a copy of which duly apostilled
I have examined and consider sufficient.
Each
Party acknowledges to each other that it has the power to enter into and
perform, and has taken all necessary action to authorise the entry into and
performance of, this Agreement and the transactions contemplated by this
Agreement.
IT
IS AGREED
as
follows:
|
1.
|
INTERPRETATION
|
|
1.1
|
Definitions
|
In
this
Agreement:
Accession
Agreement
means an
agreement by which a person becomes a party to this Agreement, substantially
in
the form of Schedule 1 (Form of Accession Agreement) with such amendments
as the
Intercreditor Agent may approve or reasonably require.
Additional
Seller Subordinated Debt
has the
meaning given to it in the Seller Credit Agreement.
Borrower
in Insolvency
has the
meaning given to it in 6.1
(Subordination
Events).
Collateral
Agent's Account
has the
meaning given to it in the Senior Secured Term Loan Facility.
Creditor
means:
|
(a)
|
a
Senior Creditor;
|
3
|
(b)
|
the
Seller; or
|
|
(c)
|
a
Shareholder.
|
Debt
means:
|
(a)
|
the
Senior Debt;
|
|
(b)
|
the
Seller Debt; or
|
|
(c)
|
the
Shareholder Debt.
|
Designated
Security Document means
any
document evidencing a Security Interest in favour of a Designated Senior
Creditor for the purpose of securing Designated Senior Debt that is designated
as such by the Borrower and the Intercreditor Agent.
Designated
Security Interest means
a
Security Interest created or evidenced by a Designated Security Document.
Designated
Senior Debt
means
all Liabilities owed by the Borrower to any Designated Senior Creditor incurred
for the purpose of refinancing:
|
(a)
|
the
Senior Debt referred to in paragraph (a) of the definition of Senior
Debt
outstanding immediately before such refinancing; plus
|
|
(b)
|
reasonable
fees, costs and expenses incurred by the Borrower in connection
with that
refinancing.
|
Designated
Senior Creditor
means
any creditor under a Designated Senior Finance Document that is owed Designated
Senior Debt and has become a Party to this Agreement by the execution of
an
Accession Agreement.
Designated
Senior Finance Document means
any
document evidencing, guaranteeing or securing Designated Senior Debt, the
terms
of which:
|
(a)
|
are
not more onerous to the Borrower or directly or indirectly to the
Seller
than the Senior Finance Documents, as amended;
and
|
|
(b)
|
provide
that the maximum principal amount of any loans or other financial
accommodation provided under them does not exceed the Senior Debt
referred
to in paragraph (a) of the definition of Senior Debt outstanding
immediately before such refinancing plus reasonable fees, costs
and
expenses incurred by the Borrower in connection with that
refinancing,
|
and
that
is designated as such by the Borrower and the Intercreditor Agent.
Event
of Default
means a
Senior Event of Default or a Seller Event of Default and such equivalent
term as
may be defined in the Designated Senior Finance Documents.
Finance
Document
means:
|
(a)
|
a
Senior Finance Document;
|
|
(b)
|
a
Designated Senior Finance Document;
|
|
(c)
|
a
Seller Finance Document; or
|
4
|
(d)
|
a
Shareholder Document.
|
Finance
Parties means
the
Lender and the Agents as defined in the Senior Secured Term Loan Facility
(and a
Finance Party shall mean any one of them).
Junior
Creditor
means:
| (a) |
on
or before the Senior Debt Discharge Date, the Seller or each Shareholder;
or
|
| (b) |
after
the Senior Debt Discharge Date, each
Shareholder.
|
Junior
Creditor Suspension Notice
has the
meaning given to that term in Clause 5.2
(Junior
Creditor Payment Suspension).
Junior
Debt
means:
|
(a)
|
on
or before the Senior Debt Discharge Date: (i) the Seller Debt;
and (ii)
the Shareholder Debt; and
|
|
(b)
|
after
the Senior Debt Discharge Date, the Shareholder
Debt.
|
Junior
Finance Documents
means:
|
(a)
|
on
or before the Senior Debt Discharge Date: (i) the Seller Documents;
and
(ii) the Shareholder Documents; and
|
|
(b)
|
after
the Senior Debt Discharge Date, the Shareholder
Documents.
|
Liability
means
any present or future liability (actual or contingent), together
with:
|
(a)
|
any
refinancing, deferral or extension of that
liability;
|
|
(b)
|
any
further advance which may be made under any agreement expressed
to be
supplemental to any document in respect of that liability, together
with
all related interest, fees and
costs;
|
|
(c)
|
any
claim for damages or restitution in the event of rescission of
that
liability or otherwise;
|
|
(d)
|
any
claim flowing from any recovery by a payment or discharge in respect
of
that liability on the grounds of preference or otherwise;
and
|
|
(e)
|
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 Creditors
means
the Majority Lenders as defined in the Senior Secured Term Loan Facility
or as
that or an equivalent term may be defined in the Designated Senior Finance
Documents.
Party
means a
party to this Agreement.
Permitted
Excluded Share Disposal Proceeds means
the
proceeds received from any Permitted Excluded Shares Disposition, as
contemplated in the Senior Secured Term Loan Facility.
Permitted
Excluded Shares Disposition
shall
have the same meaning as defined
in the Senior Secured Term Loan Facility.
5
Required
Lenders shall
have the same meaning as defined
in the Senior Secured Term Loan Facility or as that or an equivalent term
may be
defined in the Designated Senior Finance Documents.
Security
Interest
means
any mortgage, pledge, lien, charge (fixed or floating), assignment,
hypothecation, set-off or trust arrangement for the purpose of creating
security, reservation of title or security interest or any other agreement
or
arrangement having a substantially similar effect.
Seller
Credit Agreement means
the
credit agreement dated on the date of this Agreement between, among others,
the
Borrower and the Seller.
Seller
Debt
means
any Liabilities owing by the Borrower to the Seller under the Seller Documents
and any Additional Seller Subordinated Debt.
Seller
Debt Discharge Date
means
the date on which the Seller Debt has been unconditionally and irrevocably
paid
and discharged in full and all commitments under and as defined in the Seller
Documents have been cancelled in accordance with the Seller
Documents.
Seller
Documents means
the
Loan Documents as defined in the Seller Credit Agreement.
Seller
Enforcement Event
means
the exercise by the Seller of its right under the Seller Credit Agreement
to
cancel any obligation to provide a facility or to demand payment of any sum
payable under the Seller Credit Agreement.
Seller
Enforcement Notice has
the
meaning given to that term in the definition of Seller Standstill
Period.
Seller
Enforcement Proceeds
means
the proceeds (which may be in cash, in kind and/or in specie) of enforcement
of
the Seller Security Documents plus any fees, costs and expenses incurred
in
enforcing the Seller Security.
Seller
Event of Default
means an
Event of Default as defined in the Seller Credit Agreement.
Seller
Security means
any
Security Interest created or evidenced by a Seller Security Document.
Seller
Security Document means
any
document creating or evidencing a Security Interest in favour of the Seller
in
respect of the Seller Debt.
Seller
Standstill Period
means:
|
(a)
|
for
a Seller Event of Default resulting from the non-payment of any
Seller
Debt comprising principal, interest or fees or any other amount
but
excluding expenses, a period of 90 days;
and
|
|
(b)
|
for
any other Seller Event of Default, a period of 150
days,
|
from
the
date the Senior Agent receives a notice (a Seller
Enforcement Notice)
from
the Seller specifying that the relevant Seller Event of Default has
occurred.
Senior
Creditor
means a
Finance Party or any Designated Senior Creditor.
6
Senior
Debt
means:
|
(a)
|
all
Liabilities owing by the Borrower to a Lender under or in connection
with
the Senior Secured Term Loan Facility; or
|
| (b) | after the date on which all the Senior Debt referred to in paragraph (a) has been unconditionally and irrevocably paid and discharged in full (as determined by the Senior Agent) and all commitments under the Senior Secured Term Loan Facility have been cancelled, Designated Senior Debt. |
Senior
Debt Discharge Date
means
the date on which all the Senior Debt has been unconditionally and irrevocably
paid and discharged in full in cash and all commitments under the Senior
Finance
Documents have been cancelled in accordance with the Senior Finance
Documents.
Senior
Enforcement Event
means
the giving of a notice of acceleration by the Administrative Agent (as defined
in the in the Senior Secured Term Loan Facility) pursuant to Article VII
of the
Senior Secured Term Loan Facility, and in relation to the Designated Senior
Debt, the equivalent event under the Designated Senior Finance
Documents.
Senior
Event of Default
means an
Event of Default as defined in the Senior Secured Term Loan
Facility.
Senior
Finance Document
means a
Loan Document as defined in the Senior Secured Term Loan Facility or a
Designated Senior Finance Document.
Senior
Secured Term Loan Facility
means
the $1,026,000,000 senior term loan facilities agreement dated on the date
of
this Agreement between, among others, the Borrower and the Senior
Creditors.
Shareholder
means
Xxxxxxxx Energía PTY, Ltd. and each owner of equity of the Borrower whose shares
in the Borrower are pledged as security for the Senior Secured Term Loan
Facility.
Shareholder
Document means
any
document evidencing a Shareholder Debt.
Shareholder
Debt
means
all Liabilities owing by the Borrower to a Shareholder.
Subordination
Period
means:
| (a) |
in
relation to the subordination provisions for the benefit of the
Senior
Creditors, the period beginning on the date of this Agreement and
ending
on the Senior Debt Discharge Date; and
|
| (b) |
in
relation to the subordination provisions between the Seller and
the
Shareholder, the period beginning on the date of this Agreement
and ending
on the Seller Debt Discharge Date.
|
Subordinated
Seller Debt means
Seller Debt in excess of the Seller Enforcement Proceeds (or the value
reasonably attributed to the Seller Enforcement Proceeds if they are made
in
kind and/or in specie).
Transaction
Security Document:
| (a) |
a
Security Document as defined in the Senior Secured Term Loan Facility;
or
|
| (b) |
a
Designated Security Document.
|
7
Transaction
Security means
any
Security Interest created or evidenced by a Transaction Security
Document.
|
1.2
|
Construction
|
| (a) |
On
or before the Senior Discharge Date, words defined in the Senior
Secured
Term Loan Facility have, unless expressly defined in this Agreement,
the
same meaning in this Agreement.
|
| (b) | After the Senior Discharge Date, words defined in the Seller Credit Agreement have, unless expressly defined in this Agreement, the same meaning in this Agreement. |
| (c) | The covenants of the Borrower, Seller and Shareholders under this Agreement shall remain in force during the Subordination Period. |
| (d) | If an amount paid to a Creditor under a Finance Document is capable of being avoided or otherwise set aside on the liquidation or administration of the payer or otherwise, then that amount will not be considered to have been irrevocably paid for the purposes of this Agreement. |
| (e) | A reference in this Agreement to a Finance Document is a reference to that Finance Document as amended only if the amendment is allowed by this Agreement. |
| (f) | If there is any conflict between the terms of this Agreement and any Finance Document, this Agreement will prevail. |
| (g) | A reference to payment includes a distribution, prepayment or repayment and references to pay include distribute, repay or prepay. |
| (h) | A reference give any financial support, financial accommodation (or similar phrases) in connection with any Debt include the taking of any participation in or in respect of such Debt, the giving of any guarantee or other assurance against loss in respect of such Debt, or the making of any deposit or payment in respect of or on account of such Debt. |
|
2.
|
RANKING
|
|
2.1
|
Ranking
|
|
(a)
|
Subject
to the terms of this Agreement,
the Debt shall rank in right and priority of
payment
|
in
the
following order:
|
First
|
Senior
Debt
|
|
Second
|
Seller
Debt; and
|
|
Third
|
Shareholder
Debt.
|
|
(b)
|
The
ranking in paragraph (a) above applies regardless
of:
|
|
(i)
|
the
order of registration, notice or execution of any
document;
|
|
(ii)
|
when
any Debt is incurred;
|
|
(iii)
|
whether
or when a Creditor is obliged to advance any Debt;
or
|
|
(iv)
|
any
fluctuation in the outstanding amount of, or any intermediate discharge
of, any Debt.
|
8
|
(c)
|
The
Transaction Security secures only the Senior Debt and the Seller
Security
secures only the Seller Debt and this Agreement does not rank the
Transaction Security or the Seller Security in any respect.
|
|
(d)
|
Notwithstanding
any other provision of a Finance Document to the contrary, the
Seller
shall be under no obligation to share or turnover any Seller Enforcement
Proceeds received by the Seller after the expiry of the Seller
Standstill
Period with or to any other Party and the Seller may appropriate
such
proceeds in accordance with the Seller Documents without regard
to any
other Creditor.
|
|
(e)
|
The
Shareholder Debt is and will remain
unsecured.
|
|
3.
|
NATURE
OF PARTIES' RIGHTS AND
OBLIGATIONS
|
|
3.1
|
Creditors
|
Unless
otherwise agreed by all the Creditors:
|
(a)
|
the
obligations of a Creditor under this Agreement are
several;
|
|
(b)
|
failure
by a Creditor to perform its obligations under this Agreement does
not
affect the obligations of any other Creditor under this Agreement;
and
|
|
(c)
|
no
Creditor is responsible for the obligations of any other Creditor
under
this Agreement.
|
|
3.2
|
Preservation
of Junior Debt
|
|
(a)
|
Notwithstanding
any term of this Agreement postponing, subordinating or preventing
the
payment of any of the Junior Debt:
|
|
(i)
|
that
Junior Debt will, solely as between the Borrower and any Junior
Creditor,
remain owing or due and payable in accordance with the terms of
the
applicable Junior Finance Documents;
and
|
|
(ii)
|
interest
and default interest will accrue on missed payments
accordingly.
|
|
(b)
|
No
delay in exercising any right or remedy under a Junior Finance
Document
caused by any term of this Agreement will operate as a permanent
waiver of
that right or remedy.
|
|
4.
|
UNDERTAKINGS
|
|
4.1
|
Borrower
|
|
(a)
|
Except
as provided in paragraph (b) below, no Junior Creditor may, and
the
Borrower and the Shareholders will
not:
|
|
(i)
|
make
or receive any payment or distribution in respect of any Junior
Debt,
whether in cash or in kind from any
source;
|
|
(ii)
|
purchase,
redeem or acquire or make any demand in respect of any Junior
Debt;
|
|
(iii)
|
allow
any Junior Debt to be set-off or otherwise
discharged;
|
|
(iv)
|
allow
to exist or receive the benefit of any security, guarantee, indemnity
or
other assurance against loss in respect of any Junior Debt, including
without limitation under any deposit or participation
arrangement;
|
9
|
(v)
|
allow
any Junior Debt to be evidenced by a negotiable
instrument;
|
|
(vi)
|
allow
any Junior Debt to be subordinated to any person otherwise than
in
accordance with this Agreement; or
|
|
(vii)
|
take
any action which might impair the priority or subordination achieved
or
intended to be achieved by this
Agreement.
|
|
(b)
|
Paragraph
(a)
does not apply to:
|
|
(i)
|
the
existence of any Seller Security, guarantee or indemnity under
the Seller
Credit Agreement;
|
|
(ii)
|
on
or before the Senior Debt Discharge Date, any such action approved
by the
Required Lenders;
|
|
(iii)
|
after
the Senior Debt Discharge Date, any such action approved by the
Seller;
|
|
(iv)
|
payments
expressly permitted under the Senior Finance Documents (or, after
the
Senior Debt Discharge Date, the Seller Credit Agreement);
or
|
|
(v)
|
anything
permitted under Clause 3.2
(Preservation
of Junior Debt),
Clause 5
(Payments
of Junior Debt),
Clause 6.2
(Consequences
of insolvency),
Clause 9.2
(Permitted
Seller Enforcement)
or Clause 15
(Changes
to the Parties)
of this Agreement.
|
|
5.
|
PAYMENTS
OF JUNIOR DEBT
|
|
5.1
|
Payments
of Junior Debt
|
|
(a)
|
Subject
to paragraph (c), until the Senior Debt Discharge Date, no payment
of
interest, fees or expenses in respect of the Junior Debt shall
be made.
Any payment in respect of the Seller Debt is allowed after the
Senior Debt
Discharge Date.
|
|
(b)
|
Until
the Seller Debt Discharge Date, no payment of any amounts owing
(including, interest, fees or expenses) in respect of the Shareholder
Debt
shall be made.
|
|
(c)
|
Paragraph
(a) does not apply to:
|
|
(i)
|
Seller
Enforcement Proceeds paid to the Seller after the expiry of the
Seller
Standstill Period;
|
|
(ii)
|
any
scheduled payments of principal and interest, fees, costs and expenses
in
respect of Seller Debt scheduled on or after 15 May
2013;
|
|
(iii)
|
any
capitalisation of interest, fees, costs and expenses in respect
of the
Seller Debt prior to 15 May 2013;
|
|
(iv)
|
payments
expressly permitted under the Senior Finance Documents (or, after
the
Senior Debt Discharge Date, the Seller Credit Agreement);
or
|
|
(v)
|
Permitted
Excluded Share Disposal Proceeds,
|
10
provided
further that any cash dividends paid with respect to the Excluded Shares
shall
be delivered to the Intercreditor Agent for its payment to the Senior Agent,
in
accordance with the Senior Secured Term Loan Facility.
|
5.2
|
Junior
Creditor Payment
Suspension
|
|
(a)
|
If
a Senior Event of Default is then outstanding, and without prejudice
to
clause 9.1
(Restrictions
on Junior Debt),
the Senior Agent shall give notice (a Junior
Creditor Suspension Notice)
to the Borrower and the Junior Creditors suspending any payment
in respect
of the Junior Debt.
|
| (b) |
A
Junior Creditor Suspension Notice will remain in force, and
payment of the
Junior Debt will be suspended, until the earlier
of:
|
|
(i)
|
90
days from receipt by the Junior Creditors of the
notice;
|
|
(ii)
|
the
date on which the relevant Senior Event of Default ceases to be
continuing;
|
|
(iii)
|
the
date on which the Senior Agent acting on the instructions of the
Majority
Senior Creditors cancels the Junior Creditor Suspension Notice
by notice
to the Borrower and the Junior Creditors;
and
|
|
(iv)
|
the
Senior Debt Discharge Date.
|
|
(c)
|
No
Junior Creditor Suspension Notice may be served in reliance on
a
particular Senior Event of Default more than six months after the
Senior
Agent has received notice from a Party specifying the event concerned
and
that it is a Senior Event of
Default.
|
|
(d)
|
The
Senior Agent may only serve one Junior Creditor Suspension Notice
in
relation to each Senior Event of
Default.
|
|
(e)
|
The
accrual of all interest (and the capitalisation of interest) in
accordance
with the terms of the Junior Finance Document (as in force at the
date of
this Agreement or as amended to the extent permitted under this
Agreement), but not the payment thereof, shall be permitted
notwithstanding service of a Junior Creditor Suspension Notice
or any
other provision of this Subclause.
|
|
6.
|
CONTRACTUAL
SUBORDINATION ON
INSOLVENCY
|
|
6.1
|
Subordination
Events
|
| (a) |
In
this Agreement, "Borrower
in Insolvency"
means the occurrence with respect to the Borrower
of:
|
|
(i)
|
winding
up, administration or dissolution of the Borrower, including, without
limitation, any "disolución,
liquidación, concurso",
or any other similar proceedings (including the "quiebra"
or "acuerdo
preventivo extrajudicial"
in Argentina);
|
|
(ii)
|
the
appointment of a receiver, administrative receiver, administrator
or the
like of the Borrower, including without limitation, a liquidator,
"administración
concursal"
or any other person performing the same function of each of the
foregoing;
|
|
(iii)
|
the
Borrower being unable to pay its debts generally, including that
the
Borrower is in a state of insolvencia
or
concurso;
or
|
|
(iv)
|
any
similar or analogous process or proceeding in any other jurisdiction.
|
11
| (b) |
Any
Subordinated Seller Debt and any Shareholder Debt owed by the Borrower
in
Insolvency will be subordinate in right of payment to any Senior
Debt owed
by the Borrower in Insolvency.
|
| (c) |
Any
Shareholder Debt owed by the Borrower in Insolvency will be subordinate
in
right of payment to any Seller Debt owed by the Borrower in
Insolvency.
|
|
6.2
|
Consequences
of insolvency
|
| (a) |
Upon
the Borrower in Insolvency, the Junior Creditors must, as requested
by the
Intercreditor Agent, and to the extent they might be entitled to
do so
under Spanish insolvency law:
|
|
(i)
|
claim,
enforce and prove the Junior Debt owed by the Borrower in
Insolvency;
|
|
(ii)
|
exercise
all powers of convening meetings, voting and representation in
respect of
the Junior Debt;
|
|
(iii)
|
file
claims and proofs, give receipts and take any proceedings as the
Intercreditor Agent considers reasonably necessary to recover the
Junior
Debt under the Junior Finance
Documents;
|
|
(iv)
|
do
anything which the Intercreditor Agent sees fit to recover the
Junior
Debt; and
|
|
(v)
|
receive
all distributions on the Junior Debt under the Junior Finance Documents
for application under Clause 10
(Proceeds
of Enforcement of Security).
|
| (b) |
Until
the Senior Discharge Date, the Junior Creditors (and until the
Seller Debt
Discharge Date, the Shareholder)
must:
|
|
(i)
|
hold
any payment or distribution in cash or in kind received or receivable
by
it in respect of any Junior Debt from the Borrower in Insolvency
or from
any other source for the benefit of the Senior Creditors or, if
after the
Senior Debt Discharge Date, the
Seller;
|
|
(ii)
|
promptly
pay and transfer any such payment or distribution to the Intercreditor
Agent for application in accordance with this Agreement;
and
|
|
(iii)
|
direct
the bankruptcy administrators, liquidators or other person distributing
the assets of the Borrower in Insolvency or their proceeds to pay
all
payments and distributions on the Junior Debt direct to the Intercreditor
Agent,
|
provided
that the Seller Enforcement Proceeds received by the Seller shall not be
subject
to the provisions in this paragraph (b).
| (c) |
Nothing
in the Clause affects the rights of the Seller in respect of the
Seller
Security and Seller Debt that is not Subordinated Seller
Debt.
|
|
6.3
|
Further
assurance
|
The
Junior Creditors must, at their own expense, subject to Clause 6.2
(Consequences
of insolvency),
take
the reasonable actions the Intercreditor Agent may require to give effect
to
this Clause that otherwise are not prohibited by Spanish mandatory
Law.
12
|
7.
|
TURNOVER
|
|
7.1
|
Non-permitted
payment
|
If:
|
(a)
|
a
Junior Creditor receives a payment or distribution in respect of
any
Subordinated Seller Debt or Shareholder Debt from the Borrower
or any
other source other than as allowed under this
Agreement;
|
|
(b)
|
the
Seller or a Shareholder receives the proceeds of any enforcement
of any
Security Interest or any guarantee or other assurance against financial
loss for any Junior Debt other than as allowed under this
Agreement,
|
the
recovering Junior Creditor will, prior to the Seller Debt Discharge
Date:
|
(i)
|
hold
such payment, distribution or proceeds for the benefit of the Senior
Creditors (provided that after Senior Debt Discharge Date but prior
to the
Seller Debt Discharge Date such payment, distribution or proceeds
are to
be held for the benefit of the Seller);
and
|
|
(ii)
|
immediately
notify the Intercreditor Agent of such
receipt.
|
|
7.2
|
Non-permitted
discharge
|
If,
for
any reason, the Subordinated Seller Debt or the Shareholder Debt is discharged
in any manner other than as allowed under this Agreement, the Seller or the
Shareholders must immediately notify the Intercreditor Agent of such discharge
of their Debt.
|
7.3
|
Turnover
|
| (a) |
The
Seller and the Shareholders must pay to the Intercreditor Agent
on demand
the amount of any such payment, distribution or proceeds received
by it
or, as the case may be, an amount equal to the amount of their
respective
Subordinated Seller Debt or the Shareholder Debt so discharged,
in each
case less any third party costs and expenses (if any) reasonably
incurred
by it in recovering the amount.
|
| (b) |
The
Intercreditor Agent may not make a demand in excess of the amount
determined by it to be the outstanding balance of the Senior Debt
(including all amounts for principal interests, default interests,
fees
and expenses or otherwise then due and payable under the Senior
Secured
Term Loan Facility and any amount certified by a Senior Creditor
as
necessary to compensate it for any breakage costs incurred by it
as a
result of any such payment).
|
| (c) |
Any
amount so received by the Intercreditor Agent will be applied against
the
Debt in the order provided for in Clause 10
(Proceeds
of Enforcement of Security).
|
|
7.4
|
Indemnity
|
The
Borrower shall indemnify each Junior Creditor for any amount paid by them
to the
Intercreditor Agent under this Clause and the Junior Debt will be deemed
not to
have been reduced by the payment, distribution, receipt or discharge resulting
in the obligation to make such payment.
13
|
8.
|
PROTECTION
OF SUBORDINATION
|
|
8.1
|
Continuing
subordination
|
The
subordination provisions in this Agreement constitute a continuing subordination
and will benefit the ultimate balance of all of the Senior Debt or, after
the
Senior Debt Discharge Debt, the Seller Debt, regardless of any intermediate
payment or discharge in whole or in part.
|
8.2
|
Reinstatement
|
If
any
payment by a Junior Creditor or the Borrower or any discharge given by a
Senior
Creditor (whether in respect of the obligations of any Junior Creditor or
the
Borrower or any security for those obligations or otherwise) is avoided or
reduced as a result of insolvency or any similar event:
|
(a)
|
the
liability of each Junior Creditor and the Borrower will continue
as if the
payment, discharge, avoidance or reduction had not occurred;
and
|
|
(b)
|
each
Senior Creditor or the Seller (after the Senior Debt Discharge
Date) will
be entitled to recover the value or amount of that security or
payment
from the Borrower or the Shareholder, as if the payment, discharge,
avoidance or reduction had not
occurred.
|
|
8.3
|
Waiver
of defences
|
The
subordination provisions in this Agreement and the obligations of each Junior
Creditor and the Borrower under this Agreement will not be affected by any
act,
omission, matter or thing which, would reduce, release or prejudice the
subordination or any of those obligations.
|
8.4
|
Immediate
recourse
|
| (a) |
The
Junior Creditors and the Borrower waive any right they may have
of first
requiring any Senior Creditor to proceed against or enforce any
other
rights or security or claim payment from any person before claiming
from
the Junior Creditors or from the Borrower under this Agreement;
provided
that the Seller shall be under no obligation to turnover any Seller
Enforcement Proceeds, and the Senior Creditors shall not make a
claim
against the Seller under this Agreement to turn over any proceeds
for any
Subordinated Seller Debt recovered by the Seller in contravention
of the
terms of this Agreement unless the Senior Creditors have received
the
proceeds of enforcement of the Transaction
Security.
|
| (b) |
The
Borrower waives any right they may have of first requiring any
Senior
Creditor to proceed against or enforce any other rights or security
or
claim payment from any person before claiming from the Borrower
under this
Agreement.
|
| (c) |
The
Shareholders and the Borrower waive any right they may have of
first
requiring the Seller to proceed against or enforce any other rights
or
security or claim payment from any person before claiming from
Borrower
under this Agreement.
|
|
8.5
|
Non-competition
|
| (a) |
Subject
to paragraphs (b)
and (c)
below,
until:
|
|
(i)
|
the
Senior Debt Discharge Date; or
|
|
(ii)
|
the
Intercreditor Agent otherwise directs (acting on the instructions
of the
Majority Senior Creditors),
|
14
neither
the Seller (prior to the Senior Debt Discharge Debt) nor any Shareholder
will be
able, under any circumstances, to exercise any subrogation rights they may
have
with respect to any rights, security or moneys held, received or receivable
by
any other Creditor or be entitled to any right of contribution or indemnity
in
respect of any payment made or moneys received on account of its liability
under
this Agreement.
Until
the
Seller Debt Discharge Date, no Shareholder will be able, under any
circumstances, to exercise any subrogation rights they may have with respect
to
any rights, security or moneys held, received or receivable by the Seller
or be
entitled to any right of contribution or indemnity in respect of any payment
made or moneys received on account of its liability under this
Agreement.
| (b) | (i) |
If
any Senior Debt is paid out of any proceeds received in respect
of or on
account of the Seller Debt, in accordance with this Agreement,
the Seller
will to that extent be subrogated to the Senior Debt so paid (and
all
securities and guarantees for that Debt) but shall not be able
to exercise
such right until all Senior Debt has been paid in full and
discharged.
|
| (ii) |
If
any Senior Debt is paid out of any proceeds received in respect
of or on
account of any Shareholder Debt, in accordance with this Agreement,
the
relevant Shareholder will to that extent be subrogated to the Senior
Debt
so paid (and all securities and guarantees for that Debt) but shall
not be
able to exercise such right until the Seller Debt has been paid
in
full.
|
| (iii) |
If
any Seller Debt is paid out of any proceeds received in respect
of or on
account of any Shareholders Debt, in accordance with this Agreement,
the
relevant Shareholder will to that extent be subrogated to the Seller
Debt
so paid (and all securities and guarantees for that Debt) but shall
not be
able to exercise such right until the until the Seller Debt has
been paid
in full.
|
| (c) |
If
any Junior Creditor or Shareholder is entitled to exercise any
such right
of subrogation with respect to any Senior Debt, after the Senior
Debt
Discharge Date, each Senior Creditor shall (if it is properly indemnified
to its satisfaction against any resulting costs and expenses (including
legal fees)) provide such assistance to enable that right to be
exercised
as such Junior Creditor or Shareholder may reasonably
request.
|
| (d) |
If
a Shareholder is entitled to exercise any
such right of subrogation with respect to the Seller Debt, after
the
Seller Debt Discharge Date, the Seller shall (if properly indemnified
to
its satisfaction against any resulting costs and expenses (including
legal
fees)) provide such assistance to enable that right to be exercised
as the
relevant Shareholder may reasonably
request.
|
|
(e)
|
The
Junior Creditors shall be able to exercise those legal actions
they may be
entitled to solely
for the purpose of preserving the subrogation rights under this
clause
which would otherwise be lost as a result of a statutory limitation
period
being exceeded, if to do so would not conflict with any other term
of this
Agreement.
|
|
9.
|
ENFORCEMENT
|
|
9.1
|
Restrictions
on Junior Debt
|
Subject
to Clauses 6
(Contractual
Subordination on Insolvency)
and
Clause 9.2
(Permitted
Seller Enforcement),
the
Junior Creditor and the Shareholders may not:
|
(a)
|
demand
payment of any Junior Debt;
|
|
(b)
|
accelerate
any Junior Debt or otherwise declare any Junior Debt prematurely
due and
payable;
|
15
|
(c)
|
enforce
any Junior Debt by attachment, set-off, execution or
otherwise;
|
|
(d)
|
enforce
any security ancillary to the Junior
Debt;
|
|
(e)
|
initiate
or support or take any step with a view to the declaration of insolvency,
liquidation, administration or dissolution or any analogous proceedings
in
relation to the Borrower, nor agree to any voluntary arrangement
or
assignment for the benefit of creditors of the Borrower unless
taking such
action is compulsory under Spanish mandatory insolvency
law;
|
|
(f)
|
bring
or support any legal proceedings against the Borrower;
or
|
|
(g)
|
otherwise
exercise any remedy for the recovery of any Junior
Debt.
|
|
9.2
|
Permitted
Seller Enforcement
|
| (a) |
Notwithstanding
the restrictions on enforcement set out in this Clause and except
as
provided below, the Seller may take any action otherwise prohibited
by
this Clause if:
|
|
(i)
|
a
Seller Event of Default is still continuing at the end of its Seller
Standstill Period;
|
|
(ii)
|
payment
of the Senior Debt has been accelerated under the Senior Secured
Term Loan
Facility;
|
|
(iii)
|
the
action is taken against the Borrower in Insolvency;
or
|
|
(iv)
|
action
is taken to exercise the rights of the Seller under or in connection
with
the Seller Security after the expiry of the Standstill
Period.
|
| (b) |
Notwithstanding
paragraph (a)
above,
the Seller may not do anything in respect of Subordinated Seller
Debt and
the Shareholders may not do anything in respect of the Borrower
if the
Collateral Agent is enforcing or otherwise exercising its powers
to
enforce or sell any assets charged under a Transaction Security
Document
until the earlier of:
|
|
(i)
|
the
date the Intercreditor Agent notifies the Seller or Shareholder
that the
Collateral Agent has ceased to exercise those powers;
and
|
|
(ii)
|
the
date 120 days after the end of the relevant Seller Standstill
Period.
|
| (c) |
Notwithstanding
any other term of this Clause, the Seller may bring or support
proceedings
solely for the purpose of preserving any claim which would otherwise
be
lost as a result of a statutory limitation period being exceeded,
if to do
so would not conflict with any other term of this Agreement or
take
proceedings to obtain: (A) an injunction or other order to restrain
any
breach by any other Party to any Seller Document; (B) declaratory
relief,
specific performance or other similar judgment or order as to the
obligations of any other Party in connection with any Seller Document;
and/or (C) any proceeding that is similar or analogous to any of
the
foregoing.
|
| (d) |
The
Shareholders cannot take any type of action against the Borrower
until the
later of the Senior Debt Discharge Date and the Seller Debt Discharge
Date.
|
16
|
10.
|
PROCEEDS
OF ENFORCEMENT OF SECURITY
|
|
10.1
|
Order
of Application of Transaction
Security
|
Subject
to the rights of any creditor with prior security or any preferential claim,
the
proceeds of enforcement of the Transaction Security must be paid to the
Intercreditor Agent. Those proceeds and any other amounts paid to the
Intercreditor Agent under this Agreement shall be transferred, by wire transfer
of immediately available funds, by the Intercreditor Agent to the Collateral
Agent's Account for application thereof as provided in the Senior Secured
Term
Loan Facility.
|
10.2
|
Order
of Application of Seller
Security
|
Subject
to the rights of any creditor with prior security or any preferential claim,
the
proceeds of enforcement of the Seller Security must be paid to the Intercreditor
Agent. Those proceeds and any other amounts paid to the Intercreditor Agent
under this Agreement shall be applied by the Intercreditor Agent in the
following order:
|
(a)
|
first,
in or towards payment of the fees, costs, expenses and liabilities
of the
Intercreditor Agent and any receiver, attorney or agent appointed
under
the Seller Security Documents or this
Agreement;
|
|
(b)
|
secondly,
in or towards payment of any fees, costs and expenses of the
Seller;
|
|
(c)
|
thirdly,
in or towards payment of any amounts outstanding under the Seller
Debt;
and
|
|
(d)
|
fourthly,
the payment of the surplus (if any) to the Borrower (or, if applicable,
to
any other person lawfully entitled to
it).
|
|
10.3
|
Good
discharge
|
An
acknowledgement of receipt signed by the relevant person to whom payments
are to
be made under this Clause will discharge the Intercreditor Agent.
|
10.4
|
Non-cash
Distributions
|
| (a) |
If
the Intercreditor Agent or any other Senior Creditor receives any
distribution otherwise than in cash in respect of the Senior Debt,
the
Senior Debt will not be deemed reduced by that distribution until
and
except to the extent that the realisation proceeds are applied
towards the
Senior Debt.
|
| (b) |
If
after the Senior Debt Discharge Date the Intercreditor Agent or
the Seller
receives any distribution otherwise than in cash in respect of
the Seller
Debt, the Seller Debt will not be deemed reduced by that distribution
until and except to the extent that the realisation proceeds are
applied
towards the Seller Debt.
|
|
10.5
|
Currencies
|
| (a) |
All
moneys received or held by the Intercreditor Agent under this Agreement
in
a currency other than a currency in which the relevant Debt is
denominated
may be sold for any one or more of the currencies in which the
Debt is
denominated as the Intercreditor Agent considers necessary or
desirable.
|
| (b) |
The
Borrower must indemnify the Intercreditor Agent against any loss
or
liability incurred in relation to any
sale.
|
17
| (c) |
The
Intercreditor Agent has no liability to any Party in respect of
any loss
resulting from any fluctuation in exchange rates after any such
sale.
|
|
11.
|
THE
INTERCREDITOR AGENT AND COLLATERAL
AGENT
|
|
11.1
|
Appointment
and duties of the Intercreditor
Agent
|
| (a) |
The
Parties appoint the Intercreditor Agent to act as agent under and
in
connection with the roles and duties set out in this Agreement
and
irrevocably authorises the Intercreditor Agent to perform the duties
and
to exercise the rights, powers and discretions that are specifically
given
to it under this Agreement, together with any other incidental
rights,
powers and discretions.
|
| (b) |
The
Intercreditor Agent may act through its personnel and
agents.
|
| (c) |
The
Intercreditor Agent's duties under this Agreement are solely mechanical
and administrative in nature.
|
|
11.2
|
Duties
of the Intercreditor Agent
|
| (a) |
The
Intercreditor Agent shall promptly forward to a Party the original
or a
copy of any document which is delivered to the Intercreditor Agent
for
that Party by any other Party.
|
| (b) |
If
the Intercreditor Agent receives notice from a Party referring
to this
Agreement, it shall promptly notify the other
Parties.
|
| (c) |
Except
otherwise specifically provided in this Agreement, the Intercreditor
Agent
is not obliged to review or check the adequacy, accuracy or completeness
of any document it forwards to another
Party.
|
| (d) |
The
Intercreditor Agent may disclose to any other Party any information
it
reasonably believes it has received as agent under this
Agreement.
|
| (e) |
Notwithstanding
any other provision of any Senior Finance Document or Seller Document
to
the contrary, the Intercreditor Agent is not obliged to do or omit
to do
anything if it would or might in its reasonable opinion constitute
a
breach of any law or regulation or a breach of a fiduciary duty
or duty of
confidentiality.
|
|
11.3
|
Responsibility
|
The
Intercreditor Agent is not:
|
(a)
|
responsible
for the adequacy, accuracy and/or completeness of any information
(whether
oral or written) supplied by any Party or any other person given
in or in
connection with this Agreement or the transactions contemplated
in the
Finance Documents or Transaction Security;
or
|
|
(b)
|
responsible
for the legality, validity, effectiveness, adequacy or enforceability
of
any Finance Document or the Transaction Security or any other agreement,
arrangement or document entered into, made or executed in anticipation
of
or in connection with any Finance Document or the Transaction
Security.
|
|
(c)
|
The
Intercreditor Agent may rely on:
|
18
|
(i)
|
any
representation, notice or document believed by it to be genuine,
correct
and appropriately authorised; and
|
|
(ii)
|
any
statement made by a director, authorised signatory or employee of
any
person regarding any matters which may reasonably be assumed to be
within
his knowledge or within his power to
verify.
|
|
(d)
|
The
Intercreditor Agent may engage, pay for and rely on the advice or
services
of any lawyers, accountants, surveyors or other
experts.
|
|
11.4
|
Exclusion
of liability
|
| (a) |
The
Intercreditor Agent will not be liable (including, without limitation,
for
negligence or any other category of liability whatsoever) for any
action
taken by it under or in connection with any Transaction Security,
unless
directly caused by its gross negligence or wilful
misconduct.
|
| (b) |
No
Party (other than the Intercreditor Agent) may take any proceedings
against any officer, employee or agent of the Intercreditor Agent
in
respect of any claim it might have against the Intercreditor Agent
or in
respect of any act or omission of any kind by that officer, employee
or
agent in relation to any Finance Document or any Transaction Document
and
any officer, employee or agent of the Intercreditor Agent may rely
on this
Clause.
|
| (c) |
The
Intercreditor Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
this
Agreement to be paid by the Intercreditor Agent if the Intercreditor
Agent
has taken all necessary steps as soon as reasonably practicable to
comply
with the regulations or operating procedures of any recognised clearing
or
settlement system used by the Intercreditor Agent for that
purpose.
|
|
11.5
|
Indemnity
to the Intercreditor Agent
|
The
Borrower must indemnify the Intercreditor Agent for any loss or liability
incurred by the Intercreditor Agent in acting as the Intercreditor Agent under
this Agreement, except to the extent that the loss or liability is directly
caused by the Intercreditor Agent's gross negligence or wilful
misconduct.
|
11.6
|
Resignation
of the Intercreditor Agent
|
| (a) |
The
Intercreditor Agent may resign of his duties under this Agreement
and
appoint any of its affiliates as successor Intercreditor Agent by
giving
notice to the other Parties.
|
| (b) |
The
Intercreditor Agent may resign by giving notice to the other Parties,
in
which case the Majority Senior Creditors in consultation with the
Seller
(or, if after the Senior Debt Discharge Date, the Seller) may appoint
a
successor Intercreditor Agent. If the Intercreditor Agent gives notice
to
the Parties that it will resign on a date on or after the Senior
Debt
Discharge Date, the Seller must appoint a replacement Intercreditor
Agent
promptly.
|
| (c) |
If
no successor Intercreditor Agent has been appointed under paragraph
(b)
above
within 30 days after notice of resignation was given, the Intercreditor
Agent himself may appoint a successor Intercreditor
Agent.
|
| (d) |
The
resignation of the Intercreditor Agent and the appointment of any
successor Intercreditor Agent will both become effective only when
the
successor Intercreditor Agent notifies all the Parties that it accepts
its
appointment and executes and delivers to the Intercreditor Agent
a duly
completed Accession Agreement. On satisfaction of said condition,
the
successor Intercreditor Agent will succeed to the position of the
retiring
Intercreditor Agent and the term Intercreditor
Agent
under this Agreement will mean the successor Intercreditor
Agent.
|
19
| (e) |
The
retiring Intercreditor Agent must, at its own
cost:
|
|
(i)
|
make
available to the successor Intercreditor Agent such documents and
records
and provide such assistance as the successor Intercreditor Agent
may
reasonably request for the purposes of performing its functions as
the
Intercreditor Agent under this Agreement;
and
|
|
(ii)
|
enter
into and deliver to the successor Intercreditor Agent such documents
and
effect such registrations as may be required for the transfer or
assignment of all its rights and benefits under this Agreement to
the
successor Intercreditor Agent;
|
provided
that the Borrower and the other parties must (at the cost of the Borrower)
take
any action and enter into any document which is required by the Intercreditor
Agent as may be required for the transfer or assignment of all its rights and
benefits under this Agreement to the successor Intercreditor Agent.
| (f) |
Upon
its resignation becoming effective, this Clause will continue to
benefit
the retiring Intercreditor Agent in respect of any action taken or
not
taken by it in connection with this Agreement while it was the
Intercreditor Agent, and it will have no further obligations under
this
Agreement.
|
| (g) |
The
Majority Senior Creditors in consultation with the Seller (or, if
after
the Senior Debt Discharge Date, the Seller) may, by notice to the
Intercreditor Agent, require it to resign under paragraph (b)
above.
If a replacement Intercreditor Agent has not been appointed within
60 days
of the Intercreditor Agent giving notice of resignation under this
paragraph (g) and the Senior Debt Discharge Date has occurred, the
resignation of the Intercreditor Agent will take effect on the date
notified by the Intercreditor Agent for this purpose to the other
Parties
whether or not a replacement has been appointed.
|
|
11.7
|
Confidentiality
|
| (a) |
In
acting as agent under this Agreement, the Intercreditor Agent shall
be
regarded as acting through its agency division which shall be treated
as a
separate entity from any other of its divisions or
departments.
|
| (b) |
If
information is received by another division or department of the
Intercreditor Agent, it may be treated as confidential to that division
or
department and the Intercreditor Agent shall not be deemed to have
notice
of it.
|
| (c) |
Notwithstanding
any other provision of any Finance Document to the contrary, the
Intercreditor Agent is not obliged to disclose to any other
person:
|
|
(i)
|
any
confidential information; or
|
|
(ii)
|
any
other information,
|
if
the
disclosure would or might in its reasonable opinion constitute a breach of
any
law or a breach of a fiduciary duty.
20
|
11.8
|
Deduction
from amounts payable by the Intercreditor
Agent
|
If
any
Party owes an amount to the Intercreditor Agent under this Agreement, the
Intercreditor Agent may, after giving notice to that Party, deduct an amount
not
exceeding that amount from any payment to that Party which the Intercreditor
Agent would otherwise be obliged to make under this Agreement and apply the
amount deducted in or towards satisfaction of the amount owed. For the purposes
of this Agreement, that Party shall be regarded as having received any amount
so
deducted.
|
11.9
|
Collateral
Agent
|
The
Collateral Agent has agreed to become a party to this Agreement for the purpose
of taking the benefit of, and assuming obligations under, the provisions of
this
Agreement expressly stated to be for the benefit of or to be assumed by the
Collateral Agent, and for the better preservation and enforcement of its rights
and the rights of the Collateral Agent under the Senior Secured Term Loan
Facility and hereunder. Notwithstanding the foregoing, the Collateral Agent
shall have no responsibility for any of the obligations of, nor assume any
liabilities with respect to any obligations of, any other party to this
Agreement.
The
parties to this Agreement acknowledge that the rights and obligations of the
Collateral Agent under this Agreement are governed by the Senior Secured Term
Loan Facility and the provisions for indemnifying the Collateral Agent contained
therein shall apply mutatis mutandis to this Agreement.
|
12.
|
CO-OPERATION
BETWEEN CREDITORS
|
|
12.1
|
Defaults
|
The
Senior Agent and the Seller and the Shareholder must promptly notify each other
of the occurrence of any Event of Default under the Senior Secured Term Loan
Facility or the Junior Debt (as applicable) of which it has received notice
from
a Party specifying the event and identifying it as an Event of
Default.
|
12.2
|
Amount
of Debt
|
The
Senior Agent, the Seller and the Shareholder must on request notify each other
of details of the amount of the Senior Debt or the Junior Debt, as
appropriate.
|
12.3
|
Other
information
|
The
Borrower authorises each of the Senior Creditors, the Seller and the
Shareholders to disclose to each other any information in connection with the
Finance Documents.
|
13.
|
EXPENSES
|
The
Borrower must pay:
|
(a)
|
each
Senior Creditor; and
|
|
(b)
|
the
Seller,
|
within
three Business Days of demand the amount of all costs and expenses (including
legal fees) incurred by it in connection with the enforcement of, or the
preservation of any rights against the Borrower or the Shareholder, as
appropriate, under this Agreement.
21
|
14.
|
AMENDMENTS
AND WAIVERS
|
|
14.1
|
Amendments
to the Seller Credit
Agreement
|
The
Borrower and the Seller may not agree to amend or waive any terms of the Seller
Credit Agreement in a manner that is adverse to the Senior Creditors without
the
consent of the Required Lenders.
|
14.2
|
Amendments
to Shareholder Loans
|
No
Party
may amend or waive any terms of any Shareholder Loans in a manner that is
adverse to the Senior Creditors without the consent of the Required Lenders
or,
if after the Senior Discharge Date, the Junior Creditor.
|
14.3
|
Amendments
to the Senior Finance
Document
|
| (a) |
Subject
to paragraph (b) below, the Senior Creditors may amend or waive any
term
of any Senior Finance Document without the consent of the Junior
Creditor
or the Shareholders.
|
| (b) |
The
Senior Creditors may not amend or waive any term of any Senior Finance
Document in a manner or to an extent which would result
in:
|
|
(i)
|
an
increase of an additional $100,000,000 in the principal amount of
the
Senior Secured Term Loan Facility;
|
|
(ii)
|
an
increase of an additional 2.00% p.a. of the applicable margin on
the
Senior Debt under the Senior Secured Term Loan Facility;
|
|
(iii)
|
any
extension by six additional months of the Maturity Date of the Senior
Secured Term Loan Facility;
|
|
(iv)
|
any
obligation (excluding any financial covenant or negative covenant)
that
imposes an additional material payment obligation on the Borrower
or
causes an existing payment obligation (excluding any financial covenant
or
negative covenant) to become more onerous in any material respect
for the
Borrower;
|
|
(v)
|
any
amendment to the Senior Finance Documents that determines the amount
of
Shares to be released, or the timing of, or conditions to, the release
of
Collateral (as defined in Senior Secured Term Loan Facility), pursuant
to
Clause 5.10 of the Senior Secured Term Loan Facility;
or
|
|
(vi)
|
a
change to the priority, ranking or subordination achieved or intended
to
be achieved by this Agreement
|
without
the approval of the Seller.
|
15.
|
CHANGES
TO THE PARTIES
|
|
15.1
|
Borrower
|
The
Borrower may not assign or transfer any of its rights (if any) or obligations
under this Agreement.
22
|
15.2
|
The
Seller
|
The
Seller may assign, transfer charge, novate or dispose of its rights under the
Seller Credit Agreement provided that the
assignment or transfer is allowed under the Seller Credit Agreement, and the
assignee or transferee agrees to be bound by this Agreement as the relevant
Seller by the execution of a duly completed Accession Agreement.
|
15.3
|
Senior
Creditors
|
The
Senior Creditors may assign, transfer, charge, novate or dispose of
any of
its rights and obligations under or in respect of any Senior Finance Document,
provided that the assignment or transfer is allowed under the Senior Finance
Document, and the assignee or transferee agrees to be bound by this Agreement
as
the relevant Senior Creditor by the execution of a duly completed Accession
Agreement.
|
15.4
|
New
Agents
|
| (a) |
Any
person acceding to the Senior Secured Term Loan Facility as an Agent
under
that agreement must at the same time become bound by this Agreement
as the
relevant Agent by executing an Accession
Agreement.
|
| (b) |
No
Agent may be replaced or resign except as expressly allowed in the
Senior
Secured Term Loan Facility.
|
|
15.5
|
Accession
Agreement
|
The
Parties appoint the Intercreditor Agent as its agent to sign on its behalf
any
Accession Agreement, in order that each such Accession Agreement shall be
binding on the ensure to the benefit of all the Parties.
|
15.6
|
Option
to Purchase - Seller
|
| (a) |
If:
|
|
(i)
|
the
Senior Debt is declared due and payable;
or
|
|
(ii)
|
the
Majority Senior Creditors have instructed the Collateral Agent to
enforce
any material part of the Transaction Security created for their
benefit,
|
the
Seller may, by giving not less than five Business Days' notice to the Senior
Agent, elect that the Seller purchase, or arrange for another person to
purchase, all of the Senior Debt. Any such notice is irrevocable. The completion
and payment of the funds required to complete the purchase of all the Senior
Debt must be effected within a further five Business Days from the Seller's
notice that it has elected to purchase all the Senior Debt.
| (b) |
The
Intercreditor Agent must notify the other Parties promptly of any
notice
given to it under paragraph (a)
above.
|
| (c) |
Any
purchase of the Senior Debt under this Clause will take effect by
way of a
full transfer of rights and obligations under the Senior Secured
Term Loan
Facility, including Collateral.
|
23
| (d) |
Any
transfer under this Subclause will only take
effect:
|
|
(i)
|
against
payment in full of an amount (as certified by the Senior Agent) equal
to
the Senior Debt outstanding as at the date the amount is received;
|
|
(ii)
|
if,
after the transfer, no Senior Creditor will be under any actual or
contingent liability to the Borrower or any other person under any
Senior
Finance Document;
|
|
(iii)
|
if
the Junior Creditor (or another third party acceptable to all the
Senior
Creditors) provides an indemnity, in form and substance reasonably
satisfactory to the Senior Agent, in respect of any loss or liability
which may be incurred by any Senior Creditor as a consequence of
any sum
received or recovered by any Senior Creditor (from the Borrower or
the
Junior Creditor or otherwise) being required to be paid back by or
clawed
back from any Senior Creditor for any reason
whatsoever;
|
|
(iv)
|
if
the Seller
exercises
his option pursuant to paragraph (a) above prior to the one-year
anniversary of the Closing Date (as defined in the Senior
Secured Term Loan Facility),
the Seller
pays
to the Intercreditor Agent, for the Senior Creditors, a premium in
the
amount of 1% of the principal amount then due and outstanding under
the
Senior
Secured Term Loan Facility.
|
| (e) |
Any
transfer under this Clause will be without recourse to, or warranty
from,
any Senior Creditor.
|
|
16.
|
SHARING
|
|
16.1
|
Equalisation
Payments
|
If,
following a Senior Enforcement Event, any amount owing by the Borrower under
the
Finance Documents to a Senior Creditor (a Recovering
Creditor)
is
discharged by payment, set-off or any other manner other than through the
Intercreditor Agent under Clause 10
(Proceeds
of Enforcement of Security),
then:
|
(a)
|
the
Recovering Creditor must, within three Business Days supply details
of the
recovery to the Intercreditor
Agent;
|
|
(b)
|
the
Intercreditor Agent must calculate whether the recovery is in excess
of
the amount which the Recovering Creditor would have received if the
recovery had been received by the Intercreditor Agent under 10
(Proceeds
of Enforcement of Security),
without taking account of any Tax which would be imposed on the Senior
Agent in relation to the recovery or distribution;
and
|
|
(c)
|
the
Recovering Creditor must pay to the Intercreditor Agent an amount
equal to
the excess (the redistribution).
|
|
16.2
|
Effect
of redistribution
|
| (a) |
The
Intercreditor Agent must distribute the redistribution in accordance
with
Clause 10
(Proceeds
of Enforcement of Security).
|
| (b) |
When
the Intercreditor Agent makes a distribution under paragraph (a)
above,
the Recovering Creditor will be subrogated to the rights of the Creditors
which have shared in that
redistribution.
|
24
| (c) |
If
and to the extent that the Recovering Creditor is not able to rely
on any
rights of subrogation under paragraph (b)
above,
the Borrower will owe the Recovering Creditor a debt which is equal
to the
redistribution, immediately payable and of the type originally
discharged.
|
| (d) |
If:
|
|
(i)
|
a
Recovering Creditor must subsequently return a recovery, or an amount
measured by reference to a recovery, to the Borrower;
and
|
|
(ii)
|
the
Recovering Creditor has paid a redistribution in relation to that
recovery,
|
each
Senior Creditor, on the request of the Intercreditor Agent, must reimburse
the
Recovering Creditor all or the appropriate portion of the redistribution paid
to
that Senior Creditor, together with interest for the period while it held the
re-distribution. In this event, the subrogation in paragraph (b)
above
will
operate in reverse to the extent of the reimbursement.
|
17.
|
SET
OFF
|
|
(a)
|
A
Senior Creditor may set off any matured obligation due from the Borrower
or the Shareholder under this Agreement against any matured obligation
owed by that Senior Creditor to the Borrower or the Shareholder regardless
of the place of payment, booking branch or currency of either obligation.
If the obligations are in different currencies, the Senior Creditor
may
convert either obligation at a market rate of exchange in its usual
course
of business for the purpose of the
set-off.
|
|
(b)
|
The
Seller may set off any matured obligation due and payable to it from
the
Borrower or the Shareholder under this Agreement against any matured
obligation owed to the Seller by the Borrower or the
Shareholder.
|
|
18.
|
NOTICES
|
|
18.1
|
Communications
in writing
|
Any
communication to be made under or in connection with this Agreement shall be
made in writing and, unless otherwise stated, may be made by fax or
letter.
|
18.2
|
Addresses
|
The
address and fax number (and the department or office, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with this Agreement
is:
|
(a)
|
Senior
Creditors
|
BNP
00,
Xxxxxxxxx xxx Xxxxxxxx
00000
Xxxxx
GS
Petershill,
0 Xxxxxx Xxxx
Xxxxxx,
XX0X 0XX
Xxxxxxx
Att:
Xxxxxxx Xxxxxxxx / Sophie Damoglou
Tel:x00
00 0000 0000 / x00 00 0000 0000
Facsimile
Number: :x00 00 0000 0000
XxxxXxxxxxxxxxxxx@XX.xxxxx.xx.xxx
25
CS
Credit
Suisse, London Branch
One
Xxxxx
Xxxxxx, Xxxxxx
X00
0XX
Attention:
Xxx Xxxxx / Xxxxx Xxx
Facsimile
Number: 011-44-20-7888-8398
ITAU
Xxx
Xxxxxx Xxxxxx -Xxxxx 0, 00x
0000-000
Xxxxxx - Xxxxxxxx
F
x000 00
000 00 00
Att.:
Legal Department.
With
a
copy to the Administrative Agent.
|
(b)
|
Collateral
Agent
|
HSBC
Bank
plc
0
Xxxxxx
Xxxxxx
Xxxxxx
X00 0XX
Xxxxxx
Xxxxxxx
Fax
:
x00.00.0000.0000
Attention
: CTLA Trustee Administration
|
(c)
|
Seller
|
Repsol
YPF, S.A.
Xxxxx
xx
xx Xxxxxxxxxx, 000
00000
Xxxxxx.
Fax.:
x00.00.000.00.00
Att.:
Chief Executive Officer
With
copy
to
Repsol
YPF, S.A.
Xxxxx
xx
xx Xxxxxxxxxx, 000
00000
Xxxxxx.
Fax.:
x00.00.000.00.00
Att.:
Corporate Director of Legal Services
With
copy
to
Repsol
YPF, S.A.
Xxxxx
xx
xx Xxxxxxxxxx, 000
00000
Xxxxxx.
Fax.:
x00.00.000.00.00
Att.:
Corporate Director of Tax and Finance
With
copy
to
Latham&Watkins.
Xxxxx
xx
Xxxxxx 0, 0xx Xxxxx
00000
Xxxxxx
Fax
x00.000.000.000
|
(d)
|
Shareholder
|
Xxxxxxxx
Energía PTY, Ltd.
Xxxxx
00,
Xxxxxx Xxxxxx 000, Xxxxxxx Xxxxxx, Xxxxxxxxx
26
|
(e)
|
Borrower
|
Xxxxxxxx
Energía, S.A.
Plaza
de
Xxxxx Xxxx Xxxxxxx, number 1, Building Torre Picasso, floor 38
|
(f)
|
Senior
Agent and Intercreditor
Agent
|
Credit
Suisse, London Branch,
One
Xxxxx
Xxxxxx, Xxxxxx
X00
0XX,
Attention:
Xxx Xxxxx / Xxxxx Xxx,
Facsimile
Number: 011-44-20-7888-8398
or
any
substitute address, fax number or department or officer as the Party may notify
to the Intercreditor Agent (or the Intercreditor Agent may notify to the other
Parties, if a change is made by the Intercreditor Agent) by not less than five
Business Days' notice.
|
18.3
|
Delivery
|
| (a) |
Any
communication or document made or delivered by one person to another
under
or in connection with this Agreement will only be
effective:
|
|
(i)
|
if
by way of fax, when received in legible form;
or
|
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or
(five)
Business Days after being deposited in the post postage prepaid in
an
envelope addressed to it at that
address,
|
and,
if a
particular department or officer is specified as part of its address details
provided under Clause 18.2
(Addresses),
if
addressed to that department or officer.
| (b) |
Any
communication or document to be made or delivered will be effective
only
when actually received and then only if it is expressly marked for
the
attention of the department or officer identified
above.
|
| (c) |
All
notices from or to the Borrower shall be sent through the
Agent.
|
|
18.4
|
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address, and fax number or change of address
or fax number pursuant to Clause 18.2
(Addresses)
or
changing its own address or fax number, the Agent shall notify the other
Parties.
|
18.5
|
English
language
|
| (a) |
Any
notice given under or in connection with this Agreement must be in
English.
|
| (b) |
All
other documents provided under or in connection with this Agreement
must
be:
|
|
(i)
|
in
English; or
|
|
(ii)
|
if
not in English, and if so required by the Intercreditor Agent, accompanied
by a certified English translation and, in this case, the English
translation will prevail unless the document is constitutional, statutory
or other official document.
|
27
|
19.
|
MISCELLANEOUS
|
|
19.1
|
Day
count convention
|
Any
interest, commission or fee accruing under this Agreement will accrue from
day
to day and is calculated on the basis of the actual number of days elapsed
and a
year of 360 days or, in any case where the practice in the Relevant Interbank
Market differs, in accordance with that market practice.
|
19.2
|
Partial
Invalidity
|
If,
at
any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
|
19.3
|
Remedies
and Waivers
|
No
failure to exercise, nor any delay in exercising, on the part of any Senior
Creditor, any right or remedy under this Agreement shall operate as a waiver,
nor shall any single or partial exercise of any right or remedy prevent any
further or other exercise or the exercise of any other right or remedy. The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
|
19.4
|
Counterparts
|
This
Agreement may be executed in any number of counterparts. This has the same
effect as if the signatures on the counterparts were on a single copy of this
Agreement.
|
19.5
|
Formalities
|
The
Borrower agrees that, at its cost, this Agreement, and any amendment to it,
will
be formalised in a Spanish notarial document (escritura
pública or
póliza
intervenida)
on the
same date of execution of this Agreement.
|
19.6
|
Designated
Senior Debt
|
| (a) |
The
rights established in this Agreement for the benefit of the Senior
Creditors are also for the benefit of any Designated Senior Creditor
and
the rights are established expressly as a stipulation in favour of
the
Designated Senior Creditors. Consequently, the Designated Senior
Creditors
shall be entitled to the benefit of this Agreement as if they were
Senior
Creditors by mere notice of their acceptance of their terms to the
Borrower, the Seller and the
Shareholders.
|
| (b) |
The
provisions of this Agreement shall survive as if there had been a
subjective novation of the Senior Creditors by the Designated Senior
Creditors and of the Senior Debt by the Designated Senior Debt, without
any extinctive effects, so that the provisions of this Agreement
shall
survive and shall remain in full force and effect for the benefit
of the
Designated Senior Debt and the Designated Senior Creditors, who shall
rank, as between the Seller, the Borrower and the Shareholders, with
the
same status as the Senior Debt.
|
|
20.
|
GOVERNING
LAW
|
This
Agreement shall be construed and is governed by Spanish common law without
regard to the rules of international private law.
28
|
21.
|
JURISDICTION
|
| (a) |
The
courts of the city of Madrid, Spain have exclusive jurisdiction to
settle
any dispute in connection with this
Agreement.
|
| (b) |
The
courts of the city of Madrid, Spain are the most appropriate and
convenient courts to settle any such dispute and the Parties waive
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 Creditors and the Seller
only. To
the extent allowed by law, a Senior Creditor or the Seller may take
proceedings in any other court; and concurrent proceedings in any
number
of jurisdictions.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
29
SCHEDULE
1
FORM
OF ACCESSION AGREEMENT
To: [SECURITY
AGENT] as the Intercreditor Agent
From: [PROPOSED
NEW PARTY]
Date: [ ]
[COMPANY]
- Intercreditor Agreement dated
[ ]
(the
Intercreditor Agreement)
We
refer
to the Intercreditor Agreement. This is an Accession Agreement.
We,
[name
of new Party] of [address/registered office], agree to be [a/an]1
[ ]2
under
the Intercreditor Agreement and to be bound by the terms of the Intercreditor
Agreement as [a/an]3
[ ]4.
Our
contact details [and Facility Office]3
are as
follows:
[
].
This
Accession Agreement is governed by Spanish law.
By:
[PROPOSED
NEW PARTY]
1 Delete
as
applicable.
2 Specify
category of Party.
3 If
applicable.
30
SIGNATORIES
| /s/ Xxxxx Xxxxxx Xxxx Dacomo | /s/ Xxxxxxx Xxxx Xxxxx | |
|
XXXXXXXX
ENERGÍA, X.X.
X.X.:
D. Xxxxx Xxxxxx Xxxx Dacomo
|
XXXXXXXX
ENERGÍA, X.X.
X.X.:
D. Xxxxxxx Xxxx Xxxxx
|
|
| /s/ Claudio Xxxxxx Xxxxxx | /s/ Xxxxxx Xxxxxxxx Storey | |
|
XXXXXXXX
ENERGÍA PTY. LTD.
P.P.:
X. Xxxxxxx Xxxxxx Xxxxxx
|
XXXXXXXX
ENERGÍA PTY. LTD.
P.P.:
D. Xxxxxx Xxxxxxxx Storey
|
|
| /s/ Xxxxxxxx Xxxxxxx Mazarredo | ||
|
REPSOL
YPF, S.A.
P.P.:
D. Xxxxxxxx Xxxxxxx Mazarredo
|
||
| /s/ Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx | /s/ Xxxxx Xxxxxx Xxxxxxxxx Abelenda | |
|
CREDIT
SUISSE INTERNATIONAL
P.P.:
D. Xxxxxxx Xxxxxxxxx de Xxxxx
x
Xxxx xx Xxxxxx
|
CREDIT
SUISSE INTERNATIONAL
P.P.:
D. Pablo Xxxxxx Xxxxxxxxx Abelenda
|
|
| /s/ Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx | /s/ Xxxxx Xxxxxx Xxxxxxxxx Abelenda | |
|
XXXXXXX
XXXXX INTERNATIONAL BANK
P.P.:
D. Xxxxxxx Xxxxxxxxx de Xxxxx
x
Xxxx de Xxxxxx
|
XXXXXXX
XXXXX INTERNATIONAL BANK
P.P.:
D. Pablo Xxxxxx Xxxxxxxxx Abelenda
|
|
| /s/ Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx | /s/ Xxxxx Xxxxxx Xxxxxxxxx Abelenda | |
|
BNP
PARIBAS
P.P.:
D. Xxxxxxx Xxxxxxxxx de Xxxxx
x
Xxxx xx Xxxxxx
|
BNP
PARIBAS
P.P.:
D. Pablo Xxxxxx Xxxxxxxxx
Abelenda
|
31
| /s/ Xxxxxx Xxxxx Xxxxxxx Xxxxxxx | ||
|
BANCO
ITAÚ EUROPA, S.A. SUCURSAL FINANCEIRA EXTERIOR
P.P.:
D. Rafael Xxxxx Xxxxxxx Xxxxxxx
|
||
| /s/ Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx | /s/ Xxxxx Xxxxxx Xxxxxxxxx Abelenda | |
|
CREDIT
SUISSE, LONDON BRANCH
P.P.:
D. Xxxxxxx Xxxxxxxxx de Xxxxx
x
Xxxx xx Xxxxxx
|
CREDIT
SUISSE, LONDON BRANCH
P.P.:
D. Pablo Xxxxxx Xxxxxxxxx Abelenda
|
|
| /s/ Xxxxxxx Xxxxxxxxx de Xxxxx x Xxxx xx Xxxxxx | /s/ Xxxxx Xxxxxx Xxxxxxxxx Abelenda | |
|
HSBC
BANK, Plc
P.P.:
D. Xxxxxxx Xxxxxxxxx de Xxxxx
x
Xxxx xx Xxxxxx
|
HSBC
BANK, Plc
P.P.:
D. Pablo Xxxxxx Xxxxxxxxx
Abelenda
|
This
agreement is executed, as previously stated, before Xx. Xxxxxx Xxxxx Xxxxxxx,
Notary , for all relevant legal purposes, including those established in article
571 of the Civil Judgment Law, article 93 of the Commercial Code and other
concordant legislation.
The
parties express their conformity with this agreement, they deliver and sign
it
before me and agree to sign only the page where their printed name appears,
indicating to the Notary that he number and affix his stamp and seal to all
pages of this document.
And
I, the Notary, having given the proper legal notices, vouch for the identity
of
the signatories, the legitimacy of their signatures and that their consent
to
sign was freely given, and that the act of signing accords with legal process
and the appropriately informed will of the signatories and other
participants.
I
acknowledge and ascertain that this document will remain in my file for its
preservation in the Book-Registry of Operations, consisting of [ ] numbered
pages (including annexes), stamped and sealed by me, the
Notary.
32
