EXHIBIT 4.4
CO-ORDINATION AGREEMENT
dated 25 March 2002
between
PRIMACOM AG
and
PRIMACOM MANAGEMENT GMBH
and
THE PERSONS NAMED HEREIN
as Guarantors
and
BANK OF AMERICA SECURITIES LIMITED, BARCLAYS CAPITAL,
▇.▇. ▇▇▇▇▇▇ PLC, DRESDNER BANK AG, LONDON BRANCH,
FORTIS BANK (NEDERLAND) N.V., ING BANK N.V.,
THE ROYAL BANK OF SCOTLAND PLC and TD BANK EUROPE LIMITED
as Senior Lead Arrangers
and
BARCLAYS CAPITAL, DRESDNER BANK AG, LONDON BRANCH,
▇.▇. ▇▇▇▇▇▇ PLC, ▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
and TD BANK EUROPE LIMITED
as Second Secured Arrangers
and
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
as Senior Agent, Second Secured Agent, Working Capital Agent,
Administrative Agent and Second Secured Security Trustee
and
▇.▇. ▇▇▇▇▇▇ AG
as Fronting Bank, Overdraft Bank and Senior Security Trustee
and
CERTAIN FINANCIAL INSTITUTIONS
as Senior Lenders, Second Secured Lenders and Working Capital Lenders
[LINKLATERS & ALLIANCE LOGO]
LINKLATERS
Ref: GDM/PHPS
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION...................................4
2. PRIORITY OF AGREEMENT............................................7
3. ACKNOWLEDGEMENT OF FINANCING ARRANGEMENTS........................7
4. LOAN UNDER WORKING CAPITAL FACILITY..............................8
5. SECOND LOAN DATE.................................................8
6. NO DRAWDOWN OF SECOND LOAN.......................................9
7. SHAREHOLDER APPROVAL.............................................9
8. POSITIVE SHAREHOLDER APPROVAL...................................10
9. NO SHAREHOLDER APPROVAL.........................................10
10. AMENDMENT DATE..................................................11
11. CONTINUING WITH THE SECOND SECURED FACILITY.....................14
12. REPRESENTATIONS.................................................14
13. BENEFIT OF AGREEMENT............................................15
14. CHANGES TO THE PARTIES..........................................15
15. NOTICES.........................................................17
16. PARTIAL INVALIDITY..............................................18
17. REMEDIES, WAIVERS AND AMENDMENTS................................18
18. COSTS...........................................................19
19. COUNTERPARTS....................................................19
20. LAW.............................................................19
21. JURISDICTION....................................................19
SCHEDULE 1 THE GUARANTORS...................................................21
SCHEDULE 2 THE SENIOR LENDERS...............................................23
SCHEDULE 3 SECOND SECURED LENDERS/WORKING CAPITAL LENDERS...................24
SCHEDULE 4 FORM OF ACCESSION DEED...........................................25
SCHEDULE 5 AMENDED AND RESTATED BANK INTERCREDITOR AGREEMENT................26
SCHEDULE 6 AMENDED AND RESTATED SECOND FACILITY AGREEMENT...................27
THIS AGREEMENT is dated 25 March 2002 and made BETWEEN:
(1) PRIMACOM AG ("PAG");
(2) PRIMACOM MANAGEMENT GMBH ("PMG");
(3) THE PERSONS named in Schedule 1 (THE GUARANTORS) as guarantors under the
Senior Facility Agreement (the "GUARANTORS");
(4) BANK OF AMERICA SECURITIES LIMITED, BARCLAYS CAPITAL (the investment
banking division of Barclays Bank PLC), ▇.▇. ▇▇▇▇▇▇ PLC (AS SUCCESSOR TO
CHASE MANHATTAN PLC), DRESDNER BANK AG, LONDON BRANCH, FORTIS BANK
(NEDERLAND) N.V., ING BANK N.V., THE ROYAL BANK OF SCOTLAND PLC and TD
BANK EUROPE LIMITED as senor lead arrangers (the "SENIOR LEAD ARRANGERS");
(5) BARCLAYS CAPITAL (the investment banking division of Barclays Bank PLC),
DRESDNER BANK AG, LONDON BRANCH, ▇.▇. ▇▇▇▇▇▇ PLC, ▇▇▇▇▇▇ BROTHERS
INTERNATIONAL (EUROPE) and TD BANK EUROPE LIMITED as second secured
arrangers (the "SECOND SECURED ARRANGERS");
(6) ▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED (as successor to Chase Manhattan International
Limited) as senior agent (the "SENIOR AGENT"), as second secured agent
(the "SECOND SECURED AGENT"), as working capital agent (the "WORKING
CAPITAL AGENT"), as Administrative Agent (the "ADMINISTRATIVE AGENT") and
as second secured security trustee (the "SECOND SECURED SECURITY
TRUSTEE");
(7) ▇.▇. ▇▇▇▇▇▇ AG (as successor to Chase Manhattan Bank AG) as fronting bank
(the "FRONTING BANK"), as overdraft bank (the "OVERDRAFT BANK") and as
senior security trustee (the "SENIOR SECURITY TRUSTEE");
(8) THE FINANCIAL INSTITUTIONS named in Schedule 2 (THE SENIOR LENDERS) as
senior lenders (the "SENIOR LENDERS"); and
(9) THE FINANCIAL INSTITUTIONS named in Schedule 3 (SECOND SECURED
LENDERS/WORKING CAPITAL LENDERS) as second secured lenders (the "SECOND
SECURED LENDERS") and as working capital lenders (the "WORKING CAPITAL
LENDERS").
RECITALS:
(A) By a facility agreement dated 18 September 2000 as amended from time to
time (the "SENIOR FACILITY AGREEMENT") made between PAG, PMG, the
Guarantors, the Senior Lead Arrangers, ▇.▇. ▇▇▇▇▇▇ AG (previously, Chase
Manhattan Bank AG) now succeeded in this role by ▇.▇. ▇▇▇▇▇▇ Europe
Limited as agent (the "SENIOR AGENT"), ▇.▇. ▇▇▇▇▇▇ AG as the Fronting
Bank, the Overdraft Bank and the Senior Security Trustee and the Senior
Lenders, a EUR 1,000,000,000 revolving loan, letter of credit and
overdraft facility was made available by the Senior Lenders, the Fronting
Bank and the Overdraft Bank to PMG on the terms and conditions set out in
the Senior Facility Agreement.
(B) By way of certain security documents dated 18 September 2000 and
subsequently (together the "SENIOR SECURITY DOCUMENTS"), PAG, PMG and
certain of its subsidiaries granted security in favour of the Senior
Security Trustee for the Finance Parties (as defined in the Senior
Facility Agreement) or in favour of each such party individually as
security for obligations due under the
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Facility Documents (as defined in the Senior Facility Agreement). A
security trust agreement dated 18 September 2000 (the "SENIOR SECURITY
TRUST AGREEMENT") made between the Senior Security Trustee, the Senior
Agent, the Senior Lead Arrangers, the Senior Lenders, the Fronting Bank,
the Overdraft Bank, PAG, PMG and the specified charging companies
regulates the holding of the senior security by the Senior Security
Trustee.
(C) By a facility agreement dated as of September 18, 2000 (as amended from
time to time), respectively (the "WORKING CAPITAL FACILITY AGREEMENT")
made between PAG, ▇.▇. ▇▇▇▇▇▇ Europe Limited (at that time, Chase
Manhattan International Limited) as administrative agent and the Working
Capital Lenders, a EUR 375,000,000 term loan facility was agreed to be
made available by the Working Capital Lenders to PAG on the terms and
conditions set out in the Working Capital Facility Agreement.
(D) By an intercreditor agreement dated 18 September 2000 (as amended) (the
"BANK INTERCREDITOR AGREEMENT") made between the Senior Lenders, the
Working Capital Lenders, the Senior Agent, the Senior Security Trustee and
the Working Capital Agent, certain intercreditor arrangements were entered
into and agreed between the Senior Creditors (as defined therein) and the
Working Capital Lenders, including provisions in respect of forced
drawings under the Working Capital Facility and as regards enforcement of
rights and amounts due under the Working Capital Facility Agreement.
(E) By an intercreditor agreement dated 18 September 2000 (the "OBLIGOR
INTERCREDITOR AGREEMENT") made between the Senior Agent, the Senior Lead
Arrangers, the Overdraft Bank, the Fronting Bank, the Senior Lenders, PAG,
the Obligors (as defined therein) and the Senior Secured Security Trustee,
among other things, PAG agreed to subordinate amounts due, and other
obligations owed, to it from the relevant obligors to amounts due, and
other obligations owed, to the Beneficiaries (as defined therein) on the
terms set out therein.
(F) By a facility agreement dated on or about the date of this Agreement (the
"SECOND SECURED FACILITY AGREEMENT") made, or to be made, between PAG, PMG
(as guarantor), the Second Secured Arrangers, the Second Secured Lenders,
the Second Secured Agent and the Second Secured Security Trustee, a EUR
375,000,000 term loan facility has been, or has been agreed to be, made
available to PAG on the terms and conditions set out therein.
(G) By way of certain security documents dated on or about the date of this
Agreement (the "SECOND SECURED SECURITY Documents"), PMG has granted, or
is to grant, second ranking security in favour of the Second Secured
Security Trustee for the Finance Parties (as defined in the Second Secured
Facility Agreement) or in favour of each such party individually as
security for obligations due under the Facility Documents (as defined in
the Second Secured Facility Agreement). A security trust agreement (the
"SECOND SECURED SECURITY TRUST AGREEMENT") has been, or is to be, entered
into by the Second Secured Security Trustee, the Second Secured Arrangers,
the Second Secured Lenders, the Second Secured Agent, PAG and PMG to
regulate the holding of the second ranking security by the Second Secured
Security Trustee.
(H) By an intercreditor agreement dated on or about the date of this Agreement
(the "NEW INTERCREDITOR AGREEMENT") made, or to be made, between PAG, PMG,
the other Obligors defined therein, the Senior Lenders, the Fronting Bank,
the Overdraft Bank, the Senior Agent, the Senior Security Trustee, the
Second Secured Lenders, the Second Secured Agent and the Second Secured
Security Trustee, among other things, PAG and the Second Secured Lenders
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each agree to subordinate amounts due, and obligations owed, to them from
PMG to amounts due, and obligations owed, to the Senior Lenders on the
terms set out therein.
(I) By an amendment and restatement agreement dated on or about the date of
this Agreement (the "SENIOR FACILITY AMENDMENT AGREEMENT"), made, or to be
made, between the same parties as are party, at the date of this
Agreement, to the Senior Facility Agreement, certain terms and conditions
of the Senior Facility Agreement have been, or are to be amended, in the
manner and on the terms set out therein.
(J) By a share option agreement dated on or about the date of this Agreement
(the "SHARE OPTION AGREEMENT") to be entered into between PAG, PMG, the
Second Secured Lenders and the Second Secured Security Trustee, PAG
agrees, each time when requested by the Second Secured Security Trustee
(acting on the instruction of a Second Secured Lender), to transfer shares
it owns in PMG to the person directed by the Second Secured Security
Trustee, on the conditions set out in the Share Option Agreement,
including the condition that PAG shall not be required to transfer more
than 65 per cent. of the registered share capital of PMG. Upon exercise of
the option, the price of the shares subject to the option will be paid by
making an equivalent cancellation of the proportion of the loan due to the
respective Second Secured Lender as nominated by the Second Secured
Security Trustee.
(K) It is a condition to the effectiveness of the Share Option Agreement that
approval be sought and obtained from 75 per cent. of the shareholders of
PAG present and entitled to vote at the shareholders' meeting
(HAUPTVERSAMMLUNG), approving the terms and conditions of the Share Option
Agreement by way of a formal shareholders' resolution.
(L) The Parties have entered into this Agreement, among other things, to
confirm and unconditionally and irrevocably agree the following sequence
of events, and documentation required to be entered into, in connection
thereto:
(i) After the execution of this Agreement PAG will seek Shareholder
Consent.
(ii) On the Second Loan Date, the Working Capital Facility Agreement
shall be automatically, irrevocably and unconditionally cancelled,
the application of the Bank Intercreditor Agreement and the Obligor
Intercreditor Agreement shall be automatically suspended, and the
Senior Facility Amendment Agreement, Second Secured Security
Documents and New Intercreditor Agreement shall become effective.
(iii) If Shareholder Approval is obtained at any time during the Approval
Period the terms of the Share Option Agreement shall become
effective, the Bank Intercreditor Agreement and the Obligor
Intercreditor Agreement shall be permanently cancelled and the
Senior Finance Documents, the Second Secured Facility Agreement and
the Second Secured Finance Documents shall continue in full force
and effect.
(iv) If Shareholder Approval is obtained, on the date of such
Shareholder Approval all CVRs not released from escrow to the
Working Capital Lenders in accordance with the provisions of the
Contingent Value Right Agreement shall be cancelled in full. CVRs
released from escrow to the Working Capital Lenders prior to the
Second Loan Date shall continue to be valid, (subject to the
condition that if the Second Secured Facility is repaid and
cancelled in full within one year from the Second Loan Date (other
than by a replacement financing by the same lenders), the CVRs
released from escrow to the Working Capital Lenders in
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accordance with the terms of the Contingent Value Right Agreement
shall be returned to PAG and no Working Capital Lender shall
exercise its rights in respect of such CVRs (or any replacement
warrants) during such period of one year from the Second Loan
Date).
For the avoidance of doubt, no CVRs shall be released from escrow from the
Second Loan Date until the occurrence (if at all) of the Amendment Date.
If Shareholder Approval is not obtained by the end of the Approval Period
the following sequence of events shall occur on the Amendment Date (unless
all Second Secured Lenders agree otherwise) with the intention, so far as
practicable (and except as specified otherwise) the parties shall be put
in the position they would have been in had the Working Capital Lenders
lent to PAG on 26 March 2002 under the Working Capital Facility Agreement,
and had never entered into or performed the Second Secured Facility
Agreement and the Second Secured Finance Documents, and furthermore:
(v) For all purposes in respect of the period from the Second Loan Date
until, but not including, the Amendment Date, the Second Secured
Facility Agreement shall apply and amongst other matters, the
Second Loan shall be made on the terms of the Second Secured
Facility Agreement. On and from the Amendment Date the Second
Secured Facility Agreement and the terms and provisions of the
Second Loan shall be automatically amended and be instead read and
interpreted by substituting the terms and provisions of the
amendments to the Second Secured Facility Agreement (as set out in
Schedule 6 hereto).
(vi) On and from the Amendment Date, the Senior Facility Amendment
Agreement shall be automatically, unconditionally and irrevocably
cancelled (except to the extent specified in Clause 2.2 (UNWIND) of
the Senior Facility Amendment Agreement).
(vii) On the Amendment Date, the Second Secured Security Documents and
the Second Secured Security Trust Agreement shall be automatically,
unconditionally and irrevocably released.
(viii) On the Amendment Date, the New Intercreditor Agreement shall be
automatically, irrevocably and unconditionally cancelled and the
suspension with respect to the Bank Intercreditor Agreement and the
Obligor Intercreditor Agreement shall be simultaneously therewith
released subject to the Bank Intercreditor Agreement being amended
on the terms set out Schedule 5.
(ix) On the Amendment Date, the Amendment Date Interest shall be
immediately due and payable by PAG and the Pro Forma Interest Ratio
Test will be immediately tested in each case as stated in this
Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
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"ACCESSION DEED" means an accession deed substantially in the form set out
in Schedule 4.
"AMENDED AND RESTATED BANK INTERCREDITOR AGREEMENT" means the amended and
restated bank intercreditor agreement set out in Schedule 5.
"AMENDMENT DATE" means the date (if any) on which the Second Secured
Facility Amendment is to occur in accordance with Clause 9 (NO SHAREHOLDER
APPROVAL).
"AMENDMENT DATE INTEREST" means the interest payable in accordance with
Clause 10.2 (AMENDMENT DATE).
"AMENDMENT NOTICE" has the meaning given in Clause 9.1 (NO SHAREHOLDER
APPROVAL).
"APPROVAL PERIOD" means the period commencing on the date of this
Agreement until, and including, 30 June 2002.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks generally are open for business in London.
"CONTINGENT VALUE RIGHT AGREEMENT" means the contingent value right
agreement dated 18 September 2000 made between PAG and Chase Securities
Inc. as amended from time to time.
"CONTINUATION NOTICE" has the meaning given in Clause 9.1 (NO SHAREHOLDER
APPROVAL).
"CVRS" means the contingent value rights under the Contingent Value Right
Agreement.
"COMBINED FINANCE PARTIES" means together the Finance Parties (as defined
in the Senior Facility Agreement), the Finance Parties (as defined in the
Second Secured Facility Agreement) and the Administrative Agent and the
Lenders (each as defined in the Working Capital Facility Agreement) and
any additional Combined Finance Party, each a "COMBINED FINANCE PARTY".
"EXISTING FEE LETTER(S)" means the fee letter dated as of August 11, 2000
from Chase Manhattan International Ltd, Chase Manhattan PLC and The Chase
Manhattan Bank to PAG.
"INTERCREDITOR SUSPENSION" has the meaning given to that term in Clause 5
(SECOND LOAN DATE).
"NEW FEE LETTER" means each or either of:
(a) the fee letter dated on or about the date of this Agreement from the
Second Secured Arrangers to PAG; and
(b) the fee letter dated on or about the date of this Agreement from the
Second Secured Agent to PAG.
"NOTICE OF DRAWDOWN" has the meaning given to that term in the Second
Secured Facility Agreement.
"OBLIGOR" means PAG, PMG, the Guarantors and any additional Obligor.
"ORIGINAL SECOND SECURED FACILITY AGREEMENT TERMS" means the terms set out
in the Second Secured Facility Agreement prior to the Second Secured
Facility Amendment.
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"PARTIES" means each party to this Agreement.
"PRO FORMA INTEREST RATIO TEST" means the test of the financial covenant
set out in Clause 22.6 of the Senior Facility Agreement in accordance with
Clause 10.9.
"SECOND LOAN" means the loan made to PAG by the Second Secured Lenders
under the Second Secured Facility Agreement (subject to amendment of the
terms applicable to that loan pursuant to Clause 10 (AMENDMENT DATE)).
"SECOND LOAN DATE" means the date on which the Second Loan is advanced to
PAG under the Second Secured Facility Agreement.
"SECOND SECURED FACILITY AMENDMENT" means the amendment of the Second
Secured Facility Agreement, and each other event which occurs on the
Amendment Date pursuant to Clause 10 (AMENDMENT DATE).
"SECOND SECURED FACILITY" means the EUR 375,000,000 term loan facility
made available to PAG under the Second Secured Facility Agreement.
"SECOND SECURED FINANCE DOCUMENTS" means the Second Secured Facility
Agreement, the Second Secured Security Documents, the Second Secured
Security Trust Agreement, the New Intercreditor Agreement and the Share
Option Agreement.
"SECOND SECURED SECURITY" shall mean the security created by or pursuant
to the Second Secured Security Documents.
"SENIOR FINANCE DOCUMENTS" means the Senior Facility Agreement, the Senior
Security Documents and the Senior Security Trust Agreement.
"SHAREHOLDER APPROVAL" means both, (i) the receipt by the Second Secured
Agent of written notice from PAG that Shareholder Consent has been given
and (ii) the Second Secured Agent giving a notice to PAG and the Senior
Agent in writing that the Second Secured Lenders are satisfied (acting on
the advice of legal counsel) that all legal requirements in respect of
obtaining Shareholder Consent have been met in relation to holding the
shareholder meeting and the passing of the Shareholder Resolution.
"SHAREHOLDER CONSENT" means the passing of the Shareholder Resolution by
not less than 75 per cent. of the Shareholders of PAG present and entitled
to vote at the annual general meeting ("HAUPTVERSAMMLUNG").
"SHAREHOLDER RESOLUTION" means the shareholder resolution, in the form
approved in writing by the Second Secured Agent (acting on the instruction
of the Second Secured Lenders, acting reasonably), to be voted on by the
shareholders of PAG approving the terms and conditions of and entry into
the Share Option Agreement.
"SUBSIDIARY" means all corporations and partnerships that are either
controlled by or in which a company or partnership holds an interest of
more than 50 per cent. of the share capital or similar right of ownership;
"controlled" for this purpose shall mean the power to direct the
management of the entity whether through the ownership of the share
capital, contract or otherwise.
"WORKING CAPITAL CANCELLATION" has the meaning given to that term in
Clause 5 (SECOND LOAN DATE).
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"WORKING CAPITAL FINANCE DOCUMENTS" means the Working Capital Facility
Agreement, the Bank Intercreditor Agreement and the Obligor Intercreditor
Agreement.
1.2 CONSTRUCTION
Unless a contrary indication appears, any reference in this Agreement to:
(a) the "SENIOR AGENT", the "SECOND SECURED AGENT", the "WORKING CAPITAL
AGENT", the "ADMINISTRATIVE AGENT", any "SENIOR LEAD ARRANGER", any
"SECOND SECURED ARRANGER", any "SENIOR LENDER", any "SECOND SECURED
LENDER", any "WORKING CAPITAL LENDER", the "FRONTING BANK", the
"OVERDRAFT BANK", the "SENIOR SECURITY TRUSTEE", the "SECOND SECURED
SECURITY TRUSTEE", any "COMBINED FINANCE PARTY", any "OBLIGOR" or any
"PARTY" shall be construed so as to include its successors in title,
permitted assigns and permitted transferees (in each case, in the
relevant capacity);
(b) a "SENIOR FINANCE DOCUMENT", a "SECOND SECURED FINANCE DOCUMENT", a
"WORKING CAPITAL FINANCE DOCUMENT", the "SECOND SECURED FACILITY
AGREEMENT", "THE "CONTINGENT VALUE RIGHT AGREEMENT" or any other
agreement (including this Agreement) or instrument is a reference to
that Senior Finance Document, Second Secured Finance Document, Working
Capital Finance Document, Second Secured Facility Agreement (as the
case may be) or other agreement or instrument as amended or novated;
(c) a "PERMITTED PERSON" means any person or partnership which may accede
to the Senior Facility Agreement or the Second Secured Facility
Agreement in accordance with its terms;
(d) a provision of law is a reference to that provision as amended or
re-enacted; and
(e) Section, Clause and Schedule headings are for ease of reference only.
1.3 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or to enjoy the
benefit of any terms of this Agreement. Further, notwithstanding any term
of this Agreement the consent of any third party is not required for any
variation (including any release or compromise of liability under) of this
Agreement.
2. PRIORITY OF AGREEMENT
The Parties acknowledge and agree that if there is any inconsistency or
discrepancy between this Agreement and any of the Senior Finance
Documents, the Working Capital Finance Documents, the Contingent Value
Right Agreement or the Second Secured Finance Documents, then the terms
and provisions of this Agreement shall, in all circumstances, prevail.
3. ACKNOWLEDGEMENT OF FINANCING ARRANGEMENTS
3.1 The Parties acknowledge and agree that the financing arrangements of PAG,
PMG and its subsidiaries shall be amended and restructured on the terms
and subject to the conditions specified in, and contemplated by, this
Agreement (including the recitals).
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3.2 The Parties acknowledge and agree that prior to the Second Loan Date the
obligations of the Working Capital Lenders shall not be affected and that
the Working Capital Finance Documents shall continue to be legally binding
and enforceable upon the Parties thereto.
3.3 For the avoidance of doubt, the Parties acknowledge and agree that, in
respect of the Working Capital Facility Agreement and the Second Secured
Facility Agreement, PAG cannot borrow and the lenders will not be required
to make loans or have outstandings at the same time under both the Working
Capital Facility Agreement and the Second Secured Facility Agreement.
3.4 Without prejudice to Clause 3.3, each of PAG, PMG and the other Obligors
acknowledges, agrees and confirms that its obligations under the Senior
Finance Documents, the Second Secured Finance Documents and the Working
Capital Finance Documents shall, except to the extent specified otherwise
in this Agreement, continue in full force and effect (including, without
limitation, any guarantee and security obligations) and PAG, PMG and the
other Obligors shall not claim otherwise.
3.5 The Parties acknowledge and agree that, prior to the Amendment Date, the
Second Secured Security shall be granted for the benefit of the Second
Secured Lenders (in their capacity as such) and not in respect of the
Working Capital Facility Agreement.
3.6 The parties acknowledge and agree that if:
(a) on or before 26 March 2002, the Second Secured Facility Agreement is
entered into and the Second Secured Agent has given the notice
described in Clause 4 (CONDITIONS PRECEDENT) of the Second Secured
Facility Agreement (or the requirement for PAG to deliver any of the
documents referred to in that Clause has been waived); and
(b) the Second Secured Lenders advance EUR 375,000,000 to PAG on that
date,
that loan will comprise the Second Loan, and will have been made under the
Second Secured Facility Agreement (rather than the Working Capital
Facility Agreement).
3.7 This Agreement shall be effective from the date of execution by all
Parties.
4. LOAN UNDER WORKING CAPITAL FACILITY
If, on or prior to the Second Loan Date, any drawing is made under the
Working Capital Facility Agreement, whether forced or otherwise:
4.1 This Agreement, and the Second Secured Finance Documents shall
automatically, irrevocably and unconditionally be cancelled and, without
limitation, there shall be no obligation to lend under the Second Secured
Facility Agreement.
4.2 The amendments to the Senior Facility Agreement under the Senior Facility
Amendment Agreement will not become effective.
5. SECOND LOAN DATE
Upon the making of the Second Loan on the Second Loan Date:
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5.1 The Working Capital Facility Agreement shall be automatically, irrevocably
and unconditionally cancelled and all amounts then capable or due to be
drawn down or made available by the Working Capital Lenders under the
Working Capital Facility Agreement shall be cancelled and shall cease to
be available (the "WORKING CAPITAL CANCELLATION").
5.2 The application of the Bank Intercreditor Agreement and the Obligor
Intercreditor Agreement shall be suspended.
5.3 The Existing Fee Letter(s) shall be cancelled, and each New Fee Letter
shall become effective.
6. NO DRAWDOWN OF SECOND LOAN
If the Second Loan Date has not occurred on or by 26 March 2002, then:
6.1 A funding shall occur under, and in accordance with, the Working Capital
Finance Documents.
6.2 It shall not be possible for the Second Secured Facility Agreement and the
other Second Secured Finance Documents to become effective (and the Senior
Facility Agreement amendments will not become effective), in each case as
stated in Clause 4 (LOAN UNDER WORKING CAPITAL FACILITY).
6.3 Any future rights and obligations under this Agreement shall automatically
be terminated.
7. SHAREHOLDER APPROVAL
7.1 PAG shall ensure that its annual general meeting (the "HAUPTVERSAMMLUNG")
is held no later than 30 June 2002, and that all documents required with
respect to calling and holding that meeting (including in relation to the
Shareholder Consent) have been delivered to the Bundesanzeiger on or
before the last date permitted for delivery under German law before the
date of that meeting.
7.2 PAG shall ensure that all of its shareholders receive appropriate notices
in the prescribed form under German law (and accompanied with all
necessary documentation in the prescribed form under German law) to enable
PAG to hold the HAUPTVERSAMMLUNG and, among other things, seek the
Shareholder Consent.
7.3 PAG shall notify the Second Secured Agent and the Senior Agent promptly
upon the Shareholder Consent being obtained.
7.4 The Second Secured Lenders shall, promptly upon being satisfied that all
legal requirements in respect of the Shareholder Consent have been met in
relation to holding the shareholder meeting and passing the Shareholder
Resolution, instruct the Second Secured Agent to give a notice in writing
(a "SHAREHOLDER APPROVAL CONFIRMATION") to that effect to PAG and the
Senior Agent. The Second Secured Agent shall promptly upon being so
instructed deliver the Shareholder Approval Confirmation to PAG and the
Senior Agent.
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7.5 Shareholder Approval shall, for the purposes of this Agreement, be
obtained on the date (if any) on which the Second Secured Agent gives the
Shareholder Approval Confirmation to PAG and the Senior Agent.
8. POSITIVE SHAREHOLDER APPROVAL
8.1 If Shareholder Approval has been obtained at any time during the Approval
Period the following shall occur:
(a) The Share Option Agreement shall become effective in accordance with
its terms.
(b) Clause 9 (NO SHAREHOLDER APPROVAL) shall cease to apply.
(c) The Bank Intercreditor Agreement and the Obligor Intercreditor
Agreement shall be automatically, irrevocably and unconditionally
cancelled.
(d) The Senior Finance Documents and the Second Secured Finance Documents
shall continue in full force and effect.
8.2 If Shareholder Approval is obtained, on the date of such Shareholder
Approval all CVRs not released from escrow prior to the Second Loan Date
to the Working Capital Lenders in accordance with the provisions of the
Contingent Value Right Agreement shall be cancelled in full. CVRs released
from escrow to the Working Capital Lenders prior to the Second Loan Date
shall continue to be valid, subject to the condition that if the Second
Secured Facility is repaid and cancelled in full within one year from the
date of the Second Loan Date, (other than by a replacement financing by
the same lenders) the CVRs released from escrow to the Working Capital
Lenders in accordance with the terms of the Contingent Value Right
Agreement shall be returned to PAG. During the period until the date that
is one year from the Second Loan Date (the "ONE YEAR PERIOD"), no holder
of CVRs shall exercise its rights in respect of the CVRs or any
replacement warrants (but it may exercise its rights at the end of the one
year period if the CVRs have not then been cancelled in accordance with
this Clause).
For the avoidance of doubt, no CVRs shall be released from escrow from the
Second Loan Date until the occurrence (if at all) of the Amendment Date.
8.3 Each of the Working Capital Lenders and PAG shall, at the request of
either the Second Secured Agent or PAG, execute any amendments to the
Contingent Value Right Agreement or any other document reasonably required
in order to give effect to Clause 8.2.
9. NO SHAREHOLDER APPROVAL
9.1 If Shareholder Approval has not been obtained by the end of the Approval
Period then:
(a) the Second Secured Agent may, no later than 15 July 2002, give a
written notice (an "AMENDMENT NOTICE") to PAG and the Senior Agent
stating that the Second Secured Facility Amendment shall occur, in
which case the Amendment Date shall occur and shall be the date
specified by the Second Secured Agent in the Amendment Notice (which
must be a date on or before 15 July 2002);
- 10 -
(b) the Second Secured Agent may, no later than 15 July 2002, give a
written notice (a "CONTINUATION NOTICE") to PAG and the Senior Agent
stating that the Second Secured Facility Amendment shall not occur, in
which case the Second Secured Facility Amendment shall not occur, and
Clause 11 (CONTINUING WITH THE SECOND SECURED FACILITY) shall apply;
or
(c) if, on 15 July 2002 the Second Secured Agent has given neither a
Continuation Notice nor an Amendment Notice in accordance with this
Clause 9.1, then the Second Secured Facility Amendment shall occur,
and the Amendment Date shall be 15 July 2002.
9.2 The Second Secured Agent may only give a Continuation Notice if it has not
already given an Amendment Notice, and may only give an Amendment Notice
if it has not already given a Continuation Notice.
9.3 The Second Secured Agent may only give a Continuation Notice or an
Amendment Notice if so instructed by all the Second Secured Lenders.
10. AMENDMENT DATE
If the Amendment Date occurs in accordance with Clause 9 (NO SHAREHOLDER
APPROVAL) then the following shall occur on and from the Amendment Date:
10.1 The Second Loan shall continue and remain outstanding, except that, on and
from the Amendment Date, the terms and conditions applicable to the Second
Loan and the rights and obligations of the parties relating thereto shall
be amended and restated, and shall be governed (in place of the Original
Second Secured Facility Agreement Terms) by the provisions set out in
Schedule 6 (applied, where applicable, in accordance with Clause 10.2).
10.2 Without prejudice to the generality of Clause 10.1 or the provisions of
Schedule 6 (except that, in the case of conflict, the provisions of this
Clause 10.2 shall prevail):
(a) PRINCIPAL: The principal amount of the Second Loan of EUR 375,000,000
(plus any capitalised interest to the extent permitted by paragraph
(b)(ii) below) remains outstanding and shall be or become due and
payable in accordance with the provisions of Schedule 6.
(b) INTEREST: Interest shall accrue and be payable on the Second Loan as
follows:
(i) The Second Secured Lenders may retain any cash interest paid to
them prior to the Amendment Date by PAG on the Second Loan under
and in accordance with the Original Second Secured Facility
Agreement Terms.
(ii) With respect to any interest ("PIK INTEREST") which, under the
Original Second Secured Facility Agreement Terms, either has
been capitalised as at the Amendment Date or which would (if the
Amendment Date were an Interest Payment Date under the Original
Second Secured Facility Agreement Terms) be capitalised on the
Amendment Date:
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(A) in respect of the period (the "INITIAL PERIOD") from the
Second Loan Date until the Amendment Date, only PIK
Interest in an amount calculated at the rate of 2% per
annum for the Initial Period shall have accrued as at the
Amendment Date; and
(B) that amount shall be added to the principal amount of the
Second Loan as at the Amendment Date.
(iii) On the Amendment Date, an additional cash interest payment on
the Second Loan shall (subject to paragraph (v) below) be due
and payable by PAG to the Second Secured Lenders in an amount in
euro equal to the difference between A and B, where:
"A" means an amount equal to the amount of cash interest
which would have accrued in respect of the Second Loan,
during the Initial Period, if the Second Loan had been made
on and from the Second Loan Date on the terms set out in
Schedule 6 (instead of the Original Second Secured Facility
Agreement Terms).
"B" means the amount of cash interest actually paid to the
Second Secured Lenders by PAG on the Second Loan in respect
of the Initial Period.
(iv) On and from the Amendment Date, interest on the Second Loan
shall be payable on the terms set out in Schedule 6 and a new
interest period under the terms of Schedule 6 shall be commence
on the Amendment Date.
(v) The parties hereto acknowledge the provisions of Clause 23.7 of
the Senior Facility Agreement and note that although amounts
specified in this paragraph (b) may be due and payable by PAG on
the Amendment Date, if an "Event of Default" or "Potential Event
of Default" exists on such date under the Senior Facility
Agreement then no distributions or other payments may be made by
any member of the Group to PAG to finance any such payment
obligation. Non-payment of the amounts due and payable by PAG
pursuant to this paragraph (b) will constitute an Event of
Default for the purposes of Schedule 6.
(c) COMMITMENTS AND PARTICIPATION: As at the Amendment Date:
(i) Each Second Secured Lender's Commitment (which will have been
fully utilised on the Second Loan Date) will be in the same
amount as its Commitment under the Original Second Secured
Facility Agreement Terms.
(ii) Each Second Secured Lender's participation in the Second Loan
shall be the same after the Second Secured Facility Amendment as
before.
(d) REPRESENTATIONS AND WARRANTIES: The representations and warranties set
out in Section 3 of Schedule 6 will be made by PAG on the Amendment
Date.
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(e) COVENANTS: The covenants (affirmative and negative) set out in
Sections 5 and 6 of Schedule 6 shall be applicable on and from the
Amendment Date in accordance with Schedule 6.
(f) EVENTS OF DEFAULT: Only those events and circumstances described in
Section 7 of Schedule 6 will be Events of Default.
(g) RIGHTS AND REMEDIES: Without prejudice to any new rights and remedies
created on or after the Amendment Date, any rights and remedies which
accrued or were available to any Party under the Original Second
Secured Facility Agreement Terms, due to any event or circumstance
which occurred prior to the Amendment Date, shall survive and be
binding on the respective Parties (subject to paragraph (f) above).
10.3 With respect to the security and guarantee for the Second Secured
Facility:
(a) Each of the Second Secured Finance Parties agrees:
(i) that with effect from the Amendment Date the security granted
pursuant to the Second Secured Security Document shall be
released and discharged; and
(ii) that it shall, at the request of PAG, promptly do all such acts
and execute all such documents as the Senior Security Trustee
may specify to ensure that the security created by the Second
Secured Documents is released.
(b) Each of the Second Secured Finance Parties agrees that with effect
from the Amendment Date PMG is released from the guarantee provided by
it under the Second Secured Facility Agreement and all its obligations
in relation thereto are discharged.
(c) PMG accepts, with effect from the Amendment Date, the releases
described in this Clause 10.3.
(d) PAG agrees to pay the costs described in this Clause 10.3.
10.4 The Repeated Representations (as defined in the Senior Facility Agreement)
shall be deemed to be repeated by the relevant Obligors under Clause 20.4
(REPETITION OF REPRESENTATIONS) of the Senior Facility Agreement (as if
the Amendment Date were a Utilisation Date).
10.5 The suspension of the Bank Intercreditor Agreement shall cease, and that
agreement shall be amended and restated in the form set out in Schedule 5
and, as so amended, shall be in full force and effect as of the Amendment
Date. The parties also acknowledge, for the purposes of that agreement (as
amended), that the Full Funding Date will have occurred on the Second
Secured Lenders advancing the Second Loan in the full amount of EUR
375,000,000 on the Second Loan Date.
10.6 The suspension of the Obligor Intercreditor Agreement shall cease and that
agreement shall be in full force and effect as of the Amendment Date.
10.7 The New Intercreditor Agreement shall be cancelled and terminated on the
Amendment Date (but any rights or remedies which accrued or were available
to any Party under the New
- 13 -
Intercreditor Agreement, due to any event of circumstance which occurred
prior to the Amendment Date, shall survive and be binding on the
respective Parties).
10.8 The Senior Finance Documents shall continue in full force and effect,
however, the Senior Facility Agreement shall be amended and read and
interpreted in accordance with Clause 2.2 of the Senior Facility Amendment
Agreement.
10.9 The financial covenant set out in Clause 22.6 (PRO FORMA INTEREST RATIO)
of the Senior Facility Agreement shall be re-calculated as at 31 March
2002 and 30 June 2002, as follows:
(a) For the purpose of that re-calculation the Pro Forma Cash Interest
Expense, in respect of the interest on the Second Loan, shall be
calculated not by using the rate of interest which was applicable
under the Original Second Secured Facility Agreement Terms, but
instead by using the rate which would have applied had the Second Loan
been outstanding on the terms set out in Schedule 6 on and from the
Second Loan Date.
(b) If, on that re-calculation, that financial covenant is breached, this
will constitute an Event of Default under the Senior Facility
Agreement continuing on the Amendment Date.
10.10 The CVRs (or any replacement warrants) shall continue unaffected (so that,
for the avoidance of doubt, no rights will be cancelled under Clause 8.2
above, and any warrants that would have vested but for the provisions of
Clause 8.2 shall be deemed to vest on the Amendment Date).
10.11 The New Fee Letters shall continue unaffected.
11. CONTINUING WITH THE SECOND SECURED FACILITY
11.1 If the Second Secured Agent gives a Continuation Notice in accordance with
Clause 9.1(b), then on that notice:
(a) The Bank Intercreditor Agreement and the Obligor Intercreditor
Agreement shall be immediately, automatically and permanently
cancelled.
(b) The Senior Finance Documents and the Second Secured Finance Documents
(other than the Share Option Agreement) shall continue in full force
and effect.
(c) The Share Option Agreement shall (unless the parties to that Agreement
agree otherwise) be immediately cancelled in accordance with its
terms.
(d) The CVRs will be cancelled as described in Clause 8.2 above (which
shall apply if Shareholder Approval had been obtained on the date of
the Continuation Notice.
12. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 12 to each of the Combined Finance Parties on the date of this
Agreement.
12.1 STATUS
(a) It is a company, duly incorporated and validly existing under the law
of its jurisdiction of incorporation.
- 14 -
(b) It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
12.2 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by this Agreement do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its and each of its Subsidiaries' constitutional documents; or
(c) any agreement or instrument binding upon it or any of its Subsidiaries
or any of its or any of its Subsidiaries' assets.
12.3 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
this Agreement and the transactions contemplated by this Agreement.
12.4 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or desirable:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations under this Agreement and the transactions
contemplated by this Agreement; and
(b) to make this Agreement and the transactions contemplated by this
Agreement admissible in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
12.5 GOVERNING LAW AND ENFORCEMENT
(a) The choice of English law as the governing law of this Agreement will
be recognised and enforced in its jurisdiction of incorporation.
(b) Any judgment obtained in England in relation to this Agreement will be
recognised and enforced in its jurisdiction of incorporation.
13. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and inure for the benefit of each
Party and its successors and assigns.
14. CHANGES TO THE PARTIES
14.1 No Party to this Agreement may assign all or any of its rights or transfer
all or any of its rights and obligations under this Agreement except as
expressly provided by this Agreement or as may be required by law.
14.2 Any person who is:
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(a) an assignee or transferee of a Senior Lender or a Working Capital
Lender or a Second Secured Lender; or
(b) appointed as Senior Agent, Working Capital Agent, Administrative
Agent, Senior Secured Agent, Senior Security Trustee, Second Secured
Security Trustee, Fronting Bank or Overdraft Bank,
in each case for the purposes of and in accordance with the Senior
Facility Agreement, the Working Capital Facility Agreement, the Second
Secured Facility Agreement, the Senior Security Trust Agreement or the
Second Secured Security Trust Agreement as the case may be shall execute
and deliver to the Senior Agent, the Second Secured Agent and the
Administrative Agent an Accession Deed in which event, on the date the
relevant assignment, transfer or appointment becomes effective:
(i) the party ceasing to be a Senior Lender, Working Capital Lender,
Second Secured Lender, Senior Agent, Working Capital Agent,
Administrative Agent, Second Secured Agent, Senior Security
Trustee, Second Secured Security Trustee Fronting Bank or
Overdraft Bank (as the case may be) shall be discharged from
further obligations towards the other parties under this
Agreement and their respective rights against one another shall
be cancelled (except, in each case, for those rights which arose
prior to such date, and in relation to a Senior Lender, Working
Capital Lender, Second Secured Lender, Senior Agent, Working
Capital Agent, Administrative Agent, Second Secured Agent,
Senior Trustee, Second Secured Security Trustee, Fronting Bank
or Overdraft Bank such obligations and right shall only be
discharged or cancelled to the extent of the relevant assignment
or transfer); and
(ii) the party becoming a Senior Lender, Working Capital Lender,
Second Secured Lender, Senior Agent, Working Capital Agent,
Administrative Agent, Second Secured Agent, Senior Security
Trustee, Second Secured Security Trustee, Fronting Bank or
Overdraft Bank (as the case may be) shall assume the same
obligations, and become entitled to the same rights as a Senior
Lender, Working Capital Lender, Second Secured Lender, Senior
Agent, Working Capital Agent, Administrative Agent, Second
Secured Agent, Senior Security Trustee, Second Secured Security
Trustee, Fronting Bank or Overdraft Bank (as the case may be)
under this Agreement as if it had been an original party hereto.
14.3 Any Senior Lender, Working Capital Lender or Second Secured Lender who
transfers or assigns any of its rights or obligations under the relevant
facility agreement (and any of the Senior Agent, Working Capital Agent,
Administrative Agent, Senior Secured Agent, Senior Security Trustee,
Second Secured Security Trustee, Fronting Bank or Overdraft Bank who
appoints a replacement or additional person to such position) shall ensure
that the transferee, assignee or appointee (as the case may be) accedes to
this Agreement in the manner described in Clause 14.2.
- 16 -
15. NOTICES
15.1 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.
15.2 The address and fax number (and the department or officer, 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) in the case of PAG, PMG and each other Obligor (other than an
additional obligor), that identified against PAG's name below;
(b) in the case of each Senior Lender, Second Secured Lender, Working
Capital Lender, the Fronting Bank and the Overdraft Bank, that
notified in writing to the respective Senior Agent, Working Capital
Agent, Administrative Agent or Second Secured Agent, as the case may
be, and the respective Senior Security Trustee or the Second Secured
Security Trustee, as the case may be, on or prior to the date on which
it becomes a Party;
(c) in the case of the Senior Agent, Working Capital Agent, Administrative
Agent and the Second Secured Agent, that identified with its name
below;
(d) in the case of the Senior Security Trustee and the Second Secured
Security Trustee, that identified with its name below; and
(e) in the case of each additional obligor or additional Combined Finance
Party, that notified in writing to the Senior Agent, Working Capital
Agent, Administrative Agent or Second Secured Agent, as the case may
be, and the Senior Security Trustee or the Second Secured Security
Trustee, as the case may be, prior to the date on which it becomes a
Party,
(f) or any substitute address or fax number or department or officer as
the Party may notify to the Senior Agent, Working Capital Agent,
Administrative Agent or the Second Secured Agent, as the case may be,
(or the Senior Agent, Working Capital Agent, Administrative Agent or
the Second Secured Agent, as the case may be, may notify to the other
Parties, if a change is made by the respective Senior Agent, Working
Capital Agent, Administrative Agent or the Second Secured Agent, as
the case may be) by not less than seven days' notice.
15.3 Any communication or document made or delivered by one person to another
under or in connection with this Agreement will only be effective:
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the relevant address or
seven days after being deposited in the post postage prepaid in an
envelope addressed to it at that address; and
(c) if a particular department or officer is specified as part of its
address details provided under Clause 15.2, if addressed to that
department or officer.
- 17 -
15.4 Any communication or document to be made or delivered to the Senior Agent,
Working Capital Agent, Administrative Agent or the Second Secured Agent,
as the case may be, or Senior Security Trustee will be effective only when
actually received by that Senior Agent, Working Capital Agent,
Administrative Agent or the Second Secured Agent, as the case may be, or
the Senior Security Trustee or the Second Secured Security Trustee, as the
case may be, and then only if it is expressly marked for the attention of
the department or officer identified with that Senior Agent's, Working
Capital Agent's, Administrative Agent's or the Second Secured Agent's, as
the case may be, or the Senior Security Trustee's or the Second Secured
Security Trustee's signature below (or any substitute department or
officer as that Senior Agent, Working Capital Agent, Administrative Agent
or the Second Secured Agent, as the case may be, or the Senior Security
Trustee or the Second Secured Security Trustee, as the case may be, shall
specify for this purpose).
15.5 All notices from or to an Obligor shall be sent through the appropriate
Senior Agent, Working Capital Agent, Administrative Agent or the Second
Secured Agent, as the case may be, or the Senior Security Trustee or the
Second Secured Security Trustee, as the case may be.
15.6 Any communication or document made or delivered to PAG or PMG in
accordance with this Clause 15 will be deemed to have been made or
delivered to each of the Obligors.
15.7 Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 15.2 or changing its
own address or fax number, the appropriate Senior Agent, Working Capital
Agent, Administrative Agent or the Second Secured Agent, as the case may
be, shall notify the other Parties.
15.8 Any notice given under or in connection with this Agreement must be in
English. All other documents provided under or in connection with this
Agreement must be:
(a) in English; or
(b) if not in English, and if so required by the Senior Security Trustee
or the Second Secured Security Trustee, as the case may be,
accompanied by a certified English translation and, in this case, the
English translation will prevail unless the document is a
constitutional, statutory or other official document.
16. 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.
17. REMEDIES, WAIVERS AND AMENDMENTS
17.1 No failure to exercise, nor any delay in exercising, on the part of any
Combined Finance Party, any right or remedy under this Agreement shall
operate as a waiver, nor shall any single or
- 18 -
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.
17.2 Subject to Clause 17.3, any term of this Agreement may be amended or
waived only with the consent of the Senior Lenders, the Second Secured
Lenders and the Obligors and any such amendment or waiver will be binding
on all Parties. The Senior Agent, Working Capital Agent, Administrative
Agent or the Second Secured Agent relevant to each facility may effect, on
behalf of any non-Obligor party to that facility, any amendment or waiver
permitted by this Clause and that Senior Agent, Working Capital Agent,
Administrative Agent or the Second Secured Agent, as the case may be,
shall be under no liability whatsoever in respect of any such amendment or
waiver.
17.3 Any amendment or waiver which relates to the rights and obligations of the
Senior Agent, Working Capital Agent, Administrative Agent, the Second
Secured Agent, the Senior Security Trustee, the Second Secured Security
Trustee, the Fronting Bank or the Overdraft Bank may not be effected
without the consent of that Senior Agent, Working Capital Agent,
Administrative Agent, the Second Secured Security Trustee, the Senior
Security Trustee, the Second Secured Security Trustee, the Fronting Bank
or the Overdraft Bank, as the case may be.
18. COSTS
PAG and PMG shall, from time to time on demand of the Senior Agent or the
Second Secured Agent, reimburse each Combined Finance Party for all costs
and expenses (including, without limitation, legal fees) together with any
VAT thereon incurred by that Combined Finance Party in connection with the
completion of the transactions contemplated in this Agreement (including
all steps to be taken on the Amendment Date), or in connection with the
preservation and/or enforcement of any of its rights under this Agreement.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single
copy of this Agreement.
20. LAW
This Agreement is governed by English law.
21. JURISDICTION
21.1 The Courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a
"DISPUTE").
- 19 -
21.2 The Parties agree that the Courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly shall have exclusive
jurisdiction and no Party will argue to the contrary.
21.3 Notwithstanding Clause 21.2, this Clause 21 is for the benefit of the
Combined Finance Parties only. As a result no Combined Finance Party shall
be prevented from taking proceedings relating to a Dispute in any other
courts with jurisdiction. To the extent allowed by law, the Combined
Finance Parties may take concurrent proceedings in any number of
jurisdictions.
21.4 Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in England and
Wales):
(a) irrevocably appoints ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ as its agent for service of process in relation to any
proceedings before the English Courts in connection with this
Agreement; and
(b) agrees that failure by a process agent to notify the relevant Obligor
of the process will not invalidate the proceedings concerned.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING
OF THIS AGREEMENT
- 20 -
SCHEDULE 1
THE GUARANTORS
1. PrimaCom Region Sudwest II GmbH (formerly known as Acotec Kabelvision
GmbH)
2. RFH Regionalfernsehen Harz Verwaltungs-GmbH (formerly known as ad media
Gesellschaft mit beschrankter Haftung)
3. RFH Regionalfernsehen Harz GmbH & Co. KG (formerly known as ad media
Gesellschaft mit beschrankter Haftung & Co. Local TV KG)
4. PrimaCom Region Magdeburg GmbH (formerly known as Antennen-▇▇▇▇▇▇▇▇▇
Verwaltungs GmbH)
5. PrimaCom Angelbachtal GmbH (formerly known as Dritte Kabelvision
Management Beteiligungs Verwaltungs GmbH, Eschborn)
6. PrimaCom Region Dresden GmbH (formerly known as Erste Kabelvision
Management Beteiligungs Verwaltungs GmbH, Eschborn)
7. PrimaCom Schwerin GmbH (formerly known as Innocom Schwerin ▇▇▇▇▇-
Antennen- und Kommunikationsanlagen Service Verwaltungs GmbH, Eschborn)
8. PrimaCom Berlin GmbH (formerly known as ISIT Ingenieurgesellschaft fur
Satelliten- Informations- und ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇)
▇. PrimaCom Aachen GmbH (formerly known as Kabelcom Aachen Gesellschaft fur
Kabelkommunikation mbH, Aachen)
10. PrimaCom Region Wiesbaden GmbH (formerly known as Kabelcom Wiesbaden
Gesellschaft fur Breitbandkabel-Kommunikation Beteiligungs GmbH,
Wiesbaden)
11. Kabel-Fernsehen Leipzig Verwaltungs GmbH, Leipzig
12. KabelMedia Erste ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇
▇▇. KabelMedia Erste Fernsehkabelbeteiligungs Verwaltungs GmbH, Mainz
14. PrimaCom Projektmanagement Verwaltungs GmbH, Mainz (formerly known as
KabelMedia Projektmanagement Kommunikationsnetze Verwaltungs GmbH,
Leipzig)
15. PrimaCom Network & Operations GmbH, Mainz (formerly known as Kabelvision
Delitzsch Verwaltungs GmbH, Leipzig)
16. PrimaCom Sudwest I GmbH (formerly known as Kabelvision ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
St. ▇▇▇▇▇▇▇ Verwaltungs GmbH, Angelbachtal)
17. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇. PrimaCom Nord GmbH, Mainz
19. PrimaCom Kabelbetriebsgesellschaft mbH & Co. KG, Region Berlin, Mainz
20. PrimaCom Kabelbetriebsgesellschaft mbH & Co KG, Region Hoyerswerda, Mainz
21. PrimaCom Kabelbetriebsgesellschaft mbH & Co. KG, Region Leipzig, Mainz
- 21 -
22. PrimaCom Kabelbetriebsgesellschaft mbH & Co. KG, Region Nordwest, Mainz
23. PrimaCom Kabelbetriebsgesellschaft mbH & Co. KG, Region Plauen, Mainz
24. PrimaCom Kabelbetriebsgesellschaft mbH & Co. KG, Region Sudwest, Mainz
25. PrimaCom Kabelbetriebsverwaltungsgesellschaft mbH, Mainz
26. PrimaCom Projektmanagement GmbH, Mainz
27. PrimaCom Mettlach GmbH & Co. KG, Mainz
28. PrimaCom ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇
▇▇. PrimaCom Projektmanagement GmbH & Co. KG, Mainz
30. PrimaCom ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ GmbH & Co. KG, Ahrensfelde
32. PrimaCom Region ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇
▇▇. PrimaCom Region ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇▇▇
▇▇. PrimaCom Region ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇
▇▇. PrimaCom Region ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇▇▇▇
▇▇. PrimaCom Stormarn GmbH & Co. KG, Mainz
37. PrimaCom Sudwest I GmbH & Co. KG, Angelbachtal
38. PrimaCom ▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇
▇▇. PrimaCom Kabelprojekt GmbH (formerly known as Suweda Kabelprojekt GmbH,
Mainz)
40. Zweite Kabelvision Management ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇
▇▇. Zweite Kabelvision Management Beteiligungs ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇. PrimaCom Marketing & Development GmbH (formerly known as PrimaCom
Kabelbetriebsgesellschaft Chemnitz mbH, Mainz)
THE FOLLOWING GERMAN COMPANIES ACCEDED TO THE SENIOR FACILITY AGREEMENT AS
GUARANTORS BY WAY OF GUARANTOR ACCESSION MEMORANDUM DATED 9 OCTOBER 2001.
43. PrimaCom Niedersachsen GmbH, Hannover (formerly known as
GroBgemeinschaft-Antennenanlagen Lizenz und Betriebs GmbH, Osnabruck)
44. Telekommunikations-GmbH Kirchheimbolanden
45. Decimus Beteiligungs- und Verwaltungsgesellschaft mbH
46. PrimaCom Netherlands Holding B.V.
47. N.V. Multikabel (formerly known as N.V. Kabeltelevisle Kop ▇▇▇▇▇-▇▇▇▇▇▇▇)
▇▇. Communikabel Holding B.V.
49. Communikabel N.V.
50. Noord Holland Digitaal B.V.
- 22 -
SCHEDULE 2
THE SENIOR LENDERS
Bank of America N.A.
Bankgesellschaft Berlin AG London Branch
Barclays Bank PLC
Bayerische Hypo- und Vereinsbank AG
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
Cooperatieve Centrale Raiffeisen-Boerenleenbank ▇.▇.
▇▇▇▇▇▇▇▇ Bank AG, Hamburg
Entenial
Fortis Bank (Nederland) N.V.
IBM Deutschland Kreditbank GMBH
ING Bank NV
Landesbank Rheinland-Pfalz Girozentrale
▇▇▇▇▇▇ Commercial Paper Inc.
The Governor and Company of the Bank of Scotland
The Royal Bank of Scotland plc
The Toronto-Dominion Bank
- 23 -
SCHEDULE 3
SECOND SECURED LENDERS/WORKING CAPITAL LENDERS
Barclays Bank PLC
Dresdner Bank AG, London Branch
▇.▇. ▇▇▇▇▇▇ Chase Bank
▇▇▇▇▇▇ Commercial Paper Inc.
The Toronto-Dominion Bank
- 24 -
SCHEDULE 4
FORM OF ACCESSION DEED
THIS DEED dated [*] is supplemental to a Co-ordination Agreement (the
"CO-ORDINATION AGREEMENT") dated 25 March 2002 between the Obligors, Senior Lead
Arrangers, Second Secured Arrangers, Senior Agent, Second Secured Agent, Working
Capital Agent, Administrative Agent, Senior Lenders, Working Capital Lenders,
Second Secured Lenders, Senior Security Trustee, Second Secured Security
Trustee, Fronting Bank and Overdraft Bank.
WHEREAS:
The Parties to the Co-ordination Agreement have agreed to regulate certain
rights as between themselves.
IT IS AGREED as follows:
Words and expressions defined in the Co-ordination Agreement have the same
meaning when used in this Deed.
[Full name of acceding [Senior Lender/ Working Capital Lender/ Second Secured
Lender/ Senior Agent/ Working Capital Agent/ Administrative Agent/ Second
Secured Agent/ Senior Security Trustee/ Second Secured Security Trustee/
Fronting Bank/ Overdraft Bank] hereby agrees with each other person who is or
who becomes a party to the Co-ordination Agreement that with effect from the
date hereof it will be bound by the Co-ordination Agreement as [Senior Lender/
Working Capital Lender/ Second Secured Lender/ Senior Agent/ Working Capital
Agent/ Administrative Agent / Second Secured Agent/ Senior Security Trustee/
Second Secured Security Trustee/ Fronting Bank/ Overdraft Bank] as if it had
been an original party thereto and undertakes to perform all the obligations
expressed to be assumed by a [Senior Lender/ Working Capital Lender/ Second
Secured Lender/ Senior Agent/ Working Capital Agent/ Administrative Agent /
Second Secured Agent/ Senior Security Trustee/ Second Secured Security Trustee/
Fronting Bank/ Overdraft Bank] under the Co-ordination Agreement.
This Deed is governed by English law.
EXECUTED AS A DEED
by [Full Name of acceding [Senior Lender/ Working Capital Lender/ Second Secured
Lender/ Senior Agent/ Working Capital Agent/ Administrative Agent / Second
Secured Agent/ Senior Security Trustee/ Second Secured Security Trustee/
Fronting Bank/ Overdraft Bank]
[INSERT APPROPRIATE METHOD OF EXECUTION FOR A DEED]
Address for notices:
Address:
Fax:
- 25 -
SCHEDULE 5
AMENDED AND RESTATED BANK INTERCREDITOR AGREEMENT
Omitted
- 26 -
SCHEDULE 6
AMENDED AND RESTATED SECOND FACILITY AGREEMENT
Omitted
- 27 -
PAG
PRIMACOM AG
By:
Address: ▇▇▇▇▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
PMG
PRIMACOM MANAGEMENT GMBH
By:
THE GUARANTORS
PRIMACOM REGION SUDWEST II GMBH
RFH REGIONALFERNSEHEN HARZ VERWALTUNGS-GMBH
RFH REGIONALFERNSEHEN HARZ GMBH & CO. KG
PRIMACOM REGION MAGDEBURG GMBH
PRIMACOM ANGELBACHTAL GMBH
PRIMACOM REGION DRESDEN GMBH
PRIMACOM SCHWERIN GMBH
PRIMACOM BERLIN GMBH
PRIMACOM AACHEN GMBH
PRIMACOM REGION WIESBADEN GMBH
KABEL-FERNSEHEN LEIPZIG VERWALTUNGS GMBH, LEIPZIG
KABELMEDIA ERSTE FERNSEHKABELBETEILIGUNGS GMBH & CO. KG, MAINZ
KABELMEDIA ERSTE FERNSEHKABELBETEILIGUNGS VERWALTUNGS GMBH, MAINZ
PRIMACOM PROJEKTMANAGEMENT VERWALTUNGS GMBH, MAINZ
PRIMACOM NETWORK & OPERATIONS GMBH, MAINZ
PRIMACOM SUDWEST I GMBH
KABELFERNSEHEN PLAUEN GMBH, PLAUEN
PRIMACOM NORD GMBH, MAINZ
- 28 -
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO. KG, REGION BERLIN, MAINZ
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO KG, REGION HOYERSWERDA,
MAINZ
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO. KG, REGION LEIPZIG, MAINZ
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO. KG, REGION NORDWEST, MAINZ
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO. KG, REGION PLAUEN, MAINZ
PRIMACOM KABELBETRIEBSGESELLSCHAFT MBH & CO. KG, REGION SUDWEST, MAINZ
PRIMACOM KABELBETRIEBSVERWALTUNGSGESELLSCHAFT MBH, MAINZ
PRIMACOM PROJEKTMANAGEMENT GMBH, MAINZ
PRIMACOM METTLACH GMBH & CO. KG, MAINZ
PRIMACOM NETTETAL GMBH & CO. KG, MAINZ
PRIMACOM PROJEKTMANAGEMENT GMBH & CO. KG, MAINZ
PRIMACOM ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇. ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ GMBH & CO. KG, AHRENSFELDE
PRIMACOM REGION DRESDEN GMBH & CO. KG, MAINZ
PRIMACOM REGION LEIPZIG GMBH & CO. KG, LEIPZIG
PRIMACOM REGION MAGDEBURG GMBH & CO. KG, MAGDEBURG
PRIMACOM REGION SCHWERIN GMBH & CO. KG, SCHWERIN
PRIMACOM STORMARN GMBH & CO. KG, MAINZ
PRIMACOM SUDWEST I GMBH & CO. KG, ANGELBACHTAL
PRIMACOM ▇▇▇▇ GMBH & CO. KG, MAINZ
PRIMACOM KABELPROJEKT GMBH
ZWEITE KABELVISION MANAGEMENT BETEILIGUNGS GMBH & CO. KG, MAINZ
ZWEITE KABELVISION MANAGEMENT BETEILIGUNGS VERWALTUNGS GMBH, FRANKFURT
PRIMACOM MARKETING & DEVELOPMENT GMBH
PRIMACOM NIEDERSACHSEN GMBH, HANNOVER
TELEKOMMUNIKATIONS-GMBH KIRCHHEIMBOLANDEN
DECIMUS BETEILIGUNGS- UND VERWALTUNGSGESELLSCHAFT MBH
PRIMACOM NETHERLANDS HOLDING B.V.
N.V. MULTIKABEL
COMMUNIKABEL HOLDING B.V.
COMMUNIKABEL N.V.
- 29 -
NOORD HOLLAND DIGITAAL B.V.
By:
THE SENIOR LEAD ARRANGERS
BANK OF AMERICA SECURITIES LIMITED
By:
BARCLAYS CAPITAL (the investment banking division of Barclays Bank PLC)
By:
▇.▇. ▇▇▇▇▇▇ PLC
By:
DRESDNER BANK AG, LONDON BRANCH
By:
FORTIS BANK (NEDERLAND) N.V.
By:
ING BANK N.V.
By:
THE ROYAL BANK OF SCOTLAND PLC
By:
TD BANK EUROPE LIMITED
By:
- 30 -
THE SECOND SECURED ARRANGERS
BARCLAYS CAPITAL (the investment banking division of Barclays Bank PLC)
By:
DRESDNER BANK AG, LONDON BRANCH
By:
▇.▇. ▇▇▇▇▇▇ PLC
By:
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
By:
TD BANK EUROPE LIMITED
By:
SENIOR AGENT/ SECOND SECURED AGENT/ WORKING CAPITAL AGENT/ ADMINISTRATIVE AGENT
/SECOND SECURED SECURITY TRUSTEE
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
(As Senior Agent, Second Secured Agent, Working Capital Agent, Administrative
Agent and Second Secured Security Trustee)
By:
Address:
Tel:
Fax:
Attn:
- 31 -
SENIOR SECURITY TRUSTEE
▇.▇. ▇▇▇▇▇▇ AG
By:
Address:
Tel:
Fax:
Attn:
FRONTING BANK/OVERDRAFT BANK
▇.▇. ▇▇▇▇▇▇ AG
(As Fronting Bank and Overdraft Bank)
By:
SENIOR LENDERS
BANK OF AMERICA N.A.
By:
BANKGESELLSCHAFT BERLIN AG LONDON BRANCH
By:
BARCLAYS BANK PLC
By:
BAYERISCHE HYPO- UND VEREINSBANK AG
By:
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ BANK
By:
- 32 -
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
By:
DRESDNER BANK AG, HAMBURG
By:
ENTENIAL
By:
FORTIS BANK (NEDERLAND) N.V.
By:
IBM DEUTSCHLAND KREDITBANK GMBH
By:
ING BANK NV
By:
LANDESBANK RHEINLAND-PFALZ GIROZENTRALE
By:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By:
THE ROYAL BANK OF SCOTLAND PLC
By:
THE TORONTO-DOMINION BANK
By:
- 33 -
SECOND SECURED LENDERS/WORKING CAPITAL LENDERS
BARCLAYS BANK PLC
(As Second Secured Lender and Working Capital Lender)
By:
DRESDNER BANK AG, LONDON BRANCH
(As Second Secured Lender and Working Capital Lender)
By:
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ BANK
(As Second Secured Lender and Working Capital Lender)
By:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
(As Second Secured Lender [and Working Capital Lender])
By:
THE TORONTO-DOMINION BANK
(As Second Secured Lender and Working Capital Lender)
By:
- 34 -