Exhibit 4.8


 


CONFORMED COPY


 


 


SECOND
AMENDMENT AND RESTATEMENT AGREEMENT


 


 


dated 16
February 2004


 


 


INMARSAT GROUP HOLDINGS
LIMITED

as the Company




 


BARCLAYS BANK PLC 

as Senior Agent




 


THE BANK OF NEW YORK  

as High Yield Notes Trustee


 


and


 


INMARSAT FINANCE PLC  

as High Yield Notes Issuer


 


 


RELATING
TO AN INTERCREDITOR AGREEMENT DATED


 


10
October 2003


 


as
amended and restated pursuant to an 

Amendment and Restatement Agreement dated 12 December 2003


 


 





 


Ref:
NMS/JUSD/LZH


 

















 


CONTENTS


 


CLAUSE


 


	
  1.

  	
  Definitions and
  interpretation

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Conditions precedent

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Representations

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Amendment

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Accession

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Transaction expenses

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Miscellaneous

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Governing law

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  THE SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 Conditions
  precedent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 2 Form of
  Amended Agreement

  	
   

  	
   

  



 


i

















 


THIS
AGREEMENT is dated 16 February 2004 and made between:


 


(1)         INMARSAT
GROUP HOLDINGS LIMITED, a company incorporated in England and Wales with
registered number 4886072 (the “Company”);


 


(2)         BARCLAYS
BANK PLC as agent of the Senior Finance Parties (the “Senior Agent”);


 


(3)         THE BANK
OF NEW YORK as High Yield Notes Trustee (the “High
Yield Notes Trustee”); and


 


(4)         INMARSAT
FINANCE PLC, a company incorporated in England and Wales with registered number
4930309 as High Yield Notes Issuer (the “High
Yield Notes Issuer”).


 


 


IT IS
AGREED as follows:


 


1.           DEFINITIONS AND INTERPRETATION


 


1.1         Definitions


 


In this
Agreement:


 


“Amended Agreement” means the Original
Intercreditor Agreement, as amended and restated in the form set out in
Schedule 2 (Form of Amended Agreement).


 


“Business Day”
means a day (other than a Saturday or Sunday) on which banks are open for
general business in London.


 


“Effective Date” means the date of the
notification by the Senior Agent under Clause 2 (Conditions precedent).


 


“Original Intercreditor Agreement” means the
Intercreditor Agreement dated 10 October 2003 between the Company, the
Original Obligors, Barclays Bank PLC (as Senior Agent and Security Agent),
Credit Suisse First Boston (as Bridge Agent) and Barclays Bank PLC (as Issuing
Bank) and certain other entities (as detailed on page 1 of the Original
intercreditor Agreement) as amended and restated pursuant to an amendment and
restatement agreement dated 12 December 2003.


 


1.2         Incorporation of defined
terms


 


(a)         Unless a
contrary indication appears, a term defined in the Original Intercreditor
Agreement has the same meaning in this Agreement.


 


(b)         The
principles of construction set out in the Original Intercreditor Agreement
shall have effect as if set out in this Agreement.


 


1.3         Clauses


 


In this
Agreement any reference to a “Clause” or a “Schedule” is, unless the context
otherwise requires, a reference to a Clause of or a Schedule to this
Agreement.


 


1.4         Third Party Rights


 


A
person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any
term of this Agreement.


 


1.5         Designation


 


(a)         In
accordance with the Senior Facility Agreement, each of the Company and the
Senior Agent designate this Agreement as a Senior Finance Document;


 


(b)         This
Agreement is designated a High Yield Finance Document.


 


1

















 


1.6         Acknowledgement


 


(a)         The
Company executes this Agreement for itself and for the Obligors in accordance
with Clause 2.3 (Company as Obilgor’s agent)
and paragraph (a) of Clause 38.1 (Required
consents) of the Senior Facility Agreement.


 


(b)         The
Senior Agent executes this Agreement in its capacity as Senior Agent and for
and on behalf of the Senior Finance Parties in accordance with paragraph (b) of
Clause 38.1 (Required consents)
of the Senior Facility Agreement.


 


2.           CONDITIONS
PRECEDENT


 


The
provisions of Clause 4 (Amendment)
shall be effective only if the Senior Agent has received all the documents and
other evidence listed in Schedule 1 (Conditions
precedent) in form and substance satisfactory to the Senior Agent.
The Senior Agent shall notify the Company, the High Yield Notes Trustee and
each other Senior Finance Party promptly upon being so satisfied.


 


3.           REPRESENTATIONS


 


The
representations required to be made pursuant to Clause 10.1 (Representations of each Party) of the
Original Intercreditor Agreement are made, by reference to the facts and
circumstances then existing:


 


(a)            on
the date of this Agreement; and


 


(b)           on the
Effective Date,


 


but as
if references in Clause 10.1 (Representations
of each Party) of the Original Intercreditor Agreement were instead
to this Agreement and, on the Effective Date, to the Amended Agreement.


 


4.           AMENDMENT


 


4.1         Amendment


 


With
effect from the Effective Date the Original Intercreditor Agreement shall be
amended and restated in the form set out in Schedule 2 (Form of Amended Agreement).


 


4.2         Continuing obligations


 


The
provisions of the Original Intercreditor Agreement and the other Senior Finance
Documents,  Bridge Finance Documents and
High Yield Finance Documents shall continue in full force and effect as amended
by this Agreement.


 


5.           ACCESSION


 


5.1         High Yield Notes Trustee


 


(a)         The High
Yield Notes Trustee agrees to be bound by the Amended Agreement as the High
Yield Notes Trustee.


 


(b)         The High
Yield Notes Trustee’s administrative details are as follows:


 


	
  Address:

  	
   

  	
  The Bank of New York

  
	
   

  	
   

  	
  One Canada Square

  
	
   

  	
   

  	
  London, E14 5AL

  
	
   

  	
   

  	
  United Kingdom

  
	
   

  	
   

  	
   

  
	
  Fax No:

  	
   

  	
  +44 20 7964 6399

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Corporate Trust Administration

  



 


2

















 


5.2         High Yield Notes Issuer


 


(a)         The High
Yield Notes Issuer agrees to be bound by the Amended Agreement as the High
Yield Notes Issuer.


 


(b)         The High
Yield Notes Issuer’s administrative details are as follows:


 


	
  Address:

  	
   

  	
  Inmarsat Finance PLC

  
	
   

  	
   

  	
  99 City Road

  
	
   

  	
   

  	
  London, EC1Y 1AX

  
	
   

  	
   

  	
  United Kingdom

  
	
   

  	
   

  	
   

  
	
  Fax No:

  	
   

  	
  +44 20 7728 1602

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Company Secretary

  



 


6.           TRANSACTION
EXPENSES


 


The
Company shall within three Business Days of demand reimburse the Senior Agent
and the High Yield Notes Trustee for the amount of all costs and expenses
(including reasonable legal fees) incurred by the Senior Agent and the High
Yield Notes Trustee, as applicable, in connection with the negotiation,
preparation, printing and execution of this Agreement and any other documents
referred to in this Agreement.


 


7.           MISCELLANEOUS


 


7.1         Incorporation of terms


 


The
provisions of Clause 32 (Changes to the
Parties), Clause 33 (Notices)
and Clause 38 (Enforcement) of
the Original Intercreditor Agreement shall be incorporated into this Agreement
as if set out in full in this Agreement and as if references in those clauses
to “this Agreement” are references to this Agreement.


 


7.2         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.


 


8.           GOVERNING LAW


 


This
Agreement is governed by English law.


 


This
Agreement has been entered into as a deed on the date stated at the beginning
of this Agreement.


 


3

















 


SCHEDULE 1


 


CONDITIONS PRECEDENT


 


1.           Obligors


 


A copy
of the constitutional documents of each Obligor or a certificate of an
authorised signatory of each relevant Obligor certifying that the constitutional
documents previously delivered to the Senior Agent and Bridge Agent for the
purposes of the Senior Facility Agreement and Bridge Facility Agreement have
not been amended and remain in full force and effect.


 


2.           Other documents and evidence


 


Evidence that
the costs and expenses then due from the Company pursuant to Clause 6 (Transaction expenses) have been paid.


 


4

















 


SCHEDULE 2


 


FORM OF AMENDED AGREEMENT


 


 


INTERCREDITOR
AGREEMENT


 


(as amended
and restated pursuant to an amendment and restatement agreement 

dated                    2004)


 


dated 10
October 2003


 


DUCHESSGROVE LIMITED

as the Company


 


THE COMPANIES NAMED IN
SCHEDULE 1

as Original Obligors


 


BARCLAYS BANK PLC 

as Senior Agent and Security Agent


 


CREDIT SUISSE FIRST
BOSTON

as Bridge Agent


 


BARCLAYS BANK PLC

as Issuing Bank


 


and


 


CERTAIN OTHER
ENTITIES 

as Senior Lenders, Hedging Banks, Bridge Lenders, High Yield Notes Trustee,
High Yield 

Notes Issuer, Subordinated Preference Certificates Holders, Investors,
Intercompany Lenders, 

Intercompany Borrowers


 


 





 


Ref:NMS/JUSD


 


5

















 


CONTENTS


CLAUSE


 


	
  1.

  	
  Definitions and
  interpretation

  	
   

  	
   

  
	
  2.

  	
  Ranking

  	
   

  	
   

  
	
  3.

  	
  Senior Debt

  	
   

  	
   

  
	
  4.

  	
  Hedging Debt

  	
   

  	
   

  
	
  5.

  	
  Bridge Debt

  	
   

  	
   

  
	
  6.

  	
  High Yield Notes Debt

  	
   

  	
   

  
	
  7.

  	
  Subordinated
  Preference Certificates Debt

  	
   

  	
   

  
	
  8.

  	
  Investor Debt

  	
   

  	
   

  
	
  9.

  	
  Intercompany Debt

  	
   

  	
   

  
	
  10.

  	
  Representations

  	
   

  	
   

  
	
  11.

  	
  Undertakings of the
  Obligors

  	
   

  	
   

  
	
  12.

  	
  Permitted Payments

  	
   

  	
   

  
	
  13.

  	
  Suspension of
  Permitted Payments

  	
   

  	
   

  
	
  14.

  	
  Turnover of
  Non-Permitted Payments

  	
   

  	
   

  
	
  15.

  	
  Subordination on insolvency

  	
   

  	
   

  
	
  16.

  	
  Failure of trusts

  	
   

  	
   

  
	
  17.

  	
  Report Recoveries

  	
   

  	
   

  
	
  18.

  	
  Protection of subordination

  	
   

  	
   

  
	
  19.

  	
  Priority

  	
   

  	
   

  
	
  20.

  	
  Restrictions on enforcement

  	
   

  	
   

  
	
  21.

  	
  Permitted enforcement

  	
   

  	
   

  
	
  22.

  	
  Application of recoveries

  	
   

  	
   

  
	
  23.

  	
  Enforcement of Security

  	
   

  	
   

  
	
  24.

  	
  Option to purchase

  	
   

  	
   

  
	
  25.

  	
  Preservation of Debt

  	
   

  	
   

  
	
  26.

  	
  Sharing
  among the Secured Parties and High Yield Notes Finance Parties

  	
   

  	
   

  
	
  27.

  	
  Subrogation

  	
   

  	
   

  
	
  28.

  	
  Role of the Security Agent

  	
   

  	
   

  
	
  29.

  	
  Information

  	
   

  	
   

  
	
  30.

  	
  Power of attorney

  	
   

  	
   

  
	
  31.

  	
  Expenses

  	
   

  	
   

  
	
  32.

  	
  Changes to the Parties

  	
   

  	
   

  
	
  33.

  	
  Notices

  	
   

  	
   

  
	
  34.

  	
  Partial invalidity

  	
   

  	
   

  
	
  35.

  	
  Remedies and waivers

  	
   

  	
   

  
	
  36.

  	
  Counterparts

  	
   

  	
   

  
	
  37.

  	
  Governing law

  	
   

  	
   

  
	
  38.

  	
  Enforcement

  	
   

  	
   

  



 


i

















 


THE SCHEDULES


 


	
  SCHEDULE

  	
   

  	
   

  
	
  SCHEDULE 1 The
  Original Obligors

  	
   

  	
   

  
	
  SCHEDULE 2
  The Original Hedging Banks

  	
   

  	
   

  
	
  SCHEDULE 3 The
  Original Investors

  	
   

  	
   

  
	
  SCHEDULE 4
  The Original Intercompany Lenders and Borrowers

  	
   

  	
   

  
	
  SCHEDULE 5 Form
  of Accession Deed

  	
   

  	
   

  
	
  SCHEDULE 6
  Security agency provisions

  	
   

  	
   

  
	
  SCHEDULE 7
  High Yield Notes Major Terms

  	
   

  	
   

  
	
  SCHEDULE 8
  High Yield Notes Guarantees Maturity Provisions

  	
   

  	
   

  



 


ii

















 


THIS
AGREEMENT is dated 10 October 2003 and made between:


 


(1)                            DUCHESSGROVE LIMITED, a company incorporated in England and Wales
with registered number 4886072 (the “Company”);


 


(2)                            THE SUBSIDIARIES of the Company listed in Schedule 1 as
original borrowers (the “Original Borrowers”);


 


(3)                            THE SUBSIDIARIES of the Company listed in Schedule 1 as
original guarantors (the “Original Guarantors”);


 


(4)                            THE SENIOR LENDERS (as defined below);


 


(5)                            BARCLAYS BANK PLC as agent of the other Senior Finance Parties (the
“Senior Agent”);


 


(6)                            BARCLAYS BANK PLC as security trustee and security agent for the
Secured Parties (the “Security Agent”);


 


(7)                            BARCLAYS BANK PLC as issuer of letters of credit (the “Issuing Bank”);


 


(8)                            THE FINANCIAL INSTITUTIONS (if any) listed in Schedule 2 as
original hedging banks (the “Original Hedging
Banks”);


 


(9)                            THE BRIDGE LENDERS (as defined below);


 


(10)                      CREDIT SUISSE FIRST BOSTON as agent of the other Bridge Finance
Parties (the “Bridge Agent”);


 


(11)                      THE TRUSTEE FOR THE HIGH YIELD NOTEHOLDERS in its capacity as the
High Yield Notes Trustee, on its accession to this Agreement (the “High Yield Notes Trustee”);


 


(12)                      THE HIGH YIELD NOTES ISSUER on its accession to this Agreement (the
“High Yield Notes Issuer”);


 


(13)                      THE SUBORDINATED PREFERENCE CERTIFICATES HOLDERS (as defined below);


 


(14)                      THE INVESTORS listed in Schedule 3 as original investors (the “Original Investors”);


 


(15)                      THE SUBSIDIARIES of the Company listed in Schedule 4 as
original intercompany lenders (the “Original
Intercompany Lenders”); and


 


(16)                      THE SUBSIDIARIES of the Company listed in Schedule 4 as
original intercompany borrowers (the “Original
Intercompany Borrowers”).


 


 


IT IS
AGREED as follows:


 


1.                                 Definitions and interpretation


 


1.1                           Definitions


 


In this
Agreement:


 


“Accession Deed” means a deed substantially
in the form set out in Schedule 5 (Form
of Accession Deed).


 


“Additional Debt” means, in relation to any
Debt, any money, debt or liability due, owing or incurred under or in
connection with:


 


(a)                                   any deferral or extension of that Debt permitted by the terms of
this Agreement;


 


1

















 


(b)                                  any claim for damages or restitution in the event of rescission of
that Debt or in connection with the relevant Finance Document related to that
Debt;


 


(c)                                   any claim against any Obligor or Intercompany Borrower flowing from
any recovery by an Obligor or Intercompany Borrower or any liquidator,
receiver, administrator, administrative receiver, compulsory manager or other
similar officer of a payment or discharge in respect of that Debt on the
grounds of preference or otherwise; and


 


(d)                                  any amount (such as post-insolvency interest) which would be
included in any of the above but for any discharge, non-provability,
unenforceability or non-allowability of the same in any insolvency or other
proceedings.


 


“Applicable Facilities Agreement” means:


 


(a)                                   until the Senior Discharge Date, the Senior Facility Agreement;


 


(b)                                  after the Senior Discharge Date and until the Bridge Discharge Date,
the Bridge Facility Agreement;


 


(c)                                   after the Bridge Discharge Date and until the High Yield Notes
Discharge Date, the High Yield Notes Indenture; and


 


(d)                                  after the High Yield Notes Discharge Date, the Subordinated
Preference Certificates Instrument,


 


and,
where the context expressly requires, each of the other agreements referred to
above under which a Debt is outstanding.


 


“Bridge Debt” means all present and future
moneys, debts and liabilities due, owing or incurred by any Obligor to any
Bridge Finance Party under or in connection with any Bridge Finance Document
(in each case, whether alone or jointly, or jointly and severally, with any
other person, whether actually or contingently, and whether as principal,
surety or otherwise) together with any related Additional Debt.


 


“Bridge Declared Default” means a Bridge
Default which has resulted in the Bridge Agent exercising any of its rights
under Clause 23.23 (Acceleration)
of the Bridge Facility Agreement.


 


“Bridge Default” means an Event of Default
as defined in the Bridge Facility Agreement.


 


“Bridge Discharge Date” means the date on
which all Bridge Debt has been fully and irrevocably paid or discharged and all
commitments of the Bridge Finance Parties to the relevant Obligors in respect
of such Bridge Debt have expired or been cancelled.


 


“Bridge Facility Agreement” means the
USD365,000,000 subordinated bridge facility agreement dated on or about the
date of this Agreement between the Borrower, certain Subsidiaries of the
Company as guarantors and the Bridge Finance Parties.


 


“Bridge Finance Documents” means the
Mezzanine Finance Documents other than the Unit Documents, in each case, as
defined in the Bridge Facility Agreement.


 


“Bridge Finance Parties” means the Mezzanine
Finance Parties as defined in the Bridge Facility Agreement.


 


“Bridge Lenders” means the Lenders as
defined in the Bridge Facility Agreement.


 


2

















 


“Bridge Payment Default” means any Bridge
Default arising under Clause 23.1 (Non-payment)
of the Bridge Facility Agreement.


 


“Bridge Recoveries” means the aggregate of
all moneys and other assets received or recovered (whether by exercising any
set-off or otherwise) from time to time by any Bridge Finance Party under or in
connection with any Bridge Debt.


 


“Bridge Security Documents” means the
“Security Documents” as defined in the Bridge Facility Agreement.


 


“Bridge Standstill Period” has the meaning
given to it in paragraph (d)(ii) of Clause 21.2 (Permitted  Bridge
enforcement).


 


“Bridge Stop Notice” means a notice
delivered under paragraph (a)(ii) of Clause 13.1 (Suspension of  Permitted
Bridge Payments) specifying the relevant Senior Default and that
Permitted Bridge Payments are being suspended.


 


“Bridge Syndication Side Letter” means the
Syndication Side Letter as defined in the Bridge Facility Agreement.


 


“DDBCo” means Lavenderview Limited, a
company incorporated in England and Wales (registered no. 4917504), whose
registered office is at 10 Upper Bank Street, London E14 5JJ.


 


“Debt” means any Senior Debt, Hedging Debt,
Bridge Debt, High Yield Notes Debt, Subordinated Preference Certificates Debt
or Subordinated Debt.


 


“Early Termination Date” means an Early
Termination Date as defined in the relevant Hedging Document resulting from:


 


(a)                                   a Termination Event as defined in that Hedging Document; or


 


(b)                                  when an Obligor is the Defaulting Party as defined in that Hedging
Document, an Event of Default as defined in that Hedging Document.


 


“Enforcement
Action” means:


 


(a)                                   in relation to any Debt, any action of any kind to:


 


(i)                                  demand
payment, declare prematurely due and payable or otherwise seek to accelerate
payment of or place on demand all or any of that Debt;


 


(ii)                               recover
all or any of that Debt (including by exercising any set-off, save as required
by law);


 


(iii)                            exercise
or enforce any right against any surety in relation to (or given in support of)
all or any of that Debt (including under the Security Documents);


 


(iv)                           petition
for an Insolvency Event in relation to the Obligor in relation to that Debt; or


 


(v)                              start
any legal proceedings against the Obligor in relation to that Debt; and


 


(b)                                  in relation to any Hedging Debt, any action of any kind to declare
an Early Termination Date under any Hedging Document or demand payment of any
amount which would become payable following an Early Termination Date.


 


3

















 


“Enforcement Date” means the date on which a
Party first takes an Enforcement Action in accordance with this Agreement,
provided that the relevant Party is at the relevant time continuing to pursue
such Enforcement Action diligently.


 


“Event of Default” means an Event of Default
as defined in the Senior Facility Agreement and/or the Bridge Facility
Agreement, as the context requires.


 


“Final Discharge Date” means the later of
the Senior Discharge Date, the Bridge Discharge Date, the High Yield Notes
Discharge Date and the Subordinated Preference Certificates Discharge Date.


 


“Finance Documents” means the Senior Finance
Documents, the Hedging Documents, the Bridge Finance Documents and the High
Yield Notes Finance Documents.


 


“Group” means the Company and its
Subsidiaries for the time being.


 


“Hedging Bank” means:


 


(a)                                   any Original Hedging Bank; and


 


(b)                                  any other Senior Finance Party or Bridge Finance Party or Affiliate
of a Senior Finance Party or Bridge Finance Party which has become a Hedging
Bank in accordance with Clause 32.2 (Accession
of Hedging Banks),


 


which
in each case has not ceased to be a Hedging Bank in accordance with this
Agreement.


 


“Hedging Debt” means all present and future
moneys, debts and liabilities due, owing or incurred by any Obligor to any
Hedging Bank under or in connection with any Hedging Document (in each case,
whether alone or jointly, or jointly and severally, with any other person,
whether actually or contingently, and whether as principal, surety or
otherwise) together with any related Additional Debt.


 


“Hedging Document” means each document
entered into or to be entered into between an Obligor and a Hedging Bank listed
in Schedule 2 (The Original Hedging
Banks) or approved by the Security Agent under Clause 32.2 (Accession of Hedging Banks), in each case,
in accordance with Clause 4.2(b) (Hedging
Documents).


 


“Hedging Recoveries” means the aggregate of
all moneys and other assets received or recovered (whether by exercising
set-off or otherwise) from time to time by any Hedging Bank under or in
connection with any Hedging Debt.


 


“High Yield Noteholders” means the “Holders”
as defined in the High Yield Notes Indenture.


 


“High Yield Notes” means notes issued by the
High Yield Notes Issuer for the purpose of refinancing amounts outstanding
under the Bridge Finance Documents, together with fees and expenses associated
therewith, in each case, in accordance with Clause 6 (High Yield Notes Debt), up to a cap
(including such fees and expenses) of USD375,000,000.


 


“High Yield Notes Assignment of On-Loan”
means the pledge or legal assignment of rights for the purpose of creating
security over the High Yield Notes On-Loan to be given by the High Yield Notes
Issuer in favour of the High Yield Notes Trustee (for the benefit of itself and
the other High Yield Note Finance Parties).


 


4

















 


“High Yield Notes Debt” means all present
and future moneys, debts and liabilities due, owing or incurred by any High
Yield Notes Guarantor to any High Yield Notes Finance Party under any High Yield
Notes Guarantee, in each case, alone or jointly, or jointly and severally, with
any other person, whether actually or contingently, and whether as principal,
surety or otherwise), together with any related Additional Debt.


 


“High Yield Notes Declared Default” means a
High Yield Notes Default which has resulted in the High Yield Notes Finance
Parties accelerating all amounts due under the High Yield Notes.


 


“High Yield Notes Default” means an “Event
of Default” as defined in the High Yield Notes Indenture.


 


“High Yield Notes Discharge Date” means the
date on which all High Yield Notes Debt has been irrevocably and
unconditionally discharged in full.


 


“High Yield Notes Finance Documents” means
the High Yield Notes, the High Yield Notes Indenture (including the High Yield
Notes Guarantees), this Agreement, the High Yield Notes Security Documents, the
High Yield Notes On-Loan Agreement and each registration rights and other
agreement related thereto.


 


“High Yield Notes Finance Parties” means the
High Yield Noteholders, the High Yield Notes Trustee and the Security Trustee.


 


“High Yield Notes Funding Obligations” means
all indebtedness and other obligations owing to the High Yield Notes Finance
Parties in respect of the High Yield Notes Finance Documents.


 


“High Yield Notes Guarantees” means the
guarantees by the High Yield Notes Guarantors of the obligations of the High
Yield Notes Issuer under the High Yield Notes and the High Yield Notes
Indenture (which are subordinated in right of payment to the Senior Debt in
accordance with this Agreement).


 


“High Yield Notes Guarantee Maturity Provisions”
means the terms substantially as set out in Schedule 8 (High Yield Notes Guarantees Provisions).


 


“High Yield Notes Guarantors” means each of
Newco, Target, Inmarsat Ltd and Inmarsat Leasing Two Ltd, together with each
other Subsidiary of Newco that becomes a guarantor of the High Yield Notes in
accordance with the High Yield Notes Indenture.  For the avoidance of doubt, Midco shall not be a High Yield Notes
Guarantor for the purposes of this Agreement.


 


“High Yield Notes Indenture” means the
indenture governing the High Yield Notes.


 


“High Yield Notes Major Terms” means the
terms set out in Schedule 7 (High Yield
Notes Major Terms).


 


“High Yield Notes On-Loan” means the loan of
the proceeds of the High Yield Notes made by the High Yield Notes Issuer to
Newco in accordance with paragraph (b) of Clause 6.1 (Issue of High Yield Notes and High Yield Notes
On—Loan Debt) of this Agreement.


 


“High Yield Notes On-Loan Debt” means all
present and future moneys, debts and liabilities due, owing or incurred by
Newco to the holder of the High Yield Notes On-Loan (initially, the High Yield
Notes Issuer) under or in connection with the High Yield Notes On-Loan,
(whether alone or jointly,


 


5

















 


or
jointly and severally, with any other person, whether actually or contingently,
and whether as principal, surety or otherwise) together with any related
Additional Debt.


 


“High Yield Notes On-Loan Discharge Date”
means the date on which all High Yield Notes On-Loan Debt has been irrevocably
and unconditionally discharged in full.


 


“High Yield Notes On-Loan Recoveries” means
the aggregate of all moneys and other assets received or recovered (whether by exercising
any set-off or otherwise) from time to time under or in connection with the
High Yield Notes On-Loan Debt.


 


“High Yield Notes Recoveries” means the
aggregate of all assets received or recovered and all monies received or
recovered (whether by set-off, combination, netting of payments or otherwise)
from time to time by any High Yield Notes Finance Party under or in connection
with the High Yield Notes Finance Documents from any High Yield Notes
Guarantor.


 


“High Yield Notes Second Ranking Charge” means
the second ranking charge over the shares of Target to be granted for the
benefit of the High Yield Notes Finance Parties.


 


“High Yield Notes Share Security Agreements”
means the agreements pursuant to which the High Yield Notes Finance Parties are
granted security over the shares of Target.


 


“High Yield Notes Standstill Period” has the
meaning given to it in paragraph (b)(ii) of Clause 21.4 (Permitted High Yield Notes On-Loan, the High Yield
Notes Assignment of On-Loan and/or the High Yield Notes Second Ranking Charge
enforcement).


 


“High Yield Notes Stop Notice” means a
notice delivered under paragraph (a)(B) of Clause 13.2 (Suspension of Permitted High Yield Notes Guarantees
Payments and Permitted High Yield Notes On-Loan Payments) specifying
the relevant Senior Default and that Permitted High Yield Notes On-Loan
Payments and Permitted High Yield Notes Guarantees Payments are being
suspended.


 


“Insolvency Event” means any event described
in Clause 26.6 (Insolvency) or
Clause 26.7 (Insolvency proceedings)
of the Senior Facility Agreement and/or Clause 23.6 (Insolvency) or Clause 23.7 (Insolvency
proceedings) of the Bridge Facility Agreement, in each case as in
effect on the date hereof.


 


“Instructing Group” means:


 


(a)                                   until the Senior Discharge Date, in respect of Clause 23.5 (Authority of Security Agent), the Majority
Senior Lenders (save to the extent that the Majority Bridge Lenders are
permitted pursuant to this Agreement to instruct the Security Agent pursuant to
such Clause, in which event, such term shall mean the Majority Bridge Lenders);


 


(b)                                  until the Senior Discharge Date, in respect of all other provisions
of this Agreement, the Majority Senior Lenders and the Majority Bridge Lenders;


 


(c)                                   after the Senior Discharge Date and until the Bridge Discharge Date,
the Majority Bridge Lenders;


 


(d)                                  after the Bridge Discharge Date and until the High Yield Notes
Discharge Date, the High Yield Notes Trustee; and


 


(e)                                   after the High Yield Notes Discharge Date and until the Subordinated
Preference Certificates Discharge Date, the Majority Subordinated Preference
Certificates Holders.


 


6

















 


“Intercompany Borrower” means:


 


(a)                                   any Original Intercompany Borrower; and


 


(b)                                  any member of the Group to whom an Intercompany Borrower has
transferred any of its rights in relation to any Intercompany Debt in
accordance with Clause 32.12 (Assignments
and transfers by Intercompany Lenders and Intercompany Borrowers) or
which has become an Intercompany Borrower in accordance with Clause 32.13 (Accession of Intercompany Borrowers and Intercompany
Lenders),


 


which
in each case has not ceased to be an Intercompany Borrower in accordance with
this Agreement.


 


“Intercompany Debt” means all present and
future moneys, debts and liabilities due, owing or incurred by any Intercompany
Borrower to any Intercompany Lender (in each case, whether alone or jointly, or
jointly and severally, with any other person, whether actually or contingently,
and whether as principal, surety or otherwise) together with any related
Additional Debt but excluding any such moneys, debts and liabilities relating
to the High Yield Notes On-Loan.


 


“Intercompany Documents” means all
documents, agreements and instruments evidencing any Intercompany Debt.


 


“Intercompany Lender” means:


 


(a)                                   any Original Intercompany Lender; and


 


(b)                                  any member of the Group which has become an Intercompany Lender in
accordance with Clause 32.12 (Assignments
and transfers by Intercompany Lenders and Intercompany Borrowers) or
Clause 32.13 (Accession of Intercompany
Borrowers and Intercompany Lenders),


 


which
in each case has not ceased to be an Intercompany Lender in accordance with
this Agreement.


 


“Intercompany Recoveries” means the
aggregate of all moneys and other assets received or recovered (whether by
exercising any set-off or otherwise) from time to time by any Intercompany
Lender under or in connection with any Intercompany Debt.


 


“Investor” means:


 


(a)                                   any Original Investor; and


 


(b)                                  any other person which is or becomes a party as a creditor to any
other Investor Document and accedes (or is required to accede) to this
Agreement in accordance with Clause 32.10 (Accession
of additional Investors); and


 


(c)                                   any person to whom an Investor has transferred any of its rights in
relation to any Investor Debt in accordance with Clause 32.9 (Assignment and transfers by Investors),


 


which
in each case has not ceased to be an Investor in accordance with this
Agreement.


 


“Investor Debt” means all present and future
moneys, debts and liabilities (but excluding the Subordinated Preference
Certificates Debt) due, owing or incurred by any member of the Group to any
Investor under or in connection with any Investor Document, including any
dividends and any


 


7

















 


advisory,
monitoring or management fee (in each case, whether alone or jointly, or
jointly and severally, with any other person, whether actually or contingently,
and whether as principal, surety or otherwise), together with any related
Additional Debt.


 


“Investor Documents” means:


 


(a)                                   the Shareholders’ Agreement; and


 


(b)                                  any
other document (including articles of association or other constitutional
documents), agreement or instrument under or pursuant to which any sum is or
becomes or is capable of becoming due, owing or incurred from or by any member
of the Group to any Investor in its capacity as Investor (and not as an officer
or employee or otherwise) but excluding the Subordinated Preference
Certificates.


 


“Investor Recoveries” means the aggregate of
all moneys and other assets received or recovered (whether by exercising any
set-off or otherwise) from time to time by any Investor under or in connection
with any Investor Debt.


 


“ISDA Master Agreement” means the 1992
Multicurrency-Cross Border Master Agreement or 2002 Master Agreement, each as
published by the International Swaps and Derivatives Association Inc.


 


“Junior Creditor” means:


 


(a)                                   until the Senior Discharge Date, the Bridge Finance Parties, the
High Yield Finance Parties, the holder of the High Yield Notes On-Loan, the
Subordinated Preference Certificates Finance Parties and the Subordinated
Parties;


 


(b)                                  after the Senior Discharge Date until the Bridge Discharge Date, the
High Yield Notes Finance Parties, the holder of the High Yield Notes On-Loan,
the Subordinated Preference Certificates Finance Parties and the Subordinated
Parties;


 


(c)                                   after the Bridge Discharge Date until the High Yield Notes Discharge
Date, the Subordinated Preference Certificates Holders and the Subordinated Parties;
and


 


(d)                                  after the High Yield Notes Discharge Date, the Subordinated Parties.


 


“Junior Debt” means:


 


(a)                                   until the Senior Discharge Date, the Bridge Debt, the High Yield
Notes Debt, the High Yield Notes On-Loan Debt, the Subordinated Preference Certificates
Debt and the Subordinated Debt;


 


(b)                                  after the Senior Discharge Date until the Bridge Discharge Date, the
High Yield Notes Debt, the High Yield Notes On-Loan Debt, the Subordinated
Preference Certificates Debt and the Subordinated Debt;


 


(c)                                   after the Bridge Discharge Date until the High Yield Notes Discharge
Date, the Preferred  Equity Certificates
Debt and the Subordinated Debt; and


 


(d)                                  after the High Yield Notes Discharge Date, the Subordinated Debt.


 


“Key Company” means each Holdco, the High Yield
Notes Issuer, each Obligor and each Material Subsidiary (if any) that is not an
Obligor.


 


8

















 


“Majority Bridge Lenders” means the Majority
Lenders as defined in the Bridge Facility Agreement.


 


“Majority Senior Creditors” means the
“Majority Lenders” as defined in the Senior Facility Agreement provided that
if, at the relevant time, any Senior Lender (of Affiliate of it) is also a
Hedging Bank then, for the purposes of calculating voting rights under this
Agreement:


 


(a)                                   the Total Commitments (as defined in the Senior Facility Agreement)
will be notionally increased by the Settlement Amount and any Unpaid Amount
which would be payable to each such Hedging Bank (or its Affiliates) under any
Hedging Document if the date on which the calculation is made was deemed to be
an Early Termination Event in respect of which the relevant Obligor is the
Defaulting Party (and for the purposes of this definition “Settlement Amount”, “Unpaid Amount”, “Early Termination Event” and “Defaulting Party” shall have the meaning
given to them in the relevant Hedging Document) such amount to be certified by
the relevant Hedging Bank in reasonable detail (including the quotations
obtained in connection therewith); and


 


(b)                                  each Senior Lender which is a Hedging Bank (or whose Affiliate is a
Hedging Bank) will be deemed to have the aggregate amount of its Commitments
(as defined in the Senior Facility Agreement) increased by the amount of such
notional Settlement Amount and Unpaid Amount with respect to the outstanding
Hedging Debt owed to it.


 


“Majority Senior Lenders” means the Majority
Lenders as defined in the Senior Facility Agreement.


 


“Majority Subordinated Preference Certificates Holders”
means the Subordinated Preference Certificates Holders whose Subordinated
Preference Certificates Funding Obligations are more than 50.01 per cent. of
the aggregate of the Subordinated Preference Certificates Funding Obligations
entitled to vote in respect of the relevant matter.


 


“New Senior Commitments” means any facility
under which any credit exposure may arise provided by any Senior Finance Party
(in its capacity as such) to Newco or any of its Subsidiaries after the date of
this Agreement in addition to the facilities which the Senior Finance Parties
are committed to provide under any Senior Finance Document at the date of this
Agreement (but excluding any credit exposure in relation to any Hedging
Document or Ancillary Facilities entered into after the date of this Agreement
and any capitalised or rolled-up interest on Senior Debt).


 


“Obligor” means each Original Obligor, each
Additional Borrower (as defined in the Senior Facility Agreement and the Bridge
Facility Agreement) and each Additional Guarantor (as defined in the Senior
Facility Agreement and the Bridge Facility Agreement).


 


“Original Obligor” means an Original
Borrower or an Original Guarantor.


 


“Party” means a party to this Agreement.


 


“Permitted Bridge Payments” means the
payments, receipts and set-offs permitted by Clause 12.2 (Permitted Bridge Payments) as long as they
are so permitted.


 


“Permitted Hedging Payments” means the
payments, receipts and set-offs permitted by Clause 12.1 (Permitted Hedging Payments) as long as
they are so permitted.


 


9

















 


“Permitted High Yield Notes Guarantees Payments”
means the payments, receipts and set-offs in relation to the High Yield Notes
Guarantees that are permitted by Clause 12.3 (Permitted
High Yield Notes Guarantees Payments and Permitted High Yield Notes On-Loan
Payments) as long as they are so permitted.


 


“Permitted High Yield Notes On-Loan Payments”
means the payments, receipts and set-offs in relation to the High Yield Notes
On-Loan that are permitted by Clause 12.3 (Permitted
High Yield Notes Guarantees Payments and Permitted High Yield Notes On-Loan
Payments) as long as they are so permitted.


 


“Permitted Intercompany Payments” means the
payments, receipts and set-offs permitted by Clause 12.6 (Permitted Intercompany Loan Payments) as
long as they are so permitted.


 


“Permitted Investor Payments” means the
payments, receipts and set-offs permitted by Clause 12.5 (Permitted Investor Payments) as long as
they are so permitted.


 


“Permitted Junior Securities” means:


 


(a)                                   equity securities of Midco and/or any Holding Company of Midco;


 


(b)                                  debt securities of Midco, the High Yield Notes Issuer, any Holding
Company of either of them and/or of the relevant High Yield Guarantor that (in
the case of the High Yield Guarantors only) are subordinated in right of
payment to the Senior Debt at least to the extent that the High Yield Notes
Guarantees are subordinated to the Senior Debt; and


 


(c)                                   debt securities of Midco, the High Yield Notes Issuer, any Holding
Company of either of them and/or Newco and/or the relevant guarantors of the
Bridge Debt that (in the case of Newco or the guarantors of the Bridge Debt
only) are subordinated in right of payment to the Senior Debt at least to the
extent that Bridge Debt is subordinated to the Senior Debt.


 


“Permitted Subordinated Preference Certificates
Payments” means the payments, receipts and set-offs permitted by
Clause 12.4 (Permitted Subordinated
Preference Certificates Payments) as long as they are so permitted.


 


“Permitted Payment” means, a Permitted
Bridge Payment, a Permitted Hedging Payment, a Permitted High Yield Notes
Guarantees Payment, a Permitted High Yield Notes On-Loan Payment, a Permitted
Subordinated Preference Certificates Payment, a Permitted Investor Payment or a
Permitted Intercompany Payment.


 


“Secured Parties” means the Senior Finance
Parties, the Hedging Banks and the Bridge Finance Parties.


 


“Security Documents” means the Senior
Security Documents, the Bridge Security Documents, the High Yield Notes Second
Ranking Charge and the High Yield Notes Share Security Agreements.


 


“Senior Declared Default” means a Senior
Default which has resulted in the Senior Agent exercising any of its rights
under Clause 26.21 (Acceleration)
of the Senior Facility Agreement.


 


“Senior Debt” means all present and future
moneys, debts and liabilities due, owing or incurred by any Obligor to any
Senior Finance Party under or in connection with any Senior Finance Document,
(in each case, whether alone or jointly, or jointly and severally, with any
other person,


 


10

















 


whether
actually or contingently, and whether as principal, surety or otherwise),
together with any related Additional Debt but excluding any Hedging Debt.


 


“Senior Default” means an Event of Default
as defined in the Senior Facility Agreement.


 


“Senior Discharge Date” means the date on
which all Senior Debt has been fully and irrevocably paid or discharged and all
commitments of the Senior Finance Parties to the relevant Obligors in respect
of such Senior Debt have expired or been cancelled.


 


“Senior Facility Agreement” means the
USD975,000,000 senior facilities agreement dated on or about the date of this
Agreement between the Company, certain Subsidiaries of the Company as borrowers
and guarantors and the Senior Finance Parties.


 


“Senior Finance Documents” means the Senior
Finance Documents (as defined in the Senior Facility Agreement) and any other
document documenting New Senior Commitments but excluding the Hedging
Documents.


 


“Senior Finance Parties” means the Senior
Finance Parties as defined in the Senior Facility Agreement.


 


“Senior Headroom Limit” means USD80,000,000.


 


“Senior Lender” means a Lender (as defined
in the Senior Facility Agreement).


 


“Senior Payment Default” means any Senior
Default arising under Clause 26.1 (Non-payment)
of the Senior Facility Agreement.


 


“Senior Recoveries” means the aggregate of
all moneys and other assets received or recovered (whether by exercising any
set-off or otherwise) from time to time by any Senior Finance Party under or in
connection with any Senior Debt.


 


“Senior Security Documents” means the
Security Documents as defined in the Senior Facility Agreement.


 


“Specified Default” means, in relation to a
Hedging Document:


 


(a)                                   the failure by an Obligor to make a payment due under that Hedging
Document within 15 Business Days of its due date or, as the case may be, the
end of any applicable grace period following its due date; or


 


(b)                                  the occurrence of a Senior Declared Default.


 


“Subordinated Debt” means any Investor Debt or
Intercompany Debt.


 


“Subordinated Party” means any Investor or
Intercompany Lender.


 


“Subordinated Preference Certificates”
means:


 


(a)                                   the Subordinated Preference Certificates issued under the
Subordinated Preference Certificates Instrument; and


 


(b)                                  any other subordinated preference certificates in the Agreed Form,
issued or to be issued by the Company or DDBCo or to a person that is a Party
or accedes to this Agreement.


 


“Subordinated Preference Certificates Debt”
means all present and future moneys, debts and liabilities due, owing or
incurred by a member of the Group to any Subordinated Preference


 


11

















 


Certificates
Holder under or in connection with any Subordinated Preference Certificates
Finance Document (in each case, whether alone or jointly, or jointly and
severally, with any other person, whether actually or contingently, and whether
as principal, surety or otherwise) together with any related Additional Debt.


 


“Subordinated Preference Certificates Discharge Date”
means the date on which all Subordinated Preference Certificates Debt has been
irrevocably and unconditionally discharged in full.


 


“Subordinated Preference Certificates Finance Documents”
means the Subordinated Preference Certificates, the Subordinated Preference
Certificates Instrument and this Agreement.


 


“Subordinated Preference Certificates Funding
Obligations” means all indebtedness and other obligations owing to
the Subordinated Preference Certificates Holders in respect of the Subordinated
Preference Certificates.


 


“Subordinated Preference Certificates Holders”
means the “Certificate Holders” as defined in the Subordinated Preference
Certificates Instrument.


 


“Subordinated Preference Certificates Instrument”
means the deed poll by DDBCo in the Agreed Form pursuant to which the
Subordinated Preference Certificates are, or are to be, constituted.


 


“Subordinated Preference Certificates  Recoveries” means the aggregate of all
assets received or recovered and all monies received or recovered (whether by
set-off, combination, netting of payments or otherwise) from time to time by
any Subordinated Preference Certificates Holder under or in connection with any
Subordinated Preference Certificates Finance Document from any member of the
Group or other person.


 


“Target” means Inmarsat Ventures plc and/or
any other company which owns directly or indirectly share capital in the
operating companies of the Group and which may itself conduct operations.


 


1.2                           Incorporation of defined terms


 


Unless
a contrary indication appears, the following terms defined in the Senior
Facility Agreement have the same meaning in this Agreement:


 


Affiliate


 


Agreed
Form


 


Authorisation


 


Charged
Assets


 


Completion
Date


 


Facility
A


 


Facility
B


 


Facility
C


 


Facilities


 


High Yield
Notes Security Documents


 


12

















 


Holdcos


 


Holding
Company


 


Information
Package


 


Interest
Period


 


Material
Adverse Effect


 


Material
Subsidiary


 


Midco


 


Newco


 


Relevant
Jurisdiction


 


Report


 


Reservations


 


Security


 


Shareholders’
Agreement


 


Syndication
Side Letter


 


Termination
Date


 


1.3                           Construction


 


(a)                            Unless a contrary indication appears, any reference in this
Agreement to:


 


(i)                                      any “Hedging Bank”, any
“High Yield Noteholder”, any “Intercompany Borrower”, any “Intercompany Lender”, any “Investor”, any “Subordinated Preference Certificates Holder”, the “Issuing Bank”, the “Bridge Agent”, any “Bridge Finance Party”, any “Bridge Lender”, any “Obligor”, any “Party”, any “Secured Party”,
the “Security Agent”, the “Senior Agent”, any “Senior Finance Party” any “Senior Lender”, any “High Yield Notes Trustee” or any “High Yield Notes Issuer” shall be construed
so as to include its successors in title, permitted assigns and permitted
transferees;


 


(ii)                                   “assets” includes
present and future properties, revenues and rights of every description;


 


(iii)                                the “equivalent” in any
currency (the “first currency”) of
any amount in another currency (the “second
currency”) shall be construed as a reference to the amount in the
first currency which could be purchased with that amount in the second currency
at the Security Agent’s spot rate of exchange for the purchase of the first
currency with the second currency in the London foreign exchange market at or
about 11:00 a.m. on a particular day (or at or about such time and on such date
as the Security Agent may from time to time reasonably determine to be
appropriate in the circumstances);


 


(iv)                               a “Finance Document”, “Hedging Document”, “High Yield Notes Finance Document”, “Intercompany Document”, “Investor Document”, “Subordinated Preference Certificates Finance Document”,
“Bridge Finance Document” or “Senior Finance Document” or any other
agreement or instrument is a reference to that document or other


 


13

















 


agreement or
instrument as amended or novated but excluding any amendment or novation
contrary to this Agreement;


 


(v)                                  “guarantee” means any
guarantee, letter of credit, bond, indemnity or similar assurance against loss,
or any obligation, direct or indirect, actual or contingent, to purchase or
assume any indebtedness of any person or to make an investment in or loan to
any person or to purchase assets of any person where, in each case, such
obligation is assumed in order to maintain or assist the ability of such person
to meet its indebtedness;


 


(vi)                               “indebtedness” includes
any obligation (whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;


 


(vii)                            a “person” includes any
person, firm, company, corporation, government, state or agency of a state or
any association, trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing;


 


(viii)                         a “regulation” includes
any regulation, rule, official directive, request or guideline (whether or not
having the force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory or other
authority or organisation;


 


(ix)                                 “shares” or “share capital” include equivalent ownership
interests (and “shareholder” and
similar expressions shall be construed accordingly);


 


(x)                                    a Party “exercising any set-off
against” any Debt (or any similar expression) includes that Party
combining accounts and/or netting payments one or more of which is in respect
of that Debt;


 


(xi)                                 a provision of law is a reference to that provision as amended or
re-enacted; and


 


(xii)                              a time of day is a reference to London time.


 


(b)                           Section, Clause and Schedule headings are for ease of reference
only.


 


(c)                            A default or, an event of default or potential event of default,
however described, is “continuing”
if it has not been remedied or waived in accordance with the terms of the
relevant agreement.


 


(d)                           In determining whether any Senior Debt, Bridge Debt, High Yield
Notes Debt or Hedging Debt has been irrevocably paid or discharged, contingent
liabilities (such as the risk of clawback from a preference claim) will be
disregarded, except to the extent that there is a reasonable likelihood that
those contingent liabilities will become actual liabilities.


 


(e)                            Where a consent or direction by the Majority Senior Lenders (or the
Majority Senior Creditors, as the case may be) is required or permitted under
this Agreement, that consent or direction shall, unless the context requires
otherwise, be given (or refused or withheld, as the case may be) by the Senior
Agent acting on the instructions of the Majority Senior Lenders (or the
Majority Senior Creditors, as the case may be).


 


(f)                              Where a consent or direction by the Majority Bridge Lenders is
required or permitted under this Agreement, that consent or direction shall,
unless the context requires otherwise, be given (or refused or withheld, as the
case may be) by the Bridge Agent acting on the instructions of the Majority
Bridge Lenders.


 


14

















 


(g)                           Where consent or direction by the High Yield Notes Trustee is
required or permitted under this Agreement, that consent or direction shall, unless
the context requires otherwise, be given (or refused or withheld, as the case
may be) by the High Yield Notes Trustee acting on the instructions of the High
Yield Noteholders holding the percentage of High Yield Notes required for such
consent or direction in the High Yield Notes Finance Documents.


 


(h)                           The High Yield Noteholders are only entitled to participate in the
proceeds of the Charged Assets to the extent that such proceeds are derived
from assets subject to the High Yield Notes Share Security Agreements and the
rights of the High Yield Noteholders in respect of such proceeds shall in any
event be subject to the priorities set out in Clause 22 (Application of Recoveries) of this
Agreement.


 


1.4                           Third party
rights


 


A
person who is not a Party has no right under the Contract (Rights of Third
Parties) Act 1999 to enforce or to enjoy the benefit of any term of this
Agreement.


 


1.5                           Alternative
debt instruments


 


If the
High Yield Notes are not issued and the Group executes an alternative
refinancing of the Bridge Facility which refinances the Bridge Debt in full,
references in this Agreement to the High Yield Notes and related definitions
shall be construed so as to apply to such alternative refinancing provided that
that alternative refinancing is executed by a Holdco other than Newco and is on
terms which are subject to, and consistent with, this Agreement and so that
such alternative refinancing is treated under this Agreement in the same manner
as the issue of the High Yield Notes would have been treated.


 


2.                                 Ranking


 


2.1                           Ranking


 


Unless
expressly provided to the contrary in this Agreement, the Debt shall rank in
right and priority of payment in the following order:


 


(a)                                   first, the
Senior Debt and the Hedging Debt, pari passu between themselves;


 


(b)                                  second, the
Bridge Debt and following the refinancing of the Bridge Debt, the High Yield
Notes Debt and the High Yield Notes On-Loan Debt;


 


(c)                                   third,  the Subordinated Preference Certificates
Debt; and


 


(d)                                  fourth, the
Subordinated Debt.


 


2.2                           Subordinated
Debt


 


This
Agreement does not purport to rank any elements of the Investor Debt or
Intercompany Debt, in each case, as between themselves, or the Intercompany
Debt.


 


3.                                 Senior Debt


 


3.1                           Amendments
to Senior Finance Documents


 


Until
the Bridge Discharge Date, no member of the Group that is a party to the Senior
Finance Documents or Senior Finance Party shall, except with the prior consent
of the Majority Bridge Lenders, amend or give any waiver or consent under any
provision of any Senior Finance Document which would result in:


 


15

















 


(a)                                   the rate of interest or fees payable under any Senior Finance
Document being increased (excluding, for the avoidance of doubt, under the
Syndication Side Letter) except for any increase in interest or commissions
payable on guarantees or letters of credit not exceeding 50 basis points per
annum in relation to each of the Facilities;


 


(b)                                  any change to the basis on which interest or other amounts
(including fees) accrue, are calculated or are payable under any Senior Finance
Document;


 


(c)                                   any increase to the amount to be repaid or change to the currency of
the amount to be repaid under any Senior Finance Document other than as a
result of a Senior Declared Default;


 


(d)                                  any extension of a scheduled repayment or prepayment date under any
Senior Finance Document provided that:


 


(i)                                      prior to the Extension Date (as defined under the Bridge Facility
Agreement) or if the Extension Date does not occur, the Termination Date in
relation to Facility A or the Termination Date in relation to Facility B can be
extended to the Termination Date in relation to Facility C; and


 


(ii)                                   after the Extension Date (as defined under the Bridge Facility
Agreement) the Termination Date in relation to each of the Facilities can be
extended to the date which is 6 months after the Termination Date in relation
to Facility C;


 


(e)                                   any amount under the Senior Finance Documents becoming payable on a
date earlier or more frequently than that provided in the relevant Senior
Finance Document at the date of this Agreement other than as a result of a
Senior Declared Default;


 


(f)                                     any member of the Group being subject to more onerous obligations
(including financial covenants) as a whole than those contained in the Senior
Finance Documents at the date of this Agreement  or obligations which would conflict with any provision of this
Agreement; or


 


(g)                                  the transfer of rights and/or obligations under the Senior Finance
Documents unless, simultaneously with that transfer, the relevant transferee
signs an Accession Deed,


 


other
than any amendment, waiver or consent of a technical or administrative nature
arising in the ordinary course of administration of the Senior Finance
Documents.


 


From
and after issuance of the High Yield Notes, no member of the Group that is a
party to the Senior Finance Documents or Senior Finance Party shall, except
with the prior consent of the High Yield Notes Trustee, amend or otherwise
modify any Senior Finance Document in a manner which would prohibit, or create
a default or event of default thereunder with respect to, any payment or
Enforcement Action that is expressly permitted under this Agreement.


 


3.2                           New Senior Commitments


 


Notwithstanding
Clause 3.1 (Amendments to Senior Finance
Documents), the Senior Finance Parties may make available New Senior
Commitments without the prior consent of the Majority


 


16

















 


Bridge
Lenders or any other person (except the relevant Obligor), in an aggregate
amount at any time up to the Senior Headroom Limit, provided that:


 


(a)                                   the final scheduled repayment date of the New Senior Commitments is
not later than the date falling eight years and six months after the Completion
Date; and


 


(b)                                  such New Senior Commitments do not bear interest or accrue fees or
commissions at a rate in excess of that permitted in respect of the Facilities
pursuant to Clause 3.1(a).


 


4.                                 Hedging Debt


 


4.1                           Hedging Debt


 


Until
the Senior Discharge Date, no Hedging Bank shall, except with the prior consent
of the Majority Senior Lenders:


 


(a)                                   demand or receive payment, repayment or prepayment of any principal,
interest or other amount on or in respect of, or make any distribution in
respect of, any Hedging Debt in cash or in kind or apply any money or property
in or towards discharge of any Hedging Debt, except as permitted by paragraph
(d) below, Clause 12.1 (Permitted Hedging
Payments) or Clause 15.3 (Filing
of claims);


 


(b)                                  exercise any set-off against any Hedging Debt, except as permitted
by Clause 12.1 (Permitted Hedging Payments)
or Clause 15.3 (Filing of claims);


 


(c)                                   permit to subsist or receive any Security over any assets of any
member of the Group, or any guarantee from any member of the Group, for, or in
respect of, any Hedging Debt, other than under any Senior Security Document and
the guarantees in any applicable Senior Finance Document; or


 


(d)                                  terminate (or close out any transaction under) any Hedging Document
prior to its stated maturity, except as permitted by Clause 21.1 (Permitted hedging enforcement).


 


4.2                           Hedging Documents


 


(a)                            Each Hedging Bank shall promptly provide to the Security Agent
copies of all Hedging Documents to which that Hedging Bank is a party.


 


(b)                           Each Hedging Document shall:


 


(i)                                      be based on the ISDA Master Agreement;


 


(ii)                                   provide for two-way payments (or, in respect of the 1992 ISDA Master
Agreement, payments under the “Second Method” and “Market Quotation” (as
defined in the relevant Hedging Document)) in the event of termination of a
derivative transaction, whether upon a Termination Event or an Event of Default
(each as defined in the relevant Hedging Document); and


 


(iii)                                provide that the relevant Hedging Bank will, if so requested by the
Security Agent under paragraph (b) of Clause 21.1 (Permitted hedging enforcement), following the occurrence of
a Senior Declared Default, be entitled to designate an Early Termination Date
under or otherwise terminate each Hedging Document to which it is a party and
any derivative transaction entered into under the relevant Hedging Document.


 


17

















 


4.3                           Amendments to Hedging Documents


 


Until
the Senior Discharge Date, no member of the Group that is a party to a Hedging
Document or Hedging Bank shall, except with the prior consent of the Majority
Senior Lenders, amend or give any waiver or consent under any provision of any
Hedging Document which would result in:


 


(a)                                   any Hedging Document ceasing to comply with the requirements of this
Clause 4;


 


(b)                                  any change to the amount to be paid or scheduled payment dates under
any Hedging Document;


 


(c)                                   any Obligor being subject to more onerous obligations as a whole
than those contained in the Hedging Documents as originally entered into or
obligations which would conflict with any provision of this Agreement;


 


(d)                                  any Obligor becoming liable to make an additional payment (or
increase an existing payment) under any Hedging Document, other than any
liability arising from the original provisions of the Hedging Documents; or


 


(e)                                   the transfer of rights and/or obligations under the Hedging
Documents unless, simultaneously with that transfer, the relevant transferee
signs an Accession Deed,


 


other
than any amendment, waiver or consent of a technical or administrative nature
arising in the ordinary course of administration of the Hedging Documents.


 


5.                                 Bridge Debt


 


5.1                           Bridge Debt


 


Until
the Senior Discharge Date, no Bridge Finance Party shall, except with the prior
consent of the Majority Senior Lenders:


 


(a)                                   demand or receive payment, repayment or prepayment of any principal,
interest or other amount on or in respect of, or any distribution in respect
of, any Bridge Debt in cash or in kind or apply any money or property in or
towards discharge of any Bridge Debt, except for the capitalisation of interest
in accordance with the Bridge Finance Documents or as permitted by Clause 12.2
(Permitted Bridge Payments),
Clause 15.3 (Filing of claims) or
Clause 21.2 (Permitted Bridge enforcement);


 


(b)                                  exercise any set-off against any Bridge Debt, except as permitted by
Clause 12.2 (Permitted Bridge Payments),
Clause 15.3 (Filing of claims) or
Clause 21.2 (Permitted Bridge Enforcement);


 


(c)                                   permit to subsist or receive any Security over any assets of any
member of the Group, or any guarantee from any member of the Group, for, or in
respect of, any Bridge Debt, other than under any Security Document and the
guarantees in or required by any applicable Bridge Finance Document; or


 


(d)                                  transfer any rights and/or obligations under the Bridge Finance
Documents unless, simultaneously with that transfer, the relevant transferee
signs an Accession Deed.


 


18

















 


5.2                           Amendments to Bridge Finance Documents


 


Until
the Senior Discharge Date, no member of the Group that is a party to a Bridge
Document or Bridge Finance Party shall, except with the prior consent of the
Majority Senior Lenders amend or give any waiver or consent under any provision
of any Bridge Finance Document which would result in:


 


(a)                                   the rate of interest payable under any Bridge Finance Document being
increased other than as contemplated by the Bridge Finance Documents as of the
date of this Agreement or under the Bridge Syndication Side Letter;


 


(b)                                  any change to the basis on which interest or other amounts
(including fees) accrue, are calculated or are payable under any Bridge Finance
Document, provided that the foregoing shall not restrict any amendment to the
rate of interest or basis of the interest calculation in respect of all or any
part of the Bridge Debt to the extent:


 


(i)                                  the
aggregate weighted average interest rate does not exceed the maximum aggregate
interest rate; and


 


(ii)                               the
aggregate weighted average cash interest rate does not exceed the maximum
aggregate cash interest rate,


 


in each
case under the Bridge Finance Documents as at the date of this Agreement;


 


(c)                                   any increase to the amount or change to the currency of the amount
to be repaid under any Bridge Finance Document other than as a result of
Enforcement Action permitted by Clause 15.3 (Filing
of claims) or Clause 21.2 (Permitted
Bridge enforcement);


 


(d)                                  any amount under the Bridge Finance Documents becoming payable on a
date earlier or more frequently than that provided in the relevant Bridge
Finance Document at the date of this Agreement other than as a result of
Enforcement Action permitted by Clause 15.3 (Filing
of claims) or Clause 21.2 (Permitted
Bridge enforcement);


 


(e)                                   any member of the Group being subject to more onerous obligations
(including financial covenants) as a whole than those contained in the Bridge
Finance Documents at the date of this Agreement or obligations which would
conflict with any provision of this Agreement; or


 


(f)                                     the transfer of rights and/or obligations under the Bridge Finance
Documents unless, simultaneously with that transfer, the relevant transferee
signs an Accession Deed,


 


other
than any amendment, waiver or consent of a technical or administrative nature
arising in the ordinary course of administration of the Bridge Finance
Documents.


 


6.                                 High
Yield Notes Debt


 


6.1                           Issue of High Yield Notes and High Yield Notes On-Loan Debt


 


(a)                            No member of the Group shall enter into the High Yield Notes
Indenture unless:


 


(i)                                      the High Yield Notes Issuer has delivered to the Senior Agent a copy
of a draft of the form of the proposed High Yield Notes Finance Documents (and
all related documents including a draft form of the High Yield Notes On-Loan)
in substantially final form before the proposed date of issue of the High Yield
Notes;


 


19

















 


(ii)                                   the gross proceeds from the offering of the proposed High Yield
Notes:


 


(A)                           do not
exceed the amount required to refinance the Bridge Debt in full and to pay
related fees and expenses (including underwriting discounts (such fees and
expenses not to exceed an aggregate amount of USD10,000,000)); and


 


(B)                             shall
repay the Bridge Debt in full;


 


(iii)                                the terms of the High Yield Notes are consistent with the High Yield
Notes Major Terms or are otherwise approved by the Majority Senior Lenders;


 


(iv)                               the High Yield Notes Guarantees contain the High Yield Notes
Guarantee Maturity Provisions or such other terms approved by the Majority
Senior Lenders; and


 


(v)                                  the High Yield Notes Issuer and the High Yield Notes Trustee sign an
Accession Deed before or concurrently with issuance of the High Yield Notes.


 


(b)                           If the High Yield Notes are issued, the proceeds shall be lent to
Newco pursuant to the High Yield Notes On-Loan, the terms of which shall:


 


(i)                                      provide for payment of interest at a rate not in excess of that
required to (a) service interest (including default interest) on the High Yield
Notes, (b) service the general overhead costs of the High Yield Notes Issuer,
(c) service Additional Amounts (as defined in the High Yield Notes Finance
Documents) in respect of the High Yield Notes, (d) pay liquidated damages in
respect of the registration rights agreement entered into in connection with
the High Yield Notes and (e) service the cost of registering the High Yield
Notes with the US Securities and Exchange Commission;


 


(ii)                                   provide for a maturity date not prior to the maturity date of the
High Yield Notes;


 


(iii)                                provide for the proceeds of the High Yield Notes only to be applied
by Newco in repayment of the Bridge Debt and to pay related fees and expenses;


 


(iv)                               not include the benefit of any Security;


 


(v)                                  not benefit from any guarantee or indemnity given by any member of
the Group; and


 


(vi)                               provide that any transferee thereof must sign an Accession Deed.


 


6.2                           Prohibited High Yield Notes Debt Payments, Guarantees and Security


 


Until
the Senior Discharge Date, except with the prior consent of the Majority Senior
Lenders, no High Yield Notes Finance Party shall:


 


(a)                                   demand or receive payment, repayment or prepayment from any High
Yield Notes Guarantor of any principal, interest or other amount on or in
respect of, or any distribution from any High Yield Notes Guarantor in respect
of, any High Yield Notes Debt in cash or in kind or apply any money or property
in or towards discharge of any High Yield Notes Debt except as permitted by
Clause 12.3 (Permitted High Yield Notes
Guarantees Payments and Permitted High Yield Notes On-Loan Payments),
Clause 15.3 (Filing of claims) or
Clause 21.4 (Permitted High Yield Notes
On-Loan, the High Yield Notes Assignment of On-Loan and/or Permitted High Yield
Notes Second Ranking Charge enforcement);


 


20

















 


(b)                                  exercise any set-off against any High Yield Notes Debt, except as
permitted by Clause 12.3 (Permitted High
Yield Notes Guarantees Payments and Permitted High Yield Notes On-Loan Payments),
Clause 15.3 (Filing of claims) or
Clause 21.4 (Permitted High Yield Notes
On-Loan, the High Yield Notes Assignment of On-Loan and/or Permitted High Yield
Notes Second Ranking Charge enforcement); or


 


(c)                                   permit to subsist or receive any Security or any guarantee from
Newco or any Subsidiary of Newco, for, or in respect of, any High Yield Notes
Debt, other than under any High Yield Notes Security Document and the High
Yield Notes Guarantees.


 


6.3                           Prohibited High Yield Notes On-Loan Payments, Guarantees and
Security


 


Until
the Senior Discharge Date, except with the prior consent of the Majority Senior
Lenders, no holder of the High Yield Notes On-Loan shall:


 


(a)                                   demand or receive payment, repayment or prepayment of any principal,
interest or other amount on or in respect of, or any distribution in respect
of, the High Yield Notes On-Loan Debt in cash or in kind or apply any money or
property in or towards discharge of any High Yield Notes On-Loan Debt except as
permitted by Clause 12.3 (Permitted High
Yield Notes Guarantees and Permitted High Yield Notes On-Loan Payments),
Clause 15.3 (Filing of claims) or
Clause 21.4 (Permitted High Yield Notes
On-Loan, the High Yield Notes Assignment of On-Loan and/or Permitted High Yield
Notes Second Ranking Charge enforcement);


 


(b)                                  exercise any set-off against any High Yield Notes On-Loan Debt,
except as permitted by Clause 12.3  (Permitted High Yield Notes Guarantees and Permitted
High Yield Notes On-Loan Payments), Clause 15.3 (Filing of claims) or Clause 21.4 (Permitted High Yield Notes On-Loan, the High Yield
Notes Assignment of On-Loan and/or Permitted High Yield Notes Second Ranking
Charge enforcement); or


 


(c)                                   permit to subsist or receive any Security over any assets of any
Group company, or any guarantee from any Group company, for, or in respect of,
any High Yield Notes On-Loan Debt.


 


6.4                           Amendments to High Yield Notes Finance Documents


 


Until
the Senior Discharge Date, except with the prior consent of the Majority Senior
Lenders, no member of the Group that is a party to a High Yield Notes Finance
Document shall amend any High Yield Notes Finance Document in a manner that
would result in:


 


(a)                                   the rate of interest payable under the High Yield Notes Finance
Documents being increased other than to a rate not inconsistent with the High
Yield Notes Major Terms;


 


(b)                                  any change to the basis on which interest or other amounts
(including fees) accrue, are calculated or are payable under any High Yield Notes
Finance Document;


 


(c)                                   any increase to the amount or change to the currency of the amount
to be repaid under any High Yield Notes Finance Document (to the extent adverse
to the Senior Finance Parties);


 


(d)                                  any amount under the High Yield Notes Finance Documents becoming
payable on a date earlier or more frequently than that provided in the relevant
High Yield Notes Finance Document at the date originally entered into other
than as a result of any acceleration of


 


21

















 


the High Yield
Notes or (in respect of the High Yield Notes On-Loan) as a result of
Enforcement Action permitted by Clause 21.4 (Permitted
High Yield Notes On-Loan, the High Yield Notes Assignment of On-Loan and/or the
High Yield Notes Second Ranking Charge enforcement); or


 


(e)                                   any High Yield Notes Guarantor being subject to obligations
inconsistent with the High Yield Notes Guarantees Maturity Provisions,


 


other
than any amendment, waiver or consent of a technical or administrative nature arising
in the ordinary course of administration of the High Yield Notes Finance
Documents.


 


7.                                 Subordinated Preference Certificates Debt


 


7.1                           Prohibited Subordinated Preference Certificates Payments, Guarantees
and Security


 


Until:


 


(a)                           the Senior Discharge Date, except with the prior consent of the
Majority Senior Lenders and the Majority Bridge Lenders;


 


(b)                          after the Senior Discharge Date and until the Bridge Discharge Date,
except with the prior consent of the Majority Bridge Lenders; and


 


(c)                           after the Bridge Discharge Date and until the High Yield Notes
Discharge Date, except with the consent of the High Yield Notes Trustee,


 


no
Subordinated Preference Certificates Holder shall:


 


(a)                           demand or receive payment, repayment or prepayment of any principal,
interest or other amount on or in respect of, or any distribution in respect
of, any Subordinated Preference Certificates Debt in cash or in kind or apply
any money or property in or towards discharge of any Subordinated Preference
Certificates Debt except as permitted by Clause 12.4 (Permitted Subordinated Preference Certificates
Payments) or Clause 15.3 (Filing
of claims);


 


(b)                          exercise any set-off against any Subordinated Preference
Certificates Debt, except as permitted by Clause 12.4 (Permitted Subordinated Preference Certificates
Payments) or Clause 15.3 (Filing of claims);


 


(c)                           permit to subsist or receive any Security, or any guarantee, for, or
in respect of, any Subordinated Preference Certificates Debt;


 


(d)                          claim or rank as a creditor in the insolvency, winding-up,
bankruptcy or liquidation of any member of the Group other than in accordance
with Clause 15.3 (Filing of claims);


 


(e)                           take or omit to take any action whereby the ranking and/or
subordination contemplated by this Agreement may be impaired; or


 


(f)                             convert any Subordinated Preference Certificates Debt into shares of
any Group company other than ordinary shares of the Company.


 


7.2                           Amendments to Subordinated Preference Certificates Finance Documents


 


Until
the Final Discharge Date (other than the Subordinated Preference Certificates
Discharge Date), no member of the Group that is a party to a Subordinated
Preference Certificate Finance Document or Subordinated Preference Certificates
Holder shall, except with the prior consent of


 


22

















 


the
Instructing Group, amend or give any waiver or consent under any provision of
any Subordinated Preference Certificates Finance Document which would result
in:


 


(a)                                   the rate of interest payable under any Subordinated Preference
Certificates Finance Document being increased;


 


(b)                                  any change to the basis on which interest or other amounts
(including fees) accrue, are calculated or are payable under any Subordinated
Preference Certificates Finance Document;


 


(c)                                   any increase to the amount or change to the currency of the amount
to be repaid under any Subordinated Preference Certificates Finance Documents;


 


(d)                                  any amount under the Subordinated Preference Certificates Finance
Documents becoming payable on any date earlier or more frequently than that
provided in the relevant Subordinated Preference Certificates Finance Documents
at the date of this Agreement;


 


(e)                                   any member of the Group being subject to more onerous obligations
(including financial covenants) as a whole than those contained in the
Subordinated Preference Certificates Finance Documents at the date of this
Agreement or obligations which would conflict with any provision of this
Agreement; or


 


(f)                                     any member of the Group becoming liable to make an additional
payment (or increase an existing payment) under any Subordinated Preference
Certificates Finance Document, other than arm’s length fees payable in
connection with a refinancing of the Subordinated Preference Certificates Debt
on improved terms and any liability arising from the original provisions of the
Subordinated Preference Certificates Finance Documents,


 


other than any
amendment, waiver or consent of a technical or administrative nature arising in
the ordinary course of administration of the Subordinated Preference
Certificates Finance Documents.


 


8.                                 Investor Debt


 


8.1                           Investor Debt


 


Until
the Final Discharge Date, no Investor shall, except with the prior consent of
an Instructing Group:


 


(a)                                   demand or receive payment, repayment or prepayment of any principal,
interest (other than capitalisation interest) or other amount on or in respect
of, or any distribution in respect of, any Investor Debt in cash or in kind, or
apply any money or property in or towards discharge of any Investor Debt,
except as permitted by Clause 12.5 (Permitted
Investor Payments) or Clause 15.3 (Filing
of claims);


 


(b)                                  exercise any set-off against any Investor Debt, except as permitted
by Clause 12.5 (Permitted Investor Payments)
or Clause 15.3 (Filing of claims);


 


(c)                                   permit to subsist or receive any Security, or any guarantee, for, or
in respect of, any Investor Debt;


 


(d)                                  claim or rank as a creditor in the insolvency, winding-up,
bankruptcy or liquidation of any member of the Group other than in accordance
with Clause 15.3 (Filing of claims);


 


23

















 


(e)                                   sue, claim or bring proceedings against any member of the Group for
breach of any representation, warranty or undertaking by any member of the
Group under or in connection with any Investor Document;


 


(f)                                     take or omit to take any action whereby the ranking and/or
subordination of any Investor Debt contemplated by this Agreement may be
impaired; or


 


(g)                                  convert any Investor Debt into shares of any Group company other
than ordinary shares of the Company.


 


8.2                           Amendments to Investor Documents


 


Until
the Final Discharge Date, no Obligor or Investor shall, except with the prior
consent of an Instructing Group, amend or give any waiver or consent under any
provision of any Investor Document which would result in:


 


(a)                                   any change to the basis on which any amounts (including fees)
accrue, are calculated or are payable under any Investor Document;


 


(b)                                  any Obligor being subject to more onerous obligations as a whole
than those contained in the Investor Documents at the date of this Agreement or
obligations which would conflict with any provision of this Agreement; or


 


(c)                                   any Obligor becoming liable to make an additional payment (or
increase an existing payment) under any Investor Document, other than any
liability arising from the original provisions of the Investor Documents,


 


other
than any amendment, waiver or consent of a technical or administrative nature
arising in the ordinary course of administration of the Investor Documents.


 


9.                                 Intercompany
Debt


 


9.1                           Intercompany Lenders


 


Until
the later of the Senior Discharge Date, the Bridge Discharge Date and the High
Yield Notes Discharge Date, no Intercompany Lender shall, except with the prior
consent of an Instructing Group:


 


(a)                                   demand or receive payment, repayment or prepayment of any principal,
interest or other amount on or in respect of, or any distribution in respect
of, any Intercompany Debt in cash or in kind or apply any money or property in
or towards discharge of any Intercompany Debt, except as permitted by Clause
12.6 (Permitted Intercompany Loan Payments)
or Clause 15.3 (Filing of claims);


 


(b)                                  exercise any set-off against any Intercompany Debt, except as
permitted by Clause 12.6 (Permitted
Intercompany Loan Payments) or Clause 15.3 (Filing of claims);


 


(c)                                   permit to subsist or receive any Security, or any guarantee, for, or
in respect of, any Intercompany Debt;


 


(d)                                  claim or rank as a creditor in the insolvency, winding-up,
bankruptcy or liquidation of any member of the Group other than in accordance
with Clause 15.3 (Filing of claims);


 


24

















 


(e)                                   sue, claim or bring proceedings against any Obligor or Intercompany
Borrower for breach of any representation, warranty or undertaking by any
Obligor or Intercompany Borrower under or in connection with any Intercompany
Document; or


 


(f)                                     take or omit to take any action whereby the ranking and/or
subordination contemplated by this Agreement may be impaired.


 


9.2                           Intercompany Borrowers


 


Until the
later of the Senior Discharge Date, the Bridge Discharge Date and the High
Yield Discharge Date, no Intercompany Borrower shall, except with the prior
consent of an Instructing Group:


 


(a)                                   pay, repay or prepay any principal, interest or other amount on or
in respect of, or make any distribution in respect of, or redeem, purchase or
defease, any Intercompany Debt in cash or in kind, except as permitted by
Clause 12.6 (Permitted Intercompany Loan
Payments) or Clause 15.3 (Filing
of claims);


 


(b)                                  exercise any set-off against any Intercompany Debt, except as
permitted by Clause 12.6 (Permitted
Intercompany Loan Payments) or Clause 15.3 (Filing of claims);


 


(c)                                   create or permit to subsist any Security over any of its assets, or
give any guarantee, for, or in respect of, any Intercompany Debt; or


 


(d)                                  take or omit to take any action whereby the ranking and/or
subordination contemplated by this Agreement may be impaired.


 


10.                           Representations


 


10.1                     Representations of each Party


 


Each
Party to this Agreement on the date of this Agreement and, upon its accession
to this Agreement, the High Yield Notes Issuer, makes the representations and
warranties set out in this Clause 10.1 to each other Party to this Agreement:


 


(a)                                   it is duly incorporated (if a corporate person) or duly established
(in any other case except for a natural person) and validly existing under the
law of its jurisdiction of incorporation or formation;


 


(b)                                  it has the power to own its assets and carry on its business
substantially as it is presently being conducted;


 


(c)                                   the obligations expressed to be assumed by it in this Agreement are
legal, valid, binding and enforceable, subject to any applicable Reservations;


 


(d)                                  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;


 


(e)                                   in the case of the Company, the High Yield Notes Issuer, each
Obligor, each Subordinated Party, each Intercompany Lender and each
Intercompany Borrower, the entry into and performance by it of, and the
transactions contemplated by, this Agreement do not and will not conflict with
any law or regulation applicable to it or its constitutional documents or any
agreement or instrument binding on it or any of its assets in each case to the
extent that


 


25

















 


such a
conflict would reasonably be expected to have a Material Adverse Effect or
could reasonably be expected to result in a material liability to any Secured
Party or any High Yield Notes Finance Party;


 


(f)                                     in the case of the Company, the High Yield Notes Issuer, each
Obligor, each Subordinated Party, each Intercompany Lender and each
Intercompany Borrower, all material Authorisations required:


 


(i)                                  to
enable it to enter into, exercise its rights and comply with its obligations in
this Agreement and the transactions contemplated by this Agreement; and


 


(ii)                               to make
this Agreement admissible in evidence in the Relevant Jurisdictions, subject to
any applicable Reservations,


 


have
been obtained or effected and are in full force and effect.


 


10.2                     Representations of the Subordinated Parties


 


Each
Subordinated Party makes the representations and warranties set out in this
Clause 10.2 to each Secured Party on the date of this Agreement and to each
High Yield Notes Finance Party on the date on which the High Yield Notes
Trustee accedes to this Agreement:


 


(a)                                   the documents to which it is a party as described in this Agreement
contain all the material terms and conditions of and arrangements relating to
the Investor Debt or Intercompany Debt (as relevant); and


 


(b)                                  it is the sole beneficial owner of the Investor Debt or Intercompany
Debt (as relevant) owed to it.


 


10.3                     Representations of the Investors


 


Each
Investor makes the representations and warranties set out in this Clause 10.3
to each Secured Party on the date of this Agreement and to each High Yield
Notes Finance Party on the date on which the High Yield Notes Trustee accedes
to this Agreement:


 


(a)                                   it has the power to subscribe for the portion of Investor Debt being
subscribed for by it pursuant to the Investor Documents;


 


(b)                                  it has taken all necessary action to authorise such subscription;


 


(c)                                   such subscription does not and will not conflict with any law or
regulation applicable to it or its constitutional documents or any agreement or
instrument binding on it or any of its assets; and


 


(d)                                  if a natural person, he/she has read and understood his/her
obligations as an “Investor” under this Agreement and has taken such
independent legal advice as he/she thinks fit.


 


10.4                     Representations of the Subordinated Preference Certificates Holders


 


Each
Subordinated Preference Certificates Holder makes the representations and
warranties set out in this Clause 10.4 to each Secured Party on the date of
this Agreement and to each High Yield Notes Finance Party on the date on which
the High Yield Notes Trustee accedes to this Agreement:


 


(a)                                   it has the power to subscribe for the portion of Subordinated
Preference Certificates Debt being subscribed for by it pursuant to the
Subordinated Preference Certificates Instrument;


 


26

















 


(b)                                  it has taken all necessary action to authorise such subscription;


 


(c)                                   such subscription does not and will not conflict with any law or
regulation applicable to it or its constitutional documents or any agreement or
instrument binding on it or any of its assets; and


 


(d)                                  if a natural person, he/she has read and understood his/her obligations
as an Investor under this Agreement and has taken such independent legal advice
as he/she thinks fit.


 


11.                           Undertakings
of the Obligors


 


(a)                            Hedging Debt:  Until the Senior Discharge Date, no Obligor
shall (and the Company shall ensure that no member of the Group will), except
with the prior consent of the Majority Senior Lenders:


 


(i)                                      pay, repay or prepay any principal, interest or other amount on or
in respect of, or make any distribution in respect of, any Hedging Debt in cash
or in kind or apply any money or property in or towards the discharge of any
Hedging Debt, except as permitted by Clause 12.1 (Permitted Hedging Payments) or Clause 15.3 (Filing of claims);


 


(ii)                                   exercise any set-off against any Hedging Debt, except as permitted
by Clause 12.1 (Permitted Hedging Payments)
or Clause 15.3 (Filing of claims);


 


(iii)                                create or permit to subsist any Security over any assets of any
member of the Group, or give any guarantee from any member of the Group, for,
or in respect of, any Hedging Debt, other than under any Senior Security
Document and the guarantees in any applicable Senior Finance Document; or


 


(iv)                               terminate (or close out any transaction under) any Hedging Document
prior to its stated maturity, except as permitted by Clause 21.1 (Permitted hedging enforcement).


 


(b)                           Bridge Debt:  Until the Senior Discharge Date, no Obligor
shall (and the Company shall ensure that no member of the Group will), except
with the prior consent of the Majority Senior Lenders:


 


(i)                                      pay, repay or prepay any principal, interest or other amount on or
in respect of, or make any distribution in respect of, any Bridge Debt in cash
or in kind or apply any money or property in or towards discharge of any Bridge
Debt, except for the capitalisation of interest in accordance with the Bridge
Finance Documents or as permitted by Clause 12.2 (Permitted Bridge Payments), Clause 15.3 (Filing of claims) or Clause 21.2 (Permitted Bridge enforcement);


 


(ii)                                   exercise any set-off against any Bridge Debt, except as permitted by
Clause 12.2 (Permitted Bridge Payments),  Clause 15.3 (Filing of claims), or 
Clause 21.2 (Permitted Bridge
enforcement);


 


(iii)                                create or permit to subsist any Security over any assets of any
member of the Group, or give any guarantee from any member of the Group, for,
or in respect of, any Bridge Debt, other than under any Security Document and
the guarantees in or required by any applicable Bridge Finance Document; or


 


(iv)                               transfer any rights and/or obligations under the Bridge Finance
Documents unless, simultaneously with that transfer, the relevant transferee
signs an Accession Deed.


 


27

















 


(c)                            High Yield Notes Debt: 
Until the Senior Discharge Date, except with the prior
consent of the Majority Senior Lenders, no Obligor shall (and the Company shall
ensure that no member of the Group will):


 


(i)                                      pay, repay or prepay any principal, interest or other amount on or
in respect of, or make any distribution in respect of, any High Yield Notes
Debt in cash or in kind or apply any money or property in or towards discharge
of any High Yield Notes Debt except as permitted by Clause 12.3 (Permitted High Yield Notes Guarantees Payments and
Permitted High Yield Notes On-Loan Payments), Clause 15.3 (Filing of claims) or Clause 21.4 (Permitted High Yield Notes On-Loan, the High Yield
Notes Assignment of On-Loan and/or Permitted High Yield Notes Second Ranking
Charge enforcement);


 


(ii)                                   exercise any set-off against any High Yield Notes Debt, except as
permitted by Clause 12.3 (Permitted High
Yield Notes Guarantees Payments and Permitted High Yield Notes On-Loan Payments),
Clause 15.3 (Filing of claims) or
Clause 21.4 (Permitted High Yield Notes
On-Loan, the High Yield Notes Assignment of On-Loan and/or Permitted High Yield
Notes Second Ranking Charge enforcement);


 


(iii)                                create or permit to subsist any Security over any assets of Newco or
any Subsidiary of Newco, or give any guarantee from Newco or any Subsidiary of
Newco, for, or in respect of, any High Yield Notes Debt, other than Security
created pursuant to any High Yield Notes Security Document and the High Yield
Notes Guarantees; or


 


(iv)                               amend the terms of any High Yield Notes Finance Document in a manner
that would be inconsistent with the High Yield Notes Major Terms unless
previously approved by the Majority Senior Lenders.


 


(d)                           High Yield Notes On-Loan Debt:  Until the Senior Discharge
Date, except with the prior consent of the Majority Senior Lenders, no Obligor
shall (and the Company shall ensure that no member of the Group will):


 


(i)                                      pay, repay or prepay any principal, interest or other amount on or
in respect of, or make any distribution in respect of, the High Yield Notes
On-Loan Debt in cash or in kind or apply any money or property in or towards
discharge of any High Yield Notes On-Loan except as permitted by Clause 12.3 (Permitted High Yield Notes Guarantees and Permitted
High Yield Notes On-Loan Payments), Clause 15.3 (Filing of claims) or Clause 21.4 (Permitted High Yield Notes On-Loan, the High Yield
Notes Assignment of On-Loan and/or Permitted High Yield Notes Second Ranking
Charge enforcement);


 


(ii)                                   exercise any set-off against any High Yield Notes On-Loan Debt,
except as permitted by Clause 12.3  (Permitted High Yield Notes Guarantees and Permitted
High Yield Notes On-Loan Payments), Clause 15.3 (Filing of claims) or Clause 21.4 (Permitted High Yield Notes On-Loan, the High Yield
Notes Assignment of On-Loan and/or Permitted High Yield Notes Second Ranking
Charge enforcement);


 


(iii)                                create or permit to subsist or receive any Security over any assets
of any member of the Group, or give any guarantee from any member of the Group,
for, or in respect of, any High Yield Notes On-Loan Debt; or


 


28

















 


(iv)                               amend any provision of the High Yield Notes On-Loan so that it would
conflict with any of the terms set out in Clause 6.1(b) (Issue of High Yield Notes and High Yield Notes
On-Loan Debt).


 


(e)                            Subordinated Preference Certificates Debt: Until:


 


(i)                                      the Senior Discharge Date, except with the prior consent of the
Majority Senior Lenders and the Majority Bridge Lenders;


 


(ii)                                   after the Senior Discharge Date and until the Bridge Discharge Date,
except with the prior consent of the Majority Bridge Lenders; and


 


(iii)                                after the Bridge Discharge Date and until the High Yield Notes
Discharge Date, except with the prior consent of the High Yield Notes Trustee,


 


no
Obligor shall (and the Company shall ensure that no member of the Group will):


 


(i)                                      pay, repay or prepay any principal, interest or other amount on or
in respect of, or make any distribution in respect of, any Subordinated
Preference Certificates Debt in cash or in kind or apply any money or property
in or towards discharge of any Subordinated Preference Certificates Debt except
as permitted by Clause 12.4 (Permitted
Subordinated Preference Certificates 
Payments) or Clause 15.3 (Filing
of claims);


 


(ii)                                   exercise any set-off against any Subordinated Preference
Certificates Debt, except as permitted by Clause 12.4 (Permitted Subordinated Preference Certificates
Payments) or Clause 15.3 (Filing
of claims);


 


(iii)                                create or permit to subsist any Security, or give any guarantee,
for, or in respect of, any Subordinated Preference Certificates Debt;


 


(iv)                               take or omit to take any action whereby the ranking and/or
subordination contemplated by this Agreement may be impaired; or


 


(v)                                  convert any Subordinated Preference Certificates Debt into shares of
any Group company other than ordinary shares of the Company.


 


(f)                              Investor Debt:  Until the Final Discharge Date, no Obligor
shall (and the Company shall ensure that no member of the Group will), except
with the prior consent of an Instructing Group:


 


(i)                                      pay, repay or prepay any principal, interest (other than
capitalisation interest) or other amount on or in respect of, or make any
distribution in respect of, any Investor Debt in cash or in kind, or apply any
money or property in or towards discharge of any Investor Debt, except as
permitted by Clause 12.5 (Permitted Investor
Payments) or Clause 15.3 (Filing
of claims);


 


(ii)                                   exercise any set-off against any Investor Debt, except as permitted
by Clause 12.5 (Permitted Investor Payments)
or Clause 15.3 (Filing of claims);


 


(iii)                                create or permit to subsist any Security, or give any guarantee,
for, or in respect of, any Investor Debt;


 


(iv)                               take or omit to take any action whereby the ranking and/or
subordination contemplated by this Agreement may be impaired; or


 


29

















 


(v)                                  convert any Investor Debt into shares of any member of the Group
other than ordinary shares of the Company.


 


(g)                           Intercompany Debt:  Until the Final
Discharge Date, no Obligor shall (and the Company shall ensure that no member
of the Group will), except with the prior consent of an Instructing Group:


 


(i)                                      pay, repay or prepay any principal, interest or other amount on or
in respect of, or make any distribution in respect of, or redeem, purchase or
defease, any Intercompany Debt in cash or in kind, except as permitted by
Clause 12.6 (Permitted Intercompany Loan
Payments) or Clause 15.3 (Filing
of claims);


 


(ii)                                   exercise any set-off against any Intercompany Debt, except as
permitted by Clause 12.6 (Permitted
Intercompany Loan Payments) or Clause 15.3 (Filing of claims);


 


(iii)                                create or permit to subsist or receive any Security, or give any
guarantee, for, or in respect of, any Intercompany Debt;


 


(iv)                               claim or rank as a creditor in the insolvency, winding-up,
bankruptcy or liquidation of any member of the Group other than in accordance
with Clause 15.3 (Filing of claims);
or


 


(v)                                  take or omit to take any action whereby the ranking and/or
subordination contemplated by this Agreement may be impaired.


 


12.                           Permitted
Payments


 


12.1                     Permitted Hedging Payments


 


Unless
a Senior Declared Default has occurred and subject to Clause 15 (Subordination on insolvency), the Obligors
may pay, and the Hedging Banks may receive and retain, scheduled payments in
respect of Hedging Debt arising under the original terms of the Hedging
Documents (subject to any amendments permitted by this Agreement).


 


12.2                     Permitted Bridge Payments


 


(a)                            Subject to paragraph (b) below and Clause 13.1 (Suspension of Permitted Bridge Payments)
and Clause 15 (Subordination on insolvency),
the Obligors may pay, and the Bridge Finance Parties may receive and retain
payments in respect of, any interest, fees or expenses or other amounts
(including reasonable legal fees and taxes) on or in respect of any Bridge Debt
in accordance with the Bridge Finance Documents (as in force at the date of
this Agreement or as amended as permitted by this Agreement).


 


(b)                           Until the
Senior Discharge Date, except with the prior consent of the Majority Senior
Lenders, no Obligor may pay, and no Bridge Finance Party may receive and retain
payment in respect of, any principal in respect of any Bridge Debt other than
repayment in full of the Bridge Debt from the gross proceeds of the High Yield
Notes and the High Yield Notes On-Loan, and/or Permitted Junior Securities.


 


12.3                     Permitted High Yield Notes Guarantees Payments and Permitted High
Yield Notes On-Loan Payments


 


(a)                            The High Yield Notes Finance Parties may receive and retain
Permitted Junior Securities in respect of the High Yield Notes Debt.


 


30

















 


(b)                           The High Yield Notes Guarantors may pay and the High Yield Notes
Trustee may receive and retain payments, in each case at a rate which is a
normal market rate and on terms which are customary for a transaction of this
nature, in respect of fees or expenses or other amounts (including reasonable
legal fees and taxes) incurred on or behalf of the High Yield Notes Trustee in
connection with carrying out its duties or exercising powers or discretion
under the High Yield Notes Finance Documents.


 


(c)                            Subject to paragraph (d) below, Clause 13.2 (Suspension of Permitted High Yield Notes Guarantees
Payments and Permitted High Yield On-Loan Payments) and Clause 15 (Subordination on insolvency):


 


(i)                                      the High Yield Notes Guarantors may pay and the High Yield Notes
Finance Parties may receive and retain payments in respect of, any interest,
fees, expenses or other amounts (including reasonable legal fees and taxes) on
or in respect of any High Yield Notes Debt in accordance with the High Yield
Notes Finance Documents; and


 


(ii)                                   Newco may pay, and the holder of the High Yield Notes On-Loan may
receive and retain payment in respect of, any interest, fees or expenses or
other amounts (including reasonable legal fees and taxes) on or in respect of
the High Yield Notes On-Loan in accordance with the terms of the High Yield
Notes On-Loan.


 


(d)                           Until:


 


(i)                                      the
Senior Discharge Date, except with the prior consent of the Majority Senior
Lenders; and


 


(ii)                                   after
the Senior Discharge Date and until the Bridge Discharge Date, except with the
prior consent of the Majority Bridge Lenders,


 


no
Obligor may pay, and no holder of the High Yield Notes On-Loan may receive and
retain payment in respect of, any principal in respect of the High Yield Notes
On-Loan.


 


12.4                     Permitted Subordinated Preference Certificates Payments


 


Until:


 


(i)                                      the
Senior Discharge Date, except with the prior consent of the Majority Senior
Lenders and the Majority Bridge Lenders;


 


(ii)                                   after
the Senior Discharge Date and until the Bridge Discharge Date, except with the prior
consent of the Majority Bridge Lenders;
and


 


(iii)                                after
the Bridge Discharge Date and until the High Yield Notes Discharge Date, except
with the prior consent of the High Yield Notes Trustee,


 


and
subject to Clauses 14 (Turnover of
Non-Permitted Payments) and 15 (Subordination
on insolvency), DDBCo may pay, and the relevant Subordinated
Preference Certificates Holders may receive and retain payments in respect of,
any Subordinated Preference Certificates Debt to the extent permitted by each
outstanding Applicable Facilities Agreement.


 


12.5                     Permitted Investor Payments


 


Until
the Final Discharge Date and subject to Clauses 14 (Turnover of Non-Permitted Payments),15 (Subordination on insolvency) and 17 (Report Recoveries), a member of the Group
may pay, and


 


31

















 


the
Investors may receive and retain payments in respect of, any Investor Debt to
the extent permitted by each outstanding Applicable Facilities Agreement.


 


12.6                     Permitted Intercompany Loan Payments


 


Until
the Final Discharge Date and subject to Clauses 14 (Turnover of Non-Permitted Payments) and 15 (Subordination on insolvency), the
Intercompany Borrowers may pay, and the Intercompany Lenders may receive and
retain payments in respect of, any Intercompany Debt to the extent permitted by
each outstanding Applicable Facilities Agreement; provided that no Senior
Declared Default (until the Senior Discharge Date) or Bridge Declared Default
(after the Senior Discharge Date and before the Bridge Discharge Date) or High
Yield Notes Declared Default (after the issue of the High Yield Notes) is
continuing or will be continuing immediately after the making of the relevant
payment.


 


12.7                     Set-off


 


In this
Clause 12, a payment or receipt includes a discharge by set-off.


 


13.                           Suspension of Permitted Payments


 


13.1                     Suspension of Permitted Bridge Payments


 


(a)                            Subject to Clause 15 (Subordination
on insolvency), no Obligor may make, and no Bridge Finance Party may
receive, any Permitted Bridge Payment (other than Permitted Junior Securities)
without the prior consent of the Majority Senior Lenders if:


 


(i)                                      a Senior Payment Default is continuing;


 


(ii)                                   a Senior Default, other than a Senior Payment Default is continuing,
from the date on which the Senior Agent delivers a Bridge Stop Notice to the
Bridge Agent until the earliest of:


 


(A)                           the date falling 120 days after delivery of that Bridge Stop Notice;


 


(B)                             if a Bridge Standstill Period is in effect at any time after the
relevant Senior Default giving rise to the delivery of that Bridge Stop Notice,
the date on which that Bridge Standstill Period expires;


 


(C)                             the date on which the relevant Senior Default has been remedied or
waived in accordance with the Senior Facility Agreement;


 


(D)                            the date on which the Senior Agent delivers a notice to the Bridge
Agent cancelling the Bridge Stop Notice; and


 


(E)                              the Senior Discharge Date.


 


(b)                           For the
benefit of the Bridge Finance Parties only:


 


(i)                                      a
new Bridge Stop Notice may not be delivered unless and until 360 days have
elapsed since the delivery of the immediately prior Bridge Stop Notice; and


 


(ii)                                   no
Bridge Stop Notice may be delivered in reliance on a Senior Default more than
180 days after the Senior Agent received notice of that Senior Default
specifying the event or circumstances relating to that Senior Default and that
it constitutes a Senior Default under the Senior Facility Agreement or
otherwise the Agency department of the Senior Agent becomes aware of such
Senior Default.


 


32

















 


(c)                            The Senior Agent may only serve one Bridge Stop Notice with respect
to the same event or set of circumstances. This shall not affect the right of
the Senior Agent to issue a Bridge Stop Notice in respect of any other event or
set of circumstances.


 


(d)                           For the avoidance of doubt, this Clause 13.1:


 


(i)                                      acts as a suspension of payment and not as a waiver of the right to
receive payment when the suspension period has lapsed; and


 


(ii)                                   will not prevent the accrual or capitalisation of interest (including
default interest) in accordance with the Bridge Finance Documents.


 


13.2                     Suspension of Permitted High Yield Notes Guarantees Payments and
Permitted High Yield Notes On-Loan Payments


 


(a)                            Until the Senior Discharge Date and subject to Clause 15 (Subordination on insolvency), no High
Yield Notes Guarantor may make, and:


 


(i)                                      no High Yield Notes Finance Party may receive, any Permitted High
Yield Notes Guarantees Payment (other than Permitted Junior Securities); and


 


(ii)                                   the holder of the High Yield Notes On-Loan may not receive, any
Permitted High Yield Notes On-Loan Payment,


 


if:


 


(A)                           a Senior Payment Default is continuing; or


 


(B)                             a Senior Default, other than a Senior Payment Default, is
continuing, from the date on which the Senior Agent delivers a High Yield Notes
Stop Notice to the High Yield Notes Trustee and the High Yield Notes Issuer
until the earliest of:


 


1.                                    the
date falling 179 days after delivery of that High Yield Notes Stop Notice;


 


2.                                    if
a High Yield Notes Standstill Period is in effect at any time after the
relevant Senior Default giving rise to delivery of that High Yield Notes Stop
Notice, the date on which that High Yield Notes Standstill Period expires;


 


3.                                    the
date on which the relevant Senior Default has been remedied or waived in
accordance with the Senior Facility Agreement;


 


4.                                    the
date on which the Senior Agent delivers a notice to the High Yield Notes
Trustee and the High Yield Notes Issuer cancelling the High Yield Notes Stop
Notice; and


 


5.                                    the
Senior Discharge Date.


 


in any
case, except with the prior consent of the Majority Senior Lenders.


 


(b)                           For the
benefit of the High Yield Notes Finance Parties and the holder of the High
Yield Notes On-Loan only:


 


(i)                                      a
new High Yield Notes Stop Notice may not be delivered unless and until 360 days
have elapsed since the delivery of the immediately prior High Yield Notes Stop
Notice; and


 


33

















 


(ii)                                   no
High Yield Notes Stop Notice may be delivered in reliance on a Senior Default
more than 180 days after the Senior Agent received notice of that Senior
Default specifying the event or circumstances relating to that Senior Default
and that it constitutes a Senior Default under the Senior Facility Agreement or
the Agency department of the Senior Agent otherwise becomes aware of such
Senior Default.


 


(c)                            The Senior Agent may only serve one High Yield Notes Stop Notice
with respect to the same event or set of circumstances. This shall not affect
the right of the Senior Agent to issue a High Yield Notes Stop Notice in
respect of any other event or set of circumstances.


 


(d)                           For the avoidance of doubt, this Clause 13.2:


 


(i)                                      acts as a suspension of payment and not as a waiver of the right to
receive payment when the suspension period has lapsed; and


 


(ii)                                   will not prevent the accrual or capitalisation of interest
(including default interest) in accordance with the High Yield Notes Finance
Documents.


 


14.                           Turnover of Non-Permitted Payments


 


14.1                     Turnover


 


Until
the Final Discharge Date if:


 


(a)                                   any Hedging Bank receives or recovers any Hedging Recoveries except
for any Permitted Hedging Payments;


 


(b)                                  any Bridge Finance Party receives or recovers any Bridge Recoveries
except for any Permitted Bridge Payments;


 


(c)                                   any High Yield Notes Finance Party receives or recovers any High
Yield Notes Recoveries except for any Permitted High Yield Notes Payments;


 


(d)                                  the holder of the High Yield Notes On-Loan receives or recovers any
High Yield Notes On-Loan Recoveries except for any Permitted High Yield Notes
On-Loan Payments;


 


(e)                                   any Subordinated Preference Certificates Holder receives or recovers
any Subordinated Preference Certificates Recoveries except for any Permitted
Subordinated Preference Certificates Payments;


 


(f)                                     any Investor receives or recovers any Investor Recoveries except for
any Permitted Investor Payments;


 


(g)                                  any Intercompany Lender receives or recovers any Intercompany
Recoveries except for any Permitted Intercompany Payments,


 


that
Party shall:


 


(i)                                      within three Business Days notify details of the receipt or recovery
to the Security Agent;


 


(ii)                                   hold any such assets and moneys received or recovered by it on trust
for the Security Agent for application in accordance with Clause 22.1 (Order of
application); and


 


34

















 


(iii)                                within
three Business Days of demand by the Security Agent, pay an amount equal to
such receipt or recovery to the Security Agent for application in accordance
with Clause 22.1 (Order of application).


 


14.2                     Non-creation of charge


 


Nothing
in this Clause 14 or any other provision of this Agreement is intended to or
shall create a charge or other Security.


 


14.3                     Protection upon turnover


 


If a
Party is obliged to pay any amount to the Security Agent in accordance with
this Clause 14:


 


(a)                                   the relevant Obligor or Intercompany Borrower shall indemnify that
Party (to the extent of its liability for the relevant amount so paid) for any
costs, liabilities and expenses incurred by it as a result of it having to make
that payment; and


 


(b)                                  the relevant Debt in respect of which a Party made that payment to
the Security Agent will be deemed not to have been reduced or discharged in any
way or to any extent by the relevant payment, distribution, proceeds or other
discharge.


 


15.                           Subordination on insolvency


 


15.1                     Subordination events


 


If:


 


(a)                                   any order is made or resolution passed for the suspension of
payments, a moratorium of any indebtedness, winding-up, dissolution,
administration or reorganisation (by way of voluntary arrangement, scheme of
arrangement or otherwise) of any Obligor;


 


(b)                                  any Obligor enters into any composition, assignment or arrangement
with its creditors generally; or


 


(c)                                   any liquidator, receiver, administrator, administrative receiver,
compulsory manager or other similar officer is appointed in respect of any
Obligor or any of its assets,


 


or any
analogous event occurs in any jurisdiction, this Clause 15 shall apply.


 


15.2                     Subordination


 


In any
of the circumstances mentioned in Clause 15.1 (Subordination
events):


 


(a)                                   the Bridge Debt will be subordinated in right of payment to the
Senior Debt and the Hedging Debt; and


 


(b)                                  upon the refinancing of the Bridge Debt, the High Yield Notes Debt
and the High Yield Notes On-Loan Debt will be subordinated in right of payment
to the Senior Debt and the Hedging Debt;


 


(c)                                   the Subordinated Preference Certificates Debt will be subordinated
in right of payment to the Senior Debt, the Hedging Debt, the Bridge Debt and,
upon refinancing of the Bridge Debt, the Debt arising under the High Yield Notes
Finance Documents and the High Yield Notes On-Loan Debt; and


 


35

















 


(d)                                  the Subordinated Debt will be subordinated in right of payment to
the Senior Debt, the Hedging Debt, the Bridge Debt (and, upon the refinancing
of the Bridge Debt, the Debt arising under the High Yield Notes Finance
Documents, the High Yield Notes On-Loan Debt) and the Subordinated Preference
Certificates Debt.


 


15.3                     Filing of claims


 


(a)                            In any of the circumstances mentioned in Clause 15.1 (Subordination events), until the Final
Discharge Date, the Security Agent may, and is hereby irrevocably authorised on
behalf of each Secured Party, High Yield Finance Party, Subordinated Preference
Certificates Holder, Subordinated Party and the holder of the High Yield Notes
On-Loan to:


 


(i)                                      demand, claim, enforce and prove for the Junior Debt;


 


(ii)                                   file claims and proofs, give receipts and take any proceedings in
respect of filing such claims or proofs and do anything which the Security
Agent considers necessary or desirable to recover the Junior Debt; and


 


(iii)                                receive all distributions of the Junior Debt for application in
accordance with Clause 22 (Application of
recoveries).


 


(b)                           If and to
the extent that the Security Agent is not entitled, or elects not, to take any
of the action mentioned in paragraph (a) above, each Junior Creditor will do so
as soon as reasonably practicable following request by the Security Agent
provided that it is indemnified to its reasonable satisfaction against any resulting
costs, expenses and liabilities.


 


15.4                     Distributions


 


In any
of the circumstances mentioned in Clause 15.1 (Subordination
events), until the Final Discharge Date, each Junior Creditor will:


 


(a)                                   hold all payments and distributions in cash or in kind received or
receivable by it in respect of the Junior Debt on trust for the Security Agent
for application in accordance with Clause 22.1 (Order of application);


 


(b)                                  on demand by the Security Agent, pay an amount equal to any Junior
Debt owing to it and discharged by set-off or otherwise to the Security Agent
for application in accordance with Clause 22.1 (Order of  application);


 


(c)                                   promptly direct the trustee in bankruptcy, liquidator, assignee or
other person distributing the assets of the relevant Obligor or their proceeds
to pay distributions in respect of the Junior Debt directly to the Security
Agent; and


 


(d)                                  promptly use its reasonable efforts to undertake any actions
requested by the Security Agent to give effect to this Clause 15.4,


 


save,
in each case, that the Bridge Finance Parties and the High Yield Notes Finance
Parties shall be entitled to receive and retain Permitted Junior Securities.


 


15.5                     Voting


 


(a)                            In any of the circumstances mentioned in Clause 15.1 (Subordination events), until the Final
Discharge Date:


 


36

















 


(i)                                      the Security Agent may, and is hereby irrevocably authorised on
behalf of each Secured Party, High Yield Note Finance Party, Subordinated
Preference Certificates Holder, Subordinated Party and the High Yield Notes
Issuer to, exercise all powers of convening meetings, voting and representation
in respect of the Junior Debt; and


 


(ii)                                   each Junior Creditor shall promptly execute and/or deliver to the
Security Agent such forms of proxy and representation as it may require to
facilitate any such action.


 


(b)                           If and to the extent that the Security Agent does not exercise a
power under paragraph (a) above, each Junior Creditor will exercise that power
as the Security Agent (acting on the instructions of an Instructing Group)
directs.


 


(c)                            Nothing in this Clause 15.5 entitles the Security Agent (or an
Instructing Group) to exercise or require any Junior Creditor to exercise a
power of voting or representation to waive, reduce, discharge, extend the due
date for repayment of or reschedule any Junior Debt.


 


16.                           Failure of
trusts


 


If any
trust intended to arise pursuant to Clause 14.1 (Turnover) or Clause 15.4 (Distributions)
fails or for any reason (including the laws of any jurisdiction in which any
such assets, moneys, payments or distributions may be situated) cannot be given
effect to, the relevant Party will pay to the Security Agent for application in
accordance with Clause 22.1 (Order of
application) an amount equal to the amount (or the value of the
relevant assets) intended to be so held on trust for the Security Agent.


 


17.                           Report
Recoveries


 


Nothing
in this Agreement shall prevent any Party from making claims for costs or
damages in relation to the Reports provided that:


 


(a)                                   before any Party takes such action, it will notify and (except in
the case of the Senior Finance Parties) consult with the other Parties to whom
the relevant Report is addressed on the nature of the action to be taken;


 


(b)                                  if the Senior Discharge Date has not occurred and any Party (other
than a Senior Finance Party) received any moneys as a result of making any
claim for costs or damages in relation to any Report, the recipient shall pay
an amount equal to the amount of such moneys (less the reasonable costs and
expenses incurred in making such claim) to Newco by way of a loan which shall
form part of the liabilities (if any) owing to that Party and, as such, shall
rank pari passu with the other Debt (if any) due to such Party in accordance
with the provisions of this Agreement and otherwise be subject to the
provisions of this Agreement governing that Debt. Upon receipt by Newco of such
moneys, they shall be applied in accordance with (if the Senior Discharge Date
has not occurred) the Senior Finance Documents;


 


(c)                                   if (after the Senior Discharge Date) any Bridge Debt remains
outstanding and any Party (other than a Bridge Finance Party) receives any
moneys as a result of making any claim for costs or damages in relation to any
Report, the recipient shall pay an amount equal to the amount of such moneys
(less the reasonable costs and expenses incurred in making such claim) to Newco
by way of a loan which shall form part of the liabilities (if any) owing


 


37

















 


to that Party
and, as such, shall rank pari passu with the other Debt (if any) due to such
party in accordance with the provisions of this Agreement and otherwise be
subject to the provisions of this Agreement governing that Debt. Upon receipt
by Newco of such moneys, they shall be applied in accordance with the Bridge
Finance Documents; and


 


(d)                                  any moneys received by a Group Company as a result of a claim made
in respect of any Report, shall be applied in accordance with the Senior
Finance Documents (prior to the Senior Discharge Date) and the Bridge Finance
Documents (after the Senior Discharge Date but before the Bridge Discharge
Date).


 


18.                           Protection
of subordination


 


18.1                     Continuing subordination


 


The
subordination and priority provisions in this Agreement shall remain in full
force and effect by way of continuing subordination and shall not be affected
in any way by any intermediate payment or discharge in whole or in part of any
Debt.


 


18.2                     Waiver of defences


 


Neither
the subordination in this Agreement nor the obligations of any Secured Party,
High Yield Notes Finance Party, Subordinated Preference Certificates Holder,
Subordinated Party, Obligor, 
Intercompany Borrower or the High Yield Notes Issuer shall be affected
in any way by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice the subordination or any of those
obligations in whole or in part (without limitation and whether or not known to
any Secured Party, High Yield Notes Finance Party, Subordinated Preference
Certificates Holder, Subordinated Party, Obligor, Intercompany Borrower or the
High Yield Notes Issuer or any other person) including:


 


(a)                                   any time, waiver or consent granted to, or composition with, any
person;


 


(b)                                  the release of any person under the terms of any composition or
arrangement with any creditor of any person;


 


(c)                                   the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of, any person or any non-presentation or non-observance
of any formality or other requirement in respect of any instrument or any
failure to realise the full value of any security;


 


(d)                                  any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of any person;


 


(e)                                   any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;


 


(f)                                     any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or security;


 


(g)                                  any insolvency or similar proceedings; or


 


(h)                                  any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any person under any Finance
Document resulting from any insolvency, liquidation or dissolution proceedings
or from any law, regulation or order.


 


38

















 


18.3                     Appropriations by the Senior Finance Parties


 


Until
the Senior Discharge Date has occurred, each Senior Finance Party and Hedging
Bank (or any trustee or agent on its behalf) may, subject to its obligations
under this Agreement:


 


(a)                                   apply any moneys or other assets received or recovered by it under
this Agreement or from any Obligor or any other person against the Senior Debt
or the Hedging Debt (as relevant) owed to it in accordance with the Applicable
Facilities Agreement;


 


(b)                                  apply any moneys or other assets received or recovered by it from
any Obligor or any other person (other than any moneys or other assets received
or recovered under the Senior Finance Documents or the Hedging Documents (as
relevant) or under this Agreement) against any liability of the relevant person
to it other than the Senior Debt or the Hedging Debt (as relevant) owed to it;
or


 


(c)                                   after the Enforcement Date, unless or until such moneys or other
assets in aggregate received or recovered by it under the Senior Finance
Documents or the Hedging Documents (as relevant) are sufficient to bring about
the Senior Discharge Date, if otherwise applied in accordance with the
provisions of this Agreement, hold in an interest-bearing suspense account any
moneys or other assets received from any Obligor or any other person.


 


18.4                     Appropriations by the Bridge Finance Parties


 


After
the Senior Discharge Date has occurred and until the Bridge Discharge Date has
occurred, each Bridge Finance Party (or any trustee or agent on its behalf)
may, subject to its obligations under this Agreement:


 


(a)                                   apply any moneys or other assets received or recovered by it under
this Agreement or from any Obligor or any other person against the Bridge Debt
owed to it, in such order as it sees fit;


 


(b)                                  apply any moneys or other assets received or recovered by it from
any Obligor or any other person (other than any moneys or other assets received
or recovered under the Bridge Finance Documents or under this Agreement)
against any liability of the relevant person to it other than the Bridge Debt
owed to it; or


 


(c)                                   after the Enforcement Date, unless or until such moneys or other
assets in aggregate received or recovered by it under the Bridge Finance
Documents are sufficient to bring about the Bridge Discharge Date, if otherwise
applied in accordance with the provisions of this Agreement, hold in an interest-bearing
suspense account any moneys or other assets received from any Obligor or any
other person.


 


18.5                     Appropriations by the High Yield Notes Finance Parties


 


After
the Bridge Discharge Date has occurred and until the High Yield Notes Discharge
Date has occurred, each High Yield Notes Finance Party (or any trustee or agent
on its behalf) may, subject to its obligations under this Agreement:


 


(a)                                   apply any moneys or other assets received or recovered by it under
this Agreement or from any Obligor or any other person against the High Yield
Notes Debt owed to it, in such order as it sees fit;


 


39

















 


(b)                                  apply any moneys or other assets received or recovered by it from
any Obligor or any other person (other than any moneys or other assets received
or recovered under the High Yield Notes Finance Documents or under this
Agreement) against any liability of the relevant person to it other than the
High Yield Notes Debt owed to it; or


 


(c)                                   after the Enforcement Date, unless or until such moneys or other
assets in aggregate received or recovered by it under the High Yield Notes
Finance Documents are sufficient to bring about the High Yield Notes Discharge
Date, if otherwise applied in accordance with the provisions of this Agreement,
hold in an interest-bearing suspense account any moneys or other assets
received from any Obligor or any other person.


 


18.6                     Appropriations by the holder of the High Yield Notes On-Loan


 


After
the Bridge Discharge Date has occurred and until the High Yield Notes On-Loan
Discharge Date has occurred, the holder of the High Yield Notes On-Loan (or any
trustee or agent on its behalf) may, subject to its obligations under this
Agreement:


 


(a)                                   apply any moneys or other assets received or recovered by it under
this Agreement or from any Obligor or any other person against the High Yield
Notes On-Loan Debt owed to it, in such order as it sees fit;


 


(b)                                  apply any moneys or other assets received or recovered by it from
any Obligor or any other person (other than any moneys or other assets received
or recovered under the High Yield Notes Finance Documents or under this
Agreement) against any liability of the relevant person to it other than the
High Yield Notes On-Loan Debt owed to it; or


 


(c)                                   after the Enforcement Date, unless or until such moneys or other
assets in aggregate received or recovered by it under the High Yield Notes
On-Loan are sufficient to bring about the High Yield Notes On-Loan Discharge
Date, if otherwise applied in accordance with the provisions of this Agreement,
hold in an interest-bearing suspense account any moneys or other assets
received from any Obligor or any other person.


 


18.7                     Appropriations by the Subordinated Preference Certificates Holders


 


After
the High Yield Notes Discharge Date has occurred and until the Subordinated
Preference Certificates Discharge Date has occurred, each Subordinated
Preference Certificates Holder (or any trustee or agent on its behalf) may,
subject to its obligations under this Agreement:


 


(a)                                   apply any moneys or other assets received or recovered by it under
this Agreement or from any Obligor or any other person against the Subordinated
Preference Certificates Debt owed to it, in such order as it sees fit;


 


(b)                                  apply any moneys or other assets received or recovered by it from
any Obligor or any other person (other than any moneys or other assets received
or recovered under the Subordinated Preference Certificates Finance Documents
or under this Agreement) against any liability of the relevant person to it
other than the Subordinated Preference Certificates Debt owed to it; or


 


(c)                                   after the Enforcement Date, unless or until such moneys or other
assets in aggregate received or recovered by it under the Subordinated
Preference Certificates Finance Documents are sufficient to bring about the
Subordinated Preference Certificates Discharge Date, if otherwise applied in
accordance with the provisions of this Agreement, 


 


40

















 


hold in an
interest-bearing suspense account any moneys or other assets received from any
Obligor or any other person.


 


19.                           Priority


 


19.1                     Ranking


 


(a)                            All guarantees of the Senior Debt and the Hedging Debt and all
Security created pursuant to any Security Document will rank as Security for
the Senior Debt and the Hedging Debt pari passu between themselves but ahead of
any guarantees and Security for the Bridge Debt and any High Yield Notes
Guarantees, irrespective of the order of execution, creation, registration,
notice, enforcement or otherwise.


 


(b)                           The Senior Security Documents will secure the Senior Debt and the
Hedging Debt pari passu between
themselves, irrespective of:


 


(i)                                      the date on which the Senior Debt or Hedging Debt arose;


 


(ii)                                   whether a Senior Finance Party or Hedging Bank is obliged to advance
any Senior Debt or Hedging Debt; or


 


(iii)                                any fluctuation in the amount, or any intermediate discharge in
whole or in part, of any Senior Debt or Hedging Debt.


 


(c)                            The High Yield Notes On-Loan Debt, Subordinated Preference Certificates
Debt and the Subordinated Debt is and shall remain unsecured.


 


19.2                     Registration and notice


 


The
Parties will co-operate with each other with a view to reflecting the priority
of the Security created pursuant to any Security Document in any register or
with any filing or registration authority and in giving notice to any person of
any of the Security created pursuant to any Security Document.


 


20.                           Restrictions on enforcement


 


20.1                     Restrictions on enforcement by the Hedging Banks


 


(a)                            Until the Senior Discharge Date, no Hedging Bank shall, except with
the prior consent of the Majority Senior Lenders, take any Enforcement Action
in relation to any Hedging Debt unless a Specified Default is continuing, in
which event Clause 21.1 (Permitted hedging
enforcement) shall apply.


 


(b)                           Notwithstanding any Hedging Document, “Automatic Early Termination”
shall not apply where the Obligor is the “Defaulting Party” (each as defined in
the ISDA Master Agreement).


 


20.2                     Restrictions on enforcement by the Bridge Finance Parties


 


Until
the Senior Discharge Date, no Bridge Finance Party shall, except with the prior
consent of the Majority Senior Lenders, take any Enforcement Action in relation
to any Bridge Debt, except as permitted by Clause 21.2 (Permitted Bridge enforcement).


 


41

















 


20.3                     Restrictions on enforcement by the holder of the High Yield Notes
On-Loan, the High Yield Notes Assignment of On-Loan and/or the High Yield Notes
Second Ranking Charge


 


Until
the Senior Discharge Date, except with the prior consent of or as required by
the Majority Senior Lenders:


 


(i)                                      the holder of the High Yield Notes On-Loan shall not take any
Enforcement Action in relation to any High Yield Notes On-Loan Debt or the High
Yield Notes Assignment of On-Loan;


 


(ii)                                   the High Yield Notes Finance Parties shall not enforce the High
Yield Notes Second Ranking Charge; and


 


(iii)                                the High Yield Notes Finance Parties shall not take any Enforcement
Action in relation to the High Yield Notes Guarantees unless they have matured
in accordance with paragraph 1 of the High Yield Notes Guarantee Maturity
Provisions,


 


except as
permitted under Clause 21.4 (Permitted High
Yield Notes On-Loan, the High Yield Notes Assignment of On-Loan and/or the High
Yield Notes Second Ranking Charge enforcement); provided however
that no such action required by the Majority Senior Lenders need be taken
except to the extent the Majority Senior Lenders otherwise are entitled under
this Agreement to direct such action.


 


20.4                     Restrictions on enforcement by the Subordinated Preference
Certificates Holders


 


Until
the Final Discharge Date, no Subordinated Preference Certificates Holder shall,
except with the prior consent of or as required by an Instructing Group, take
any Enforcement Action in relation to any Subordinated Preference Certificates
Debt. If required by the Majority Senior Lenders, the Majority Bridge Lenders
or the High Yield Notes Trustee to take Enforcement Action, the Subordinated
Preference Certificates Holders will apply any proceeds from that Enforcement
Action in accordance with Clause 14 (Turnover
of Non-Permitted Payments).


 


20.5                     Restrictions on enforcement by the Investors


 


Subject
to Clause 17 (Report Recoveries),  until the Final Discharge Date, no
Investor shall, except with the prior consent of or as required by an
Instructing Group, take any Enforcement Action in relation to any Investor
Debt.  If required by an Instructing
Group to take Enforcement Action, the Investors will apply any proceeds from
that Enforcement Action in accordance with Clause 14 (Turnover of Non-Permitted Payments).


 


20.6                     Restrictions on enforcement by the Intercompany Lenders


 


Until
the Final Discharge Date, no Intercompany Lender shall, except with the prior
consent of or as required by an Instructing Group take any Enforcement Action
in relation to any Intercompany Debt. 
If required by an Instructing Group, to take Enforcement Action, the
Intercompany Lenders will apply any proceeds from that Enforcement Action in
accordance with Clause 14 (Turnover of
Non-Permitted Payments).


 


42

















 


21.                           Permitted Enforcement


 


21.1                     Permitted hedging enforcement


 


(a)                            If a Specified Default is continuing, a Hedging Bank may designate
an Early Termination Date in accordance with the relevant Hedging Document or
otherwise terminate the relevant Hedging Document, provided that no other
Enforcement Action is taken.


 


(b)                           If a Senior Declared Default has occurred, each Hedging Bank will,
promptly after a request by the Security Agent, designate an Early Termination
Date under or otherwise terminate each Hedging Document to which it is a party
and any derivative transaction entered into under that Hedging Document.


 


(c)                            On or following:


 


(i)                                      the designation of an Early Termination Date or other termination as
provided in paragraph (a) or (b) above; or


 


(ii)                                   the occurrence of the Enforcement Date,


 


any
amount which falls due from a Hedging Bank to any Obligor shall be paid by that
Hedging Bank to the Security Agent promptly for application in accordance with
Clause 22.1 (Order of application).


 


21.2                     Permitted Bridge enforcement


 


The
restrictions in Clause 20.2 (Restrictions on enforcement by the Bridge Finance
Parties) will not apply if:


 


(a)                                   an Insolvency Event relating to a Key Company is continuing;


 


(b)                                  a
Senior Declared Default is continuing;


 


(c)                                   the Majority Senior Lenders have enforced or instructed the Security
Agent to enforce the Security conferred by any Security Document; or


 


(d)                                  a Bridge Default (the “Relevant
Bridge Default”) is continuing and:


 


(i)                                  the
Senior Agent has received a notice of the Relevant Bridge Default specifying
the event or circumstances of that Relevant Bridge Default from the Bridge
Agent; and


 


(ii)                               a
period (a “Bridge Standstill Period”)
of not less than:


 


(A)                           90 days, in the case of a Bridge Payment Default;


 


(B)                             120 days, in the case of a Bridge Default arising as a result of
breach of Clause 20 (Financial  covenants) of the Bridge Facility
Agreement; or


 


(C)                             150 days, in the case of any other Bridge Default,


 


has
elapsed from the date the Senior Agent received that notice.


 


21.3                     Subsequent Bridge defaults


 


The
Bridge Finance Parties may take Enforcement Action under Clause 21.2 (Permitted Bridge enforcement) in relation to a Relevant Bridge
Default even if, at the end of any relevant Bridge Standstill Period or at any
later time, a further Bridge Standstill Period has begun as a result of any
other Bridge Default.


 


43

















 


21.4                     Permitted High Yield Notes On-Loan, the High Yield Notes Assignment
of On-Loan and/or High Yield Notes Second Ranking Charge enforcement


 


The
restrictions in Clause 20.3 (Restrictions on enforcement by the holder of the High Yield Notes On-Loan, High Yield Notes
Assignment of On-Loan and/or the High Yield Notes Second Ranking Charge)
will not apply if:


 


(a)                                   an Insolvency Event in respect of a Key Company is continuing; or


 


(b)                                  a High Yield Notes Default (the “Relevant
High Yield Notes Default”) is continuing and:


 


(i)                                  the
Senior Agent has received a notice of the Relevant High Yield Notes Default
specifying the event or circumstances of that Relevant High Yield Notes Default
from the High Yield Notes Trustee acting (in relation to the High Yield Notes
Second Ranking Charge only) on the instructions of the High Yield Noteholders
whose High Yield Notes Funding Obligations are more than 50.01 per cent. of the
aggregate of the High Yield Notes Funding Obligations; and


 


(ii)                               a
period (a “High Yield Notes  Standstill Period”) of not less than 179
days has elapsed from the date that notice was given to the Senior Agent.


 


21.5                     Subsequent High Yield Notes On-Loan defaults


 


The
High Yield Notes Finance Parties or the holder of the High Yield Notes On-Loan,
as applicable, may take Enforcement Action under Clause 21.4 (Permitted
High Yield Notes On-Loan, the High Yield Notes Assignment of On-Loan and/or the
High Yield Notes Second Ranking Charge enforcement) in
relation to a Relevant High Yield Notes Default even if, at the end of any relevant
High Yield Notes Standstill Period or at any later time, a further High Yield
Notes Standstill Period has begun as a result of any other High Yield Notes
Default.


 


21.6                     Assistance during any Enforcement Action by the Senior Finance
Parties


 


(a)                            For the benefit of the Senior Finance Parties, the Bridge Finance
Parties acknowledge and agree that if the Security Agent (or any other Senior
Finance Party) is taking all reasonable commercial efforts after the
Enforcement Date to implement a sale of the shares of Target pursuant to Clause
23.3(b)(iv) (Release of Security on
enforcement) as expeditiously as reasonably practicable having
regard to the circumstances, no Bridge Finance Party will take any Enforcement
Action which would be reasonably likely to adversely affect such sale or the
amount of proceeds to be derived therefrom.


 


(b)                           For the benefit of the Senior Finance Parties, the High Yield Notes
Finance Parties acknowledge and agree that if the Security Agent (or any other
Senior Finance Party) is taking all reasonable commercial efforts after the
Enforcement Date to implement a sale of the shares of Target pursuant to Clause
23.3(b)(iv) (Release of Security on
enforcement) as expeditiously as reasonably practicable having
regard to the circumstances, no High Yield Notes Finance Party will take any
Enforcement Action which would be reasonably likely to adversely affect such
sale or the amount of proceeds to be derived therefrom.


 


(c)                            For the avoidance of doubt, nothing in paragraph (b) above shall affect
the rights of the High Yield Notes Finance Parties to:


 


44

















 


(i)                                      enforce their security over the High Yield Notes On-Loan in
accordance with this Agreement; or


 


(ii)                                   take any other action against the High Yield Notes Issuer or Midco.


 


22.                           Application of recoveries


 


22.1                     Order of application


 


Subject
to the rights of creditors mandatorily preferred by law applying to companies
generally, the proceeds of enforcement of the Security conferred by the
Security Documents and all recoveries by the Security Agent under guarantees of
the Senior Debt and the Hedging Debt, and the High Yield Notes Guarantees shall
be applied in the order set out from first to third below and all other amounts
paid to the Security Agent pursuant to this Agreement shall be applied in the
following order:


 


(a)                                   first,  in or towards payment of any unpaid fees,
costs, expenses and liabilities (including any interest thereon as provided in
the Security Documents) incurred by or on behalf of the Security Agent (or any
adviser, receiver, delegate, attorney or agent) and the remuneration of the
Security Agent (or any adviser, receiver, delegate, attorney or agent) in
connection with carrying out its duties or exercising powers or discretions under
the Security Documents or this Agreement;


 


(b)                                  second,  in or towards payment to the Senior Agent
for application towards any unpaid costs and expenses incurred by or on behalf
of any Senior Finance Party or Hedging Bank in connection with such enforcement,
recovery or other payment pari passu between themselves;


 


(c)                                   third,  in or towards payment pari passu to:


 


(i)                                  the
Senior Agent for application towards the balance of the Senior Debt (in
accordance with the Senior Facility Agreement) and the Hedging Debt; and


 


(ii)                               the
High Yield Notes Trustee for application towards any reasonable unpaid costs
and expenses incurred by the High Yield Notes Trustee (or any advisor,
receiver, delegate, attorney or agent) in connection with any enforcement,
recovery or other payment and the reasonable remuneration of the High Yield
Notes Trustee (or any adviser, receiver, delegate, attorney or agent) in
connection with carrying out its duties or exercising powers or discretions
under the High Yield Notes, Finance Documents or this Agreement (but excluding
any payment in relation to any unpaid costs and expenses incurred in respect of
any litigation by or on behalf of any High Yield Notes Finance Party against
any of the Senior Finance Parties);


 


(d)                                  fourth,  after the Senior Discharge Date, in or
towards payment to the Bridge Agent for application towards any unpaid costs
and expenses incurred by or on behalf of any Bridge Finance Party in connection
with such enforcement, recovery or other payment pari passu between themselves;


 


(e)                                   fifth,  after the Senior Discharge Date, in or
towards payment to the Bridge Agent for application towards the balance of the
Bridge Debt (in accordance with the Bridge Facility Agreement);


 


45

















 


(f)                                     sixth,  after the Bridge Discharge Date, in or
towards payment to the High Yield Notes Trustee for application towards the
balance of the High Yield Notes Debt (in accordance with the High Yield Notes
Indenture);


 


(g)                                  seventh, after
the High Yield Notes Discharge Date, in or towards payment to the Subordinated
Preference Certificates Holders for application towards the balance of the
Subordinated Preference Certificates Debt (in accordance with the Subordinated
Preference Certificates Instrument); and


 


(h)                                  eighth,  after the Final Discharge Date, in payment
of the surplus (if any) to the relevant Obligor or other person entitled
thereto.


 


22.2                     Good discharge


 


An
acknowledgement of receipt signed by the relevant person to whom payments are
to be made under this Clause 22 shall be a good discharge of the Security
Agent.


 


23.                           Enforcement of Security


 


23.1                     Enforcement instructions


 


(a)                            Subject to paragraphs (b), (c), (d) and (e) below, until the Senior
Discharge Date, the Security Agent shall:


 


(i)                                      exercise any right, power, authority or discretion vested in it as
Security Agent in accordance with any instructions given to it by the Majority
Senior Creditors (or, if so instructed by the Majority Senior Lenders, refrain
from exercising any right, power, authority or discretion vested in it as
Security Agent); and


 


(ii)                                   not be liable for any act (or omission) if it acts (or refrains from
taking any action) in accordance with an instruction of the Majority Senior
Lenders.


 


(b)                           Where:


 


(i)                                      the Bridge Finance Parties are permitted under Clause 21.2 (Permitted
Bridge enforcement) to take Enforcement Action; and


 


(ii)                                   the Senior Finance Parties have taken no Enforcement Action in
relation to the Senior Security Documents (or have taken such Enforcement
Action but are not pursuing it diligently),


 


the
Security Agent shall (but only as long as the Senior Finance Parties are not
taking Enforcement Action or not pursuing it diligently) (i) exercise any
right, power, authority or discretion vested in it as Security Agent in
accordance with any instructions given to it by the Majority Bridge Lenders
(or, if so instructed by the Majority Bridge Lenders, refrain from exercising
any right, power, authority or discretion vested in it as Security Agent) and
(ii) not be liable for any act (or omission) if it acts (or refrains from
taking any action) in accordance with an instruction of the Majority Bridge
Lenders.


 


(c)                            Where:


 


(i)                                      the High Yield Finance Parties are permitted to take Enforcement
Action in relation to the High Yield Notes Second Ranking Charge under Clause
21.4 (Permitted High Yield Notes On-Loan,
the High Yield Notes Assignment of On-Loan and/or the High Yield Notes Second
Ranking Charge enforcement); and


 


46

















 


(ii)                                   the Senior Finance Parties have taken no Enforcement Action in
relation to the Senior Security Documents related to the shares of Target (or
have taken such Enforcement Action but are not pursuing it diligently),


 


the
Security Agent shall (but only as long as the Senior Finance Parties are not
taking such  Enforcement Action or have taken such Enforcement Action but are not
pursuing it diligently) (i) exercise any right, power, authority or discretion
vested in it as Security Agent in accordance with any instructions given to it
by the High Yield Notes Trustee (on the instructions of the High Yield
Noteholders whose High Yield Notes Funding Obligations are more than 50.01 per
cent. of the aggregate of the High Yield Notes Funding Obligations) or, if so
instructed by the High Yield Notes Trustee, refrain from exercising any right,
power, authority or discretion vested in it as Security Agent) and (ii) not be
liable for any act (or omission) if it acts (or refrains from taking any
action) in accordance with an instruction of the High Yield Notes Trustee.


 


(d)                           After the Senior Discharge Date and until the Bridge Discharge Date,
the Security Agent shall:


 


(i)                                      exercise any right, power, authority or discretion vested in it as
Security Agent in accordance with any instructions given to it by the Majority
Bridge Lenders (or, if so instructed by the Majority Bridge Lenders, refrain
from exercising any right, power, authority or discretion vested in it as
Security Agent); and


 


(ii)                                   not be liable for any act (or omission) if it acts (or refrains from
taking any action) in accordance with an instruction of the Majority Bridge
Lenders.


 


(e)                            After the Senior Discharge Date and the Bridge Discharge Date and
until the High Yield Notes Discharge Date, the Security Agent shall:


 


(i)                                      exercise any right, power, authority or discretion vested in it as
Security Agent in accordance with any instructions given to it by the High
Yield Notes Trustee (or, if so instructed by the High Yield Notes Trustee,
refrain from exercising any right, power, authority or discretion vested in it
as Security Agent); and


 


(ii)                                   not be liable for any act (or omission) if it acts (or refrains from
taking any action) in accordance with an instruction of the High Yield Notes
Trustee.


 


(f)                              Any instructions given in accordance with paragraphs (a) to (e)
above will be binding on all the Secured Parties and the High Yield
Noteholders.


 


(g)                           The Security Agent may refrain from acting in accordance with any
instructions given in accordance with paragraphs (a) to (e) above until it has
received such security as it may require for any cost, loss or liability
(together with any associated VAT) which it may incur in complying with the
instructions.


 


(h)                           In the absence of instructions given in accordance with paragraphs
(a) to (e) above, the Security Agent may act (or refrain from taking action) as
it considers to be in the best interest of the Senior Finance Parties, or after
the Senior Discharge Date, the Bridge Finance Parties or after the Bridge
Discharge Date, the High Yield Noteholders.


 


(i)                               The Security Agent is not authorised to act on behalf of a Secured
Party or a High Yield Noteholder (without first obtaining that Party’s consent)
in any legal or arbitration proceedings relating to any


 


47

















 


Senior Finance
Document, any Hedging Document, any Bridge Finance Document, any High Yield
Notes Finance Document or this Agreement.


 


23.2                     Exemption


 


No
Senior Finance Party shall be responsible to any other Party, no Bridge Finance
Party shall be responsible to any other Party and no High Yield Notes Finance
Party shall be responsible to any other Party, under this Agreement for any
instructions given or not given to the Security Agent in relation to the
Security Documents.


 


23.3                     Release of Security on enforcement


 


(a)                            Subject to paragraph (b) below, if, pursuant to or for the purpose
of any Enforcement Action taken or to be taken by the Security Agent in
accordance with this Agreement, the Security Agent requires any release of any
guarantee or Security for the Senior Debt, the Hedging Debt or the Bridge Debt
granted by any member of the Group or of any High Yield Notes Guarantee or the
High Yield Notes Second Ranking Charge, each Party shall promptly enter into
any release and/or other document and take any action which the Security Agent
may reasonably require.


 


(b)                           The Bridge Finance Parties and/or the High Yield Notes Finance
Parties (as applicable) will be required to authorise any release described in
paragraph (a) above only if the net sale proceeds are applied in accordance
with Clause 22.1 (Order of application)
and  if one of more of the
following conditions is satisfied:


 


(i)                                      all of the shares of the relevant Obligor (or any direct or indirect
holding company of such Obligor) or the assets of such Obligor are sold or
otherwise disposed of (and the proceeds thereof are applied and the relevant
release occurs) in compliance with the provisions of the Bridge Facility
Agreement or High Yield Notes Finance Documents (as applicable) and such sale
or disposal is not to an associated company of the Company; or


 


(ii)                                   the Majority Bridge Lenders or High Yield Notes Trustee acting at
the instruction of the High Yield Noteholders in accordance with the High Yield
Notes Indenture (as applicable) have consented in writing to such release; or


 


(iii)                                all of the shares of the relevant Obligor (or any Holding Company of
such Obligor) are sold by an administrator (appointed under the Insolvency Act
1986); and


 


(A)                           the
administrator is appointed to an Obligor or Holding Company in relation to
which the High Yield Noteholders are creditors in respect of the High Yield
Debt;


 


(B)                             the
administrator is an insolvency practitioner and a partner of any of Messrs.
Ernst & Young, PricewaterhouseCoopers, Deloitte & Touche or KPMG whose
appointment the High Yield Notes Trustee has not objected to (acting
reasonably) under the provisions of the Insolvency Act 1986 relating to the
selection of a person or persons to be an/the administrator;


 


(C)                             the
shares of the relevant Obligor or Holding Company have been sold pursuant to an
auction or competitive bid process during which bids were widely solicited from
trade and financial buyers and during which the administrator consulted with an
internationally recognised investment bank in good faith regarding the manner
in which to obtain the best price for such shares, considered the
recommendations of


 


48

















 


such
investment bank and (where the administrator considers it appropriate in good
faith) implemented the applicable recommendations;


 


(D)                            the
proceeds of such sale are in cash (or substantially all cash); and


 


(E)                              the
claims and security interests of the Senior Finance Parties against the
relevant Obligor and its subsidiaries are irrevocably and unconditionally
released (and not assumed by the relevant purchaser or any Affiliate thereof)
concurrently with such sale.


 


In the case of
any High Yield Notes Guarantee granted by the Obligor that has been sold and by
any Subsidiary of such Obligor shall be released concurrently with written
confirmation by the Security Trustee that the provisions of this Clause 23.3
(b) (iii) have been or will be complied with;


 


(iv)                               the shares of the relevant Obligor (or any direct or indirect
Holding Company of such Obligor) are sold pursuant to Enforcement Action by the
Senior Lenders or the relevant assets are sold pursuant to Enforcement Action
by the Senior Lenders, in each case, under the Senior Security Documents and:


 


(A)                           the
proceeds of such sale received by the Security Agent are in cash (or
substantially all cash);


 


(B)                             the
claims and security interests of the Senior Finance Parties against the
relevant Obligor or assets (as applicable) and each subsidiary of the relevant
Obligor are irrevocably and unconditionally released (and not assumed by the
relevant purchaser or any Affiliate thereof) concurrently with such sale; and


 


(C)                             the sale
is either made pursuant to a public auction or is otherwise made for fair
market value (taking into account the circumstances giving rise to the sale) as
certified to the Senior Lenders by an independent internationally recognised
investment bank.


 


In such
case (i) any guarantee granted by the Obligor that has been sold and by any
Subsidiary of such Obligor and (ii) any security over the asset sold (but not
over the proceeds of the sale of such asset) shall be released concurrently
with written confirmation by the Security Trustee that the provisions of this
Clause 23.3(b) (iv) have been or will be complied with.


 


23.4                     Disposals


 


Without
prejudice to Clause 23.3(b)(iv), if a disposal of and a release of any lien
over assets is permitted under, and such disposal will not result directly or
indirectly in any breach of the terms of, the Senior Finance Documents, the
Bridge Finance Documents or the High Yield Notes Finance Documents, as
applicable, and no Senior Declared Default, Bridge Declared Default or High
Yield Notes Declared Default, as applicable, has occurred, the Security Agent
shall (at the cost of the Obligors) release those assets from the Security
Documents.


 


23.5                     Authority of Security Agent


 


(a)                            If in connection with any Enforcement Action specified in Clause
23.3 (Release of Security on enforcement)  or a disposal pursuant to Clause 23.4 (Disposals):


 


49

















 


(i)                                      the Security Agent (or any receiver or (to the extent set out in
Clause 23.3) any administrator) sells or otherwise disposes of (or proposes to
sell or otherwise dispose of) any asset under any Security Document; or


 


(ii)                                   a member of the Group sells or otherwise disposes of (or proposes to
sell or otherwise dispose of) any asset at the request of the Security Agent or
an Instructing Group,


 


the
Security Agent may (and may instruct the Bridge Agent and the High Yield
Trustee), and is hereby irrevocably authorised on behalf of each Party to:


 


(A)                           release the
Security created pursuant to the Security Documents over the relevant asset
(but not the proceeds from the sale thereof); and


 


(B)                             if the
relevant asset comprises all of the shares in the capital of a member of the
Group, release that member of the Group from all its past, present and future
liabilities and/or obligations (both actual and contingent) as a borrower or
guarantor of the whole or any part of the Debt (including any liability to any
other member of the Group by way of guarantee) and release any Security granted
by that member of the Group over any of its assets under any Security Document.


 


The net
cash proceeds of sale or disposal shall be applied in or towards payment of
Debt in accordance with Clause 22.1 (Order
of application).


 


(b)                           Each Party shall promptly enter into any release and/or other
document and take any action which the Security Agent may reasonably require to
give effect to paragraph (a) above.


 


(c)                            No such release under paragraph (a) above will affect the
obligations and/or liabilities of:


 


(i)                                      any other member of the Group to the Secured Parties and/or
Subordinated Parties; or


 


(ii)                                   any Subordinated Party to the Secured Parties.


 


23.6                     High Yield Notes Trustee


 


Where
the Security Agent is entitled or required to act in accordance with the
instructions of the High Yield Notes Trustee it will be entitled to act
(without further investigation) upon any instructions or communication received
by it from the High Yield Notes Trustee (or any other representative appointed
on behalf of the High Yield Notes Finance Parties) and will not be bound to
enquire whether the requisite High Yield Noteholder approval has been obtained
provided this has been confirmed by the High Yield Notes Trustee or other
authorised representative.


 


24.                           Option to
purchase


 


24.1                     Option to purchase


 


If a
Senior Declared Default has occurred and the Senior Finance Parties have begun
any formal step to enforce any rights under any Senior Finance Document and/or
Security under any Security Document, the Bridge Agent may (at the expense of
the Bridge Finance Parties) or, after the Bridge Discharge Date, the High Yield
Noteholders may (at the expense of the High Yield Noteholders), if:


 


(a)                                   they give not less than 10 Business Days’ notice to the Senior
Agent; and


 


(b)                                  prior to giving any such notice, they obtain all necessary approvals
from the Bridge Finance Parties or the High Yield Notes Finance Parties, as the
case may be,


 


50

















 


acquire
or procure the acquisition by a person nominated by the Bridge Finance Parties
of all (but not part only) of the rights and obligations of:


 


(i)                                      the Senior Finance Parties in connection with the Senior Debt under
the Senior Finance Documents by way of transfer under Clause 28 (Changes to
the Lenders) of the Senior Facility Agreement; and


 


(ii)                                   the Hedging Banks in connection with the Hedging Debt under the
Hedging Documents.


 


24.2                     Terms of purchase


 


Any
purchase under Clause 24.1 (Option to purchase) shall be on the
following terms:


 


(a)                                   payment in full in cash of an amount equal to the Senior Debt
outstanding as at the date that amount is to be paid, as determined by the
Senior Agent (acting reasonably);


 


(b)                                  payment in full in cash of the amount which each Senior Finance
Party certifies to be necessary to compensate it for any loss on account of
funds borrowed, contracted for or utilised to fund any amount included in the
Senior Debt resulting from the receipt of that payment otherwise than on the
last day of an Interest Period;


 


(c)                                   after the transfer, no Senior Finance Party will be under any actual
or contingent liability to any Obligor or any other person under this Agreement
or any Senior Finance Document for which it is not holding cash collateral in
an amount and on terms reasonably satisfactory to it;


 


(d)                                  each Bridge Finance Party (or a third party acceptable to all the
Senior Finance Parties) or High Yield Notes Finance Party (or a third party
acceptable to all the High Yield Notes Finance Parties), as the case may be,
shall be deemed to have indemnified each Senior Finance Party on the date of
the relevant transfer in respect of all losses which may be sustained or
incurred by any Senior Finance Party as a result of any sum received or
recovered by any Senior Finance Party from any Obligor, any Bridge Finance
Party, any High Yield Notes Finance Party or any other person being required
(or it being alleged that it is required) to be paid back by or clawed back
from any Senior Finance Party for any reason. Where it is demonstrated to the
reasonable satisfaction of the Senior Agent that those losses could not have
been recovered in full by the relevant Senior Finance Party if that transfer had
not been made, that indemnity shall not extend to the shortfall; and


 


(e)                                   the relevant transfer shall be without recourse to, or warranty
from, any Senior Finance Party, except that each Senior Finance Party shall be
deemed to have represented and warranted on the date of that transfer that:


 


(i)                                  it
is the sole owner, free from all Security and third party interests (other than
any arising under the Senior Finance Documents or by operation of law), of all
rights and interests under the Senior Finance Documents purporting to be
transferred by it by that transfer; and


 


(ii)                               it has
the power to enter into and make, and has taken all necessary action to
authorise its entry into and making, that transfer.


 


51

















 


25.                           Preservation of Debt


 


25.1                     Preservation of Junior Debt


 


(a)                            Notwithstanding any term of this Agreement postponing, subordinating
or preventing the payment of all or any part of the Junior Debt, the relevant
Junior Debt shall, as between the Obligors, the Intercompany Borrowers and the
Junior Creditors, be deemed to remain owing or due and payable (and interest,
default interest or indemnity payments shall continue to accrue) in accordance
with the Bridge Finance Documents, the High Yield Notes Finance Documents, the
High Yield Notes On-Loan, the Investor Documents or the Intercompany Documents
(as the case may be).


 


(b)                           No failure to exercise, nor any delay in exercising, on the part of
any Junior Creditor any right or remedy under any Bridge Finance Document, High
Yield Notes Finance Document, the High Yield Notes On-Loan, Subordinated
Preference Certificates Finance Document, Investor Document or Intercompany
Document (as the case may be) by reason of any term of this Agreement
postponing, restricting or preventing such exercise 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 by any
Junior Creditor.


 


25.2                     No liability


 


(a)                            No Senior Finance Party or Hedging Bank will be liable to any Junior
Creditor for:


 


(i)                                      the manner of exercise or any non-exercise of its rights, remedies,
powers, authorities or discretions under this Agreement; or


 


(ii)                                   any failure to collect or preserve any Debt or delay in doing so.


 


(b)                           No Bridge Finance Party will be liable to any other Junior Creditor
for:


 


(i)                                      the manner of exercise or any non-exercise of its rights, remedies,
powers, authorities or discretions under this Agreement; or


 


(ii)                                   any failure to collect or preserve any Debt or delay in doing so.


 


(c)                            No High Yield Notes Finance Party will be liable to any other Junior
Creditor for:


 


(i)                                      the manner of exercise or any non-exercise of its rights, remedies,
powers, authorities or discretions under this Agreement; or


 


(ii)                                   any failure to collect or preserve any Debt or delay in doing so.


 


(d)                           The Subordinated Preference Certificates Holders will not be liable
to any other Junior Creditor for:


 


(i)                                      the manner of exercise or any non-exercise of its rights, remedies,
powers, authorities or discretions under this Agreement; or


 


(ii)                                   any failure to collect or preserve any Debt or delay in doing so.


 


26.                           Sharing among the Secured Parties and High Yield Notes Finance Parties


 


26.1                     Payments to Secured Parties


 


(a)                            If a Senior Finance Party, Hedging Bank, Bridge Finance Party or a
High Yield Notes Finance Party (a “Recovering
Creditor”) makes a Senior Recovery, Hedging Recovery, Bridge
Recovery or High Yield Notes Recovery, as relevant (the “Recovery” which, for the avoidance of
doubt, includes any


 


52

















 


recovery in
relation to any Report) in respect of any amounts owed by any Obligor other
than in accordance with Clause 22.1 (Order of application) and applies that
amount to a payment due under the Finance Documents to which it is a party
then:


 


(i)                                      the Recovering Creditor shall, within three Business Days, notify
details of the Recovery to the Security Agent and, as relevant, the Senior
Agent, the Bridge Agent or the High Yield Notes Trustee;


 


(ii)                                   the Security Agent shall determine whether the Recovery is in excess
of the amount the Recovering Creditor would have been paid had the Recovery
been made by the Security Agent and distributed in accordance with Clause 22.1
(Order of application), without
taking account of any Tax which would be imposed on the Security Agent, the
Senior Agent, the Bridge Agent or the High Yield Notes Trustee, as relevant, in
relation to the Recovery; and


 


(iii)                                the Recovering Creditor shall, within three Business Days of demand
by the Security Agent, pay to the Security Agent an amount (the “Sharing Payment”) equal to such Recovery
less any amount which the Security Agent determines may be retained by the
Recovering Creditor as its share of any payment to be made in accordance with
Clause 22.1 (Order of application).


 


26.2                     Redistribution of payments


 


The
Security Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Secured Parties and the High
Yield Notes Finance Parties (other than the Recovering Creditor) in accordance
with Clause 22.1 (Order of application).


 


26.3                     Recovering Creditor’s rights


 


(a)                            On a distribution by the Security Agent under Clause 26.2 (Redistribution of payments), the
Recovering Creditor will be subrogated to the rights of the Secured Parties and
the High Yield Notes Finance Parties which have shared in the redistribution.


 


(b)                           If and to the extent that the Recovering Creditor is not able to
exercise its rights under paragraph (a) above, the relevant Obligor shall be
liable to the Recovering Creditor for a debt equal to the Sharing Payment which
is immediately due and payable.


 


26.4                     Reversal of redistribution


 


If any
part of the Sharing Payment received or recovered by a Recovering Creditor
becomes repayable and is repaid by that Recovering Creditor, then:


 


(a)                                   each Secured Party and the High Yield Notes Finance Party which has
received a share of the relevant Sharing Payment pursuant to Clause 26.2 (Redistribution
of payments) shall, upon request of the Security Agent, pay to the
Security Agent for account of that Recovering Creditor an amount equal to the
appropriate part of its share of the Sharing Payment (together with an amount
as is necessary to reimburse that Recovering Creditor for its proportion of any
interest on the Sharing Payment which that Recovering Creditor is required to
pay); and


 


(b)                                  that Recovering Creditor’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Secured Party and the High Yield Notes Finance Party for the amount
so reimbursed.


 


53

















 


26.5                     Exceptions


 


(a)                            This Clause 26 shall not apply to the extent that the Recovering
Creditor would not, after making any payment pursuant to this Clause, have a
valid and enforceable claim against the relevant Obligor.


 


(b)                           A Recovering Creditor is not obliged to share with any Secured Party
or High Yield Notes Finance Party any amount which the Recovering Creditor has
received or recovered as a result of taking legal or arbitration proceedings,
if:


 


(i)                                      it notified that Secured Party or the High Yield Notes Finance Party
of the legal or arbitration proceedings; and


 


(ii)                                   that Secured Party or the High Yield Notes Finance Party had an
opportunity to participate in those legal or arbitration proceedings but did
not do so as soon as reasonably practicable having received notice and did not
take separate legal or arbitration proceedings.


 


26.6                     Parallel Debt


 


(a)                            Each Obligor hereby irrevocably and unconditionally undertakes to
pay to the Security Agent amounts equal to any amounts owing from time to time
by that Obligor to any Senior Finance Party, any Hedging Bank, any Bridge
Finance Party or any High Yield Notes Finance Party under any Senior Finance
Document, any Hedging Document, any Bridge Finance Document or any High Yield
Notes Finance Document as and when those amounts are due.


 


(b)                           Each Obligor and the Security Agent acknowledge that the obligations
of each Obligor under paragraph (a) above are several and are separate and
independent from, and shall not in any way limit or affect, the corresponding
obligations of that Obligor to any Senior Finance Party, any Hedging Bank, Bridge
Finance Party or High Yield Notes Finance Party under any Senior Finance
Document, any Hedging Document, any Bridge Finance Document or High Yield Notes
Finance Document (its “Corresponding Debt”)
nor shall the amounts for which each Obligor is liable under paragraph (a)
above (its “Parallel Debt”) be
limited or affected in any way by its Corresponding Debt provided that:


 


(i)                                      the Parallel Debt of each Obligor shall be decreased to the extent
that its Corresponding Debt has been irrevocably paid or (in the case of
guarantee obligations) discharged;


 


(ii)                                   the Corresponding Debt of each Obligor shall be decreased to the
extent that its Parallel Debt has been irrevocably paid or (in the case of
guarantee obligations) discharged; and


 


(iii)                                the amount of the Parallel Debt of an Obligor shall at all times be
equal to the amount of its Corresponding Debt.


 


(c)                            For the purpose of this Clause 26.6, the Security Agent acts in its
own name and not as a trustee, and its claims in respect of the Parallel Debt
shall not be held on trust. The Security granted under the Senior Finance
Documents, the Hedging Documents, the Bridge Finance Documents and the High
Yield Notes Finance Documents to the Security Agent to secure the Parallel Debt
is granted to the Security Agent in its capacity as creditor of the Parallel
Debt and shall not be held on trust.


 


(d)                           All moneys received or recovered by the Security Agent pursuant to
this Clause 26.6, and all amounts received or recovered by the Security Agent
from or by the enforcement of any Security


 


54

















 


granted to
secure the Parallel Debt, shall be applied in accordance with Clause 22.1 (Order of application).


 


(e)                            Without limiting or affecting the Security Agent’s rights against
the Obligors (whether under this Clause 26.6 or under any other provision of
the Senior Finance Documents, the Hedging Documents, the Bridge Finance
Documents or the High Yield Notes Finance Documents), each Obligor acknowledges
that:


 


(i)                                      nothing in this Clause 26.6 shall impose any obligation on the
Security Agent to advance any sum to any Obligor or otherwise under any Senior
Finance Document, any Hedging Document, any Bridge Finance Document or the High
Yield Notes Finance Document, except in its capacity as a Senior Lender; and


 


(ii)                                   for the purpose of any vote taken under any Senior Finance Document,
any Hedging Document, any Bridge Finance Document and the High Yield Notes
Finance Document, the Security Agent shall not be regarded as having any
participation or commitment other than those which it has in its capacity as a
Senior Lender, Hedging Bank or Bridge Lender.


 


27.                           Subrogation


 


27.1                     Subrogation of Bridge Finance Parties


 


If any
Senior Debt or Hedging Debt is paid out of any proceeds received in respect of
or on account of the Bridge Debt owing to one or more Bridge Finance Parties:


 


(a)                                   those Bridge Finance Parties (pro rata to their respective interests
in such Bridge Debt) will to that extent be subrogated to the Senior Debt and
Hedging Debt so paid (and all Security and guarantees for that Senior Debt and
Hedging Debt); but


 


(b)                                  except with the prior consent of the Majority Senior Lenders, the
Bridge Finance Parties may not exercise those subrogation rights until the
Senior Discharge Date. After the Senior Discharge Date, to the extent that the
Bridge Finance Parties may exercise such rights of subrogation, each Senior
Finance Party (subject to being indemnified to its reasonable satisfaction
against any resulting costs, expenses and liabilities, by cash collateral if so
requested) will give such assistance to enable such rights to be exercised as
the Bridge Agent and/or the Security Agent may reasonably request.


 


27.2                     Subrogation of High Yield Notes Finance Parties


 


If any
Senior Debt, Hedging Debt or Bridge Debt is paid out of any proceeds received
in respect of or on account of the High Yield Notes Debt owing to one or more
High Yield Notes Finance Parties:


 


(a)                                   those High Yield Notes Finance Parties (pro rata to their respective
interests in such High Yield Notes Debt) will to that extent be subrogated to
the Senior Debt, Hedging Debt or Bridge Debt so paid (and all Security and
guarantees for that Senior Debt, Hedging Debt or Bridge Debt); but


 


(b)                                  except with the prior consent of the Majority Senior Lenders or the
Majority Bridge Lenders (as the case may be), the High Yield Notes Finance
Parties may not exercise those subrogation rights until the Senior Discharge
Date or Bridge Discharge Date (as the case may be). After the Senior Discharge
Date or the Bridge Discharge Date (as the case may be), to the extent that the
High Yield Notes Finance Parties may exercise such rights of


 


55

















 


subrogation,
each Senior Finance Party or the Bridge Finance Party (as the case may be) (and
subject in each case to being indemnified to its reasonable satisfaction
against any resulting costs, expenses and liabilities, by cash collateral if so
requested) will give such assistance to enable such rights to be exercised as the
High Yield Notes Finance Parties and/or the Security Agent may reasonably
request.


 


27.3                     Subrogation of holder of High Yield Notes On-Loan


 


If any
Senior Debt, Hedging Debt or Bridge Debt is paid out of any proceeds received
in respect of or on account of the High Yield Notes On-Loan Debt:


 


(a)                                   the holder of the High Yield Notes On-Loan will to that extent be
subrogated to the Senior Debt, Hedging Debt or Bridge Debt so paid (and all
Security and guarantees for that Senior Debt, Hedging Debt or Bridge Debt); but


 


(b)                                  except with the prior consent of the Majority Senior Lenders or the
Majority Bridge Lenders (as the case may be), the holder of the High Yield
Notes On-Loan may not exercise those subrogation rights until the Senior
Discharge Date or Bridge Discharge Date (as the case may be). After the Senior
Discharge Date or the Bridge Discharge Date (as the case may be), to the extent
that the holder of the High Yield Notes On-Loan may exercise such rights of
subrogation, each Senior Finance Party and the Bridge Finance Party (as the
case may be) (and subject in each case to being indemnified to its reasonable
satisfaction against any resulting costs, expenses and liabilities, by cash
collateral if so requested) will give such assistance to enable such rights to
be exercised as the holder of the High Yield Notes On-Loan may reasonably
request.


 


27.4                     Subrogation of Subordinated Preference Certificates Holders


 


If any
Senior Debt, Hedging Debt, Bridge Debt, High Yield Notes Debt or High Yield
Notes On-Loan Debt is paid out of any proceeds received in respect of or on
account of the Subordinated Preference Certificates Debt owing to one or more
Subordinated Preference Certificates Holders:


 


(a)                                   those Subordinated Preference Certificates Holders (pro rata to
their respective interests in such Subordinated Preference Certificates Debt)
will to that extent be subrogated to the Senior Debt, Hedging Debt, Bridge
Debt, High Yield Notes Debt or High Yield Notes On-Loan Debt so paid (and all
Security and guarantees for that Senior Debt, Hedging Debt, Bridge Debt, High
Yield Notes Debt or High Yield Notes On-Loan Debt); but


 


(b)                                  except with the prior consent of the Majority Senior Lenders, the
Majority Bridge Lenders, the High Yield Notes Trustee or the holder of the High
Yield Notes On-Loan (as the case may be), the Subordinated Preference
Certificates Holders may not exercise those subrogation rights until the Senior
Discharge Date, the Bridge Discharge Date or the High Yield Notes Discharge
Date (as the case may be). After the Senior Discharge Date, the Bridge
Discharge Date or the High Yield Notes Discharge Date (as the case may be), to
the extent that the Subordinated Preference Certificates Holders may exercise
such rights of subrogation, each Senior Finance Party, the Bridge Finance
Party, the High Yield Notes Finance Party or the holder of the High Yield Notes
On-Loan (as the case may be) (and subject in each case to being indemnified to
its reasonable satisfaction against any resulting costs, expenses and
liabilities, by cash collateral if so requested) will give such


 


56

















 


assistance to
enable such rights to be exercised as the Subordinated Preference Certificates
Holders and/or the Security Agent may reasonably request.


 


27.5                     Non-subrogation


 


Save to
any extent otherwise agreed by an Instructing Group, no Subordinated Party,
Intercompany Borrower or Obligor will under any circumstances be subrogated to
or entitled to exercise any of the rights of any Senior Finance Party, Hedging
Bank, Bridge Finance Party, High Yield Notes Finance Party or any Security
under the Finance Documents.


 


28.                           Role of the Security Agent


 


28.1                     Appointment of the Security Agent


 


(a)                            Each other Secured Party and each High Yield Notes Finance Party appoints
the Security Agent to act as security trustee under and in connection with the
Senior Finance Documents, the Hedging Documents, the Bridge Finance Documents
or the High Yield Notes Share Security Agreements and this Agreement in
relation to any security interest which is expressed to be or is construed to
be governed by English law.


 


(b)                           Without limiting or affecting Clause 26.6 (Parallel Debt), each other Secured Party
and each High Yield Notes Finance Party authorises the Security Agent to
exercise the rights, powers, authorities and discretions specifically given to
it under or in connection with the Senior Finance Documents, the Hedging
Documents, the Bridge Finance Documents or the High Yield Notes Share Security
Agreements and this Agreement together with any other incidental rights,
powers, authorities and discretions.


 


28.2                     Duties of the Security Agent


 


(a)                            The Senior Agent, the Bridge Agent and the High Yield Notes Trustee
shall promptly send to the Security Agent such certification as the Security
Agent may reasonably require pursuant to paragraph 7 (Basis of distribution) of
Schedule 6 (Security agency provisions).


 


(b)                           The duties of the Security Agent under the Senior Finance Documents,
the Hedging Documents, the Bridge Finance Documents, the High Yield Notes
Finance Documents and this Agreement are solely mechanical and administrative
in nature.


 


28.3                     Role of the Security Agent


 


The
Security Agent shall not be an agent or trustee of any Secured Party or High
Yield Notes Finance Party (save as expressly provided in any Finance Document)
or any Obligor or any other person under or in connection with any Senior
Finance Document, Hedging Document, Bridge Finance Document, High Yield Notes
Finance Document or this Agreement.


 


28.4                     No fiduciary duties


 


(a)                            Nothing in this Agreement constitutes the Security Agent (except as
expressly provided in Clause 26.6 (Parallel
Debt) and Schedule 6 (Security agency provisions)) as a trustee
or fiduciary of any other person.


 


(b)                           The Security Agent shall not be bound to account to any Secured
Party for any sum or the profit element of any sum received by it for its own
account.


 


57

















 


28.5                     Business with the Group


 


The
Security Agent may accept deposits from, lend money to and generally engage in
any kind of banking or other business with any member of the Group or any other
person.


 


28.6                     Rights and discretions of the Security Agent


 


(a)                            The Security Agent may rely on:


 


(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.


 


(b)                           The Security Agent may assume, unless it has received notice to the
contrary in its capacity as security trustee or security agent for the Secured
Parties, that:


 


(i)                                      no
default, event of default or potential event of default, however described, has
occurred (unless it has actual knowledge of a default, or an event of default
or potential event of default, however described, arising under Clause 26.1 (Non-payment)
of the Senior Facility Agreement or Clause 23.1 (Non-payment) of the Bridge Facility Agreement or any failure
by an Obligor to pay on the due date any amount payable pursuant to a Hedging
Document at the place at and in the currency in which it is expressed to be
payable);


 


(ii)                                   any right, power, authority or discretion vested in any Party or any
group of Lenders or Secured Parties has not been exercised; and


 


(iii)                                any
notice or request made by the Company (other than a Utilisation Request or
Selection Notice (each as defined in the Senior Facility Agreement and the
Bridge Facility Agreement) under the Senior Facility Agreement or the Bridge
Facility Agreement) is made on behalf of and with the consent and knowledge of
all the Obligors.


 


(c)                            The Security Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts.


 


(d)                           The Security Agent may act in relation to the Senior Finance
Documents, the Hedging Documents, the Bridge Finance Documents, the High Yield
Notes Finance Documents and this Agreement through its personnel and agents.


 


(e)                            The Security Agent may disclose to any other Party any information
it reasonably believes it has received as Security Agent.


 


(f)                              Notwithstanding any other provision of any Senior Finance Document,
any Hedging Document, any Bridge Finance Document, High Yield Notes Finance
Document or this Agreement to the contrary, the Security 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.


 


28.7                     Responsibility for documentation


 


The
Security Agent is not responsible for:


 


58

















 


(a)                                   the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by, an Obligor or any other person given in
or in connection with any Senior Finance Document, any Hedging Document, any
Bridge Finance Document, any High Yield Notes Finance Document, this Agreement
or the Information Package; or


 


(b)                                  the legality, validity, effectiveness, adequacy or enforceability of
any Senior Finance Document, any Hedging Document, any Bridge Finance Document,
any High Yield Notes Finance Document or this Agreement or any other agreement,
arrangement or document entered into, made or executed in anticipation of or in
connection with any Senior Finance Document, any Hedging Document, any Bridge
Finance Document, any High Yield Notes Finance Document or this Agreement.


 


28.8                     Exclusion of liability


 


(a)                            Without limiting paragraph (b) below, the Security Agent will not be
liable for any action taken by it under or in connection with any Senior
Finance Document, any Hedging Document, any Bridge Finance Document, High Yield
Notes Finance Document or this Agreement, unless caused by its gross negligence
or wilful misconduct.


 


(b)                           No Party (other than the Security Agent) may take any proceedings
against any officer, employee or agent of the Security Agent in respect of any
claim it might have against the Security Agent or in respect of any act or
omission of any kind by that officer, employee or agent in relation to any
Senior Finance Document, any Hedging Document, any Bridge Finance Document, any
High Yield Notes Finance Document or this Agreement and any officer, employee
or agent of the Security Agent may rely on this Clause 28.8.


 


(c)                            The Security Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the Senior
Finance Documents, the Hedging Documents, 
the Bridge Finance Documents, High Yield Notes Finance Document or this
Agreement to be paid by it if it 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 it for that purpose.


 


28.9                     Indemnities to the Security Agent


 


Each
other Secured Party and High Yield Notes Finance Party (other than the High
Yield Notes Trustee) shall (in proportion to its share of the Senior Debt,
Hedging Debt, Bridge Debt or High Yield Notes Debt (as relevant) then
outstanding to all the Senior Debt, Hedging Debt, Bridge Debt or High Yield
Notes Debt (as relevant) then outstanding) indemnify the Security Agent, within
three Business Days of demand, against any cost, loss or liability incurred by
the Security Agent (otherwise than by reason of its gross negligence or wilful
misconduct) in acting as Security Agent under the Senior Finance Documents, the
Hedging Documents, the Bridge Finance Documents or the High Yield Notes Finance
Document (if relevant) or this Agreement (unless it has been reimbursed by an
Obligor pursuant to a Senior Finance Document, a Hedging Document, a Bridge
Finance Document or High Yield Notes Finance Document (as relevant) or this
Agreement).


 


28.10               Resignation
of the Security Agent


 


(a)                            The Security Agent may resign and appoint one of its Affiliates
acting through an office in the United Kingdom as successor by giving notice to
the Bridge Finance Parties, the High Yield Notes


 


59

















 


Trustee and
the Company and, until the Senior Discharge Date, the other Senior Finance
Parties and the Hedging Banks.


 


(b)                           Alternatively the Security Agent may resign by giving notice to the
Bridge Finance Parties, the High Yield Notes Trustee and the Company and, until
the Senior Discharge Date, the other Senior Finance Parties and the Hedging
Banks, in which case the Majority Senior Lenders, until the Senior Discharge
Date, or the Majority Bridge Lenders, after the Senior Discharge Date, or the
High Yield Notes Trustee, after the Bridge Discharge Date (in each case, after
consultation with the Company) may appoint a successor Security Agent in the
UK.


 


(c)                            If the Majority Senior Lenders or, as the case may be, the Majority
Bridge Lenders or the High Yield Notes Trustee have not appointed a successor
Security Agent in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Security Agent (after consultation with
the Company) may appoint a successor Security Agent (acting through an office
in the United Kingdom).


 


(d)                           The retiring Security Agent, at its own cost, shall make available
to its successor such documents and records and provide such assistance as its
successor may reasonably request for the purposes of performing its functions
as Security Agent under the Senior Finance Documents, the Hedging Documents,
the Bridge Finance Documents, the High Yield Notes Finance Documents and this
Agreement.


 


(e)                            The resignation notice of the Security Agent shall only take effect
upon the appointment of a successor.


 


(f)                              Upon the appointment of a successor, the retiring Security Agent
shall be discharged from any further obligation in respect of the Senior
Finance Documents, the Hedging Documents, the High Yield Notes Finance
Documents and this Agreement but shall remain entitled to the benefit of this
Clause 28. Its successor and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if such successor
had been an original Party.


 


(g)                           After consultation with the Company, the Majority Senior Lenders,
until the Senior Discharge Date, or the Majority Bridge Lenders, after the
Senior Discharge Date and until the Bridge Discharge Date, or the High Yield Notes
Trustee after the Bridge Discharge Date, may, by notice to the Security Agent,
require it to resign in accordance with paragraph (b) above. In this event, the
Security Agent shall resign in accordance with paragraph (b) above.


 


28.11               Confidentiality


 


(a)                            The Security Agent (in acting as security trustee or security agent
for the Secured Parties and the High Yield Notes Finance Parties) shall be
regarded as acting through its respective security trustee or security 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
Security Agent, it may be treated as confidential to that division or
department and the Security Agent shall not be deemed to have notice of it.


 


28.12               Credit
appraisal by the Secured Parties and High Yield Notes Trustee


 


Without
affecting the responsibility of any Obligor or other person for information
supplied by it or on its behalf in connection with any Senior Finance Document,
any Hedging Document, any Bridge


 


60

















 


Finance
Document, any High Yield Notes Finance Document or this Agreement, each Senior
Finance Party, Hedging Bank and Bridge Finance Party confirms to the Security
Agent that it has been, and will continue to be, solely responsible for making
its own independent appraisal and investigation of all risks arising under or
in connection with any Senior Finance Document, any Hedging Document, any
Bridge Finance Document, High Yield Notes Finance Document or this Agreement
including but not limited to:


 


(a)                                   the financial condition, status and nature of each member of the
Group (as defined in the Senior Facility Agreement);


 


(b)                                  the legality, validity, effectiveness, adequacy or enforceability of
any Senior Finance Document, any Hedging Document, any Bridge Finance Document,
High Yield Notes Finance Document or this Agreement or any other agreement,
Security, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Senior Finance Document, any
Hedging Document, any Bridge Finance Document, any High Yield Notes Finance
Document or this Agreement;


 


(c)                                   whether that Senior Finance Party, Hedging Bank, Bridge Finance Party
or High Yield Notes Finance Party has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets under or in
connection with any Senior Finance Document, any Hedging Bank, any Bridge
Finance Document, High Yield Notes Finance Document or this Agreement, the
transactions contemplated by the Senior Finance Documents, the Hedging
Documents, the Bridge Finance Documents, High Yield Notes Finance Documents or
this Agreement or any other agreement, Security, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Senior Finance Document, any Hedging Document, any Bridge Finance Document,
any High Yield Notes Finance Document or this Agreement; and


 


(d)                                  the adequacy, accuracy and/or completeness of the Information
Package and any other information provided by the Security Agent, any Party or
by any other person under or in connection with any Senior Finance Document,
any Hedging Document, any Bridge Finance Document, any High Yield Notes Finance
Document or this Agreement, the transactions contemplated by the Senior Finance
Documents, the Hedging Documents, the Bridge Finance Documents, the High Yield
Notes Finance Documents or this Agreement or any other agreement, Security,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Senior Finance Document, any Hedging Document,
any Bridge Finance Document, any High Yield Notes Finance Document or this
Agreement.


 


28.13               Management
time of the Security Agent


 


Any
amount payable to the Security Agent under Clause 28.9 (Indemnities to the Security Agent) shall
include the cost of utilising its management time or other resources and will
be calculated on the basis of such reasonable daily or hourly rates as it may
notify to the Senior Agent, the Hedging Banks, the Bridge Agent and the High
Yield Notes Trustee, as relevant, and is in addition to any fee paid or payable
to it under any Senior Finance Document, any Hedging Document, any Bridge
Finance Document or this Agreement.


 


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28.14               Deduction
from amounts payable by the Security Agent


 


If any
Party owes an amount to the Security Agent under the Senior Finance Documents,
the Hedging Documents, the Bridge Finance Documents, the High Yield Notes
Finance Documents or this Agreement, the Security Agent may, after giving
notice to that Party, deduct an amount not exceeding that amount from any
payment to that Party which the Security Agent would otherwise be obliged to
make under the Senior Finance Documents, the Hedging Documents, the Bridge
Finance Documents, the High Yield Notes Finance Documents or this Agreement and
apply the amount deducted in or towards satisfaction of the amount owed. For
the purposes of the Senior Finance Documents, the Hedging Documents, the Bridge
Finance Documents, the High Yield Notes Finance Documents or this Agreement
that Party shall be regarded as having received any amount so deducted.


 


28.15               Security
agency provisions


 


The
provisions of Schedule 6 (Security agency provisions) shall bind
each Party.


 


29.                           Information


 


29.1                     Defaults


 


(a)                            Each of the Senior Agent, the Bridge Agent and the High Yield Notes
Trustee will promptly notify each other and the Security Agent of the
occurrence of a default, an event of default or a potential event of default
(however described) under or breach of the Senior Facility Agreement, the
Bridge Facility Agreement or the High Yield Notes Indenture respectively of
which it has actual knowledge.


 


(b)                           Each Hedging Bank, Subordinated Preference Certificates Holder,
Subordinated Party and the holder of the High Yield Notes On-Loan will promptly
notify the Senior Agent, the Bridge Agent, the High Yield Notes Trustee and the
Security Agent of the occurrence of a default, an event of default or a
potential event of default (however described, including any termination event)
under or breach of any Hedging Document, Subordinated Preference Certificates
Finance Document, Investor Document, Intercompany Document or the High Yield
Notes On-Loan of which it has actual knowledge.


 


29.2                     Amounts of Debt


 


Each of
the Senior Agent, the Hedging Banks, the Bridge Agent, the High Yield Notes
Trustee, the holder of the High Yield Notes On-Loan, the Subordinated
Preference Certificates Holders and the Subordinated Parties will on request by
any of the others or the Security Agent from time to time notify the others and
the Security Agent of details of the amount of outstanding Senior Debt, its Hedging
Debt, outstanding Bridge Debt, its outstanding High Yield Notes Debt, its
outstanding High Yield Notes On-Loan Debt, its outstanding Subordinated
Preference Certificates Debt or its Subordinated Debt respectively.


 


29.3                     Discharge of Senior Debt and Hedging Debt


 


The
Senior Agent shall promptly notify the Bridge Agent, the High Yield Notes
Trustee and the Security Agent of the occurrence of the Senior Discharge Date.


 


29.4                     Discharge of Bridge Debt


 


The
Bridge Agent shall promptly notify the Security Agent of the occurrence of the
Bridge Discharge Date.


 


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29.5                     Discharge of High Yield Notes Debt


 


The
High Yield Notes Trustee shall promptly notify the Security Agent of the
occurrence of the High Yield Notes Discharge Date.


 


29.6                     Discharge of High Yield Notes On-Loan Debt


 


The
holder of the High Yield Notes On-Loan shall promptly notify the Security Agent
of the occurrence of the High Yield Notes On-Loan Discharge Date (if after the
High Yield Notes Discharge Date).


 


30.                           Power of Attorney


 


30.1                     Appointment - Senior Agent


 


Each
Junior Creditor (other than the High Yield Notes Trustee) by way of security
irrevocably appoints the Senior Agent as its attorney (with full power of
substitution), on its behalf and in its name or otherwise, at such time until
the Senior Discharge Date and in such manner as the attorney thinks fit to do
anything which it:


 


(a)                                   has authorised any Senior Finance Party to do under this Agreement;
and


 


(b)                                  is
obliged to do but has not done under this Agreement within 10 Business Days
after receiving notice from the Senior Agent requiring it to do so,


 


in each
case, save to the extent that the matter in question is being disputed by the
Bridge Finance Parties.


 


30.2                     Appointment - Bridge Agent


 


Each
Junior Creditor (other than the High Yield Notes Trustee) by way of security
irrevocably appoints the Bridge Agent as its attorney (with full power of
substitution), on its behalf and in its name or otherwise, at such time after
the Senior Discharge Date and in such manner as the attorney thinks fit to do
anything which it:


 


(a)                                   has authorised any Bridge Finance Party to do under this Agreement;
and


 


(b)                                  is obliged to do but has not done under this Agreement within 10
Business Days after receiving notice from the Bridge Agent requiring it to do
so.


 


30.3                     Appointment – High Yield Notes Trustee


 


Each
Junior Creditor by way of security irrevocably appoints the High Yield Notes
Trustee as its attorney (with full power of substitution), on its behalf and in
its name or otherwise, at such time after the Bridge Discharge Date and in such
manner as the attorney thinks fit to do anything which it:


 


(a)                                   has authorised any High Yield Notes Finance Party to do under this
Agreement; and


 


(b)                                  is obliged to do but has not done under this Agreement within 10
Business Days after receiving notice from the High Yield Notes Trustee
requiring it to do so.


 


30.4                     Ratification


 


Each
Junior Creditor ratifies and confirms and agrees to ratify and confirm whatever
any such attorney shall do in the exercise or purported exercise of the power
of attorney granted by it in this Clause 30.


 


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31.                           Expenses


 


To the
extent not already paid under another Finance Document, each Group company and
each Subordinated Party will, within three Business Days of demand, pay to each
Secured Party and High Yield Notes Finance Party the amount of all costs and
expenses (including legal fees) incurred by that Secured Party or High Yield
Notes Finance Party (as the case may be) in connection with the enforcement or
preservation of that person’s rights against that Obligor or Subordinated Party
under this Agreement.


 


32.                           Changes to the Parties


 


32.1                     Assignments and transfers by Senior Finance Parties


 


(a)                            No Senior Finance Party may assign any of its rights or transfer any
of its rights or obligations under this Agreement to any person unless and
until:


 


(i)                                      that Senior Finance Party is permitted to, and at the same time
does, assign or transfer its related rights and obligations under the Senior
Finance Documents to that person; and


 


(ii)                                   that person executes an Accession Deed duly completed and signed on
behalf of that person.


 


(b)                           Each Party
(other than the relevant transferee under paragraph (a) above) irrevocably
authorises the Security Agent to execute on its behalf any Accession Deed which
has been duly completed and signed on behalf of that transferee.


 


32.2                     Accession of Hedging Banks


 


(a)                            No person entering into any derivative transaction with any Obligor
in connection with protection against or benefit from fluctuation in any rate
or price (except under an Ancillary Facility) will be entitled to share in any
Security created by any Security Document in respect of any of the moneys,
debts or liabilities arising under or in connection with that derivative
transaction or benefit from the representations, warranties or undertakings of
any Party under this Agreement unless and until:


 


(i)                                      either
(A) that person is listed in Schedule 2 (The
Original Hedging Banks) or (B)  the
Security Agent has agreed in writing to that person becoming a Hedging Bank and
that person has become a Hedging Bank in accordance with paragraph (b) below;


 


(ii)                                   the
relevant derivative transaction is permitted by the Applicable Facilities
Agreements; and


 


(iii)                                the
Hedging Documents relating to the relevant derivative transaction comply with
Clause 4.2(b) (Hedging Documents).


 


(b)                           In the case
of paragraph (a)(i)(B) above, that person shall become a Hedging Bank if the
Security Agent executes an Accession Deed duly completed and signed on behalf
of that person.


 


(c)                            Each Party (other than the relevant proposed Hedging Bank under
paragraph (a)(i)(B) above) irrevocably authorises the Security Agent to execute
on its behalf any Accession Deed which has been duly completed and signed on
behalf of that proposed Hedging Bank.


 


(d)                           The Company shall procure that no Obligor shall enter into any
Hedging Document unless and until:


 


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(i)                                      that Hedging Document and the Hedging Bank relating to that Hedging
Document are listed in Schedule 2 (The
Original Hedging Banks); or


 


(ii)                                   the proposed Hedging Bank has become a Hedging Bank in accordance
with paragraphs (a)(ii) and (b) above.


 


32.3                     Assignments and transfers by Hedging Banks


 


(a)                            No Hedging Bank may assign any of its rights or transfer any of its
rights or obligations under this Agreement to any person unless and until:


 


(i)                                      that Hedging Bank is permitted to, and at the same time does, assign
or transfer its related rights and obligations under the Hedging Documents to
that person; and


 


(ii)                                   that person executes an Accession Deed duly completed and signed on
behalf of that person.


 


(b)                           Each Party (other than the relevant transferee under paragraph (a)
above) irrevocably authorises the Security Agent to execute on its behalf any
Accession Deed which has been duly completed and signed on behalf of that
transferee.


 


32.4                     Assignments and transfers by Bridge Finance Parties


 


(a)                            No Bridge Finance Party may assign any of its rights or transfer any
of its rights or obligations under this Agreement to any person unless and
until:


 


(i)                                      that Bridge Finance Party is permitted to, and at the same time
does, assign or transfer its related rights and obligations under the Bridge
Finance Documents to that person; and


 


(ii)                                   that person executes an Accession Deed duly completed and signed on
behalf of that person.


 


(b)                           Each Party (other than the relevant transferee under paragraph (a)
above) irrevocably authorises the Security Agent to execute on its behalf any
Accession Deed which has been duly completed and signed on behalf of that
transferee.


 


32.5                     Accession of High Yield Notes Trustee


 


The
Company shall procure that, prior to the issue of the High Yields Notes, the
High Yield Notes Trustee shall promptly complete, sign and deliver to the
Security Agent an Accession Deed under which the High Yield Notes Trustee
agrees to be bound by this Agreement as if it had originally been a party to
this Agreement. In connection with the foregoing, the Security Agent shall be
entitled to make such changes to the terms hereof relating to the rights and
duties of the High Yield Notes Trustee and any other party hereto as are
required by the High Yield Notes Trustee (and as agreed with the Security
Agent) without the consent of any other Party hereto provided that such changes
would not have a material adverse effect on the other Parties.


 


32.6                     Accession of High Yield Notes Issuer


 


If the
High Yield Notes Issuer is not an original party to this Agreement, the Company
shall procure that, prior to the execution of the High Yields Notes On-Loan,
the High Yield Notes Issuer shall promptly complete, sign and deliver to the
Security Trustee an Accession Deed under which the High Yield Notes Issuer
agrees to be bound by this Agreement as if it had originally been a party to
this Agreement.


 


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32.7                     Assignment and transfers by High Yield Notes Issuer


 


(a)                            The High Yield Notes Issuer may not assign any of its rights or
transfer any of its rights or obligations under the High Yield Notes On-Loan
and related rights and obligations under this Agreement to any person unless
and until:


 


(i)                                      the High Yield Notes Issuer is permitted to, and at the same time
does, assign or transfer its related rights and obligations under the High
Yield Notes On-Loan to that person; and


 


(ii)                                   that person (if not already a party hereto) executes an Accession
Deed duly completed and signed.


 


(b)                           Each Party (other than the relevant transferee under paragraph (a)
above) irrevocably authorises the Security Agent to execute on its behalf any
Accession Deed which has been duly completed and signed on behalf of that
transferee.


 


32.8                     Assignment and transfers by Subordinated Preference Certificates
Holder


 


(a)                            No Subordinated Preference Certificates Holder may assign any of its
rights or transfer any of its rights or obligations under any Subordinated
Preference Certificate and related rights and obligations under this Agreement
to any person unless and until:


 


(i)                                      that Subordinated Preference Certificates Holder is permitted to,
and at the same time does, assign or transfer its related rights and
obligations under the Subordinated Preference Certificates Finance Documents to
that person; and


 


(ii)                                   that person executes an Accession Deed duly completed and signed.


 


(b)                           Each Party (other than the relevant transferee under paragraph (a)
above) irrevocably authorises the Security Agent to execute on its behalf any
Accession Deed which has been duly completed and signed on behalf of that
transferee.


 


32.9                     Assignment and transfers by Investors


 


(a)                            No Investor may assign any of its rights or transfer any of its
rights or obligations under any Investor Debt and related rights and
obligations under this Agreement to any person unless and until:


 


(i)                                      that Investor is permitted to, and at the same time does, assign or
transfer its related rights and obligations under the Investor Documents to
that person; and


 


(ii)                                   that person executes an Accession Deed duly completed and signed.


 


(b)                           Each Party (other than the relevant transferee under paragraph (a)
above) irrevocably authorises the Security Agent to execute on its behalf any
Accession Deed which has been duly completed and signed on behalf of that
transferee.


 


32.10               Accession
of additional Investors


 


(a)                            The Company shall procure that any new Investor shall deliver to the
Security Agent a duly completed and signed Accession Deed on or before becoming
a new Investor.


 


(b)                           Each Party (other than the new Investor under paragraph (a) above)
irrevocably authorises the Security Agent to execute on its behalf any
Accession Deed which has been duly completed and signed on behalf of that
proposed new Investor.


 


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32.11               Assignment
and transfer by Obligors


 


No
Obligor may assign any of its rights or transfer any of its rights or
obligations under this Agreement.


 


32.12               Accession
of additional Obligors


 


(a)                            The Company shall procure that any member of the Group which it
requests to become an Additional Borrower or an Additional Guarantor (each as
defined in the Senior Facility Agreement and the Bridge Facility Agreement)
under the Senior Facility Agreement or the Bridge Facility Agreement shall
deliver to the Security Agent a duly completed and signed Accession Deed on or
before becoming an Additional Borrower or Additional Guarantor (each as defined
in the Senior Facility Agreement and the Bridge Facility Agreement) under the
Senior Facility Agreement or the Bridge Facility Agreement.


 


(b)                           Each Party (other than the relevant proposed Additional Borrower or
Additional Guarantor (each as defined in the Senior Facility Agreement and the
Bridge Facility Agreement) under paragraph (a) above) irrevocably authorises the
Security Agent to execute on its behalf any Accession Deed which has been duly
completed and signed on behalf of that proposed Additional Borrower or
Additional Guarantor (each as defined in the Senior Facility Agreement and the
Bridge Facility Agreement).


 


32.13               Assignment
and transfer by High Yield Notes Guarantors


 


No High
Yield Notes Guarantor may assign any of its rights or transfer any of its
rights or obligations under this Agreement


 


32.14               Accession
of additional High Yield Notes Guarantors


 


(a)                            The Company shall procure that any new High Yield Notes Guarantor
shall deliver to the Security Agent a duly completed and signed Accession Deed
on or before becoming a new High Yield Notes Guarantor.


 


(b)                           Each Party (other than the new High Yield Notes Guarantee under
paragraph (a) above) irrevocably authorises the Security Agent to execute on
its behalf any Accession Deed which has been duly completed and signed on
behalf of that proposed new High Yield Notes Guarantor.


 


32.15               Assignments
and transfers by Intercompany Lenders and Intercompany Borrowers


 


(a)                            No Intercompany Lender or Intercompany Borrower may assign any of
its rights or transfer any of its rights or obligations under this Agreement to
any person unless and until that person executes an Accession Deed duly
completed and signed on behalf of that person.


 


(b)                           Each Party (other than the relevant transferee under paragraph (a)
above) irrevocably authorises the Security Agent to execute on its behalf any
Accession Deed which has been duly completed and signed on behalf of that
transferee.


 


32.16               Accession
of Intercompany Borrowers and Intercompany Lenders


 


(a)                            The Company shall procure that any member of the Group to the extent
required to be a party by the Applicable Facilities Agreement which is not
already an Intercompany Borrower or, as the case may be, an Intercompany Lender
shall deliver to the Security Agent a duly completed and signed Accession Deed.


 


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(b)                           That member of the Group shall become an Intercompany Borrower or an
Intercompany Lender if the Security Agent executes that Accession Deed.


 


(c)                            Each Party (other than the relevant proposed Intercompany Borrower
or Intercompany Lender under paragraph (a) above) irrevocably authorises the Security
Agent to execute on its behalf any Accession Deed which has been duly completed
and signed on behalf of that proposed Intercompany Borrower or Intercompany
Lender.


 


32.17               Notification
by Security Agent


 


The
Security Agent shall notify the other Parties promptly of the receipt and
execution by it on their behalf of any Accession Deed.


 


33.                           Notices


 


33.1                     Communications in writing


 


Any
communication or document to be made or delivered under or in connection with
this Agreement shall be made in writing and, unless otherwise stated, may be
made or delivered by fax or letter.


 


33.2                     Addresses


 


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 the Company, any other Original Obligor, any Senior
Finance Party or any Bridge Finance Party, that identified in accordance with
the terms of the Senior Facility Agreement or, as the case may be, the Bridge
Facility Agreement; and


 


(b)                                  in the case of each Hedging Bank, Subordinated Preference
Certificates Holders, Intercompany Borrowers or Subordinated Party or the High
Yield Notes Trustee or the High Yield Notes Issuer, that notified in writing to
the Security Agent on or prior to the date on which it becomes a Party,


 


or any
substitute address, fax number or department or officer as the Party may notify
to the Security Agent (or the Security Agent may notify to the other Parties,
if a change is made by the Security Agent) by not less than five Business Days’
notice.


 


33.3                     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 33.2 (Addresses), if addressed to that
department or officer.


 


(b)                           Any communication or document to be made or delivered to the
Security Agent will be effective only when actually received by the Security
Agent and then only if it is expressly marked for the


 


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attention of the department or officer
identified with the Security Agent’s signature below (or any substitute
department or officer as the Security Agent shall specify for this purpose).


 


33.4                     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 33.2 (Addresses) or changing its own address or
fax number, the Security Agent shall notify the other Parties.


 


33.5                     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 Security Agent,
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.


 


34.                           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.


 


35.                           Remedies and waivers


 


No
failure to exercise, nor any delay in exercising, on the part of any Secured
Party or Subordinated Party 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.


 


36.                           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.


 


37.                           Governing law


 


This
Agreement is governed by English law.


 


38.                           Enforcement


 


38.1                     Jurisdiction


 


(a)                            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”).


 


(b)                           The Parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will argue to
the contrary.


 


69

















 


(c)                            This Clause 38.1 is for the benefit of the Senior Finance Parties
only until the Senior Discharge Date, the Bridge Finance Parties only after the
Senior Discharge Date and the High Yield Notes Finance Parties only after the
Bridge Discharge Date.  As a result, no
Senior Finance Party, until the Senior Discharge Date, or Bridge Finance Party,
after the Senior Discharge Date or High Yield Notes Finance Party, after the
Bridge Discharge Date, shall be prevented from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent allowed by law,
the Senior Finance Parties, until the Senior Discharge Date, the Bridge Finance
Parties, after the Senior Discharge Date and the High Yield Notes Finance
Parties, after the Bridge Discharge Date, may take concurrent proceedings in
any number of jurisdictions.


 


38.2                     Service of process


 


Without
prejudice to any other mode of service allowed under any relevant law, each
Obligor, each Intercompany Borrower and each Subordinated Party (other than an
Obligor, an Intercompany Borrower or a Subordinated Party incorporated in
England and Wales):


 


(a)                                   irrevocably appoints the Company as its agent for service of process
in relation to any proceedings before the English courts in connection with any
Finance Document; and


 


(b)                                  agrees that failure by a process agent to notify the relevant
Obligor, Subordinated Preference Certificates Holder, Intercompany Borrower or
Subordinated Party of the process will not invalidate the proceedings
concerned.


 


This Agreement has been executed as a deed on the date stated
at the beginning of this Agreement.


 


70

















 


SCHEDULE 1


 


THE ORIGINAL OBLIGORS


 


	
  Name of Original Borrower

  	
   

  	
  Jurisdiction of
  incorporation

  	
   

  	
  Registration
  number (or

  equivalent, if any)

  
	
  Facility A Borrower

  Newco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886096

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility B Borrower

  Newco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886096

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility C Borrower

  Newco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886096

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Capex Facility Borrower

  Newco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886096

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revolving Facility Borrower

  Newco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886096

  



 


	
  Name of Original Guarantor

  	
   

  	
  Jurisdiction of
  incorporation

  	
   

  	
  Registration
  number (or

  equivalent, if any)

  
	
  Newco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886096

  



 


71

















 


SCHEDULE 2


 


THE ORIGINAL HEDGING BANKS


 


	
  Hedging Bank

  	
   

  	
  Hedging Document

  
	
   

  	
   

  	
   

  
	
  None

  	
   

  	
   

  



 


72

















 


SCHEDULE 3


 


THE ORIGINAL INVESTORS


 


Permira
Europe III L.P.1


 


Permira
Europe III L.P.2


 


Permira
Europe III GmbH & Co K.G.


 


Permira
Europe III Co-Investment Scheme


 


Permira
Investments Limited


 


Apax
Europe V-A, L.P.


 


Apax
Europe V-B, L.P.


 


Apax
Europe V-C, GmbH & Co K.G.


 


Apax
Europe V-D, L.P.


 


Apax
Europe V-E, L.P.


 


Apax
Europe V-F, C.V.


 


Apax
Europe V-G, C.V.


 


Apax
Europe V-1, L.P.


 


Apax
Europe V-2, L.P.


 


73

















 


SCHEDULE 4


 


THE ORIGINAL INTERCOMPANY LENDERS AND BORROWERS


 


	
  Name of Original

  Intercompany Lender

  	
   

  	
  Jurisdiction of
  incorporation

  	
   

  	
  Registration
  number (or

  equivalent, if any)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DDBCo

  	
   

  	
  England and
  Wales

  	
   

  	
  4917504

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Midco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886115

  



 


	
  Name of Original

  Intercompany Borrower

  	
   

  	
  Jurisdiction of
  incorporation

  	
   

  	
  Registration
  number (or

  equivalent, if any)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Midco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886115

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Newco

  	
   

  	
  England and
  Wales

  	
   

  	
  4886096

  



 


74

















 


SCHEDULE 5


 


FORM OF ACCESSION DEED


 


	
  To:

  	
  BARCLAYS
  BANK PLC as Security Agent

  
	
   

  	
   

  
	
  From:

  	
  [Proposed Senior Finance Party/Hedging
  Bank/Bridge Finance Party/High Yield Notes Trustee/High Yield Notes
  Issuer/Subordinated Preference Certificates Holder/Investor/ Intercompany
  Lender/Intercompany Borrower/Additional Borrower/Additional Guarantor/High
  Yield Notes Guarantor]

  



 


Dated:


 


Dear Sirs


 


Duchessgrove Limited
- Intercreditor Agreement

dated 10 October (the “Agreement”)


 


1.                                 We refer to the Agreement. This is an Accession Deed. Terms defined
in the Agreement have the same meaning in this Accession Deed unless given a
different meaning in this Accession Deed.


 


2.                                 [Proposed Senior Finance Party/Hedging
Bank/Bridge Finance Party/High Yield Notes Trustee/ Holder of High Yield Notes
On-Loan/Subordinated Preference Certificates Holder/Investor/Intercompany
Lender/Intercompany Borrower/Additional Borrower/Additional Guarantor/High
Yield Notes Guarantor] agrees to be bound by the terms of the
Agreement as a [Senior Finance Party/Hedging Bank/Bridge Finance Party/the High
Yield Notes Trustee/Holder of High
Yield Notes On-Loan/Investor/Intercompany
Lender/Intercompany Borrower/Additional Borrower/Additional Guarantor/High
Yield Notes Guarantor].


 


3.                                 [Proposed Senior Finance
Party’s/Hedging Bank’s/Bridge Finance Party’s/High Yield Notes Trustee’s/Holder
of High Yield Notes On-Loan/Subordinated Preference Certificates
Holder’s/Investor’s/Intercompany Lender’s/Intercompany Borrower’s/Additional
Borrower’s/Additional Guarantor’s/High Yield Notes Guarantor’s]
administrative details are as follows:


 


	
  Address:

  	
   

  
	
   

  	
   

  
	
  Fax No:

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  



 


4.                                 [Details of the Hedging Document are as follows: 


 


	
  Date:

  	
   

  
	
   

  	
   

  
	
  Parties:

  	
  [Proposed Hedging Bank] and [the Company]

  
	
   

  	
   

  
	
  Terms:

  	
  [Insert brief summary of type of contract].]

  



 


75

















 


5.                                 This Accession Deed is governed by English law.


 


[This
Accession Deed is entered into by deed.]


 


[Proposed Senior Finance
Party/Hedging Bank/Bridge Finance Party/Investor/High Yield Notes
Trustee/Holder of High Yield Notes On-Loan/Subordinated Preference Certificates
Holder/Intercompany Lender/Intercompany Borrower Additional Borrower/Additional
Guarantor]


 


[Insert appropriate
execution blocks]


 


 


	
  By:

  	
   

  
	
  This Accession Deed is accepted by the Security Agent.

  	
   

  
	
  BARCLAYS BANK PLC

  	
   

  
	
  By:

  	
  Date:

  



 


76

















 


 


SCHEDULE 6


 


SECURITY AGENCY
PROVISIONS


 


1.                                 Definitions


 


In this
Schedule:


 


“Security
Property” means all right, title and interest in, to and under any
Security Document, including:


 


(i)                                      the assets over which Security is expressed to be created pursuant
to any Security Document (the “Charged Assets”);


 


(ii)                                   the benefit of the undertakings in any Security Document; and


 


(iii)                                all sums received or recovered by the Security Agent pursuant to any
Security Document and any assets representing the same.


 


2.                                 Declaration of trust


 


(a)                            The Security Agent, each other Secured Party and the High Yield
Notes Trustee agree that the Security Agent shall hold the Security Property in
trust for the benefit of the Secured Parties and the High Yield Notes Finance
Parties on the terms of the Agreement.


 


(b)                           Subject to paragraph (c) below, paragraph (a) above shall not apply
to any Security Document which is expressed to be or is construed to be
governed by any law other than English law or any other law from time to time
designated by the Security Agent and an Obligor or any Security Property
arising under any such Security Document.


 


(c)                            Paragraph (b) above shall not affect or limit paragraph (d) of
Clause 26.6 (Parallel Debt) nor
the applicability of the provisions of this Schedule with respect to any
Security Document which is expressed to be or is construed to be governed by
any law other than English law or any other law from time to time designated by
the Security Agent and an Obligor or any Security Property arising under such
Security Document.


 


3.                                 Defects in Security


 


The
Security Agent shall not be liable for any failure or omission to perfect, or
defect in perfecting, the Security created pursuant to any Security Document,
including:


 


(a)                                   failure to obtain any Authorisation for the execution, validity,
enforceability or admissibility in evidence of any Senior Security Document; or


 


(b)                                  failure to effect or procure registration of or otherwise protect or
perfect any of the Security created by the Senior Security Documents under any
laws in any territory.


 


4.                                 No enquiry


 


The
Security Agent may accept without enquiry, requisition, objection or investigation
such title as any Obligor may have to any Charged Assets.


 


5.                                 Retention of documents


 


The
Security Agent may hold title deeds and other documents relating to any of the
Charged Assets in such manner as it sees fit (including allowing any Obligor to
retain them).


 


77

















 


6.                                 Indemnity out of Security Property


 


The
Security Agent and every receiver, delegate, attorney, agent or other similar
person appointed under any Security Document may indemnify itself out of the
Security Property against any cost, loss or liability incurred by it in that
capacity (otherwise than by reason of its own gross negligence or wilful
misconduct).


 


7.                                 Basis of distribution


 


To
enable it to make any distribution, the Security Agent may fix a date as at
which the amount of the Debt is to be calculated and may require, and rely on,
a certificate from any Party giving details of:


 


(a)                                   any sums due or owing to any Party as at that date; and


 


(b)                                  such other matters as it thinks fit.


 


8.                                 Rights of Security Agent


 


The
Security Agent shall have all the rights, privileges and immunities which
gratuitous trustees have or may have in England, even though it is entitled to
remuneration.


 


9.                                 No duty to collect payments


 


The
Security Agent shall not have any duty:


 


(a)                                   to ensure that any payment or other financial benefit in respect of
any of the Charged Assets or any Debt is duly and punctually paid, received or
collected; or


 


(b)                                  to ensure the taking up of any (or any offer of any) stocks, shares,
rights, moneys or other property accruing or offered at any time by way of
interest, dividend, redemption, bonus, rights, preference, option, warrant or
otherwise in respect of any of the Charged Assets or any Debt.


 


10.                           Perpetuity period


 


The
perpetuity period for the trusts created by this Agreement shall be 80 years
from the date of this Agreement.


 


11.                           Appropriation


 


(a)                            Each Party irrevocably waives any right to appropriate any payment
to, or other sum received, recovered or held by, the Security Agent in or
towards payment of any particular part of the Debt and agrees that the Security
Agent shall have the exclusive right to do so.


 


(b)                           Paragraph (a) above will override any application made or purported
to be made by any other person.


 


12.                           Investments


 


All
money received or held by the Security Agent pursuant to the trusts in this
Agreement may, in the name of, or under the control of, the Security Agent:


 


(a)                                   be invested in any investment it may select; or


 


(b)                                  be deposited at such bank or institution (including itself, any
other Secured Party or any Affiliate of any Secured Party) as it thinks fit.


 


78

















 


13.                           Suspense account


 


Subject
to paragraph 14 (Timing of distributions) below, the Security Agent may:


 


(a)                                   hold in an interest bearing suspense account any moneys received by
it from any Party; and


 


(b)                                  invest an amount equal to the balance from time to time standing to
the credit of that suspense account in any of the investments authorised by paragraph
12 (Investments)
above.


 


14.                           Timing of distributions


 


Distributions
by the Security Agent shall be made as and when determined by it.


 


15.                           Delegation


 


(a)                            The Security Agent may:


 


(i)                                      employ and pay an agent selected by it to transact or conduct any
business and to do all acts required to be done by it (including the receipt
and payment of money);


 


(ii)                                   delegate to any person on any terms (including power to
sub-delegate) all or any of its functions; and


 


(iii)                                with the prior consent of the Majority Senior Lenders (if before the
Senior Discharge Date) and the Majority Bridge Lenders (if before the Bridge
Discharge Date) and the High Yield Notes Trustee (if before the High Yield
Notes Discharge Date), appoint, on such terms as it may determine, or remove,
any person to act either as separate or joint security trustee or agent with
those rights and obligations vested in the Security Agent by this Agreement or
any Security Document.


 


(b)                           The Security Agent will not be:


 


(i)                                      responsible to anyone for any misconduct or omission by any agent,
delegate or security trustee or security agent appointed by it pursuant to
paragraph (a) above; or


 


(ii)                                   bound to supervise the proceedings or acts of any such agent,
delegate or security trustee or security agent,


 


provided
that it exercises reasonable care in selecting that agent, delegate or security
trustee or security agent.


 


16.                           Unwinding


 


Any
appropriation or distribution which later transpires to have been or is agreed
by the Security Agent to have been invalid or which has to be refunded shall be
refunded and shall be deemed never to have been made.


 


17.                           Party


 


The
Security Agent shall be entitled to assume that a Party is acting in a
particular capacity stated in this Agreement or an Accession Deed unless notified
to the contrary.


 


79

















 


SCHEDULE 7


 


HIGH YIELD NOTES MAJOR
TERMS


 


High Yield Notes Issuer -
A wholly-owned special purpose finance Subsidiary of Midco or any Holding
Company of Newco.


 


Maximum weighted average cash interest rate - Not more than 12.5 per cent. per annum (excluding default
interest of not more than 2 per cent per annum and liquidated damages under the
registration rights agreement of not more than 1 per cent per annum).


 


High Yield Notes Trustee -
Must accede to the Intercreditor Agreement.


 


Maturity - Not less than
eight years from issuance.


 


Purpose - To make a High
Yield Notes On-Loan to Newco which shall be used to repay the Bridge Debt and
fees and expenses in connection therewith.


 


High Yield Notes Guarantees - Newco, Target, Inmarsat Ltd and Inmarsat Leasing Two Ltd
(subordinated in right of payment in accordance with the terms of this
Agreement) and Midco (which shall not be subordinated). Future subordinated
subsidiary guarantees may be given if the relevant guarantor guarantees the
Senior Facilities.


 


High Yield Notes Security –
Second ranking charge over the shares in Target and a first ranking charge over
the High Yield Notes On-Loan (enforceable in accordance with the terms of this
Agreement).


 


80

















 


SCHEDULE 8


 


HIGH YIELD NOTES
GUARANTEES MATURITY PROVISIONS


 


1.                                 Each High Yield Notes Guarantee will provide that it will not mature
(and no amount will become due or payable under it) until:


 


(a)                                   a High Yield Notes Default arising out of the failure to pay any
amount under the High Yield Notes Finance Documents is continuing; and


 


(b)                                  either (i) 179 days has elapsed since the date of such High Yield
Notes Default or (ii) if earlier, (A) an Insolvency Event in respect of the
relevant High Yield Notes Guarantor has occurred, (B) a Senior Declared Default
has occurred and is continuing or (C) the Senior Lenders have taken any
Enforcement Action in respect of the Senior Debt.


 


2.                                 Each High Yield Notes Guarantee shall contain provisions in relation
to payment blockage, subordination and turnover that substantially replicate
those provisions of this Agreement that relate to each High Yield Notes
Guarantee.


 


81

















 


Signature Pages


 


 


	
  The Company

  
	
   

  
	
  SIGNED as a DEED by

  DUCHESSGROVE LIMITED  acting
  by:

  
	
   

  
	
  a Director and

  
	
   

  
	
   

  
	
  a Director/the Secretary

  
	
   

  
	
   

  
	
  Address:

  	
  10
  Upper Bank Street

  London

  E14 5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to Matthew Layton)

  



 


 


	
  The Original Borrower

  
	
   

  
	
  SIGNED as a DEED by

  GRAPECLOSE LIMITED acting by:

  
	
   

  
	
  a Director and

  
	
   

  
	
   

  
	
  a Director/the Secretary

  
	
   

  
	
   

  
	
  Address:

  	
  10
  Upper Bank Street

  London

  E14 5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to Matthew Layton)

  



 

















 


	
  The Original Guarantor

  
	
   

  
	
  SIGNED as a DEED by

  GRAPECLOSE LIMITED acting by

  
	
   

  
	
  a Director and

  
	
   

  
	
   

  
	
  a Director/the Secretary

  
	
   

  
	
   

  
	
  Address:

  	
  10
  Upper Bank Street

  London

  E14 5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to Matthew Layton)

  



 

















 


	
  The Senior Lenders

  
	
   

  
	
  SIGNED by

  for and on behalf of BARCLAYS BANK

  PLC :

  
	
   

  
	
  Address:

  	
  5
  North Colonnade

  Canary Wharf

  London

  E14 5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 1840

  
	
   

  	
   

  
	
  Attention:

  	
  Mark
  Pope

  



 


 


	
  SIGNED by

  for and on behalf of CREDIT SUISSE

  FIRST BOSTON  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  One
  Cabot Square

  London

  E14 4QJ

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7888 8125

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
  Loan
  Services Group

  	
   

  	
   

  



 


 


	
  SIGNED by

  for and on behalf of THE ROYAL BANK

  OF SCOTLAND in the presence of:

  
	
   

  
	
  Address:

  	
  7th
  Floor

  135 Bishopsgate

  London

  EC2M 3UR

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7375 5265

  
	
   

  	
   

  
	
  Attention:

  	
  John
  Elder

  



 

















 


	
  The Senior Agent

  
	
   

  
	
  SIGNED by

  for and on behalf of BARCLAYS BANK

  PLC :

  
	
   

  
	
  Address:

  	
  5
  North Colonnade

  Canary Wharf

  London

  E14 5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 4893

  
	
   

  	
   

  
	
  Attention:

  	
  Frank
  Rogers

  



 


 


	
  The Security Agent

  
	
   

  
	
  SIGNED by

  for and on behalf of BARCLAYS BANK

  PLC :

  
	
   

  
	
  Address:

  	
  5
  North Colonnade

  Canary Wharf

  London

  E14 5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 4893

  
	
   

  	
   

  
	
  Attention:

  	
  Frank
  Rogers

  



 


 


	
  The Issuing Bank

  
	
   

  
	
  SIGNED by

  for and on behalf of BARCLAYS BANK PLC :

  
	
   

  
	
  Address:

  	
  5
  North Colonnade

  Canary Wharf

  London

  E14 5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 4893

  
	
   

  	
   

  
	
  Attention:

  	
  Frank
  Rogers

  



 

















 


	
  The Bridge Lenders

  
	
   

  
	
  SIGNED by

  for and on behalf of BARCLAYS CAPITAL:

  
	
   

  
	
  Address:

  	
  5
  North Colonnade

  Canary Wharf

  London

  E14 5BB

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 1840

  
	
   

  	
   

  
	
  Attention:

  	
  Mark
  Pope

  



 


 


	
  SIGNED

  by for and on behalf of CREDIT SUISSE FIRST

  BOSTON in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  One
  Cabot Square

  London

  E14 4QJ

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7888 8125

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
  Loan
  Services Group

  	
   

  	
   

  



 


 


	
   SIGNED by

  for and on behalf of THE ROYAL BANK OF

  SCOTLAND in the presence of:

  
	
   

  
	
  Address:

  	
  7th
  Floor

  135 Bishopsgate

  London

  EC2M 3UR

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7375 5265

  
	
   

  	
   

  
	
  Attention:

  	
  John
  Elder

  



 

















 


	
  The Bridge Agent

  
	
   

  
	
  SIGNED by

  for and on behalf of CREDIT SUISSE FIRST

  BOSTON in the presence of:

  
	
   

  
	
  Address:

  	
  One
  Cabot Square

  London

  E14 4QJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7888 8398

  
	
   

  	
   

  
	
  Attention:

  	
  Loan
  Agency Department

  



 

















 


	
  The Original Investors

  
	
   

  
	
  SIGNED by                    for and on behalf of PERMIRA

  EUROPE III L.P.1 acting by its General Partner

  Permira Europe III G.P. L.P.

  acting by its General Partner Permira Europe III G.P.

  Limited

  
	
   

  
	
  Address:

  	
  Trafalgar
  Court

  Les Banques

  St Peter Port

  Guernsey

  Channel Islands

  
	
   

  	
   

  
	
  Fax No:

  	
  01481
  745 078

  
	
   

  	
   

  
	
  Attention:

  	
  Sharon
  Alvarez

  



 


 


	
  SIGNED by                    for
  and on behalf of PERMIRA

  EUROPE III L.P.2 acting by its General Partner

  Permira Europe III G.P. L.P.

  acting by its General Partner Permira Europe III G.P.

  Limited

  
	
   

  
	
  Address:

  	
  Trafalgar
  Court

  Les Banques

  St Peter Port

  Guernsey

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  01481
  745 078

  
	
   

  	
   

  
	
  Attention:

  	
  Sharon
  Alvarez

  



 

















 


	
  SIGNED by                     for
  and on behalf of

  PERMIRA EUROPE III CO-INVESTMENT SCHEME

  acting by its Administrator Permira Europe III G.P.

  Limited

  
	
   

  
	
  Address:

  	
  Trafalgar
  Court

  Les Banques

  St Peter Port

  Guernsey

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  01481
  745 078

  
	
   

  	
   

  
	
  Attention:

  	
  Sharon
  Alvarez

  



 


 


	
  SIGNED by                          
  for and on behalf of

  PERMIRA EUROPE III GmbH & Co. KG acting
  by its

  Managing Limited Partner Permira Europe III G.P. L.P.

  

  acting by its General Partner Permira Europe III G.P.

  Limited

  
	
   

  
	
  Address:

  	
  Trafalgar
  Court

  Les Banques

  St Peter Port

  Guernsey

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  01481
  745 078

  
	
   

  	
   

  
	
  Attention:

  	
  Sharon
  Alvarez

  



 

















 


	
  SIGNED by                      
  for and on behalf of

  PERMIRA INVESTMENTS LIMITED acting
  by its

  nominee Permira Nominees Limited

  
	
   

  
	
  Address:

  	
  Trafalgar
  Court

  Les Banques

  St Peter Port

  Guernsey

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  01481
  745 078

  
	
   

  	
   

  
	
  Attention:

  	
  Sharon
  Alvarez

  



 


 


	
  SIGNED by                       
  for and on behalf of APAX

  EUROPE V-A, L.P. acting by its discretionary

  investment manager APAX PARTNERS EUROPE

  MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 


 


	
  SIGNED by                    for
  and on behalf of APAX

  EUROPE V-B, L.P. acting by its discretionary

  investment manager APAX PARTNERS EUROPE

  MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 

















 


	
  SIGNED by                          
  for and on behalf of APAX

  EUROPE V-C GmbH & CO K.G. acting by its

  discretionary investment manager APAX
  PARTNERS

  EUROPE MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 


 


	
  SIGNED by                    for and on behalf of APAX

  EUROPE V-D, L.P. acting by its discretionary

  investment manager APAX PARTNERS EUROPE

  MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 


 


	
  SIGNED by                     
  for and on behalf of APAX

  EUROPE V-E, L.P. acting by its discretionary

  investment manager APAX PARTNERS EUROPE

  MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 

















 


	
  SIGNED by                           
  for and on behalf of

  APAX EUROPE V-F, C.V. acting by
  its discretionary

  investment manager APAX PARTNERS EUROPE

  MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 


 


	
  SIGNED by                           
  for and on behalf of

  APAX EUROPE V-G, C.V. acting by
  its discretionary

  investment manager APAX PARTNERS EUROPE

  MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 


 


	
  SIGNED by                         
  for and on behalf of APAX

  EUROPE V-1, L.P. acting by its discretionary

  investment manager APAX PARTNERS EUROPE

  MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 

















 


	
  SIGNED by                              
  for and on behalf of

  APAX EUROPE V-2, L.P. acting by
  its discretionary

  investment manager APAX PARTNERS EUROPE

  MANAGERS LTD

  
	
   

  
	
  Address:

  	
  13-15
  Victoria Road

  St Peter Port

  Guernsey

  GY1 3ZD

  Channel Islands

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7872 6396/020 7636 6475

  
	
   

  	
   

  
	
  Attention:

  	
  Clive
  Sherling/Adrian Beecroft

  



 

















 


	
  The Original
  Intercompany Lenders

  
	
   

  
	
  SIGNED as a DEED by LAVENDERVIEW LIMITED

  acting by:

  
	
   

  
	
   

  	
  a
  Director and

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  a
  Director/the Secretary

  
	
   

  
	
  Address:

  	
  10
  Upper Bank Street

  London

  E14 5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to

  Matthew Layton)

  



 


 


	
  SIGNED as a DEED by GRAPEDRIVE LIMITED

  acting by:

  
	
   

  
	
   

  	
  a
  Director and

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  a
  Director/the Secretary

  
	
   

  	
   

  
	
  Address:

  	
  10
  Upper Bank Street

  London

  E14 5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to

  Matthew Layton)

  



 

















 


	
  The Original
  Intercompany Borrower

  
	
   

  
	
  SIGNED as a DEED by GRAPEDRIVE LIMITED

  acting by:

  
	
   

  
	
   

  	
  a
  Director and

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  a
  Director/the Secretary

  
	
   

  	
   

  
	
  Address:

  	
  10
  Upper Bank Street

  London

  E14 5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to

  Matthew Layton)

  



 


 


	
  SIGNED as a DEED by GRAPECLOSE LIMITED

  acting by:

  
	
   

  
	
   

  	
  a
  Director and

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  a
  Director/the Secretary

  
	
   

  	
   

  
	
  Address:

  	
  10
  Upper Bank Street

  London

  E14 5JJ

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to

  Matthew Layton)

  



 

















 


SIGNATURES


 


	
  The Company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED as a DEED by INMARSAT

  GROUP HOLDINGS LIMITED  acting by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  a Director and

  	
   

  	
  RAMIN
  KHADEM

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  a Director/the Secretary

  	
   

  	
  ALISON
  HORROCKS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  99
  City Road

  London

  EC1Y 1AX

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to Matthew Layton)

  	
   

  	
   

  



 


 


	
  The Senior Agent

  in its capacity as Senior Agent and for

  and on behalf of each other Senior

  Finance Party

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by Simon Deaves

  for and on behalf of BARCLAYS BANK

  PLC :

  	
  SIMON
  DEAVES

  
	
   

  	
   

  
	
  Address:

  	
  5
  North Colonnade

  Canary Wharf

  London

  E14 5BB

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7773 4893

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Frank
  Rogers

  	
   

  



 


6

















 


	
  The High Yield Notes
  Trustee

  

  SIGNED as a DEED by THE BANK OF NEW YORK

  by Daniel Wynne and Alison
  Mitchell being persons

  who, in accordance with the laws of the State of New

  York, are acting under the authority of THE BANK

  OF NEW YORK:

  	
  DANIEL
  WYNNE and ALISON MITCHELL

  
	
   

  	
   

  
	
  Address:

  	
  The
  Bank of New York

  

  One Canada Square

  London, E14 5AL

  United Kingdom

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax
  No:

  	
  +44
  20 7964 6399

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Corporate
  Trust Administration

  	
   

  



 


 


	
  The High Yield Notes
  Issuer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED as a DEED by INMARSAT

  FINANCE PLC  acting by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  a Director and

  	
   

  	
  RAMIN
  KHADEM

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  a Director/the Secretary

  	
   

  	
  ALISON
  HORROCKS

  
	
   

  	
   

  	
   

  
	
   

  
	
  Address:

  	
  99
  City Road

  London

  EC1Y 1AX

  
	
   

  	
   

  
	
  Fax
  No:

  	
  020
  7600 5555

  
	
   

  	
   

  
	
  Attention:

  	
  Company
  secretaries (with a copy to Matthew Layton)

  	
   

  
				



 


7