Lender hereby appoints, on the
terms hereof, and each Other Creditor (as defined in the U.S. Security
Agreement) by its acceptance of the benefits of the German Security and by
notice in writing to the Collateral Agent to that effect appoints, on the terms
hereof, the Collateral Agent as trustee (Treuhaender), agent and administrator
for the purpose of holding on trust (Treuhand), accepting, administering and
enforcing the German Security for and on behalf of the Lenders and the Other
Creditors;
(ii)
the Collateral Agent accepts its
appointment as trustee (Treuhaender), agent and administrator of the German
Security on the terms and subject to the conditions set out in this Agreement;
(iii)
the Lenders and the Other Creditors agree
that, in relation to the German Security, no Lender and no Other Creditor shall
exercise any independent power to enforce any German Security or take any other
action in relation to the enforcement of the German Security, or make or receive
any declarations in relation thereto.
(b)
The Collateral Agent shall administer any
German Security which is pledged under German law (verpfändet) to any of the
Lenders and the Other Creditors under an accessory security right (akzessorische
Sicherheit).
(c)
Furthermore, each Lender hereby authorizes
and each Other Creditor by notice in writing to the Collateral Agent to that
effect authorizes the Collateral Agent (with the right of sub-delegation) to
enter into any documents evidencing German Security and to make and accept all
declarations and take all actions as it considers necessary or useful in
connection
117
with any German Security on behalf of such Lender and such Other Creditor. The
Collateral Agent shall further be entitled to rescind, release, amend and/or
execute new and different documents securing the German Security. The Collateral
Agent is released from the restrictions arising under section 181 of the German
Civil Code (Buergerliches Gesetzbuch) (restrictions on self-dealing).
SECTION 12.
MISCELLANEOUS.
12.01
PAYMENT OF EXPENSES, ETC.
THE BORROWER AGREES TO:
(I) PAY ALL
REASONABLE, DOCUMENTED, OUT-OF-POCKET FEES AND EXPENSES OF THE JOINT LEAD
ARRANGERS IN CONNECTION WITH THE NEGOTIATION, PREPARATION, EXECUTION AND
DELIVERY OF THE CREDIT DOCUMENTS AND THE DOCUMENTS AND INSTRUMENTS REFERRED TO
THEREIN AND ANY AMENDMENT, WAIVER OR CONSENT RELATING THERETO (INCLUDING,
WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF WHITE & CASE LLP,
COUNSEL TO THE JOINT LEAD ARRANGERS AND OTHER LOCAL AND FOREIGN COUNSEL (IF
ANY)) AND OF EACH AGENT AND EACH LENDER IN CONNECTION WITH THE ENFORCEMENT OF
THE CREDIT DOCUMENTS AND THE DOCUMENTS AND INSTRUMENTS REFERRED TO THEREIN
(INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
FOR THE AGENTS AND FOR EACH OF THE LENDERS, PROVIDED THAT, EXCEPT IN THE CASE OF
A BANKRUPTCY OF ANY CREDIT PARTY, NO MORE THAN ONE COUNSEL FOR THE AGENTS AND
THE LENDERS MAY BE USED IN ANY ONE JURISDICTION); (II) PAY AND HOLD EACH OF THE
LENDERS HARMLESS FROM AND AGAINST ANY AND ALL PRESENT AND FUTURE STAMP AND OTHER
SIMILAR TAXES WITH RESPECT TO THE FOREGOING MATTERS AND SAVE EACH OF