FACILITY AGREEMENT
between
TDL INFOMEDIA LIMITED
TDL INFOMEDIA HOLDINGS PLC.
(as the 'Borrowers')
and
SEAT PAGINE GIALLE S.p.A.
(as the 'Lender')
Dated as of July 24 2003
Article 1 Definitions 3
Article 2 General Principles 5
Article 3Conditions Precedent 5
Article 4 Representations and Warranties 5
Article 5 Availability 6
Article 6 Request and Disbursement of Drawdowns 6
Article 7 Repayment and Prepayment 7
Article 8 Payments 7
Article 9 Taxation 8
Article 10 Undertakings of the Borrowers 8
Article 11 Events of Default 8
Article 12 Stamp Duties 9
Article 13 Assignment of the Agreement 9
Article 14 Notices 9
Article 15 Entire Agreement and Amendments 10
Article 16 Severability 10
Article 17 Language 10
Article 18 Waiver 11
Article 19 Applicable Law and Jurisdiction 11
Schedule 1 Conditions Precedent 12
Schedule 2 Form of Request of Drawdown 13
Schedule 3 Form of Notice of Voluntary Prepayment14
FACILITY AGREEMENT
This Facility Agreement (hereinafter, the 'Agreement') is made
and entered into this July 24 2003, by and between:
TDL INFOMEDIA LIMITED, a company duly organized and existing
under the laws of United Kingdom, with its registered office
at Thomson House, 000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx, XX00 0XX, Xxxxxxx, duly represented by Mr. Xxxxx
Xxxxxx;
TDL INFOMEDIA HOLDINGS PLC ., a company duly organized and
existing under the laws of United Kingdom, with its registered
office at Thomson House, 000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx, XX00 0XX, Xxxxxxx, duly represented by Mr. Xxxxx
Xxxxxx (hereinafter, together with TDL INFOMEDIA LIMITED
referred to as the 'Borrowers').
and
SEAT PAGINE GIALLE S.p.A.
A company duly organized and existing under the laws of Italy
(hereinafter, referred to as the 'Lender'), with its
registered office at Xxx Xxxxxx 00/0 Xxxxxx-Xxxxx represented
by duly empowered representative Xx.Xxxxxxxx Perissich,
Chairman, and Mr Paolo Xxx Xxxx Managing Director.
The Borrowers and the Lender shall be also hereinafter
referred to individually as the 'Party' and collectively as
the 'Parties'.
WHEREAS
TDL INFOMEDIA LIMITED is 99.73% owned by Seat Pagine Gialle
S.p.A. ('Seat').
TDL INFOMEDIA HOLDINGS PLC., is 100% indirectly owned by TDL
INFOMEDIA LIMITED.
The Lender, following a request of the Borrowers, is willing
to make available to the Borrowers a credit facility of GBP 55
million under the terms and conditions set forth in this
Agreement (the 'Facility').
The Borrowers intend to utilize such for the purposes set out
in Article 2.2.
In consideration of the above premises, which constitute an
integral and substantial part of this Agreement, the Parties
agree as follows:
Article 1
Definitions
In this Agreement, unless otherwise indicated:
1.1.Amount means, in relation to each Drawdown, the amount
determined pursuant to Article 6.1 (i) of this Agreement.
1.2.Applicable Margin means 1,180% p.a.. In case of
substantial changes in the market conditions, the Applicable
Margin will be modified. Due to the planned de-merger of the
Directories Business Activities of the Lender and the
subsequent disposal of these activities from Telecom Italia
Group, the financial funding conditions of the company to
which such activities will be transferred ('New Seat') will
change. The Borrowers accept that New Seat will renegotiate
the Applicable Margin with them. It is agreed that the new
Applicable Margin will be determined by the market and is
anticipated to be approximately 4.5%.
1.3.Availability Period means the period from July 30th 2003
and the date falling twentyfour months after the Effective
Date.
1.4.Available Amount means, in any moment, the amount in GBP
resulting from the difference between (i) the Maximum Amount
and (ii) the Utilised Amount.
1.5.Banking Day means a Target Day and a day on which banks
are open for the business of the nature required by this
Agreement in Turin and London.
1.6.Borrower Banking Account means the banking account
communicated, in the Request of Drawdown, to the Lender by the
relevant Borrower.
1.7.Break Costs means the amount (if any) which the Lender is
entitled to receive under this Agreement as compensation if
any part of the Facility is prepaid.
1.8.Drawdown means any portion of the Facility that may be
drawn down on any date within the Availability Period.
1.9.Drawdown Date means, in relation to each Drawdown, the
Banking Day falling within the Availability Period on which
the drawdown is made and indicated by the relevant Borrower
in the Request of Drawdown.
1.10. Effective Date has the meaning set forth in Article
2.3 of this Agreement.
1.11. Event of Default means any event set out in Article
11 of this Agreement.
1.12. GBP means the lawful currency of the United Kingdom.
1.13. Facility means the credit facility made available to
the Borrowers by the Lender under this Agreement.
1.14. Final Maturity Date means October 15th 2010.
1.17Lender Banking Account means the banking account as
communicated in due time to the Borrowers by the Lender.
1.18Maximum Amount means the amount of GBP 55 million.
1.19Person means any individual, company, corporation, firm,
partnership, joint venture, association, organisation or other
entity, whether or not having a separate legal personality.
1.20Request of Drawdown means the request made by the relevant
Borrower pursuant to Article 6.1 of this Agreement.
1.21Target Day means a day on which the Trans-European
Automated Real Time Gross Settlement Express Transfer (Target)
System is open.
Seat PG means Seat Pagine Gialle Spa a corporation duly
incorporated and existing under the laws of Italy, which
is the direct and/or indirect controlling Person of the
Lender and the Borrowers.
1.22Utilised Amount means, at any time, the sum of the Amount
of the outstanding Drawdowns.
1.23Voluntary Prepayment means the prepayment set forth in
Article 8.2 of this Agreement.
1.26 the 'control' of a company or corporation shall be
construed as:
(a) the power (whether by way of ownership of shares, proxy,
contract or other binding arrangement) to:
(i) cast, or control the casting of, more than one-half of the
maximum number of votes that might be cast at a general
meeting of the company or corporation; or
(ii)appoint or remove all, or the majority, of the directors
of that company or corporation; or
(iii) give directions with respect to the operating and
financial policies of that company or corporation which the
directors of that company or corporation are obliged to comply
with; or
(b) the holding (directly or indirectly) of a participating
interest in that company or corporation and:
(i) the actual exercise of a dominant influence over that
company or corporation; or
(ii) the person holding (directly or indirectly) the
participating interest and that company or corporation are
managed on a unified basis; or
(c) the holding of more than one-half of the issued share
capital of that company or corporation (excluding any part of
that issued share capital that carries no right to participate
beyond a specified amount in a distribution of either profits
or capital).
Article 2
General Principles
2.1 The recitals and the schedules to this Agreement are all
an integral part of this Agreement. Any reference to 'this
Agreement' shall include, without limitation, all such
recitals and schedules.
2.2 The Lender hereby agrees to make available to the
Borrowers the Facility and the Borrowers agree to utilise the
Facility for (i) the partial or total prepayment of the
outstanding amount of the TDL Infomedia Holdings plc 15.5%
Senior Discount Notes due 2010 with a face value of USD
11.275.000 (the 'Bonds') together with interest accrued
thereon; (ii) the payment of future interest and hedging costs
associated with borrowings under this Facility; (iii) the
repayment of the amounts outstanding under the facility
agreement dated 12 August 2002 between Telecom Italia Finance
S.A. and the Borrowers (the 'Previous Agreement'); (iv) the
repayment by TDL Infomedia Holdings plc of interest costs and
hedging losses relating to the Previous Facility and paid on
behlaf of TDL Holdings plc by other TDL Infomedia Limited
group companies; and (v) the financing of any payments to
bondholders who accept an offer to purchase the Bonds at a
purchase price of 101% of the principal amount plus accrued
interest.
2.3 This Agreement shall become effective on the date of the
execution of this Agreement by the Parties (hereinafter,
referred to as the 'Effective Date') and shall remain in force
and effect until the Final Maturity Date or, in any event,
until the Borrowers have fully complied with their payment
obligations provided for in this Agreement.
Article 3
Conditions Precedent
Save as the Lender may otherwise agree with the Borrowers, the
Lender shall not be under any obligation to allow any Drawdown
under this Agreement unless the Lender has confirmed to the
Borrowers within two Banking Days of receipt thereof that it
has received from each Borrower, in form and substance
satisfactory to it, the documents referred to in Schedule 1.
Article 4
Representations and Warranties
Each Borrower represents and warrants that:
(a) Status: it is a company duly incorporated, in good
standing and validly existing under the laws of the United
Kingdom.
(b) Powers and authority: it has the power to enter into and
perform, and has taken all necessary action to authorize the
entry into, performance and delivery of this Agreement and the
transactions contemplated by it.
(c) Obligation Binding: this Agreement constitutes a legal,
valid and binding obligation of the Borrower and it is fully
enforceable according to its terms.
(d) No Conflict: the execution and delivery of, and the
performance of the provisions of this Agreement by the
Borrower do not, and will not, conflict with: (i) any
applicable law or regulation in force in the United Kingdom on
the Effective Date; or (ii) the Borrower's articles of
association and/or by-laws; or (iii) any contract or other
document which is binding upon the Borrower.
(e) Accuracy of Information: the financial and other business
information submitted or to be submitted to the Lender by the
Borrower in connection with this Agreement is complete and
accurate in all material respects.
(f) Authorisation: it has obtained all the necessary consents
and authorizations required in order to give full effect to
this Agreement and to enable the Borrower to perform all its
obligations hereunder.
Article 5
Availability
5.1 In reliance of the warranties and representations
contained herein and subject to the terms of this Agreement,
during the Availability Period and up to the Maximum Amount,
the Lender shall make available the Facility to the Borrowers
in one or more Drawdowns, each of which shall be not less than
GBP 1 (one) million .
5.2 It is understood that the Lender shall be under no
obligation to approve any Drawdown under the Facility after
the expiry of the Availability Period and no amounts will
remain outstanding after the expiry of the Final Maturity
Date.
5.2It is understood that at any time the total amount of the
Drawdowns, outstanding and not repaid at that time, shall
not exceed the Maximum Amount.
Article 6
Request and Disbursement of Drawdowns
6.1Subject to the terms of this Agreement, the Facility or any
part thereof shall be made available to the Borrowers by
the Lender provided that the requesting Borrower (the
'Requesting Borrower') shall give to the Lender not less
than 5 (five) Banking Days written notice, which notice
shall be substantially in the form of Schedule 2 attached
hereto (the 'Request of Drawdown') and which shall:
(i) specify the Drawdown Date and the Amount to be drawn on
such date;
(ii)be effective upon receipt by the Lender and, once given,
be irrevocable.
6.2Should the Amount indicated by the Requesting Borrower in
the Request of Drawdown exceed the Available Amount, the
Lender shall:
(i) communicate the above to the Requesting Borrower; and
(ii)decrease such Amount to the Available Amount.
6.3On the Drawdown Date of each Drawdown, the Lender shall
credit to the Requesting Borrower Banking Account the
Amount of the Drawdown.
Article 7
Calculation of Applicable rate
7.1Save as otherwise provided for in this Agreement, the
Requesting Borrower shall pay interest on any Drawdown at
the Applicable Rate for the period from the Drawdown Date
of the relevant Drawdown to the Final Maturity Date.
Interest shall be payable semi- annually in arrears.
7.2All interest shall accrue from day to day and be calculated
on the basis of a 365-day year taking into account the
actual number of days elapsing from the Drawdown Date to
the Final Maturity Date.
7.3With respect to each Drawdown, the Lender shall communicate
to the Requesting Borrower the Applicable Rate within 24
hours of fixing the Applicable Rate.
Article 8
Repayment and Prepayment
8.1 Save as otherwise provided herein, the Borrowers shall
repay the Amount on the Final Maturity Date.
8.2 Each Borrower shall be entitled to prepay the whole or
part of its respective part of the Utilised Amount (the
'Voluntary Prepayment') on the following terms:
(a) the relevant Borrower shall give the Lender not less than
five (5) Banking Days written notice (in the form set out in
Schedule 3) of its intention to make such prepayment (the
'Prepayment Notice'), specifying the amount to be prepaid and
the date of intended prepayment;
(b) the amount of any partial prepayment shall not be less
than GBP 1 million;
(c) the Prepayment Notice having been given, the relevant
Borrower shall be bound to make the prepayment therein
specified.
In the event of any Voluntary Prepayment, the relevant
Borrower shall refund the Lender any Break Costs of
redeployment of funds.
8.3If the Lender ceases to control any of the Borrowers, the
Borrowers, upon simple request of the Lender, shall be
obliged to prepay the Utilised Amount on the date specified
in paragraph 7.6 below, together with any interest accrued
thereon up to such date, and the Available Amount will be
immediately cancelled. For the avoidance of any doubt the
envisaged demerger of the Lender, which will be effective
on or about August 1st, 2003, will not be deemed by the
Parties as a change of control of the Borrowers for the
purposes of this Article 8.3.
8.4The date for repayment or prepayment of the Utilised Amount
will be the Banking Day following the date of receipt by
the Borrowers of notice from the Lender or, if later, the
latest date allowed by the relevant law
Article 9
Payments
9.1 All payments of the Borrowers shall be made by crediting
the amounts to the Lender Banking Account, without set-off or
counterclaim in immediately available cleared funds not later
than 11.00 p.m.Italian time on the date on which the relevant
payment is due under the terms of this Agreement.
9.2 If any payment should fall on a day which is not a Banking
Day, that payment shall be extended to fall on the next
Banking Day unless the result of such extension would be to
carry such payment over into another calendar month in which
event such payment shall fall on the preceding Banking Day.
9.3 The Lender may, by giving ten days prior written notice to
the Borrowers, change at any time the Lender Banking Account
at its sole discretion.
Article 10
Taxation
10.1 All payments of principal or interest under this Agreement
shall be made free and clear of and without any deduction for
or on account of taxes.
10.2 If a Borrower is required to make any deduction or
withholding from any payment here above, it shall pay the
full amount to be deducted or withheld to the local tax
authorities within the time allowed under the applicable
law, and shall deliver to the Lender an original receipt
issued by such authority of all amounts so required to be
deducted or withheld.
Article 11
Undertakings of the Borrowers
All the obligations and liabilities of each Borrower under
this Agreement (a) are and will continue to be direct,
unconditional, irrevocable and general obligations of such
Borrower and (b) rank and will continue to rank in right of
payment and point of security at least pari passu with all
other unsecured and unsubordinated indebtedness of such
Borrower.
Article 12
Events Of Default
If :
(i) any of the Borrowers does not pay any sum due from it
under this Agreement at the time and under the terms and
conditions specified in this Agreement; or
(ii) any of the Borrowers fails to perform any of its other
obligations hereunder and such failure, if capable of remedy,
is not remedied within 15 (fifteen) days after the Lender has
given notice thereof to the Defaulting Borrower; or
(iii) any order is made or any effective resolution is
passed or a petition is presented for the winding-up,
dissolution, liquidation or re-construction of any of the
Borrowers or for the appointment of a receiver, administrator
or trustee or similar officer of it or of all or substantially
all of its revenues and assets; or
(iv) any of the Borrowers is unable to pay its debts as they
fall due, commences negotiations with its creditors generally
with a view to general readjustments or rescheduling of its
indebtedness or makes a general assignment for the benefit of
or a composition with its creditors; or
Then at any time after the occurrence of any event set out
above when such event is continuing unwaived, the Lender
may by notice in writing to the Borrowers declare that this
Agreement shall be terminated with respect to the Borrowers
and the provision of Article 8.4 shall apply.
The Borrowers shall indemnify the Lender against all
losses, costs and expenses (including legal fees)
reasonably incurred as a result of the occurrence of an
Event of Default.
Article 13
Stamp Duties
The Borrowers shall pay all stamp, registration and other
taxes to which this Agreement is or at any time may be subject
and shall from time to time on demand of the Lender, indemnify
the Lender against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any
such tax.
Article 14
Assignment of the Agreement
The Borrowers may not assign any of its rights and/or
obligations hereunder without the prior written consent of the
Lender. The Lender may assign any of its rights and/or
obligations hereunder to any third Person.
Article 15
Notices
All notices or other communications under or in connection
with this Agreement shall be given by letter or by facsimile,
unless otherwise agreed by the Parties. Any such notice will
be deemed to be given as follows:
(a) if by letter, when delivered personally or on
actual receipt; and
(b) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but
received on a non-Banking Day or after business hours in the
place of receipt will only be deemed to be given on the next
Banking Day in that place.
The address, telephone number and facsimile number of each
Party for all notices under or in connection with this
Agreement are the following:
if to be addressed to the Borrowers:
TDL INFOMEDIA LIMITED
TDL INFOMEDIA HOLDINGS Plc.
Thomson House
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxx. XX00 0XX
For the attention of: Mr K Xxxxxx and : Mr.
G Field
Tel:.x00 0000 000000 x00 0000 000000
Fax: + 00 0000 000000 x00 0000 000000
if to be addressed to the Lender:
SEAT PAGINE GIALLE S.p.A.
Xxx Xxxxx 00 00000 Xxxxxx-Xxxxx
To the attention of: Xx. Xxxxxx Xxxxxxxxxx
Tel: x00 000 0000000 Fax x00 000 0000000
Each Party may, by not less than 5 Banking Days' written
notice to the other Party, modify the address to which
requests or communications shall be directed.
Article 16
Entire Agreement and Amendments
This Agreement may not be released, discharged, abandoned,
changed, renewed, extended, or modified in any manner except
by an instrument in writing signed by duly authorised officers
or representatives of each of the Parties to this Agreement.
Article 17
Severability
If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality or
enforceability of the other provisions hereof shall not be
affected thereby, and the Parties shall negotiate in good
faith a valid, legal and enforceable substitute provision as
similar as possible to the provision at issue.
Article 18
Language
This Agreement shall be in the English language and all
documentation and/or communications related hereto will also
be in the English language, except if otherwise specifically
mutually agreed in writing among the Parties. In this last
case, the interested Party shall bear all the costs of
translations to English and all risks of the accuracy of such
translation.
Article 19
Waiver
Failure or delay of a Party to exercise any right or remedy
hereunder shall not constitute nor be interpreted as a waiver
by such Party to exercise such right or remedy.
Article 20
Applicable Law and Jurisdiction
20.1 This Agreement shall be governed and construed in
accordance with the laws of Italy.
20.2 Any dispute or disagreement arising among the Parties as
a result of the interpretation, performance or consequences
of this Agreement which can not be resolved amicably within
15 days from the date on which such dispute or disagreement
arises, shall be submitted to the exclusive jurisdiction of
the Court of Milan.
In witness whereof, the Parties hereto have executed this
Agreement in two (2) originals on the date first above
written.
_____________________________
TDL INFOMEDIA LIMITED
_____________________________
TDL INFOMEDIA HOLDINGS PLC.
____________________________
SEAT PAGINE GIALLE SPA
SCHEDULE 1
CONDITIONS PRECEDENT
(a) A certified copy of the resolution of the Board of
Directors of the Borrower approving the terms and conditions
of this Facility Agreement.
(b) A list of named persons authorised to give written
instructions to draw under this Agreement.
(c) A duly executed copy of this Agreement.
SCHEDULE 2
Form for the Request of Drawdown
Date [ ]
to: Seat Pg Spa
Xxx Xxxxxxx Xxxxx 00
00000 Xxxxxx
Xxxxx
to the kind attention of Xx.
Xxxxxx Xxxxxxxxxx
Re: Facility Agreement dated July 24th 2003 (the 'Agreement')
for GBP 55.000.000,00 in favour of TDL INFOMEDIA LIMITED and
TDL INFOMEDIA, in favour of TDL INFOMEDIA LIMITED and TDL
INFOMEDIA HOLDINGS PLC.
We refer to the Agreement.
Capitalised terms used and not otherwise defined
herein have the meanings set ut in the Agreement.
In accordance with Article 6 of the Agreement, by this
letter we confirm the Request of Drawdown as per the following
instructions:
Amount : .....
Currency: GBP ___________
Beneficiary : TDL INFOMEDIA [ ]
Drawdown Date : Interest period : From ...
to .....
Bank :
Account No:
SWIFT Code :
We confirm that, at the date hereof, the representations
and warranties set out in Article 4 of the Agreement are true
and correct and no Event of Default has occurred.
Yours sincerely,
TDL INFOMEDIA [ ].
SCHEDULE 3
Form of Notice of Voluntary Prepayment
Date [ ]
to: Seat Pg Spa
Xxx Xxxxxxx Xxxxx 00
00000 Xxxxxx
Xxxxx
to the kind attention of Xx. Xxxxxx Xxxxxxxxxx
Re: Facility Agreement dated July 24 2003 the 'Agreement')
for GBP 55.000.000,00 in favour of TDL INFOMEDIA LIMITED and
TDL INFOMEDIA HOLDINGS PLC.
We refer to the Agreement.
Capitalised terms used herein and not otherwise
defined herein have the meanings set out in the Agreement.
In relation to Article 8 of the Agreement, by this
letter we request to make a partial/full prepayment of the
following Utilised Amount :
Amount : GBP_________
You are kindly requested to provide us with your standard
settlement instructions.
We acknowledge that the prepaid amount is not less than
GBP________ or any integral multiple thereof
Yours sincerely,
TDL INFOMEDIA [ ].
