dated August 2008 for NDS FINANCE LIMITED as the Company arranged by J.P. MORGAN PLC and MORGAN STANLEY BANK INTERNATIONAL LIMITED as Arrangers with J.P. MORGAN EUROPE LIMITED acting as Facility Agent and J.P. MORGAN EUROPE LIMITED acting as Security...
MEZZANINE
FACILITY AGREEMENT
dated
August
2008
for
NDS
FINANCE LIMITED
as
the
Company
arranged
by
X.X.
XXXXXX PLC
and
XXXXXX
XXXXXXX BANK INTERNATIONAL LIMITED
as
Arrangers
with
X.X.
XXXXXX EUROPE LIMITED
acting
as
Facility Agent
and
X.X.
XXXXXX EUROPE LIMITED
acting
as
Security Agent
Ref:
ADF/SB
Linklaters
LLP
CONTENTS
|
CLAUSE
|
PAGE
|
|
|
SECTION
1
|
||
|
INTERPRETATION
|
||
|
1.
|
Definitions
and Interpretation
|
1
|
|
SECTION
2
|
||
|
THE
FACILITY
|
||
|
2.
|
The
Facility
|
47
|
|
3.
|
Purpose
|
48
|
|
4.
|
Conditions
of Utilisation
|
48
|
|
SECTION
3
|
||
|
UTILISATION
|
||
|
5.
|
Utilisation
- Loans
|
51
|
|
6.
|
Redenomination
|
52
|
|
SECTION
4
|
||
|
Repayment,
Prepayment and Cancellation
|
||
|
7.
|
Repayment
|
54
|
|
8.
|
Illegality,
Voluntary Prepayment and Cancellation
|
54
|
|
9.
|
Mandatory
Prepayment
|
57
|
|
10.
|
Restrictions
|
62
|
|
SECTION
5
|
||
|
COSTS
OF UTILISATION
|
||
|
11.
|
Interest
|
64
|
|
12.
|
Interest
Periods
|
65
|
|
13.
|
Changes
to the Calculation of Interest
|
66
|
|
14.
|
Fees
|
67
|
|
SECTION
6
|
||
|
ADDITIONAL
PAYMENT OBLIGATIONS
|
||
|
15.
|
Tax
Gross-Up and Indemnities
|
68
|
|
16.
|
Increased
Costs
|
74
|
|
17.
|
Other
Indemnities
|
75
|
|
18.
|
Mitigation
by the Lenders
|
76
|
|
19.
|
Costs
and Expenses
|
76
|
|
SECTION
7
|
||
|
GUARANTEE
|
||
|
20.
|
Guarantee
and Indemnity
|
78
|
|
SECTION 8
|
||
|
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
|
||
|
21.
|
Representations
|
82
|
|
22.
|
Information
Undertakings
|
87
|
|
23.
|
Financial
Covenants
|
93
|
|
24.
|
General
Undertakings
|
109
|
|
25.
|
Events
of Default
|
123
|
(i)
|
SECTION
9
|
||
|
CHANGES
TO PARTIES
|
||
|
26.
|
Changes
to the Lenders
|
129
|
|
27.
|
Changes
to the Obligors
|
134
|
|
SECTION
10
|
||
|
THE
FINANCE PARTIES
|
||
|
28.
|
Role
of the Facility Agent, the Arranger, the Issuing Bank and
Others
|
138
|
|
29.
|
Conduct
of Business by the Finance Parties
|
144
|
|
30.
|
Sharing
among the Finance Parties
|
144
|
|
SECTION
11
|
||
|
ADMINISTRATION
|
||
|
31.
|
Payment
Mechanics
|
146
|
|
32.
|
Set-Off
|
148
|
|
33.
|
Notices
|
148
|
|
34.
|
Calculations
and Certificates
|
151
|
|
35.
|
Partial
Invalidity
|
151
|
|
36.
|
Remedies
and Waivers
|
151
|
|
37.
|
Amendments
and Waivers
|
151
|
|
38.
|
Counterparts
|
153
|
|
39.
|
US
Patriot Act
|
154
|
|
SECTION
12
|
||
|
GOVERNING
LAW AND ENFORCEMENT
|
||
|
40.
|
Governing
Law
|
155
|
|
41.
|
Enforcement
|
155
|
THE
SCHEDULES
|
PAGE
|
|
|
SCHEDULE
1 The
Original Parties
|
156
|
|
SCHEDULE
2 Conditions
Precedent and conditions subsequent
|
158
|
|
SCHEDULE
3 Requests
|
168
|
|
SCHEDULE
4 Mandatory
Cost Formulae
|
172
|
|
SCHEDULE
5 Form
of Transfer Certificate and Lender Accession Undertaking
|
175
|
|
SCHEDULE
6 Form
of Accession letter
|
178
|
|
SCHEDULE
7 Form
of Resignation Letter
|
179
|
|
SCHEDULE
8 Form
of Compliance Certificate
|
180
|
|
SCHEDULE
9 LMA
Form
of Confidentiality Undertaking
|
182
|
|
SCHEDULE
10 Timetable
|
186
|
|
187
|
|
|
SCHEDULE
12 Security
Principles
|
188
|
(ii)
THIS
AGREEMENT is
dated August 2008 and made
between:
|
(1)
|
NDS
FINANCE LIMITED (registration
number 06617193) (the "Company"
and the "Original
Borrower");
|
|
(2)
|
THE
SUBSIDIARIES of
the Parent listed in Part I of Schedule 1 (The
Original Parties)
as original guarantors (the "Original
Guarantors");
|
|
(3)
|
X.X.
XXXXXX PLC and
XXXXXX
XXXXXXX BANK INTERNATIONAL LIMITED as
mandated lead arrangers (whether acting individually or together,
the
"Arranger");
|
|
(4)
|
THE
FINANCIAL INSTITUTIONS listed
in Part II of Schedule 1 (The
Original Parties)
as original lenders (the "Original
Lenders");
|
|
(5)
|
X.X.
XXXXXX EUROPE LIMITED
as
agent of the other Finance Parties (the "Facility
Agent");
and
|
|
(6)
|
X.X.
XXXXXX EUROPE LIMITED
as
security agent for the Secured Parties (the "Security
Agent").
|
IT
IS
AGREED as follows:
SECTION
1
INTERPRETATION
|
1.
|
DEFINITIONS
AND
INTERPRETATION
|
|
1.1
|
Definitions
|
In
this
Agreement:
"Accession
Letter"
means a
document substantially in the form set out in Schedule 6 (Form
of Accession Letter).
"Accounting
Principles"
means
US GAAP.
"Acquisition"
means
the acquisition by Permira of shares in the Parent by means of a scheme of
arrangement.
"Acquisition
Costs"
means
all non-periodic fees, costs and expenses, stamp, registration and other taxes
incurred or required to be paid by any member of the Group in connection with
the Transaction, any Permitted Acquisition, any reorganisation permitted under
paragraph (c) of the definition of Permitted Transaction or the Transaction
Documents or the refinancing of any indebtedness in the Group at
Closing.
"Acquisition
Sub-Limit"
has the
meaning given to it in the Senior Facilities Agreement.
"Additional
Borrower"
means a
company which becomes a Borrower in accordance with Clause 27
(Changes
to the Obligors).
"Additional
Cost Rate"
has the
meaning given to that term in Schedule 4 (Mandatory
Cost Formulae).
"Additional
Guarantor"
means a
company which becomes a Guarantor in accordance with Clause 27
(Changes
to the Obligors).
"Additional
Obligor"
means
an Additional Borrower or an Additional Guarantor.
1
"Affiliate"
means,
in relation to any person, a Subsidiary of that person or a Holding Company
of
that person or any other Subsidiary of that Holding Company.
"Ancillary
Facility"
has the
meaning given to it in the Senior Facilities Agreement.
Anti-Terrorism
Laws"
means
the Executive Order, the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), the Money
Laundering Control Act of 1986 (18 U.S.C. §§ 1956 et seq.), the USA Patriot Act,
the International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), the
Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), any other law or
regulation administered by OFAC, and any similar law enacted in the United
States after the date of this Agreement.
"Approved Bank"
means:
|
(a)
|
a
Lender;
|
|
(b)
|
First
International Bank of Israel, United Mizrahi Bank, Bank Hapoalim
and Bank
Leumi in the context of the operation of the Israeli part of the
Group's
business only;
|
|
(c)
|
any
bank or financial institution which has a rating for its long-term
debt
obligations of A or higher by Standard & Poor's Rating Services or
Fitch Ratings Ltd or Aa1 or higher by Xxxxx'x Investor Service Limited
or
a comparable rating from an internationally recognised credit rating
agency; or
|
|
(d)
|
any
other bank or financial institution approved by the Facility Agent
(acting
reasonably).
|
"Auditors"
means
one of PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche
(or any amalgamation of the same or their successors) or such other firm of
international repute approved by the Facility Agent (acting
reasonably).
"Authorisation"
means
an authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
"Availability Period"
means
the period from and including the date of this Agreement to and including the
earlier of:
|
(a)
|
the
date on which the Scheme lapses or is
withdrawn;
|
|
(b)
|
15 days
after Closing; and
|
|
(c)
|
27
February 2009.
|
"Available
Amount"
has the
meaning given to that term in Clause 24.37
(Baskets).
"Available
Commitment"
means a
Lender's Commitment under the Facility minus:
|
(a)
|
the
Base
Currency Amount of its participation in any outstanding Loan;
and
|
|
(b)
|
in
relation to any proposed Utilisation, the Base Currency Amount of
its
participation in any other Loans that are due to be made on or before
the
proposed Utilisation Date.
|
"Available
Facility"
means
the aggregate for the time being of each Lender's Available
Commitment.
2
"Base
Case Model"
means
the financial model including profit and loss, balance sheet and cashflow
projections in the agreed form relating to the Group (for these purposes
assuming completion of the Acquisition).
"Base
Currency"
means
dollars.
"Base
Currency Amount"
means
in relation to a Utilisation, the amount specified in the Utilisation Request
delivered by a Borrower for that Utilisation as adjusted to reflect the
repayment, prepayment, consolidation or division of a Utilisation.
"Big
Four Accountants"
means
PricewaterhouseCoopers, Ernst & Young, KPMG and Deloitte & Touche or
another accountant of international repute approved by the Facility Agent
(acting reasonably).
"Blocked
Account"
means
the Group Blocked Account or the Lender Blocked Account.
"Board"
means
the Board of Governors of the Federal Reserve System of the United States (or
any successor thereto).
"Borrower"
means
an Original Borrower or an Additional Borrower unless it has ceased to be a
Borrower in accordance with Clause 27
(Changes
to the Obligors).
"Borrowings"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Break
Costs"
means
the amount (if any) by which:
|
(a)
|
the
interest (but, for the avoidance of doubt, excluding
any Margin and any Mandatory Cost) which a Lender should have received
for
the period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the current
Interest Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that Interest
Period;
|
exceeds:
|
(b)
|
the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit
with
a leading bank in the Relevant Interbank Market for a period starting
on
the Business Day following receipt or recovery and ending on the
last day
of the current Interest Period.
|
"Budget"
means:
|
(a)
|
in
relation to the period beginning from Closing to 30 June 2009,
the Base Case Model to be delivered by the Company
to the Facility Agent pursuant to Clause 4.1
(Initial
conditions precedent);
and
|
|
(b)
|
in
relation to any other period, any budget delivered by the Parent
to the
Facility Agent in respect of that period pursuant to paragraph (a)
of
Clause 22.4
(Budget).
|
"Business
Day"
means a
day (other than a Saturday or Sunday) on which banks are open for general
business in London and New York, and:
|
(a)
|
(in
relation to any date for payment or purchase of a currency other
than
euro) the principal financial centre of the country of that currency;
or
|
3
|
(b)
|
(in
relation to any date for payment or purchase of euro) any TARGET
Day.
|
"Capital
Expenditure"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Capital
Reduction"
has the
meaning given to it in Clause 3.1
(Purpose).
"Capital
Reduction Documents"
means
the documents relating to the Capital Reduction.
"Cash"
means
cash in hand (or in transit or in tills or payments made by cheques or debit
cards or credit cards which are yet to be received in cleared funds) and credit
balances or amounts on deposit with an Approved Bank which are freely
transferable and freely convertible and accessible by a member of the Group
within 90 days or held in a blocked account and not subject to any Security
(other than one arising under the Transaction Security Documents).
"Cash
Equivalent Investments"
means
at any time:
|
(a)
|
certificates
of deposit maturing within one year after the relevant date of calculation
and issued by an Approved Bank;
|
|
(b)
|
any
investment in marketable debt obligations issued or guaranteed by
the
government of the United States of America, the United Kingdom, any
member
state of the European Economic Area or any Participating Member State
or
by an instrumentality or agency of any of them having an equivalent
credit
rating which:
|
|
(i)
|
matures
within one year after the relevant date of calculation;
and
|
|
(ii)
|
is
not convertible or exchangeable to any other
security;
|
|
(c)
|
debt
securities maturing within one year after the relevant date of calculation
which are not convertible into any other security, are rated either
A-1 or
higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or
P-1 or higher by Xxxxx'x Investor Service Limited (or, if no rating
is
available in respect of the debt securities, the issue of which has,
in
respect of its long-term debt obligations, an equivalent
rating);
|
|
(d)
|
open
market commercial paper not convertible or exchangeable to any other
security:
|
|
(i)
|
for
which a recognised trading market
exists;
|
|
(ii)
|
issued
by an issuer incorporated in the United States of America, the United
Kingdom, any member state of the European Economic Area or any
Participating Member State;
|
|
(iii)
|
which
matures within one year after the relevant date of calculation;
and
|
|
(iv)
|
which
has a credit rating of either A-1 or higher by Standard & Poor's
Rating Services or Fitch Ratings Ltd or P-1 or higher by Xxxxx'x
Investor
Service Limited, or, if no rating is available in respect of the
commercial paper, the issuer of which has, in respect of its long-term
unsecured and non-credit enhanced debt obligations, an equivalent
rating;
|
|
(e)
|
bills
of exchange issued in the United States of America, the United Kingdom,
any member state of the European Economic Area or any Participating
Member
State eligible for rediscount at the relevant central bank and accepted
by
an Approved Bank (or any dematerialised
equivalent);
|
4
|
(f)
|
any
investment in money market funds accessible within 90 days
which:
|
|
(i)
|
have
a credit rating of either A-1 or higher by Standard & Poor's Rating
Services or Fitch Rating Ltd or P-1 or higher by Xxxxx'x Investor
Service
Limited; and
|
|
(ii)
|
invest
substantially all their assets in securities of the types described
in
paragraphs (a) to (e) above; or
|
|
(g)
|
any
other debt security approved by the Majority
Lenders,
|
in
each
case which if realised in Cash would be freely transferable and freely
convertible and accessible by a member of the Group within 90 days and to which
any member of the Group is beneficially entitled at that time and which is
not
issued or guaranteed by any member of the Group or subject to any Security
(other than Security which
falls within paragraph (a) of the definition of Permitted Security and Security
arising under the Transaction Security Documents).
"Cashflow
Cover"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Cash
Margin"
means
5.00 per cent. per annum.
"Cash
Overfunding"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Castup
Acquisition"
means
the acquisition by NDS Americas Inc. of Castup Inc. by way of merger with a
subsidiary of NDS Americas Inc. on 22 August 2007.
"Certain Funds Default"
means:
|
(a)
|
insofar
only as the following Events of Default relate to the Company, any
circumstance constituting an Event of Default under any of the following:
Clause 25.1
(Non-payment),
Clause 25.3
(Other
obligations)
(but only so far as that Event of Default arises from a breach of
a
Certain Funds Undertaking), Clause 25.4
(Misrepresentation)
(but only so far as that Event of Default arises from a misrepresentation
under a Certain Funds Representation), Clause 25.6
(Insolvency),
Clause 25.7
(Insolvency
proceedings),
Clause 25.8
(Creditors'
process),
Clause 25.9
(Unlawfulness
and invalidity)
or Clause 25.13
(Repudiation
and rescission of agreements);
or
|
|
(b)
|
insofar
only as the following Events of Default relate to the Parent, any
circumstance constituting an Event of Default under Clause 25.4
(Misrepresentation)
(but only so far as that Event of Default arises from a misrepresentation
under Clause 21.3
(Binding
obligations)
in respect only of the Transaction Security Documents to which the
Parent
is a Party), Clause 25.6
(Insolvency),
Clause 25.7
(Insolvency
proceedings),
Clause 25.8
(Creditors'
process)
or Clause 25.13
(Repudiation
and rescission of agreements).
|
"Certain
Funds Period"
means
the
period from and including the date of this Agreement to and including the last
day of the Availability Period.
"Certain
Funds Representations"
means
the Representations set out in Clause 21.2
(Status),
Clause
21.3
(Binding
obligations),
Clause
21.4
(Non-conflict
with other obligations),
Clause
21.5
(Power
and authority),
Clause
21.7
(Validity
and admissibility in evidence),
Clause
21.14
(Scheme
Documents and other documents)
and
Clause 21.20
(Holding
Companies)
in each
case in respect of the Company only.
5
"Certain
Funds Undertakings"
means,
in relation to the Company only the undertakings set out in
Clause 24.5
(Merger),
Clause 24.7
(Acquisitions),
Clause 24.8
(Joint
ventures),
Clause 24.11
(Pari
passu ranking),
Clause 24.12
(Negative
pledge),
Clause 24.13
(Disposals),
Clause 24.16
(Loans
or credit),
Clause 24.17
(No
Guarantees or indemnities),
Clause 24.18
(Dividends
and share redemption),
Clause 24.20
(Financial
Indebtedness)
and
Clause 24.34
(Takeover
undertakings).
"Change
of Control"
means:
|
(a)
|
prior
to an IPO
of
the Parent or any direct or indirect holding company of the Parent
(excluding the Investors or any Holding Company of the
Investors):
|
|
(i)
|
the
Investors and the managers (the "Controllers")
cease to hold (directly or indirectly) more than 50 per cent. of
the
issued share capital of the Parent having the right to cast more
than 50
per cent. of the votes capable of being cast in general meetings
of the
Parent, or the right to determine the composition of the majority
of the
board of directors or equivalent body of the Parent;
or
|
|
(ii)
|
Xxxxxx
ceases to hold (directly or indirectly) at least 30 per cent. of
the
issued share capital having the right to cast votes in general meetings
of
the Parent; or
|
|
(b)
|
following
an IPO
of
the Parent or any direct or indirect holding company of the Parent
(excluding the Investors or any Holding Company of the
Investors):
|
|
(i)
|
Xxxxxx
ceases to hold (directly or indirectly) at least 30
per cent. of the issued share capital having the right to cast votes
in
general meetings of the Parent; or
|
|
(ii)
|
any
person (or persons acting in concert) other than the Investors holds
directly or indirectly, more of the voting shares in the Parent than
Xxxxxx, whereby "acting
in concert"
means a group of persons who, pursuant to an agreement or understanding
(whether formal or informal), actively co-operate, to obtain or
consolidate control of the Parent.
|
"Charged
Property"
means
all of the assets of the Obligors, the Vendor Loan Note Holder and the VLN
Security Trustee which from time to time are, or are expressed to be, the
subject of the Transaction Security.
"Chief
Financial Officer"
means
the chief financial officer or the finance director (or other officer fulfilling
such role in the chief financial officer's or finance director's absence) from
time to time of the Parent or, as the case may be, the Company (as the context
requires).
"Clean-Up
Date"
means
the last day of the relevant Clean-Up Period.
"Clean-Up
Default"
means
any Default or any Event of Default subsisting on or arising after Closing
but
prior to expiry of the Clean-Up-Period to the extent that it (or any
representation or undertaking relating thereto) relates to a member of the
Group
(other than the Company) or, in the case of a Permitted Acquisition, the target
of that acquisition and its subsidiaries only (or any obligation to procure
or
ensure in relation to a member of the Group (other than the Company) or the
target of that acquisition and its subsidiaries only) provided
that:
6
|
(a)
|
no
Material Adverse Effect has occurred as a result of the occurrence
of that
Clean-Up Default;
|
|
(b)
|
that
Clean-Up Default has not been knowingly procured or approved by any
of the
Parent or the Company;
|
|
(c)
|
that
Clean-Up Default does not exist immediately following the Clean-Up
Date;
|
|
(d)
|
that
Clean-Up Default is capable of being remedied and reasonable steps
are
being taken to remedy it; and
|
|
(e)
|
that
Clean-Up Default is not a breach of Clause 24.36
(Conditions
subsequent).
|
"Clean-Up
Period"
means,
in respect of the Acquisition, the period from Closing to the date falling
90
days thereafter and in respect of a Permitted Acquisition, the period of 90
days
from closing of that Permitted Acquisition.
"Closing"
means
the date of first Utilisation.
"Closing
Obligor"
means
the Parent and each company incorporated in the United Kingdom which is listed
as a Guarantor (and marked as a "Closing
Obligor")
in
paragraph 5 of Schedule 12 (Security
Principles).
"Commitment"
means
|
(a)
|
in
relation to an Original Lender, the amount set opposite its name
under the
heading "Commitment" in Part II of Schedule 1 (The
Original Parties)
and the amount of any other Commitment transferred to it under this
Agreement; and
|
|
(b)
|
in
relation to any other Lender, the amount of any Commitment transferred
or
assigned to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Company
New Equity"
means
any Parent Subordinated Debt or Parent New Equity used by the Parent to
subscribe for shares in the Company or any other form of equity contribution
by
the Parent to the Company.
"Company
Subordinated Debt"
means:
|
(a)
|
any
loans by the Parent not funded by a member of the Group (other than
the
Parent) to an Obligor where:
|
|
(i)
|
such
loan is subordinated as Structural Debt to the Senior Facilities
and the
Facility on the terms of the Intercreditor Agreement (including for
the
avoidance of doubt the loan from the Parent to the Company referred
to in
Step 17 of the Structure Memorandum); or
|
|
(ii)
|
such
loan is subordinated to the Senior Facilities and the Facility on
terms
otherwise reasonably acceptable to the Facility Agent (acting reasonably);
and
|
|
(b)
|
any
other loans by the Parent not funded by a member of the Group (other
than
the Parent) to a member of the Group where such loan is subordinated
to
the Senior Facilities and the Facility on terms reasonably acceptable
to
the Facility Agent (acting
reasonably).
|
7
"Compliance
Certificate"
means a
certificate substantially in the form set out in Schedule 8 (Form
of Compliance Certificate).
"Confidentiality
Agreements"
means:
|
(c)
|
the
confidentiality agreement entered into between X.X. Xxxxxx plc and
NDS
Group plc dated 4 April 2008, as amended by an amendment letter dated
22
April 2008; and
|
|
(d)
|
the
confidentiality agreement entered into between Xxxxxx Xxxxxxx Bank
International Limited and NDS Group plc dated 18 March
2008.
|
"Confidentiality
Undertaking"
means:
|
(a)
|
prior
to the Scheme Date, a confidentiality undertaking substantially in
the
form agreed between the Arranger and the Company prior to the date
of this
Agreement (being the form pursuant to which the relevant potential
Lender
agrees to be bound by the terms of the Confidentiality Agreements)
or in
any other form agreed between the Company and the Arranger;
and
|
|
(b)
|
after
the Scheme Date:
|
|
(i)
|
a
confidentiality undertaking substantially in the form agreed between
the
Arranger and the Company prior to the date of this Agreement or in
any
other form agreed between the Company and the Arranger;
or
|
|
(ii)
|
a
confidentiality undertaking substantially in the agreed form as set
out in
Schedule 9 (LMA
Form of Confidentiality Undertaking)
or in any other form agreed between the Company and the Facility
Agent, in
each case capable of being relied on by the Company (without requiring
its
signature) and not to be amended in any material respect without
the prior
written consent of the Company (acting
reasonably).
|
"Consolidated
Cashflow"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Consolidated
EBITDA"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Consolidated
Net Finance Charges"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Consolidated
Total Net Debt"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Controlled
Foreign Corporation"
has the
meaning given to it in Section 957 of the Internal Revenue Code.
"Core
Business"
means
the Group's assets and business other than the Non-Core Business.
"Current
Assets"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
8
"Current
Liabilities"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Debt
Cover"
has the
meaning given to such that in Clause 23.1
(Financial
definitions).
"Debt
Push Down and Reorganisation"
means
the reorganisation (including mergers, the sale of assets, transfers or
novations of liabilities, distributions, dividends and settling of intercompany
accounts) implementing a debt pushdown.
"Declared
Default"
means
an Event of Default in respect of which a notice of acceleration has been served
pursuant to Clause 25.21 (Acceleration).
"Default"
means
an Event of Default or any event or circumstance specified in Clause
25
(Events
of Default)
which
(with the expiry of a grace period or the giving of notice specified under
Clause 25
(Events
of Default)),
would
be an Event of Default.
"Delegate"
means
any delegate, agent, attorney or co-trustee appointed by the Security
Agent.
"Designated
Person"
means a
person or entity:
|
(a)
|
listed
in the annex to, or otherwise subject to the provisions of, the Executive
Order;
|
|
(b)
|
named
as a "Specially Designated National and Blocked Person" on the most
current list published by OFAC at its official website or any replacement
website or other replacement official publication of such list;
or
|
|
(c)
|
with
which any Lender is prohibited from dealing or otherwise engaging
in any
transaction by any Anti-Terrorism
Law.
|
"Dutch
Borrower"
means
each Borrower incorporated in the Netherlands.
"Dutch
Civil Code"
means
the "Burgerlijk
Wetboek".
"Dutch
Guarantor"
means
each Guarantor that is incorporated in the Netherlands.
"Dutch
Obligor"
means a
Dutch Borrower or a Dutch Guarantor.
"Echostar
Report"
means
the memorandum dated 20 June 2008 prepared by Xxxxx Xxxxx relating to the
Echostar litigation.
"Employee
Plan"
means,
at any time, an "employee pension benefit plan" as defined in Section 3(2)
of
ERISA subject to the provisions of Title IV of ERISA or Section 412 of the
Internal Revenue Code or Section 302 of ERISA (other than a Multiemployer Plan),
then or at any time during the previous five years maintained for, or
contributed to (or to which there is or was an obligation to contribute) on
behalf of, employees of any Obligor or ERISA Affiliate.
"Environmental
Claim"
means
any claim, proceeding, formal notice or investigation by any person in respect
of any Environmental Law.
"Environmental
Law"
means
any applicable law or regulation which relates to:
|
(a)
|
the
pollution or protection of the
environment;
|
|
(b)
|
harm
to or the protection of human
health;
|
|
(c)
|
the
conditions of the workplace; or
|
9
|
(d)
|
any
emission or substance capable of causing harm to any living organism
or
the environment.
|
"Environmental
Permits"
means
any permit and other Authorisation and the filing of any notification, report
or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties owned
or
used by any member of the Group.
"ERISA"
means
the United States Employee Retirement Income Security Act of 1974, as
amended.
"ERISA
Affiliate",
with
respect to any Obligor, means any person that for the purposes of Title IV
of ERISA is from time to time a member of the controlled group of any Obligor
or
under common control with any Obligor within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA
Event"
means
any of the following events:
| (a) |
any
reportable event, as defined in Section 4043(c) of ERISA and the
regulations promulgated under it, with respect to an Employee Plan
as to
which the PBGC has not by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within thirty days of the occurrence
of that event. However, the existence with respect to any Employee
Plan of
an "accumulated funding deficiency" (as defined in Section 302 of
ERISA),
or, on and after the effectiveness of the Pension Act, a failure
to meet
the minimum funding standard of Section 412 of the Internal Revenue
Code
or Section 302 of ERISA, shall be a reportable event for the purposes
of
this paragraph (a) regardless of the issuance of any
waiver;
|
| (b) |
the
requirements of subsection (1) of Section 4043(b) of ERISA are met
with
respect to a contributing sponsor, as defined in Section 4001(a)(13)
of
ERISA, of an Employee Plan and an event described in paragraph (9),
(10),
(11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to
occur with respect to that Employee Plan within the following 30
days;
|
| (c) |
the
filing under Section 4041(c) of ERISA of a notice of intent to terminate
any Employee Plan;
|
| (d) |
the
termination of any Employee Plan under Section 4041(c) of
ERISA;
|
| (e) |
the
institution of proceedings under Section 4042 of ERISA by the PBGC
for the
termination of, or the appointment of a trustee to administer, any
Employee Plan;
|
| (f) |
the
failure to make a required contribution to any Employee Plan that
would
result in the imposition of a lien under the Internal Revenue Code
or
ERISA;
|
| (g) |
engagement
in a non-exempt prohibited transaction within the meaning of Section
4975
of the Internal Revenue Code or Section 406 of
ERISA;
|
| (h) |
a
determination that any Employee Plan is, or is expected to be, in
at-risk
status (within the meaning of Section 430(i)(4)(A) of the Internal
Revenue
Code or Section 303 (1)(y)(A) of ERISA);
or
|
10
| (i) |
the
receipt by any Obligor or ERISA Affiliate of any notice, or the receipt
by
any Multiemployer Plan from any Obligor or ERISA Affiliate of any
notice
that a Multiemployer Plan is, or is expected to be, insolvent or
in
reorganization, within the meaning of Title IV of ERISA, or, on and
after
the effectiveness of the Pension Act, that a Multiemployer Plan is
in
endangered or critical status (within the meaning of Section 305
of
ERISA).
|
"EURIBOR"
means,
in relation to any Loan in euro:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for the Interest Period of that Loan)
the
arithmetic mean of the rates (rounded upwards to four decimal places)
as
supplied to the Facility Agent at its request quoted by the Reference
Banks to leading banks in the European interbank
market,
|
as
of the
Specified Time on the Quotation Day for the offering of deposits in euro for
a
period comparable to the Interest Period of the relevant Loan.
"Event
of Default"
means
any event or circumstance specified as such in Clause 25
(Events
of Default).
"Excess
Cashflow"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Executive
Order"
means
the US Executive Order No. 13224 on Blocking Property and Prohibiting
Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism,
which came into effect on 24 September 2001, as amended.
"Exit"
means a
Change of Control of the Parent or a sale in a single transaction or a series
of
related transactions of all or substantially all of the assets or business
of
the Group.
"Facility"
means
the term loan facility made available under this Agreement as described in
Clause 2.1
(The
Facility).
"Facility
Agent's Spot Rate of Exchange"
means
the Facility Agent's spot rate of exchange for the purchase of the relevant
currency with the Base Currency in the London foreign exchange market at or
about 11:00 a.m. on a particular day.
"Facility
A"
has the
meaning given to it in the Senior Facilities Agreement.
"Facility
B"
has the
meaning given to it in the Senior Facilities Agreement.
"Facility
C"
has the
meaning given to it in the Senior Facilities Agreement.
"Facility
Office"
means
the office or offices notified by a Lender to the Facility Agent in writing
on
or before the date it becomes a Lender (or, following that date, by not less
than five Business Days' written notice) as the office or offices through which
it will perform its obligations under this Agreement.
"Fee
Letter"
means
any letter or letters dated on or about the date of this Agreement between
the
Arranger and the Company (or the Facility Agent and the Company or the Security
Agent and the Company) setting out any of the fees referred to in Clause
14
(Fees).
11
"Finance
Document"
means
this Agreement, any Accession Letter, any Compliance Certificate, any Fee
Letter, any Hedging Agreement, the Hedging Letter, the Indemnity Letter, the
Intercreditor Agreement, any Resignation Letter, any Selection Notice, any
Transaction Security Document, any Utilisation Request, any Withdrawal Notice
and any other document designated as a "Finance Document" by the Facility Agent
and the Company.
"Finance
Party"
means
the Facility Agent, the Arranger, the Security Agent, a Lender or a Hedge
Counterparty.
"Financial
and Tax Report"
means
the financial and tax report dated 3 July 2008 prepared by
PricewaterhouseCoopers relating to the Acquisition.
"Financial
Indebtedness"
means
Borrowings and:
|
(a)
|
indebtedness
owed by one member of the Group to another member of the
Group;
|
|
(b)
|
indebtedness
arising under the Vendor Documents;
|
|
(c)
|
for
the purposes of Clause 25.5
(Cross
default)
only, indebtedness arising under derivative transactions (taking
into
account only the marked to market value of any net payments);
and
|
|
(d)
|
indebtedness
arising under any agreements in relation to Company Subordinated
Debt or
Parent Subordinated Debt.
|
"Financial
Quarter"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Financial
Year"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Fraudulent
Transfer Law"
means
any applicable US Bankruptcy Law or any applicable US state fraudulent transfer
or conveyance law.
"Funds
Flow Statement"
means
the statement delivered pursuant to Part I of Schedule 2 (Conditions
Precedent and conditions subsequent)
showing
the anticipated flow of funds on Closing relating to the borrowing and lending
of money pursuant to this Agreement and as otherwise outlined in the Structure
Memorandum with such amendments or modifications as do not materially and
adversely affect the interests of the Lenders or which have been made with
the
consent of the Majority Lenders (acting reasonably).
"Gross
Assets"
means
the gross assets of an entity or entities, as the case may be,
minus:
|
(a)
|
goodwill;
|
|
(b)
|
acquired
intellectual property from a person outside the
Group;
|
|
(c)
|
cash
upstreamed to the Company pursuant to the Opco Loan Agreements or
by way
of distribution, in each case, in connection with the Transaction;
and
|
|
(d)
|
intra-Group
eliminations.
|
"Group"
means
the Parent and each of its Subsidiaries for the time being.
"Group
Blocked Account"
has the
meaning given to it in the Parent Debenture.
12
"Group
Structure Chart"
means a
group structure chart showing the structure of the Group on consummation of
the
Acquisition.
"Guarantor"
means
an Original Guarantor or an Additional Guarantor, unless it has ceased to be
a
Guarantor in accordance with Clause 27
(Changes
to the Obligors).
"Guarantor
Coverage"
has the
meaning given to it in Clause 24.32 (Guarantors).
"Hedge
Counterparty"
means a
Lender, any Affiliate of a Lender or any other financial institution which
has
become a party to the Intercreditor Agreement as a "Hedge Counterparty" in
accordance with the provisions of the Intercreditor Agreement.
"Hedging
Agreement"
means
any master agreement, confirmation, schedule or other agreement entered into
or
to be entered into by the Company or any other Borrower and a Hedge Counterparty
on ISDA standard terms for the purpose of hedging interest rate and currency
liabilities (i) in relation to the Term Facilities and the Facility in
accordance with the Hedging Letter delivered to the Facility Agent under Clause
4.1
(Initial
conditions precedent)
or (ii)
in relation to any Treasury Transaction permitted by Clause 24.28
(Treasury
Transactions).
"Hedging
Letter"
means
the letter dated on or about the date of this Agreement, setting out certain
matters in relation to hedging of (inter alia) the Term Facilities and the
Facility.
"Highest
Lawful Rate"
means
the maximum lawful interest rate, if any, that at any time or from time to
time
may be contracted for, charged, or received under the laws applicable to any
Obligor or any Finance Party which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect
and
which allow a higher maximum non-usurious interest rate than applicable laws
now
allow.
"Holding
Company"
means,
in relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
"Hugo
IP Business"
means
the business related to the exploitation of the "Hugo the Troll" intellectual
property rights.
"IFRS"
means
International Accounting Standards within the meaning of IAS Regulation
1606/2002 to the extent applicable to the relevant financial
statements.
"Implementation
Agreement"
means
the agreement between the Permira Holdcos, the Parent, the Company, Xxxxxx
and
Xxxxxx Inc. in connection with the Scheme.
"Indemnity
Letter"
means
the indemnity letter dated on or about the date of this Agreement between NDS
Amerisub, LLC and the Arranger (as the same may be replaced in accordance with
its terms from time to time).
"Information
Memorandum"
means
the document which at the request of the Company and on its behalf is to be
prepared in relation to the Transaction describing, among other things, the
Acquisition, the Group and the financing thereof in the form approved by the
Company and distributed by the Arranger prior to the Syndication Date in
connection with the syndication of the Senior Facilities and the
Facility.
"Intellectual Property"
means:
13
|
(a)
|
any
patents, trade marks, service marks, designs, business names, copyrights,
design rights, moral rights, inventions, confidential information,
knowhow
and other intellectual property rights and interests, whether registered
or unregistered; and
|
|
(b)
|
the
benefit of all applications and rights to
use such assets of each member of the
Group.
|
"Intercreditor
Agreement"
means
the intercreditor agreement to be entered into between certain parties to this
Agreement and others including the Lenders, the Hedge Counterparties, the
lenders under the Senior Facilities, the VLN Security Trustee and the Vendor
Loan Note Holder.
"Interest"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Interest
Cover"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Interest
Income"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Interest
Payable"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Interest
Period"
means,
in relation to a Loan, each period determined in accordance with Clause
12
(Interest
Periods)
and, in
relation to an Unpaid Sum, each period determined in accordance with Clause
11.4
(Default
interest).
"Internal
Revenue Code"
means
the United States Internal Revenue Code of 1986 (26 U.S.C. §§ 1 et seq.), as
amended from time to time.
"Investors"
means
Xxxxxx and Permira.
"IPO"
means
an initial public offering of the shares in the Parent, any other member of
the
Group or any direct or indirect holding company of the Group (excluding the
Investors or any Holding Company of the Investors).
"IRS"
means
the United States Internal Revenue Service (or any successor thereto).
"ITA"
means
the Income Tax Xxx 0000.
"Joint
Venture"
means
any joint venture entity not being a member of the Group, whether a company,
unincorporated firm, undertaking, association, joint venture or partnership
or
any other entity.
"Joint
Venture Investment"
has the
meaning given to that term in paragraph (a) of the definition of Permitted
Joint
Venture.
"Jungo"
means
Jungo Limited.
"Jungo
Business"
means
the businesses owned by Jungo and its subsidiaries other than the Jungo Tools
Business.
"Jungo
Tools Business"
means
the business related to the Jungo software tools for embedded software
development.
"Legal
Due Diligence Report"
means
the legal due diligence report dated 13 June 2008 prepared by Xxxxxxxx Chance
LLP relating to the Acquisition.
14
"Lender"
means:
|
(a)
|
any
Original Lender;
and
|
|
(b)
|
any
bank, financial institution, trust, fund or other entity which has
become
a Party in accordance with Clause 26
(Changes
to the Lenders),
|
which
in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"Lender
Blocked Account"
has the
meaning given to it in the Parent Debenture.
"Letter
of Credit"
has the
meaning given to it in the Senior Facilities Agreement.
"LIBOR"
means,
in relation to any Loan:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for the
currency or Interest Period of that Loan) the arithmetic mean of
the rates
(rounded upwards to four decimal places) as supplied to the Facility
Agent
at its request quoted by the Reference Banks to leading banks in
the
London interbank market,
|
as
of the
Specified Time on the Quotation Day for the offering of deposits in the
currency of that Loan and for a period comparable to the Interest Period for
that Loan.
"LMA"
means
the Loan Market Association.
"Loan"
means a
loan made or to be made under the Facility or the principal amount outstanding
for the time being of that loan.
"Local
Facilities"
means
current account, overdraft, letter of credit, foreign exchange and SWIFT and
BACS facilities made available to a member of the Group together with any
guarantee given by another member of the Group in respect of any Borrowing
thereunder.
"Major
Event of Default"
means
any circumstance constituting an Event of Default under any of the following:
Clause 25.1
(Non-payment)
insofar
as it relates to non-payment of principal, interest or fees (in the case of
fees, being any of those payable under Clause 14.1
(Commitment
fee)
to
Clause 14.3
(Agency
Fee)
and
Clause 8.5
(Prepayment
fee)
only),
Clause 25.7
(Insolvency
proceedings),
Clause
25.8
(Creditors'
process),
Clause
25.9
(Unlawfulness
and invalidity),
Clause
25.10
(Intercreditor
Agreement),
Clause
25.11
(Cessation
of business),
Clause
25.12
(Audit
qualification)
or
Clause 25.13
(Repudiation
and rescission of agreements).
"Majority Lenders"
means:
|
(a)
|
(for
the purposes of paragraph (a) of Clause 37.1
(Required
consents)
in the context of a waiver in relation to a proposed Utilisation
of the
Facility (other than a Utilisation on Closing) of the condition in
Clause 4.2
(Conditions
to Utilisation)),
a Lender or Lenders whose Available Commitments with respect to the
relevant Facility aggregate at least 662/3
per cent. of the Available Facility;
and
|
|
(b)
|
(in
any other case), a Lender or Lenders whose Commitments aggregate
at least
662/3
per cent. of the Total Commitments (or, if the Total Commitments
have been
reduced to zero, aggregate at least 662/3
per cent. of the Total Commitments immediately prior to that reduction).
|
15
"Management
Investment Agreement"
means
the investment agreement to be entered into on or before the date of the
Implementation Agreement by the Permira Holdcos, Newton, Newton Inc., the Parent
and the Management Stockholders (as defined therein) in respect of the
subscription for shares by the Management Stockholders (as defined therein)
in
the Parent.
"Mandatory
Cost"
means
the percentage rate per annum calculated by the Facility Agent in accordance
with Schedule 4 (Mandatory
Cost Formulae).
"Mandatory
Prepayment Account"
means
an interest-bearing account:
|
(a)
|
held
by a Borrower with the Facility Agent or Security
Agent (or its Affiliate);
|
|
(b)
|
identified
in a letter between the Company and the Facility Agent as a Mandatory
Prepayment Account;
|
|
(c)
|
subject
to Security in favour of the Security Agent which Security is in
form and
substance satisfactory to the Facility Agent and Security Agent;
and
|
|
(d)
|
from
which no withdrawals may be made by any members of the Group except
as
contemplated by this Agreement,
|
as
the
same may be redesignated, substituted or replaced from time to
time.
"Margin"
means
the Cash Margin and the PIK Margin.
"Margin
Stock"
means
margin stock or margin security within the meaning of Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System of the
US (or any successor).
"Market
Disruption Event"
has the
meaning given to that term in paragraph (b) of Clause 13.2
(Market
disruption).
"Market
Reports"
means
the commercial reports prepared by LEK dated May 6, 2008 and May 14, 2008,
the
commercial report prepared by Solon dated 7 July 2008 and the commercial report
prepared by Spectrum dated 15 May 2008.
"Master
Intercompany Agreement"
means
the master intercompany agreement dated 22 November 1999 between The News
Corporation Limited (subsequently reincorporated as Xxxxxx) and the
Parent.
"Material
Adverse Effect"
means a
material adverse effect on:
|
(a)
|
the
consolidated business, assets or financial condition of the Group
taken as
a whole such that the Group taken as a whole would be reasonably
likely to
be unable to perform its payment obligations under any of the Finance
Documents or comply with its obligations under Clause 23
(Financial
Covenants);
or
|
|
(b)
|
subject
to the Reservations and the Perfection Requirements, the validity
or
enforceability of any Security granted pursuant to any of the Finance
Documents in any way which is materially adverse to the interests
of the
Lenders under the Finance Documents taken as a whole, and without
duplication of any other cure period, if capable of remedy, not remedied
within 20 Business Days of the Company becoming aware of the issue
or
being given notice of the issue by the Facility
Agent.
|
16
"Material
Company"
means,
at any time:
|
(a)
|
an
Obligor; or
|
|
(b)
|
a
Subsidiary of the Parent which:
|
|
(i)
|
is
listed in Schedule 11
(Material
Companies)
while such Subsidiary satisfies the criteria in paragraph (ii) below;
or
|
|
(ii)
|
has
earnings before interest, tax, depreciation and amortisation (calculated
on the same basis as Consolidated EBITDA, mutatis
mutandis)
on an unconsolidated basis representing 5 per cent. or more of
Consolidated EBITDA and/or has Gross Assets on an unconsolidated
basis
representing 5 per cent. or more of the Gross Assets of the Group
(or
which is a Holding Company of any such Subsidiary falling within
this
paragraph (b) or paragraph (a) above (other than any holding company
of
the Parent) that would not otherwise be a Material Company), and
for these
purposes:
|
| (1) |
compliance
with the conditions set out in paragraph (b)(ii) shall be determined
by
reference to
the latest audited consolidated financial statements of the
Group;
|
| (2) |
if
a Subsidiary has been acquired since the date as at which the latest
audited consolidated financial statements of the Group were prepared,
the
financial statements shall be deemed to be adjusted as set out in
paragraph (d) of Clause 23.3
(Financial
testing)
in order to take into account the acquisition of that Subsidiary;
and
|
| (3) |
a
report by the Auditors of the Parent that a Subsidiary is or is not
a
Material Company shall, in the absence of manifest error, be conclusive
and binding on all Parties.
|
"Month"
means a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
|
(a)
|
(subject
to paragraph (c) below) if the numerically corresponding day is not
a
Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or
if there
is not, on the immediately preceding Business
Day;
|
|
(b)
|
if
there is no numerically corresponding day in the calendar month in
which
that period is to end, that period shall end on the last Business
Day in
that calendar month; and
|
|
(c)
|
if
an Interest Period begins on the last Business Day of a calendar
month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end.
|
The
above
rules will only apply to the last month of any period. "Monthly"
shall
be construed accordingly.
17
"Multiemployer
Plan"
means,
at any time, a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, then or at any time during the previous five years maintained for, or
contributed to (or to which there is or was an obligation to contribute) on
behalf of, employees of any Obligor or any ERISA Affiliate.
"Multiple
Employer Plan"
means a
single employer plan, as defined in Section 4001(a)(15) of ERISA, that
(a) is maintained for employees of any Obligor or any ERISA Affiliate and
at least one person (other than the Obligors and the ERISA Affiliates) or
(b) was so maintained and in respect of which any Obligor or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net
Debt Service"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Net
Proceeds"
means
the cash proceeds (and if the recipient is not a wholly owned Subsidiary of
a
member of the Group the cash proceeds proportionate to the interest held by
the
Group in the recipient) of any IPO, disposal, insurance claim or claim under
the
Reports or the Structure Memorandum after deducting:
|
(a)
|
fees,
costs and expenses incurred by any member of the
Group with respect to that IPO, disposal or claim to persons who
are not
members of the Group (including without limitation bonus payments
to
management of the IPO or disposed
business);
|
|
(b)
|
any
Tax incurred and required to be paid or reserved for by the seller
or
claimant in connection with that disposal or claim (as reasonably
determined by the seller or claimant) or the transfer of the proceeds
thereof intra-Group;
|
|
(c)
|
amounts
retained to cover anticipated liabilities reasonably expected to
arise in
connection with the disposal;
|
|
(d)
|
costs
of closure, relocation, reorganisation and restructuring, and costs
incurred preparing the asset for
disposal;
|
|
(e)
|
amounts
to be repaid to the entity disposed of in respect of intra-Group
indebtedness; and
|
|
(f)
|
third
party debt secured on the assets disposed of which is to be repaid
out of
those proceeds.
|
For
the
purposes of this definition of "Net
Proceeds",
references to a disposal shall include an IPO and this definition shall be
construed accordingly provided that the deduction in paragraph (c) above shall
not apply in the context of an IPO.
"Xxxxxx"
means
News Corporation, a company incorporated in Delaware.
"Xxxxxx
Inc."
means
NDS Holdco, Inc.
"Non-Consenting
Lender"
has the
meaning given to that term in Clause 26.11
(Replacement
of Lenders).
"Non-Core
Business"
means
the Orbis Business and the shares in the capital of Orbis and its
Subsidiaries.
"Non-Obligor"
means a
member of the Group which is not an Obligor.
18
"NT
Acquisition"
means
the acquisition by Orbis of NT Media pursuant to a purchase and sale agreement
dated 2 September 2005.
"Obligor"
means a
Borrower or a Guarantor.
"Obligors'
Agent"
means
the Company, appointed to act on behalf of each Obligor in relation to the
Finance Documents pursuant to Clause 2.3
(Obligors'
Agent).
"OFAC"
means
the Office of Foreign Assets Control of the United States Department of the
Treasury.
"Opco
Loan Agreements"
means
the intercompany loan agreement and discounted loan notes between certain of
the
Group's operating companies as lenders and the Company as borrower, as referred
to in the Structure Memorandum.
"Orbis"
means
Orbis Technology Limited.
"Orbis
Business"
means
the software technologies business for providing front-end and back-end systems
for bookmakers.
"Original
Financial Statements"
means
the financial statements for the financial year ended 30 June 2007 relating
to
the Group.
"Original
Obligor"
means
an Original Borrower or an Original Guarantor.
"Panel"
means
the Panel on Takeovers and Mergers.
"Parent"
means
NDS Group PLC (and following its re-registration as a private company, NDS
Group
Limited).
"Parent
Debenture"
means
the debenture between the Parent and Security Agent delivered to the Agent
pursuant to paragraph 3(b) of Part I of Schedule 2 (Conditions
precedent and conditions subsequent).
"Parent
New Equity"
means
the proceeds of a subscription for shares in the Parent by an Investor (or
any
entity through which that Investor holds its interest in the Parent) or any
other form of equity contribution to the Parent by an Investor (or any entity
through which that Investor holds its interest in the Parent).
"Parent
Subordinated Debt"
means
any loans made by an Investor (or any entity through which that Investor holds
its interest in the Parent) to the Parent:
|
(a)
|
on
or before the Scheme Date; or
|
|
(b)
|
subordinated
to the Senior Facilities and the Facility on terms reasonably acceptable
to the Facility Agent (acting
reasonably).
|
"Participating
Member State"
means
any member state of the European Communities that adopts or has adopted the
euro
as its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.
"Party"
means a
party to this Agreement.
"PBGC"
means
the U.S. Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA (or any entity succeeding to all or any of its functions under
ERISA).
19
"Pension
Act"
means
the United States Pension Protection Act of 2006, as amended.
"Perfection
Requirements"
means
the making or the procuring of the appropriate registrations, filings,
endorsements, notarisations, stampings and/or notifications of the Transaction
Security Documents and/or the Transaction Security created thereunder in order
to perfect the Transaction Security.
"Permira"
means
funds and limited partnerships advised by Permira Advisers LLP.
"Permira
Holdcos"
has the
meaning given to that term in the Structure Memorandum.
"Permitted Acquisition"
means:
|
(a)
|
an
acquisition contemplated by Step
4 of Section 3 (Proposed
investment steps)
or by Section 5 (Israel
Reorganisation)
of the Structure Memorandum or contemplated by the Transaction Documents,
including the Acquisition;
|
|
(b)
|
an
acquisition by a member of the Group of an asset sold, leased, transferred
or otherwise disposed of by another member of the Group in circumstances
constituting a Permitted Disposal;
|
|
(c)
|
an
acquisition by a member of the Group of an asset sold, leased, transferred
or otherwise disposed of by another member of the Group in circumstances
constituting a Permitted
Transaction;
|
|
(d)
|
an
acquisition of securities which are Cash Equivalent
Investments;
|
|
(e)
|
the
acquisition by a member of the Group of the share of another joint
venture
partner under the terms of any joint venture agreement existing at
Closing;
|
|
(f)
|
the
acquisition of a limited liability partnership or the issued share
capital
of a limited liability company (including, in each case, by way of
formation) which has not traded and has no material liabilities or
obligations prior to the date of such acquisition;
|
|
(g)
|
an
acquisition (not being an acquisition by the Parent) of (A) more
than 50
per cent. of the voting ownership interests in a person (or additional
ownership interests in a member of the Group), (B) 50 per cent. or
less of
the voting ownership interests in a person, provided that as a direct
result of the acquisition the relevant member of the Group making
the
acquisition shall, upon completion of the acquisition, hold more
than 50
per cent. of the voting ownership interests in the person the subject
of
the acquisition or (C) any business or undertaking, but only
if:
|
|
(i)
|
no
Event of Default is continuing on the acquisition contract date for
the
acquisition or would occur as a result of the acquisition (other
than any
Event of Default which can reasonably be expected to be remedied
during
the applicable Clean-Up Period);
|
|
(ii)
|
the
person, business or undertaking to be acquired to the knowledge of
the
Parent has no material contingent liabilities save to the extent
reflected
in the Total Purchase Price (as defined in sub-paragraph (iv) below)
or as indemnified by the relevant vendor or to the extent that they
will
be discharged within 6 months of the acquisition closing or adequately
insured or reserved against in the Group's
accounts;
|
20
|
(iii)
|
the
acquired person, business or undertaking is engaged in a business
the
general nature of which is similar or complementary to that carried
on by
the Group or a part of the Group;
|
|
(iv)
|
the
consideration (including associated costs and expenses) for the
acquisition and any Financial Indebtedness assumed remaining in the
acquired person (or any such business or undertaking) at the date
of
acquisition (the "Purchase
Price")
(when aggregated with the consideration (including associated costs
and
expenses) for any other Permitted Acquisition under this paragraph
(g) and
any Financial Indebtedness assumed remaining in any such acquired
persons
or businesses or undertakings at the time of acquisition (the
"Total
Purchase Price")
does not (a) in any financial year of the Parent exceed in aggregate
$50,000,000 or its equivalent (plus Retained Cash, the proceeds of
any
Company Subordinated Debt or Company New Equity) or (b) during the
life of the Facility exceed in aggregate $200,000,000 or its equivalent
(plus Retained Cash, the proceeds of any Company Subordinated Debt
or
Company New Equity);
|
|
(v)
|
in
the case of any single acquisition where the Purchase Price exceeds
$30,000,000 (or its equivalent) the Company has provided to the Facility
Agent projections certified by the Company in a certificate signed
by the
Chief Financial Officer of the Company showing calculations (on a
pro
forma basis)
taking account of such acquisition (including cost savings and other
synergies which the Company (acting reasonably) believes can be obtained
12 months after the acquisition and excluding acquisition related
non-recurring costs which, if above $10,000,000, have been verified
by one
of the Big Four Accountants) demonstrating that the financial covenants
in
Clause 23.2
(Financial
condition)
will be satisfied for the 12 month period following the
acquisition;
|
|
(vi)
|
the
acquired person, business or undertaking has earnings before interest,
tax, depreciation and amortisation (calculated on the same basis
as
Consolidated EBITDA, mutatis
mutandis)
which are positive for the period of twelve months prior to the
acquisition (including on a pro
forma basis
cost savings and other synergies which the Company (acting reasonably)
believes can be obtained (as certified by the Company in a certificate
signed by the Chief Financial Officer of the Company, issued by reference
to the Company's knowledge with regard to the information reasonably
available at such time which, if above $10,000,000, have been verified
by
one of the Big Four Accountants) within 12 months of the relevant
acquisition) or if its earnings before interest, tax, depreciation
and
amortisation (calculated on the same basis as Consolidated EBITDA,
mutatis
mutandis)
are negative for that period, that negative earnings before interest,
tax,
depreciation and amortisation (calculated on the same basis as
Consolidated EBITDA, mutatis
mutandis)
when aggregated with the respective earnings before interest, tax,
depreciation and amortisation (calculated on the same basis as
Consolidated EBITDA, mutatis
mutandis)
of all other Permitted Acquisitions which had negative earnings before
interest, tax, depreciation and amortisation (calculated on the same
basis
as Consolidated EBITDA, mutatis
mutandis)
made during that financial year is no more than $10,000,000 taking
into
account pro
forma cost
savings and other synergies which the Company (acting reasonably)
believes
can be obtained (as certified by the Company in a certificate signed
by
the Chief Financial Officer of the Company and as verified by detailed
calculations, issued by reference to the Company's knowledge with
regard
to the information reasonably available at such time which, if above
$10,000,000, have been verified by one of the Big Four Accountants)
within
12 months of the relevant acquisition;
|
21
|
(vii)
|
the
ratio of Consolidated Total Net Debt to Consolidated EBITDA (calculated
on
the assumption that the relevant acquisition occurred on the first
day of
the Relevant Period expiring on the most recent Quarter Date and
including
on a pro
forma basis
cost savings and other synergies which the Company (acting reasonably)
believes can be obtained (as certified by the Company in a certificate
signed by the Chief Financial Officer of the Company and as verified
by
detailed calculations, issued by reference to the Company's knowledge
with
regard to the information reasonably available at such time which,
if
above $10,000,000, have been verified by one of the Big Four Accountants)
within 12 months of the relevant acquisition) shall not increase
above the lower of:
|
|
(A)
|
the
ratio of Consolidated Total Net Debt to Consolidated EBITDA at Closing;
and
|
|
(B)
|
the
higher of:
|
| (1) |
the
ratio of Consolidated Total Net Debt to Consolidated EBITDA existing
on
the
most recent Quarter Date; and
|
| (2) |
the
covenanted ratio of Consolidated Total Net Debt to Consolidated EBITDA
for
such Quarter Date less 10 per cent,
|
provided
that if
the
acquisition occurs prior to the first financial undertaking test date, the
ratio
of Consolidated Total Net Debt to Consolidated EBITDA to be complied with as
at
the first test date shall be used;
|
(viii)
|
in
the case of any single acquisition the Purchase Price of which is
greater
than $50,000,000 (or its equivalent) the Company
has commissioned:
|
|
(A)
|
a
legal due diligence report in respect of such acquisition;
and
|
|
(B)
|
an
accountant's due diligence report in respect of such acquisition
prepared
by one of the Big Four Accountants,
|
and
the
Company
shall use its reasonable endeavours (i) to procure that the Facility Agent,
Security Agent and the Lenders may rely on such due diligence reports to the
extent the relevant report provider agrees; and (ii) to deliver such reports
to
the Facility Agent prior to the completion of that acquisition. In any case
such
reports (provided
that
the
relevant hold harmless and reliance terms have been agreed) shall be delivered
to the Facility Agent within 5 Business Days of completion of that acquisition;
and
22
|
(ix)
|
in
the case of any single acquisition the Purchase Price of which is
greater
than $20,000,000 (or its equivalent) the Company
provides to the Facility Agent a certificate signed by the Chief
Financial
Officer giving calculations showing in reasonable detail that the
Parent
would have remained in compliance with its obligations under the
financial
covenants in Clause 23.2
(Financial
condition)
if such financial covenants were recalculated for the Relevant Period
ending on the most recent Quarter Date consolidating the financial
statements of the acquired limited liability person (consolidated
if it
has Subsidiaries) or business or undertaking with the financial statements
of the Group for such period calculated in accordance with the Acquisition
and Disposal Adjustment,
|
provided
that sub-paragraphs
(vii) to (ix) above shall not apply to any such acquisition which is funded
in
its entirety by Company New Equity or Company Subordinated Debt (other than
contributed pursuant to paragraph (e) of Clause 23.3 (Financial
testing))
and
provided
further that where
such acquisition is funded by utilisation of the Revolving Facility or the
Uncommitted Acquisition Facility, the Company shall (prior to the delivery
of a
utilisation request in respect of the Revolving Facility or the Uncommitted
Acquisition Facility or the Acquisition Sub-Limit) deliver to the Facility
Agent
a certificate signed by the Chief Financial Officer setting out in reasonable
detail how the Purchase Price for that acquisition will be funded including
details of any Company New Equity, Company Subordinated Debt and/or Retained
Cash being used;
|
(h)
|
an
acquisition of shares pursuant to a Permitted Share Issue;
|
|
(i)
|
the
acquisition by the Parent of shares in the Parent,
and
|
|
(j)
|
an
acquisition resulting from a Permitted Joint
Venture.
|
provided
further that
(other
than as set out in the foregoing paragraphs (a), (c) to the extent the relevant
"Permitted Transaction" falls under paragraph (g) of the definition of Permitted
Transaction, (d), (h) provided the Parent is the acquiring entity and the shares
acquired are shares in the Company, and (i)), none of the above permissions
shall apply to the Parent.
"Permitted
Disposal"
means
any sale, lease, licence, transfer or other disposal which is:
|
(a)
|
of
trading assets made by any member of the Group in the ordinary course
of
trading of the disposing entity;
|
|
(b)
|
of
any asset by a member of the Group (the "Disposing
Company")
to another member of the Group (the "Acquiring
Company"),
but if the Disposing Company is a Guarantor, the Acquiring Company
must be
a Guarantor and if the Disposing Company had given Security over
the asset
the Acquiring Company must, subject to the Security Principles, give
equivalent Security over the asset and, if the asset being disposed
of is
shares owned by a Guarantor, the Acquiring Company must be a Guarantor
incorporated in the same jurisdiction as the Disposing
Company;
|
23
|
(c)
|
of
any asset (other than shares or businesses) from an Obligor to a
Non-Obligor provided
that
the aggregate amount transferred by all Obligors (net of the value
of any
assets transferred from a Non-Obligor to an Obligor) when aggregated
with
all Financial Indebtedness under guarantees given under paragraph
(c) of
the definition of Permitted Guarantee; Financial Indebtedness under
arrangements permitted under the proviso in paragraph (j)(A) of the
definition of Permitted Financial Indebtedness and all outstanding
loans
under paragraph (e) of the definition of Permitted Loan does not
exceed
$75,000,000 at any time (or its
equivalent);
|
|
(d)
|
of
assets (other than shares or businesses) in exchange for other assets
reasonably comparable or superior as to type or quality for use in
the
business within 12 months thereafter and which are subject to Security
in
accordance with the Security Principles if the assets that they have
been
exchanged for were the subject of Security under the Transaction
Security
Documents;
|
|
(e)
|
of
Cash or Cash Equivalent Investments or (subject to the terms of the
Hedging Letter) Permitted Treasury Transactions, in each case in
exchange
for Cash or Cash Equivalent Investments or for purposes otherwise
not
prohibited under the Finance
Documents;
|
|
(f)
|
constituted
by a licence of Intellectual Property in the ordinary course of business
and, provided
that
in
the case of an exclusive licence, the Intellectual Property is no
longer
required for the relevant person's business or
operations;
|
|
(g)
|
to
a Joint Venture, to the extent permitted by Clause 24.8
(Joint
ventures);
|
|
(h)
|
of
assets compulsorily acquired by any governmental authority provided
that
this does not constitute an Event of
Default;
|
|
(i)
|
a
lease or licence of property in the ordinary course of
business;
|
|
(j)
|
described
by the Structure Memorandum;
|
|
(k)
|
up
to $25,000,000 (or its equivalent) by way of sale and leaseback (in
aggregate for the Group at any
time);
|
|
(l)
|
arising
as a result of a Permitted
Transaction;
|
|
(m)
|
arising
as a result of any Permitted
Security;
|
|
(n)
|
of
receivables on a non-recourse basis in the event of a failure to
pay;
|
|
(o)
|
of
assets (other than shares or businesses in any member of the Group)
which
are obsolete or which are no longer required for the relevant person's
business or operations;
|
|
(p)
|
of
fixed assets in compliance with the provisions of Clause 9.2
(Disposal, Insurance and Acquisition Proceeds, Excess Cashflow and
IPO);
|
|
(q)
|
of
all or any part of the Non-Core Business (including by way of
IPO);
|
|
(r)
|
of
any asset pursuant to a contractual arrangement existing at Closing;
|
24
|
(s)
|
of
all or any part of the Jungo Business, the Jungo Tools Business,
the Hugo
IP Business and the shares in the capital of Jungo and its Subsidiaries
(including by way of IPO);
|
|
(t)
|
of
assets for cash where the net consideration receivable (when aggregated
with the net consideration receivable for any other sale, lease,
licence,
transfer or other disposal not allowed under the preceding paragraphs
or
as a Permitted Transaction) does not exceed $25,000,000 (or its
equivalent) in any financial year of the Parent;
or
|
|
(u)
|
pursuant
to a Permitted Share Issue,
|
provided
that
(other
than as set out in the foregoing paragraphs (e), (h), (j), (l), (m) to the
extent the relevant "Permitted Security" falls under paragraphs (l) and (w)
of
the definition of "Permitted Security" and insofar as it is permitted for the
Parent, and (u) to the extent the relevant "Permitted Share Issue" falls under
paragraph (a) of the definition of "Permitted Share Issue"), none of the above
permissions shall apply to the Parent.
"Permitted
Financial Indebtedness"
means
indebtedness:
|
(a)
|
arising
under any of the Finance Documents, the
Senior Finance Documents, Company Subordinated Debt, Parent Subordinated
Debt, the Vendor Documents, the intra group loan agreements and the
Opco
Loan Agreements in each case in the form delivered as a condition
precedent under this Agreement or in any form permitted under the
Intercreditor Agreement;
|
|
(b)
|
to
the extent covered by a Letter of Credit issued under the Senior
Facilities Agreement or other letter of credit, guarantee or indemnity
issued under an Ancillary Facility or Fronted Ancillary
Facility;
|
|
(c)
|
arising
under a foreign exchange transaction for spot or forward delivery
entered
into in connection with protection against fluctuation in currency
or
interest rates and not for investment or speculative
purposes;
|
|
(d)
|
arising
under a Permitted Loan, Permitted Guarantee or paragraphs (e) and
(k) of
Permitted Transaction;
|
|
(e)
|
of
any person or in any business or undertaking acquired pursuant to
a
Permitted Acquisition which is incurred under arrangements in existence
at
the date of such acquisition, but not incurred or the principal amount
increased (otherwise than by the capitalisation of interest) or its
maturity date extended in contemplation of, or since, that acquisition,
and outstanding only for a period of six months following the date
of
acquisition;
|
|
(f)
|
under
finance or capital leases of vehicles, plant, equipment or computers,
provided
that
the aggregate capital value of all such items so leased under outstanding
leases by members of the Group does not exceed $20,000,000 (or its
equivalent) at any time;
|
|
(g)
|
raised
by the issue of redeemable shares which are
either:
|
|
(i)
|
held
by another member of the Group (provided if issued by an Obligor,
held by
an Obligor);
|
25
|
(ii)
|
issued
by the Parent, that do not result in a Change of Control and are
not
redeemable at the option of their holder until
after the Termination Date; or
|
|
(iii)
|
issued
by the Parent as part of the
Transaction;
|
|
(h)
|
factoring
of receivables on a non-recourse basis in the event of a failure
to
pay;
|
|
(i)
|
raised
under Local Facilities provided
that the aggregate amount of that indebtedness does not exceed
$35,000,000;
|
|
(j)
|
arising
under any cash pooling or management arrangement with an Approved
Bank in
the ordinary course of business of its banking arrangements for the
purpose of netting debit and credit balances subject to paragraph
(c) of
the definition of Permitted Guarantee of members of the Group to
the
extent that the aggregate of the debit balances of the members of
the
Group under such arrangements do not exceed the aggregate of all
the
linked balances of the members of the Group under such arrangements
and
provided that (A) the aggregate of the debit balances of non-Obligors
when aggregated with (B) all disposals under paragraph (c) of the
definition of Permitted Disposal, all Financial Indebtedness under
guarantees given under paragraph (c) of the definition of Permitted
Guarantee and all outstanding loans under the paragraph (e) of the
definition of Permitted Loans does not exceed USD75,000,000 at any
time;
|
|
(k)
|
of
the Group for 90 days after
Closing;
|
|
(l)
|
falling,
in respect of other Permitted Financial Indebtedness, within paragraph
(f)
of the definition of Borrowings;
|
|
(m)
|
arising
in connection with the deferred consideration payable to the vendors
and
the retention payments payable to employees of Castup Israel Limited,
in
each case pursuant to the Castup Acquisition up to a maximum aggregate
amount of $2,400,000;
|
|
(n)
|
arising
under the earn-out provisions of, or the loan notes issued in connection
with, the NT Acquisition up to a maximum aggregate amount of £1,400,000;
and
|
|
(o)
|
not
permitted by the preceding paragraphs or as a Permitted Transaction
and
the outstanding principal amount of which does not exceed $50,000,000
(or
its equivalent) in aggregate for the Group at any time, provided
that no
such amount shall be owed to the Parent or an Investor (or any entity
through which that Investor holds its interest in the
Parent).
|
provided
that
(other
than as set out in the foregoing paragraphs (a), (d) insofar as it is permitted
for the Parent, (g)(ii), (g)(iii) and (k)) none of the above permissions shall
apply to the Parent.
"Permitted Guarantee"
means:
|
(a)
|
any
guarantee arising under the Finance Documents and the Senior
Finance Documents;
|
|
(b)
|
a
guarantee by a member of the Group of the obligations of an
Obligor;
|
26
|
(c)
|
a
guarantee by an Obligor of the obligations of a Non-Obligor provided
that
the aggregate amount guaranteed when aggregated with all disposals
under
paragraph (c) of the definition of Permitted Disposal, Financial
Indebtedness under arrangements permitted under the proviso in paragraph
(j)(A) of the definition of Permitted Financial Indebtedness and
all
outstanding loans under paragraph (e) of the definition of Permitted
Loan
does not exceed $75,000,000 and a guarantee by a Non-Obligor of another
Non-Obligor;
|
|
(d)
|
guarantees
granted by any person, business or undertaking acquired pursuant
to a
Permitted Acquisition and existing at the time of such acquisition
provided
that
such guarantees are not increased or extended and are discharged
within a
period of 6 months after the date of the
acquisition;
|
|
(e)
|
guarantees
of Permitted Treasury Transactions and Permitted
Transactions;
|
|
(f)
|
guarantees
to landlords on arm's length terms and in the ordinary course of
business
in respect of another member of the Group's liabilities or obligations
under the relevant lease or in respect of a lease of a property no
longer
required for the Group's business;
|
|
(g)
|
guarantees
or counter-indemnities in favour of financial institutions which
have
guaranteed tax liabilities or rent obligations of a member of the
Group in
the ordinary course of business;
|
|
(h)
|
the
endorsement of negotiable instruments in the ordinary course of
trade;
|
|
(i)
|
any
guarantees guaranteeing performance by a member of the Group under
any
contract entered into in the ordinary course of
business;
|
|
(j)
|
any
guarantee of a Joint Venture to the extent and in the amount permitted
by
the undertakings in Clause 24.8
(Joint
ventures);
|
|
(k)
|
subject
where relevant to the restriction in paragraph (c) of this definition
any
guarantee by a member of the Group in respect of Permitted Financial
Indebtedness;
|
|
(l)
|
any
guarantee given in respect of the netting or set-off arrangements
permitted pursuant to paragraph (b) of the definition of Permitted
Security;
|
|
(m)
|
any
guarantee granted in connection with a Permitted Disposal in an amount
not
exceeding the value of the asset disposed
of;
|
|
(n)
|
any
indemnity granted to the trustee of any employee share option or
unit
trust scheme;
|
|
(o)
|
any
guarantee granted in connection with arbitration proceedings not
otherwise
being an Event of Default;
|
|
(p)
|
any
guarantees contemplated in the Base Case
Model;
|
|
(q)
|
any
guarantee made in substitution for an extension of credit permitted
under
the definition of "Permitted Loan" (other than loans within the category
set out in paragraph (m) of the definition of "Permitted Loan") to
the
extent that the issuer of the relevant guarantee would have been
entitled
to make a loan in an equivalent amount under the definition of "Permitted
Loan" to the person whose obligations are being
guaranteed;
|
27
|
(r)
|
a
guarantee by a member of the Group in respect of obligations of another
member of the Group which, if it were a loan by that member of the
Group
to another member of the Group would constitute a Permitted
Loan;
|
|
(s)
|
the
guarantees granted under the Vendor
Documents;
|
|
(t)
|
a
guarantee granted by NDS Sweden AB in connection with the retention
payments payable to employees of Castup Israel Limited pursuant to
the
Castup Acquisition up to a maximum amount of
$1,500,000;
|
|
(u)
|
a
guarantee granted by the Parent in connection with the earn-out provisions
of the NT Acquisition up to a maximum amount of £1,400,000;
and
|
|
(v)
|
any
guarantee not permitted by the preceding paragraphs or as a Permitted
Transaction and the outstanding principal amount of which does not
exceed
$25,000,000 or its equivalent in aggregate for the Group at any
time,
|
provided
that (other
than as set out in the foregoing paragraphs (a), (e), (f), (g), (i), (k), (n),
(o), (p), (q) to the extent the Parent is or would have been permitted to grant
the relevant extension of credit under the definition of Permitted Loan which
the guarantee is a substitution for, (r) to the extent that "Permitted Loan"
would be a Permitted Loan applicable to the Parent, (s) and (u)) none of the
above permissions shall apply to the Parent.
"Permitted Holding Company Activity"
means:
|
(a)
|
activities
directly consequential to the entry into of the Transaction Documents
and
the Stockholders Agreement, the Implementation Agreement and the
Management Investment Agreement and the entry into of the Transaction
Documents and the Stockholders Agreement and the Management Investment
Agreement in each case (other than the Stockholders Agreement and
the
Management Investment Agreement), in the form delivered as conditions
precedent pursuant to Clause 4.1 (Initial
conditions precedent)
with such amendments as are permitted under the Finance
Documents;
|
|
(b)
|
normal
holding company activities (not otherwise expressly prohibited hereunder),
including management or administrative services or services expressly
contemplated by the Transaction Documents or referred to in the definition
of Permitted Payments as carried on at that
level;
|
|
(c)
|
any
Permitted Loans in respect of Permitted Joint
Ventures;
|
|
(d)
|
any
Permitted Loans in respect of Permitted Payments (in the case of
the
Parent, to the extent so permitted under those
definitions);
|
|
(e)
|
any
Financial Indebtedness and/or other liabilities incurred, or guarantees
given or other transactions specifically contemplated, in each case,
under
the Structure Memorandum and/or the Transaction Documents and/or
specifically permitted under the Finance Documents;
|
|
(f)
|
guarantees
of Permitted Financial
Indebtedness;
|
|
(g)
|
the
provision of any Company Subordinated Debt (in any
capacity);
|
28
|
(h)
|
the
provision of management and administrative services, research and
development and marketing and the employment and the secondment of
employees;
|
|
(i)
|
Permitted
Financial Indebtedness in respect of other Permitted Holding Company
Activities;
|
|
(j)
|
in
relation to the Company, normal treasury company activities and Permitted
Transactions;
|
|
(k)
|
Permitted
Payments (in the case of the Parent, to the extent so permitted under
that
definition), and
|
|
(l)
|
to
the extent the activity or payment is funded with moneys which have
not
been received in breach of any provision of this Agreement, in relation
to
the Parent only (and not, for the avoidance of any doubt, any other
member
of the Group), each of the activities described in paragraphs (a)(i)
to
(iv) of Clause 24.18 (Dividends
and share redemption)
and, subject to the terms of the Intercreditor Agreement, paragraphs
(a)(i) to (iii) of Clause 29.19 (Subordinated
Debt),
in so far as those paragraphs relate to the Vendor Documents or the
Parent
Subordinated Debt, and paragraph (a)(iv) of Clause 29.19 (Subordinated
Debt),
|
provided
that the
permissions set out in the foregoing paragraphs (c), (f) and (i) shall not
apply
to the Parent except, in the case of paragraph (f), with respect to guarantees
granted by the Parent under the Finance Documents and the Vendor
Documents.
"Permitted Joint Venture"
means:
|
(a)
|
any
investment in any person in which the Group (other
than the Parent directly) holds ownership interests (or following
the
investment will hold) ownership interests but is not a member of
the Group
(including any investment which results in the incurrence of a liability
to such person as a result of one or more of the transactions described
in
paragraphs (b)(i) to (b)(iii) below) (a "Joint
Venture Investment")
pursuant to any agreement existing on the date of this Agreement
and/or at
Closing and which has been disclosed to the Facility Agent prior
to that
date;
|
|
(b)
|
any
other Joint Venture Investment (other than by the Parent directly)
in any
person carrying out business of a general nature similar or complementary
to the business of the Group or a part of the Group where the aggregate
of
any new liability voluntarily incurred to such joint venture (other
than
any existing at Closing) including:
|
|
(i)
|
all
amounts subscribed for shares in, lent to, or invested in all such
Joint
Ventures by any member of the
Group;
|
|
(ii)
|
the
contingent liabilities of any member of the Group under any guarantee
given in respect of the liabilities of any such Joint Venture;
and
|
(iii) the
book
value of any assets transferred by any member of the Group to any such Joint
Venture,
but
less
the aggregate of:
29
|
(iv)
|
all
amounts received by Group members in respect of repayments, redemptions,
interest or distributions from and Net Proceeds of disposals of assets
of
or shares in a Joint Venture; and
|
|
(v)
|
the
sum of (A) amounts referred to in paragraphs (b)(i), (b)(ii) and
(b)(iii)
above incurred after the date of this Agreement minus (B) aggregate
amounts referred to in paragraph (iv) received from or in respect
of a
Joint Venture, in each case in respect of a Joint Venture which has
become
a member of the Group,
|
does
not
exceed $30,000,000 (or its equivalent)
over the
life of the Facility (plus Retained Cash and the proceeds of any Company
Subordinated Debt and Company New Equity) (other than contributed pursuant
to
paragraph (e) of Clause 23.3
(Financial
testing))
provided
that
no
member of the Group is to incur unlimited liability in respect of its
involvement in a joint venture (other than in respect of its own default) and
(as at the time of the Joint Venture Investment) no Event of Default is
continuing or would result from such investment being made.
"Permitted Loan"
means:
|
(a)
|
any
trade credit extended by any member of the Group to its customers
on
normal arm's length commercial terms and in the ordinary course of
its
trading activities and any advance payment made in relation to capital
expenditure in the ordinary course of
business;
|
|
(b)
|
a
loan made to a Joint Venture to the extent and in the amount permitted
by
the undertakings in Clause 24.8
(Joint
ventures);
|
|
(c)
|
subject
to the terms of the Intercreditor Agreement, any loan made by a member
of
the Group for the purposes of enabling an Obligor to meet its payment
obligations under the Finance Documents, the Mezzanine Finance Documents
(to the extent permitted), the Opco Loan Agreements (subject to the
operation of paragraphs (d) and (e) below), the Vendor Documents,
the
Company Subordinated Debt or to facilitate compliance with applicable
law
or to make a Permitted Payment;
|
|
(d)
|
subject
to Clause 24.42 (Intercompany
Loan)
a
loan made by an Obligor to another Obligor (provided that in the
case of
any loan to the Parent, that loan is a Permitted Payment under paragraph
(b) of the definition of Permitted Payment) or made by a Non-Obligor
to
another member of the Group, provided
that in
the event that a Non-Obligor is a creditor in relation to Financial
Indebtedness made available to any Obligor by it having a value in
aggregate in excess of $30,000,000 (or its equivalent) (excluding
for this
purpose a loan from Jungo to an Obligor where such loan is described
in
the Structure Memorandum (as such loan may be replaced or renewed
to the
extent required to replace the debtor thereunder from time to time,
provided that such replacement or renewal does not result in an increase
to the principal amount of the loan)), when aggregated with any other
Financial Indebtedness owed by Obligors to Non-Obligors, at any time
(other than during any applicable Clean Up Period) then such Non-Obligor
(other than in the case of a loan from Jungo to an Obligor where
such loan
is described in the Structure Memorandum (as such loan may be replaced
or
renewed to the extent required to replace the debtor thereunder from
time
to time, provided that such replacement or renewal does not result
in an
increase to the principal amount of the loan)) shall (to the extent
legally permissible) accede to the Intercreditor Agreement as an
Intra-Group Lender (as such term is defined in the Intercreditor
Agreement);
|
30
|
(e)
|
any
loan made by an Obligor to a Non-Obligor so long as the aggregate
amount
of the Financial Indebtedness under any such loans does not when
aggregated with all disposals under paragraph (c) of the definition
of
Permitted Disposal, Financial Indebtedness under arrangements permitted
under the proviso in paragraph (j)(A) of the definition of Permitted
Financial Indebtedness and all Financial Indebtedness under guarantees
given under paragraph (c) of the definition of Permitted Guarantee,
exceed
$75,000,000 (or its equivalent) at any
time;
|
|
(f)
|
a
loan made by a member of the Group to an employee or director of
any
member of the Group so long as the amount of that loan does not,
when
aggregated with the amount of all loans to employees and directors
by
members of the Group and all loans permitted under paragraph (g)
below,
exceed $20,000,000 (or its equivalent) at any
time;
|
|
(g)
|
any
loans made to an employee share option scheme or unit trust scheme
or to
employees for the purpose of participating in any such scheme so
long as
the amount of all such loans does not, when aggregated with the amount
of
all loans permitted under paragraph (f) above, exceed $20,000,000
(or its
equivalent) at any time and any other loans made to such schemes
to fund
the acquisition of management equity (together with the purchase
or
repayment of any related loans) from departing
management;
|
|
(h)
|
any
deferred consideration on Permitted
Disposals;
|
|
(i)
|
loans
described in the Structure Memorandum other than any loans to management
described therein, which must fall within paragraph (f) above in
order to
be permitted under this Agreement;
|
|
(j)
|
loans
which constitute Permitted Financial Indebtedness (except under paragraph
(c) of that definition);
|
|
(k)
|
the
loan existing on the date of this Agreement made by NDS Technologies
France SAS to NDS Denmark A/S in the maximum principal amount of
DKK82,000,000, provided that no increase, replacement or rollover
of such
loan shall be permitted under this paragraph (k);
|
|
(l)
|
any
loan made for the purpose of a Permitted
Payment;
|
|
(m)
|
loans
or extensions of credit to the extent the amount thereof would be
permitted under paragraph (q) of the definition of "Permitted Guarantee"
if such loans or extensions of credit were made by third parties
under the
guarantee of an Obligor; and
|
|
(n)
|
any
loan (other than a loan made by a member of the Group to another
member of
the Group) so long as the aggregate amount of the Financial Indebtedness
under any such loans does not exceed $5,000,000 (or its equivalent)
at any
time.
|
31
provided
that
(other
than as set out in the foregoing paragraphs (c) and (d) (in each case) to the
extent that the loan would fall within the definition of Company Subordinated
Debt, (f), (g), (i) and (m) insofar as it is permitted for the Parent), none
of
the above permissions shall apply to the Parent.
"Permitted Payment"
means:
|
(a)
|
a
payment under this
Agreement or a payment by the Parent in respect of Parent Subordinated
Debt or a payment by the Parent under the Vendor Documents, if and
to the
extent permitted by the Intercreditor Agreement;
|
|
(b)
|
(i)
a payment of a dividend by the Company (ii) a loan to the Parent
(iii) a
payment of interest on or repayment of principal of Company Subordinated
Debt or (iv) a reduction of share capital of the Company, provided
that
(in each case) (A) it is funded out of Retained Cash; (B) Debt Cover
is equal to or less than 2.5:1 and (C) no Event of Default is continuing
or would occur;
|
|
(c)
|
the
payment of a dividend to the Company or any of its Subsidiaries;
|
|
(d)
|
provided
that
no
Event of Default is continuing the payment of a dividend, a loan
to the
Parent, payment of interest on or repayment of principal of any loan
by
the Company to the Parent to enable the Parent to make payments of
reasonably and properly incurred administrative costs, directors
remuneration and fees, tax and professional fees and regulatory costs
and
to fund payment of a monitoring or advisory fee to the Investors
in an
annual amount not exceeding $5,000,000 (increasing each year in line with
the Retail Price Index) or as reflected in the Stockholders
Agreement;
|
|
(e)
|
provided
that
no
Event of Default is continuing, payments to any of the Investors
or an
advisor to the Investors (or to the Parent to enable the Parent to
make
such payments to those persons) for corporate finance, M&A and
transaction advice actually provided to the Group on bona
fide
arms' length commercial terms, provided
further that
such payment does not exceed 1 per cent. of the enterprise value of
the relevant transaction;
|
|
(f)
|
payment
of a dividend or distribution of share premium reserve or redemption,
repurchase, defeasement, retirement or repayment of its share capital
by a
member of the Group (other than the Company) provided
that
if
a member of the Group is not a wholly-owned Subsidiary of its Holding
Company the dividend or distribution attributable to its minority
shareholders shall be proportionate to their shareholding;
|
|
(g)
|
a
payment which is a Permitted Transaction;
|
|
(h)
|
a
payment to departing management or to an employee share option scheme
or
unit trust scheme to fund the purchase of any of the management equity
(together with the purchase or repayment of any related loans) and/or
to
make other compensation payments to them;
and
|
|
(i)
|
to
the extent it is funded with moneys which have not been received
in breach
of any provision of this Agreement, any other payment by the Parent
provided that such payment is not made to or in respect of another
member
of the Group, other than to the extent permitted under the Finance
Documents,
|
32
provided
that (other
than as set out in the foregoing paragraphs (a), (f), (g) insofar as it is
permitted for the Parent, (h) and (j)), none of the above permissions shall
apply to the Parent.
"Permitted Security"
means:
|
(a)
|
any
lien arising by operation of law or agreement of similar effect and
in the
ordinary course of trading and if arising as a result of any default
or
omission by any member of the Group, which does not subsist for a
period
of more than 60 days;
|
|
(b)
|
any
netting or set-off arrangement entered into by any member of the
Group
which would be permitted pursuant to paragraph (j) of the definition
of
Permitted Financial Indebtedness;
|
|
(c)
|
any
Security or Quasi-Security over or affecting any asset acquired by
a
member of the Group after Closing
if:
|
|
(i)
|
the
Security or Quasi-Security was not created in contemplation of the
acquisition of that asset by a member of the
Group;
|
|
(ii)
|
the
principal amount secured (otherwise than by a capitalisation of interest)
has not been increased in contemplation of or since the acquisition
of
that asset by a member of the Group;
and
|
|
(iii)
|
the
Security or Quasi-Security is removed or discharged within 4 months
of the
date of acquisition of such asset;
|
|
(d)
|
any
Security or Quasi-Security over or affecting any asset of any company
which becomes a member of the Group after Closing, where the Security
or
Quasi-Security is created prior to the date on which that company
becomes
a member of the Group; if:
|
|
(i)
|
the
Security or Quasi-Security was not created in contemplation of the
acquisition of that company;
|
|
(ii)
|
the
principal amount secured has not increased (otherwise than by
capitalisation of interest) in contemplation of or since the acquisition
of that company; and
|
|
(iii)
|
the
Security or Quasi-Security is removed or discharged within 4 months
of
that company becoming a member of the
Group;
|
|
(e)
|
any
Security arising under any retention of title, hire purchase or
conditional sale arrangement or arrangements having similar effect
in
respect of goods supplied to a member of the Group in the ordinary
course
of business and (unless disputed in good faith) not arising as a
result of
any default or omission by any member of the Group that is
continuing
for a period of more than 60 days;
|
|
(f)
|
any
Security or Quasi-Security (existing as at the date of this Agreement)
over assets of any member of the Group so long as the Security or
Quasi-Security is irrevocably removed or discharged by no later than
90
days after Closing;
|
|
(g)
|
any
Security or Quasi-Security arising in connection with a disposal
which is
a Permitted Disposal or arising in connection with a Permitted
Acquisition;
|
33
|
(h)
|
any
Security or Quasi-Security arising in connection with a guarantee
which is
permitted pursuant to paragraph (i) of the definition of "Permitted
Guarantee";
|
|
(i)
|
any
Security or Quasi-Security arising as a consequence of any finance
lease
permitted pursuant to paragraph (f) of the definition of "Permitted
Financial Indebtedness";
|
|
(j)
|
any
Security under netting or set-off arrangements under treasury transactions
permitted by the Finance Documents and the Mezzanine Finance Documents
where the obligations of parties thereunder are calculated by reference
to
the net exposure thereunder (but not any netting or set-off relating
to
such hedging agreement in respect of collateral or any other security
exception otherwise permitted
hereunder);
|
|
(k)
|
any
Security arising as a result of legal proceedings discharged within
30
days or otherwise contested in good faith (and not otherwise constituting
an Event of Default);
|
|
(l)
|
any
Transaction Security, including cash collateral to secure obligations
under the Finance Documents and the Mezzanine Finance Documents the
Lender
Blocked Account and the Group Blocked
Account;
|
|
(m)
|
any
Security over any rental deposits in respect of any property leased
or
licensed by a member of the Group for the purpose of carrying on
its
business;
|
|
(n)
|
any
Security over documents of title and goods as part of a documentary
credit
transaction entered into in the ordinary course of
business;
|
|
(o)
|
any
Security granted by a Non-Obligor to a financial institution as part
of
the arrangements with that institution to provide Local Facilities
to that
member of the Group which are Permitted Financial
Indebtedness;
|
|
(p)
|
any
Security over shares in joint ventures to secure obligations to the
other
joint venture partners;
|
|
(q)
|
any
Security over bank accounts or retention rights in favour of the
account
holding bank and granted as part of that financial institution's
standard
term and conditions;
|
|
(r)
|
any
Security which does not secure any outstanding actual or contingent
obligation;
|
|
(s)
|
any
Security arising by operation of law in respect of taxes being contested
in good faith in compliance with Clause 24.4
(Taxation);
|
|
(t)
|
any
Security granted in favour of creditors pursuant to a reorganisation
permitted under paragraph (c) of the definition of Permitted Transaction
or a capital reduction;
|
|
(u)
|
any
Security contemplated by the Base Case
Model;
|
|
(v)
|
any
Security or Quasi-Security granted in favour of a governmental or
supranational authority in connection with government or supranational
grants or funding provided to a member of the Group;
|
|
(w)
|
any
Security granted under the VLN Debentures or the VLN Pledges;
and
|
|
(x)
|
any
Security securing indebtedness the outstanding principal amount of
which
(when aggregated with the outstanding principal amount of any other
indebtedness which has the benefit of Security given by any member
of the
Group other than any permitted under the preceding paragraphs does
not
exceed $50,000,000 (or its equivalent) at any
time,
|
34
provided
that (other
than as set out in the foregoing paragraphs (a), (g) insofar as the relevant
"Permitted Disposal" or "Permitted Acquisition" is permitted for the Parent,
(h), (k), (l), (q), (r), (s), (v) and (w)), none of the above permissions shall
apply to the Parent.
"Permitted
Share Issue"
means
an issue of:
|
(a)
|
shares
by the Parent which are not redeemable at the option of the holder
before
the Termination Date where such issue does not lead to a Change of
Control
of the Parent;
|
|
(b)
|
shares
by a member of the Group which is a Subsidiary to its immediate Holding
Company or to another member of the Group or to a minority shareholder
proportionate to its existing holding where (if the existing shares
of the
Subsidiary are the subject of the Transaction Security) the newly-issued
shares (to the extent held by a member of the Group) also become
subject
to the Transaction Security on the same
terms;
|
|
(c)
|
shares
to a member of the Group pursuant to a Permitted
Acquisition;
|
|
(d)
|
shares
where the issue is described by the Structure Memorandum or the
Stockholders
Agreement or which constitutes a Permitted Transaction;
|
|
(e)
|
shares
where the issue is part of a Permitted Joint
Venture;
|
|
(f)
|
shares
in a member of the Group that has been the subject of an IPO permitted
under this Agreement, where such shares are issued pursuant to an
employees share option plan, or share options in respect of a member
of
the Group which are only exercisable upon a Permitted Disposal of
that
member of the Group; or
|
|
(g)
|
shares
pursuant to a Permitted Disposal under paragraphs (q) or (s) of that
definition,
|
provided
that (other
than as set out in the foregoing paragraphs (a) and (d), and in respect of
(d)
only insofar as the relevant "Permitted Transaction" is permitted for the
Parent), none of the above permissions shall apply to the Parent.
"Permitted
Transaction"
means:
|
(a)
|
any
disposal required, Financial Indebtedness incurred, guarantee, indemnity
or Security or Quasi-Security given, or other transaction arising,
under
the Finance Documents, the Mezzanine Finance Documents, the
Company Subordinated Debt, the Parent Subordinated Debt, the Company
New
Equity, the Parent New Equity, the Opco Loan Agreements or the Transaction
Documents in each case, if and to the extent permitted under the
Intercreditor Agreement;
|
|
(b)
|
the
solvent liquidation, reorganisation, merger, demerger, amalgamation,
consolidation or corporate reconstruction on a solvent basis of any
Non-Obligor so long as any payments or assets distributed as a result
of
such liquidation or reorganisation are distributed to other members
of the
Group and, where not contemplated in the Structure Memorandum, such
liquidation or reorganisation is not materially prejudicial to the
interests of the Lenders under the Finance
Documents;
|
35
|
(c)
|
unless
an Event of Default is then outstanding or would occur as a result
of the
transaction, a reorganisation, merger, demerger, amalgamation,
consolidation or corporate reconstruction on a solvent basis of any
Obligor (other than the Parent, the Company or a Borrower) including,
for
the avoidance of doubt, with a Non-Obligor
where:
|
|
(i)
|
all
of the business, assets or shares of that member remain with Obligors
and
the value or percentage of any minority interest in any member of
the
Group held by any person which is not a member of the Group is not
increased; and
|
|
(ii)
|
if
the assets or the shares in it were subject to the Transaction Security
immediately prior to such reorganisation, the Lenders will enjoy
(subject
to the Security Principles, in the reasonable opinion of the Facility
Agent and supported by any professional opinions and reports as it
reasonably requires) substantially the same or equivalent guarantees
from
it (or its successor) and substantially the same or equivalent Security
over the same assets and over the same
shares in it (or in each case its successor) after the reorganisation
(excluding, without limitation, any Security over assets which cease
to
exist as part of such
reorganisation);
|
|
(d)
|
transactions
(other than the granting or creation of Security or the incurring
or
permitting to subsist of Financial Indebtedness) conducted in the
ordinary
course of trading on arm's length
terms;
|
|
(e)
|
any
payments or other transactions described in the Structure
Memorandum
provided that, in the case of any loans to management described therein,
they are permitted under paragraph (f) of the definition of Permitted
Loan;
|
|
(f)
|
a
liquidation or reorganisation of NDS Holdings BV within 180 days
of
Closing;
|
|
(g)
|
any
conversion of intra-Group loans into distributable reserves or registered
share capital;
|
|
(h)
|
a
payment by (i) NDS Sweden AB in connection with the retention payments
payable to employees of Castup Israel Limited and (ii) NDS Americas
Inc.
in connection with the deferred consideration payable to the vendors,
in
each case, pursuant to the Castup Acquisition up to an aggregate
maximum
amount of $2,400,000;
|
|
(i)
|
a
payment by Orbis in connection with the earn-out provisions of, and
the
unsecured loan notes issued or to be issued in connection with, the
NT
Acquisition up to a maximum aggregate amount of £1,400,000;
|
|
(j)
|
an
acquisition permitted pursuant to paragraph (i) of the definition
of
Permitted Acquisition; and
|
|
(k)
|
any
acquisition by a member of the Group, or a loan to a trust or special
purpose vehicle to fund the acquisition of shares and loan notes
of
directors and employees whose appointment and/or contract is
terminated
|
36
provided
that (other
than as set out in the foregoing paragraphs (a), (e), (g), (j) and (k)), none
of
the above permissions shall apply to the Parent.
"Permitted
Treasury Transaction"
means a
Treasury Transaction which is permitted under Clause 24.28
(Treasury
Transactions).
"PIK
Margin"
means
5.50 per cent. per annum.
"Pre-Approved
Jurisdiction"
means
England and Wales, the United States of America, France and Sweden.
"Press
Release"
the
announcement in the agreed form by or on behalf of Xxxxxx and Permira relating
to the Scheme.
"Qualifying
Lender"
has the
meaning given to that term in Clause 15
(Tax
Gross-Up and Indemnities).
"Quarter
Date"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Quasi
Security"
has the
meaning given to that term in Clause 24.12
(Negative
pledge).
"Quotation
Day"
means,
in relation to any period for which an interest rate is to be
determined:
|
(a)
|
(if
the currency is euro) two TARGET Days before the first day of that
period;
or
|
|
(b)
|
(for
any other currency) two Business Days before the first day of that
period,
|
unless
market practice differs in the Relevant Interbank Market for a currency, in
which case the Quotation Day for that currency will be determined by the
Facility Agent in accordance with market practice in the Relevant Interbank
Market (and if quotations would normally be given by leading banks in the
Relevant Interbank Market on more than one day, the Quotation Day will be the
last of those days).
"Real Property"
means:
|
(a)
|
any
freehold, leasehold or immovable property,
and
|
|
(b)
|
any
buildings, fixtures, fittings, fixed plant or machinery from time
to time
situated on or forming part of that freehold, leasehold or immovable
property.
|
"Receiver"
means a
receiver or receiver and manager or administrative receiver of the whole or
any
part of the Charged Property.
"Redenomination
Amount"
has the
meaning given to that term in paragraph (a) of Clause 6.2
(Redenomination).
"Redenomination
Notice"
means a
notice substantially in the form set out in Part III of Schedule 3
(Requests)
given
in accordance with Clause 6.2
(Redenomination).
"Reference
Banks"
means,
in relation to LIBOR or EURIBOR the principal London offices of JPMorgan Chase
Bank, N.A., London Branch, Morgan Stanley Bank and HSBC or such other banks
as
may be appointed by the Facility Agent in consultation with the Company.
37
"Regulation
D",
"Regulation
U"
or
"Regulation
X"
means
Regulation D, U or X, as the case may be, of the Board, as from time to time
in
effect and all official rulings and interpretations thereunder or
thereof.
"Regulation
D Cost"
means,
in relation to a Lender's participation in a Loan made to a Borrower (or
deposits maintained by a Lender to fund that participation), any amount
certified by that Lender from time to time to be the cost to it of complying
with Regulation D (or any similar US reserve requirement) in respect of that
participation or deposit. It is agreed that, for purpose of calculating any
Regulation D Costs, the relevant participation or deposit shall be deemed to
constitute "Eurocurrency Liabilities" under Regulation D and to be subject
to
such reserve requirements without the benefit of, or credit for, proration,
exceptions or offsets which may be available from time to time under Regulation
D.
"Relevant
Interbank Market"
means
in relation to euro the European interbank market and, in relation to any other
currency, the London interbank market.
"Relevant
Jurisdiction"
means,
in relation to an Obligor:
|
(a)
|
its
jurisdiction of incorporation; and
|
|
(b)
|
any
jurisdiction whose laws govern any of the Transaction Security Documents
entered into by it.
|
"Relevant
Period"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Repeating
Representations"
means
each of the representations set out in Clause 21.2
(Status),
Clause
21.3
(Binding
obligations),
Clause
21.4
(Non-conflict
with other obligations),
Clause
21.5
(Power
and authority)
and
Clause 21.7
(Validity
and admissibility in evidence).
"Reports"
means
the Market Reports, the Legal Due Diligence Report, the Vendor Legal Due
Diligence Report, the Echostar Report, the Financial and Tax Report, the
Syndication Report, the Top-up Due Diligence Report, the Technical Report and
the Structure Memorandum.
"Representative"
has the
meaning given to that term in Clause 26.8
(Disclosure
of information).
"Reservations"
means:
|
(a)
|
the
principle that equitable remedies are remedies which may be granted
or
refused at the discretion of a court, the principle of reasonableness
and
fairness, the limitation of enforcement by laws relating to bankruptcy,
insolvency, liquidation, reorganisation, court schemes, moratoria,
administration and other laws generally affecting the rights of
creditors;
|
|
(b)
|
the
time barring of claims under applicable limitation laws (including
the
Limitation Acts), the possibility that an undertaking to assume liability
for or to indemnify a person against non-payment of stamp duty may
be
void, defences of set-off or counterclaim;
and
|
|
(c)
|
any
other general principles set out as qualifications
as to matters of law in the legal opinions delivered to the Facility
Agent
in connection with the Finance Documents.
|
"Resignation
Letter"
means a
letter substantially in the form set out in Schedule 7 (Form
of Resignation Letter).
38
"Retained
Cash"
has the
meaning given to that term in Clause 23.1
(Financial
definitions).
"Revolving
Facility"
has the
meaning given to it in the Senior Facilities Agreement.
"Scheme"
means a
scheme of arrangement under sections 895-899 Companies Xxx 0000 or
any
equivalent or substituted provision pursuant to the Companies Xxx 0000 to be
made between the Parent and its shareholders.
"Scheme
Date"
means
the date on which the Second Court Order is filed with, and date stamped by,
the
Registrar of Companies being on or about D+133 as specified in the Structure
Memorandum.
"Scheme
Documents"
means
the documents to be sent out to the shareholders of the Parent containing
details of the Scheme and convening a Court approved meeting of the shareholders
of the Parent in order to seek their approval of the Scheme.
"Screen Rate"
means:
|
(a)
|
in
relation to LIBOR, the British Bankers' Association Interest Settlement
Rate for the relevant currency and period;
and
|
|
(b)
|
in
relation to EURIBOR, the percentage rate per annum determined by
the
Banking Federation of the European Union for the relevant
period,
|
displayed
on the appropriate page of the Reuters screen provided
that,
if the
agreed page is replaced or service ceases to be available, the Facility Agent
may specify another page or service displaying the appropriate rate after
consultation with the Company and the Lenders.
"Second
Court Order"
means
the court order authorising the Capital Reduction.
"Secured
Parties"
means
each Finance Party from time to time party to this Agreement and each Hedge
Counterparty and each Finance Party (as defined in the Senior Facilities
Agreement) from time to time party to the Senior Facilities
Agreement.
"Security"
means a
mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.
"Security
Principles"
means
the security principles set out in Schedule 12 (Security
Principles).
"Selection
Notice"
means a
notice substantially in the form set out in Part II of Schedule 3 (Requests)
given
in accordance with Clause 12
(Interest
Periods)
in
relation to a Loan.
"Senior Agent"
means
the Agent as defined in the Senior Facilities Agreement.
"Senior Arranger"
means
the Arranger as defined in the Senior Facilities Agreement.
"Senior Debt Cover"
has the
meaning given to it in Clause 23.1
(Financial
definitions).
"Senior
Discharge Date"
has the
meaning given to it in the Intercreditor Agreement.
"Senior Facilities"
means
the Facilities (as defined in the Senior Facilities Agreement).
"Senior Facilities
Agreement"
means
the senior facilities agreement dated on or about the date of this Agreement,
made between, among others, the Parent, certain subsidiaries of the Parent
as
borrowers and guarantors and the Finance Parties (as defined under the Senior
Facilities Agreement).
39
"Senior Finance
Documents"
means
the Finance Documents as defined in the Senior Facilities
Agreement.
"Specified
Time"
means a
time determined in accordance with Schedule 10 (Timetable).
"Stockholders
Agreement"
means
the stockholders agreement to be entered into on or prior to the Scheme Date
by
the Parent, the Permira Holdcos, Newton, Newton Inc. and the managers named
therein.
"Structural
Debt"
has the
meaning given to it in the Intercreditor Agreement.
"Structure
Memorandum"
means
the structure paper related to Project Nucleus dated on or about the date of
this Agreement describing the Group and the Transaction and prepared by
PricewaterhouseCoopers with such amendments or modifications as do not
materially and adversely affect the interests of the Lenders or which have
been
made with the consent of the Majority Lenders (acting reasonably).
"Subsidiary"
means,
in relation to any company or corporation, a company or
corporation:
|
(a)
|
which
is controlled, directly or indirectly, by the first mentioned company
or
corporation;
|
|
(b)
|
more
than half the issued share capital of which is beneficially owned,
directly or indirectly by the first mentioned company or corporation;
or
|
|
(c)
|
which
is a Subsidiary of another Subsidiary of the first mentioned company
or
corporation,
|
and
for
this purpose, a company or corporation shall be treated as being controlled
by
another if that other company or corporation is able to direct its affairs
and/or to control the composition of its board of directors or equivalent
body.
"Super
Majority Lenders"
means a
lender or lenders whose Commitments aggregate more than 90 per cent. of the
Total Commitments (or, if the Total Commitments have been reduced to zero,
aggregated more than 90 per cent. of the Total Commitments immediately prior
to
that reduction).
"Swedish
Security Document"
means a
Transaction Security Document governed by Swedish law.
"Syndication
Date"
means
the earlier of the date (i) on which the Arranger determines syndication is
complete, (ii) on which successful syndication occurs (as separately agreed
between the Arrangers and the Company) and (iii) falling 3 months after
Closing.
"Syndication
Report"
means
the report by PricewaterhouseCoopers dated 17 July 2008 which combines all
of
its reports relating to the Acquisition for syndication purposes.
"Takeover
Code"
means
the City Code on Takeovers and Mergers.
"TARGET2"
means
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system which utilises a shared platform and which was launched on 19 November
2007.
40
"TARGET
Day"
means
any day on which TARGET2 is open for the settlement of payments in
euro.
"Tax"
means
any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to
pay
or any delay in paying any of the same).
"Taxes
Act"
means
the Income and Corporation Xxxxx Xxx 0000.
"Technical
Report"
means
the product report prepared by Farncombe dated 14 May 2008.
"Term
Facilities"
has the
meaning given to that term in the Senior Facilities Agreement.
"Termination Date"
means
the date falling 9 years from Closing.
"Third
Party Disposal"
has the
meaning given to that term in paragraph (a) of Clause 27.3
(Resignation
of a Borrower).
"Top-up
Due Diligence Report"
means
the limited scope top-up due diligence report dated 3 July 2008 prepared by
PricewaterhouseCoopers relating to the Acquisition.
"Total
Commitments"
means
the aggregate of the Commitments being $385,000,000 at the date of this
Agreement.
"Transaction"
means
the Capital Reduction, the payment of a dividend by the Company to the Parent,
the reduction in capital and the cancellation of shares by the Parent and the
acquisition by Permira of shares in the Parent by means of a scheme of
arrangement, together with the transactions related thereto, each as set out
in
the Structure Memorandum.
"Transaction
Documents"
means
the Finance Documents, the Senior Finance Documents, the Capital Reduction
Documents, the Scheme Documents and the Vendor Documents.
"Transaction
Security"
means
the Security created or expressed to be created pursuant to the Transaction
Security Documents in favour of the Security Agent.
"Transaction
Security Documents"
means
each of the documents listed in paragraph 3(b) of Part I of Schedule 2
(Conditions
Precedent and conditions subsequent)
and any
document required to be delivered to the Facility Agent under paragraph 2(b)
or
(c) of Part II of Schedule 2 (Conditions
Precedent and conditions subsequent)
or
paragraph 2(b) of Part III of Schedule 2 (Conditions
Precedent and conditions subsequent)
together with any other document entered into by any Obligor, the Vendor Loan
Note Holder or the VLN Security Trustee creating or expressed to create any
Security over all or any part of its assets in respect of the obligations of
any
of the Obligors under any of the Finance Documents or the Mezzanine Finance
Documents.
"Transfer
Certificate and Lender Accession Undertaking"
means
an agreement substantially in the form set out in Schedule 5 (Form
of Transfer Certificate and Lender Accession Undertaking)
or any
other form agreed between the Facility Agent and the Company.
"Transfer
Date"
means,
in relation to a transfer, the later of:
|
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate and
Lender
Accession Undertaking; and
|
41
|
(b)
|
the
date on which the Facility Agent executes the Transfer Certificate
and
Lender Accession Undertaking.
|
"Treasury
Transactions"
means
any derivative transaction entered into in connection with protection against
or
benefit from fluctuation in any rate or price.
"Uncommitted
Acquisition Facility"
has the
meaning given to it in the Senior Facilities Agreement.
"Unpaid
Sum"
means
any sum due and payable but unpaid by an Obligor under the Finance
Documents.
"Unused
Amount"
has the
meaning given to that term in Clause 23.1
(Financial definitions).
"US"
and
"United
States"
means
the United States of America, its territories and possessions.
"US
Bankruptcy Law"
means
the United States Bankruptcy Code of 1978 (Title 11 of the United States Code)
or any other United States federal or state bankruptcy, insolvency or similar
law.
"US
Borrower"
means a
Borrower that is a US Person.
"US$"
or
"US
Dollars"
means
the lawful currency of the United States of America.
"US
GAAP"
means
the generally applied accounting principles, standards and practices in the
United States of America.
"US
Guarantor"
means a
Guarantor that is a US Person.
"US
Obligor"
means a
US Borrower or a US Guarantor.
"US
Person"
means a
"United States Person" as defined in Section 7701(a)(30) of the Internal Revenue
Code and includes a US Person who is the sole owner of any entity that is
disregarded as being an entity separate from such owner for US federal income
tax purposes.
"US
Patriot Act"
means
the Uniting and Strengthening America by Providing Appropriate Tools Required
to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 of the United
States.
"Utilisation"
means a
Loan.
"Utilisation
Date"
means
the date on which a Utilisation is made.
"Utilisation
Request"
means a
notice substantially in the relevant form set out in Part I of Schedule 3
(Requests).
"VAT"
means
value added tax and any other tax of a similar nature.
"Vendor
Documents"
means:
|
(a)
|
the
Vendor Loan Notes;
|
|
(b)
|
the
Vendor Loan Note Instrument (incorporating the VLN
Guarantees);
|
|
(c)
|
the
VLN Debentures;
|
|
(d)
|
the
VLN Pledges; and
|
42
|
(e)
|
any
other document designated in writing as such by the Parent, the Vendor
Loan Note Holder and the Facility Agent (acting on the instructions
of the
Majority Lenders (acting reasonably)).
|
"Vendor
Legal Due Diligence Report"
means
the legal due diligence report dated 30 May 2008 prepared by Xxxxx & Xxxxx
LLP relating to the Acquisition.
"Vendor
Loan Note Holder"
means
NDS Holdco Inc.
"Vendor
Loan Note Instrument"
means
the deed to be entered into constituting the initial amount of $242,000,000
13
per cent. fixed rate guaranteed, secured 2018 Vendor Loan Notes of the Parent,
together with any PIK notes constituted by and issued thereunder, as the same
may be amended or varied from time to time together with any supplemental deed
thereto.
"Vendor
Loan Notes"
means
the vendor loan notes, together with any PIK notes, constituted by, and issued
pursuant to, the Vendor Loan Note Instrument.
"VLN
Debentures"
means
each debenture to be granted by the Parent and the VLN Guarantors in favour
of
the VLN Security Trustee.
"VLN
Guarantee"
means
the subordinated guarantees to be granted in favour of the Vendor Loan Note
Holder by the VLN Guarantors under and pursuant to the Vendor Loan Note
Instrument.
"VLN
Guarantors"
means
the Company, NDS Limited, Digi-Media Vision Limited and News Datacom
Limited.
"VLN
Long-stop Date"
means
the date occurring 14 years after the date of the Vendor Loan Note
Instrument.
"VLN
Pledges"
means:
|
(a)
|
the
share pledge to be granted by the Company over its shares in NDS
Americas
Inc. in favour of the VLN Security Trustee;
and
|
|
(b)
|
the
pledges to be granted by NDS Limited and News Datacom Limited over
their
Intellectual Property rights in the US in favour of the VLN Security
Trustee.
|
"VLN
Security Trustee"
means
NDS Holdco, Inc..
"Withdrawal
Notice"
means a
notice substantially in the form set out in Part IV of Schedule 3 (Requests).
"Withholding
Form"
means
IRS Form X-0XXX, X-0XXX or W-9 (or, in each case, any successor form and, in
each case, attached to an IRS Form W-8IMY if required) or any other IRS form
by
which a person may claim an exemption from withholding of US federal income
tax
on interest payments to that person and, in the case of a person claiming an
exemption under the "portfolio interest exemption," a statement certifying
that
such person is not (A) a "bank" within the meaning of Section 881(c)(3)(A)
of
the Internal Revenue Code, (B) a "10 percent shareholder" of the Borrower within
the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or (C) a
"controlled foreign corporation" that is related to the Borrower within the
meaning of Section 881(c)(3)(C) of the Internal Revenue Code.
43
|
1.2
|
Construction
|
|
(a)
|
Unless
a contrary indication appears a reference in this Agreement
to:
|
|
(i)
|
the
"Facility
Agent",
the "Arranger",
any "Finance
Party",
any "Lender",
any "Obligor",
any "Party",
any "Secured
Party",
the "Security
Agent",
the "Vendor
Loan Note Holder",
the "VLN
Security Trustee"
or any other person shall be construed so as to include its successors
in
title, permitted assigns and permitted transferees and, in the case
of the
Security Agent, any person for the time being appointed as Security
Agent
or Security Agents in accordance with the Finance
Documents;
|
|
(ii)
|
a
document in "agreed
form"
is a document which is agreed in writing by or on behalf of the Company
and the Facility Agent;
|
|
(iii)
|
"assets"
includes present and future properties, revenues and rights of every
description;
|
|
(iv)
|
the
"European
interbank market"
means the interbank market for euro operating in Participating Member
States;
|
|
(v)
|
a
"Finance
Document"
or a "Transaction
Document"
or any other agreement or instrument is a reference to that Finance
Document or Transaction Document or other agreement or instrument
as
amended, novated, supplemented, extended or restated (however
fundamentally);
|
|
(vi)
|
"guarantee"
means (other than in Clause 20
(Guarantee
and Indemnity))
any guarantee, letter of credit, bond, indemnity or similar assurance
against loss;
|
|
(vii)
|
"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;
|
|
(viii)
|
a
Lender's "participation"
in relation to a Letter of Credit, shall be construed as a reference
to
the relevant amount that is or may be payable by a Lender in relation
to
that Letter of Credit;
|
|
(ix)
|
a
"person"
includes any individual, firm, company, corporation, government,
state or
agency of a state or any association, trust or partnership (whether
or not
having separate legal personality) of two or more of the
foregoing;
|
|
(x)
|
a
"regulation"
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law but if not having the force
of
law, compliance with which is customary for entities or persons such
as
the relevant entity or person) of any governmental, intergovernmental
or
supranational body, agency, department or regulatory, self-regulatory
or
other authority or organisation;
|
|
(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.
|
44
|
(c)
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
(d)
|
A
Default or
an Event of Default is "continuing"
if it has not been remedied or waived, provided that in the case
of a
Major Event of Default if the Facility Agent serves on the Company
after
the date on which that Major Event of Default has occurred a notice
requiring the Company to remedy that Major Event of Default within
three
Business Days, if that Major Event of Default is not remedied within
three
Business Days of receipt by the Company of such notice, then with
effect
from and including the fourth Business Day after such notice is received
that particular Major Event of Default is "continuing"
(whether or not it is subsequently remedied) if it has not been waived.
In
relation to any Event of Default caused by the failure to meet the
requirements of Clause 23.2
(Financial
condition)
on any Quarter Date but where the requirements of Clause 23.2
(Financial
condition)
are complied with on the next Quarter Date, the Event of Default
caused by
the failure to meet the requirements of Clause 23.2
(Financial
condition)
on the former Quarter Date shall be deemed remedied to the satisfaction
of
the Finance Parties on the next Quarter Date unless, prior to that
next
Quarter Date, the Facility Agent or any other Finance Party has exercised
any of the rights under Clause 25.21 (Acceleration).
|
|
(e)
|
A
Lender funding its participation in a Utilisation includes a Lender
participating in a Letter of
Credit.
|
|
1.3
|
Personal
Liability
|
No
personal liability shall attach to any director, officer, employee or other
individual signing a certificate or other document on behalf of a member of
the
Group which proves to be incorrect in any way, unless that individual acted
fraudulently in giving that certificate or other document in which case any
liability will be determined in accordance with applicable law.
|
1.4
|
Intercreditor
Agreement
|
|
(a)
|
This
Agreement is entered into subject to, and with the benefit of, the
terms
of the Intercreditor Agreement.
|
|
(b)
|
Notwithstanding
anything to the contrary in this Agreement, the terms of the Intercreditor
Agreement will prevail if there is a conflict between the terms of
this
Agreement and the terms of the Intercreditor
Agreement.
|
|
1.5
|
Currency
Symbols and Definitions
|
|
(a)
|
"$"
and "dollars"
denote lawful currency of the United States of America, "£"
and "sterling"
denotes lawful currency of the United Kingdom and "euro"
means the single currency unit of the Participating Member
States.
|
|
(b)
|
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
Facility Agent's Spot Rate of Exchange at about such time and on
such date
as the Facility Agent may from time to time reasonably determine
to be
appropriate in the circumstances.
|
45
|
1.6
|
Third
party rights
|
|
(a)
|
Unless
expressly provided to the contrary in a Finance Document a person
who is
not a Party has no right under the Contracts (Rights of Third Parties)
Act
1999 (the "Third
Parties Act")
to enforce or enjoy the benefit of any term of any Finance
Document.
|
|
(b)
|
Notwithstanding
any term of any Finance Document, the consent of any person who is
not a
Party is not required to rescind or vary any Finance Document at
any
time.
|
|
1.7
|
Dutch
terms
|
In
this
Agreement, where it relates to a Dutch entity, a reference to:
|
(a)
|
a
necessary action to authorise where applicable, includes without
limitation:
|
|
(i)
|
any
action required to comply with the Works Councils Act of the Netherlands
(Wet
op de ondernemingsraden);
and
|
|
(ii)
|
obtaining
an unconditional positive advice (advies)
from the competent works
council(s);
|
|
(b)
|
financial
assistance means any act contemplated
by:
|
|
(i)
|
(for
a besloten
vennootschap met beperkte aansprakelijkheid)
Article 2:207(c) of the Dutch Civil Code;
or
|
|
(ii)
|
(for
a naamloze
vennootschap)
Article 2:98(c) of the Dutch Civil
Code;
|
|
(c)
|
a
security interest includes any mortgage (hypotheek),
pledge (pandrecht),
retention of title arrangement (eigendomsvoorbehoud),
privilege (voorrecht),
right of retention (recht
van retentie),
right to reclaim goods (recht
van reclame),
and, in general, any right in rem (beperkt
recht),
created for the purpose of granting security (goederenrechtelijk
zekerheidsrecht);
|
|
(d)
|
a
winding-up, administration or dissolution includes a Dutch entity
being
declared bankrupt (failliet
verklaard)
or dissolved (ontbonden);
|
|
(e)
|
a
moratorium includes surseance
van betaling and
a moratorium is declared or occurs includes surseance
verleend;
|
|
(f)
|
insolvency
includes bankruptcy and moratorium;
|
|
(g)
|
any
step or procedure taken in connection with insolvency proceedings
includes
a Dutch entity having filed a notice under Section 36 of the Tax
Collection Act of the Netherlands (Invorderingswet
1990)
or Section 60 of the Social Insurance Financing Act of the Netherlands
(Wet
Financiering Sociale Verzekeringen)
in conjunction with Section 36 of the Tax Collection Act of the
Netherlands (Invorderingswet
1990);
|
|
(h)
|
a
trustee in bankruptcy includes a
curator;
|
|
(i)
|
an
administrator includes a bewindvoerder;
|
|
(j)
|
an
attachment includes a beslag;
and
|
|
(k)
|
a
subsidiary includes a dochtermaatschappij
as
defined in Article 2:24a of the Dutch Civil
Code.
|
46
SECTION
2
THE
FACILITY
|
2.
|
THE
FACILITY
|
|
2.1
|
The
Facility
|
Subject
to the terms of this Agreement, the Lenders make available
a Base
Currency term loan facility in an aggregate amount equal to the Total
Commitments.
|
2.2
|
Finance
Parties' rights and
obligations
|
|
(a)
|
The
obligations of each Finance Party under the Finance Documents are
several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under
the
Finance Documents. No Finance Party is responsible for the obligations
of
any other Finance Party under the Finance
Documents.
|
|
(b)
|
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising
under
the Finance Documents to a Finance Party from an Obligor shall be
a
separate and independent debt.
|
|
(c)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
|
2.3
|
Obligors'
Agent
|
|
(a)
|
Each
Obligor (other than the Company)
by its execution of this Agreement or an Accession Letter irrevocably
appoints the Company to act on its behalf as its agent in relation
to the
Finance Documents and irrevocably
authorises:
|
|
(i)
|
the
Company
on its behalf to supply all information concerning itself contemplated
by
this Agreement to the Finance Parties and to give all notices and
instructions (including, in the case of a Borrower, Utilisation Requests),
to execute on its behalf any Accession Letter, to make such agreements
and
to effect the relevant amendments, supplements and variations capable
of
being given, made or effected by any Obligor notwithstanding that
they may
affect the Obligor (including, without limitation, by increasing
the
obligations of such Obligor howsoever fundamentally, whether by increasing
the liabilities guaranteed or otherwise), without further reference
to or
the consent of that Obligor; and
|
|
(ii)
|
each
Finance Party to give any notice, demand or other communication to
that
Obligor pursuant to the Finance Documents to the
Company,
|
and
in
each case the Obligor shall be bound as though the Obligor itself had given
the
notices and instructions (including, without limitation, any Utilisation
Requests) or executed or made the agreements or effected the amendments,
supplements or variations, or received the relevant notice, demand or other
communication.
|
(b)
|
Every
act, omission, agreement, undertaking, settlement, waiver, amendment,
supplement, variation, notice or other communication given or made
by the
Obligors' Agent or given to the Obligors' Agent under any Finance
Document
on behalf of another Obligor or in connection with any Finance Document
(whether or not known to any other Obligor and whether occurring
before or
after such other Obligor became an Obligor under any Finance Document)
shall be binding for all purposes on that Obligor as if that Obligor
had
expressly made, given or concurred with it. In the event of any conflict
between any notices or other communications of the Obligors' Agent
and any
other Obligor, those of the Obligors' Agent shall
prevail.
|
47
|
2.4
|
UK
Obligors
|
|
(a)
|
In
respect of any Obligor incorporated in the United
Kingdom:
|
|
(i)
|
its
obligations under Clauses 14
(Fees),
15
(Tax
Gross-Up and Indemnities),
16
(Increased
Costs),
17
(Other
Indemnities),
19
(Costs
and Expenses)
and 20
(Guarantee
and Indemnity)
shall take effect on (but not before) Closing;
and
|
|
(ii)
|
its
obligations under the Finance Documents shall only take effect to
the
extent that it would not constitute unlawful financial assistance
within
the meaning of Sections 151 and 152 of the Companies Xxx
0000.
|
|
(b)
|
The
operation of this Clause 2.4 shall not in any respect override the
requirement for the Facility Agent to receive all the conditions
precedent
referred to in Clause 4.1
(Initial
conditions precedent).
|
|
2.5
|
French
Guarantors
|
In
respect of any Obligor under the Senior Finance Documents which is incorporated
in France (a "French
Guarantor"),
each
such French Guarantor shall be deemed to be an Obligor under this Agreement
solely for the purposes of the definitions of Permitted Acquisition, Permitted
Disposal, Permitted Financial Indebtedness, Permitted Guarantee, Permitted
Joint
Venture, Permitted Loan, Permitted Security and Permitted
Transaction.
|
3.
|
PURPOSE
|
|
3.1
|
Purpose
|
Each
Borrower shall apply all amounts borrowed by it under the
Facility to finance:
|
(a)
|
a
reduction in the share capital of the Company (the "Capital
Reduction")
and the payment of a dividend by the Company;
and
|
|
(b)
|
the
payment of costs and expenses incurred by the Company or any other
member
of the Group or any Investor in connection with the Capital Reduction,
the
dividend referred to in (i) above, the Transaction and the Transaction
Documents and the reimbursement of costs and expenses incurred by
Xxxxxx
related thereto,
|
in
each
case
in accordance with the Structure Memorandum and the Funds Flow
Statement.
|
3.2
|
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
|
4.
|
CONDITIONS
OF
UTILISATION
|
|
4.1
|
Initial
conditions precedent
|
The
Lenders will only be obliged to comply with Clause 5.4
(Lenders'
participation)
in
relation to any Utilisation if:
48
|
(a)
|
prior
to Closing, each Closing Obligor has become an Additional Guarantor
in
accordance with Clause 27 (Changes
to the Obligors)
and provided the Transaction Security listed in paragraph 3(b) of
Part I
of Schedule 2 (Conditions
Precedent and conditions subsequent);
and
|
|
(b)
|
on
or before the Utilisation Date for that Utilisation, the Facility
Agent
has received or is satisfied that it will receive all of the documents
and
other evidence listed in Part I of Schedule 2 (Conditions
Precedent and conditions subsequent)
in form and substance satisfactory to the Facility Agent (acting
reasonably and on the instructions of the Majority Lenders),
|
provided
that
the
consent of 85 per cent. of the Lenders will be required to waive any
conditions set out in Part I of Schedule 2 (Conditions
Precedent and conditions subsequent)
that
are highlighted with an asterisk). The Facility Agent shall notify the Company
and the Lenders promptly upon being so satisfied.
|
4.2
|
Conditions
to Utilisation
|
Subject
to Clause 4.4
(Certain
Funds),
the
Lenders will only be obliged to comply with Clause 5.4
(Lenders'
participation),
if on
the date of the Utilisation Request and on the relevant Utilisation
Date:
|
(a)
|
no
Event of Default
or
Default is continuing or would occur as a result of the proposed
Utilisation; and
|
|
(b)
|
the
Repeating Representations that are stipulated to be made by an Obligor
on
the relevant Utilisation Date are true and accurate (in all material
respects in the case of Repeating Representations to which a materiality
test is not already applied in accordance with their terms) by reference
to the facts then subsisting and will remain true and accurate immediately
after the Utilisation.
|
|
4.3
|
Maximum
number of Utilisations
|
|
(a)
|
A
Borrower (or the Company)
may not deliver a Utilisation Request if as a result of the proposed
Utilisation more than 5 Loans would be
outstanding.
|
|
(b)
|
A
Borrower (or the Company) may not request that a Loan be divided
if, as a
result of the proposed division 5 or more Loans would be outstanding..
|
|
4.4
|
Certain
Funds
|
|
(a)
|
Notwithstanding
the provisions of Clause 4.2
(Conditions
to Utilisation),
a Utilisation of the Facility for the purposes specified in Clause
3.1
(Purpose)
or subject to the conditions set out in the Parent Debenture and
the
submission of a duly completed Withdrawal Notice, any withdrawal
from a
Blocked Account to be made within the Certain Funds Period shall
(in each
case) be made notwithstanding:
|
|
(i)
|
that
all the representations and warranties in Clause 21
(Representations)
(other than a Certain Funds Representation) are not true in all respects;
and
|
|
(ii)
|
a
Default (other than a Certain Funds Default) is
continuing,
|
49
|
(iii)
|
but
shall not be required to be made if, during the Certain Funds Period,
there occurs a Change of Control (other than pursuant to the Transaction)
or, in respect of the participation of a Lender in a Utilisation,
it is
unlawful for that Lender to make the Utilisation. For the purposes
of this
paragraph (a) only, Change of Control shall be deemed to apply to
the
Company on the same basis that it applies to the Parent, mutatis
mutandis.
|
|
(b)
|
Prior
to the date falling on the last day of the Certain Funds Period for
the
Facility, the Lenders will not exercise their rights under Clause
25.21 (Acceleration),
exercise any right of rescission or exercise any right of set-off,
in each
case to prevent any Utilisation referred to in paragraph (a) of this
Clause 4.4.
|
|
(c)
|
For
the avoidance of doubt, save as expressly stated otherwise, this
Clause
4.4
does not constitute a waiver of the rights of the Lenders in respect
of
any Default.
|
|
(d)
|
For
the avoidance of doubt, the Facility Agent shall have received all
(unless
it has waived such receipt) the documents and other evidence required
by
and in accordance with Clause 4.1
(Initial
conditions precedent)
before any Utilisation may be made on
Closing.
|
|
4.5
|
Debt
Push Down Loans
|
The
Group
may, as part of its efficient tax planning, enter into transactions such that
certain
existing Loans may be pushed down in order to implement a Debt Push Down and
Reorganisation provided that (subject to Clause 16.3
(Exceptions))
such
Debt Push Down and Reorganisation is implemented on terms which have all been
approved by the Majority Lenders.
|
4.6
|
Intellectual
Property Restructuring
|
The
Group
may, as part of its efficient tax planning, enter into any Permitted
Transactions including, without limitation, any transaction or series of
transactions (each an "IP
Transaction")
for
the sale, licence, transfer or other disposal of all or part of the intellectual
property owned by members of the Group incorporated in the UK (the "UK
IP")
to
other members of the Group incorporated outside the UK provided
that
unless
the Majority Lenders otherwise agree (acting reasonably):
|
(a)
|
no
Event of Default is continuing or would result from the IP
Transaction;
|
|
(b)
|
if
the disposing company is a Guarantor, the company to which the UK
IP is
transferred (the "acquiring
company")
must be a Guarantor or the acquiring company shall have acceded as
an
Additional Guarantor in accordance with Clause 27
(Changes
to the Obligors);
|
|
(c)
|
to
the extent that the UK IP was subject to Security in favour of the
Lenders
immediately prior to the IP Transaction, subject to the Security
Principles and notwithstanding that new hardening periods would start,
the
Lenders will enjoy (in the reasonable opinion of the Facility Agent
(acting on instructions of the Majority Lenders (acting reasonably))
and
supported by any professional opinions and reports as it reasonably
requires) substantially the same or equivalent Security over the
UK IP
transferred in connection with the IP
Transaction;
|
50
|
(d)
|
the
acquiring entity must be in a jurisdiction approved by the Majority
Lenders (acting reasonably); and
|
|
(e)
|
the
Group will not incur any material tax liabilities as a result of
the IP
Transaction.
|
SECTION
3
UTILISATION
|
5.
|
UTILISATION
-
LOANS
|
|
5.1
|
Delivery
of a Utilisation Request
|
A
Borrower (or the Company
on its behalf) may utilise the Facility by delivery to the Facility Agent of
a
duly completed Utilisation Request not later than the Specified Time (or such
later time as the Facility Agent agrees).
|
5.2
|
Completion
of a Utilisation Request for
Loans
|
|
(a)
|
Each
Utilisation Request is irrevocable and will not be regarded as having
been
duly completed unless:
|
|
(i)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period;
|
|
(ii)
|
the
currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount);
|
|
(iii)
|
in
respect of any Utilisation drawn on Closing, the account specified
therein
is the Lender Blocked Account; and
|
|
(iv)
|
the
proposed Interest Period complies with Clause 12
(Interest Periods).
|
|
(b)
|
Multiple
Utilisations may be requested in a single Utilisation Request where
the
proposed Utilisation Date is Closing. Only one Utilisation may be
requested in each subsequent Utilisation Request but more than one
Utilisation Request may be delivered on the same
day.
|
|
5.3
|
Currency
and amount
|
|
(a)
|
The
currency specified in a Utilisation Request must be the Base
Currency.
|
|
(b)
|
The
amount of the proposed Utilisation must be a minimum of $10,000,000.
|
|
5.4
|
Lenders'
participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender
shall
make its participation in each Loan available by the Utilisation
Date
through its Facility Office.
|
|
(b)
|
The
amount of each Lender's participation in each Loan will be equal
to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the
Loan.
|
|
5.5
|
Pro
Rata Drawings
|
The
Company shall ensure that to the extent not fully utilised on Closing, Facility
A, Facility B and Facility C and the Facility are drawn proportionately to
each
other.
|
5.6
|
Withdrawal
Notice
|
|
(a)
|
The
Company (on behalf of the Parent) shall deliver to the Security Agent
a
duly completed Withdrawal Notice at the same time that it delivers
the
first Utilisation Request under this
Agreement.
|
51
|
(b)
|
Such
Withdrawal Notice is irrevocable and will not be regarded as having
been
duly completed unless:
|
|
(i)
|
it
identifies the intended Scheme Date (on the understanding that, for
the
avoidance of doubt, the actual Scheme Date may fall after that
date);
|
|
(ii)
|
it
identifies all payments to be made from a Blocked Account on the
Scheme
Date in accordance with the Structure Memorandum and the Funds Flow
Statement; and
|
|
(iii)
|
it
includes detailed payment instructions for each individual recipient
of a
payment from a Blocked Account on the Scheme
Date.
|
|
(c)
|
For
the avoidance of doubt, all instructions set out in the Withdrawal
Notice
shall be subject to the occurrence of the Scheme Date and the conditions
for withdrawal from the Blocked Accounts set out in the Parent
Debenture.
|
|
(d)
|
Unless
otherwise agreed between the Company and the Majority Lenders (acting
reasonably) only three recipients shall be designated for the payment
to
be made to the public under Step 15 of the Structure
Memorandum.
|
|
6.
|
REDENOMINATION
|
|
6.1
|
Facility
Agent's calculations
|
Each
Lender's participation in a Loan will be determined in accordance with paragraph
(b) of Clause 5.4
(Lenders'
participation).
|
6.2
|
Redenomination
|
|
(a)
|
The
Lenders may, by delivering a notice to the Company
(a "Redenomination
Notice")
no later than ten Business Days before the Redenomination Date, request
that Loans in an aggregate principal amount (when aggregated with
any
Facility A Loans, Facility B Loans and/or Facility C Loans under
the
Senior Facilities Agreement that have been or are to be redenominated)
(the "Redenomination
Amount")
not exceeding $510,000,000 be redenominated into
euro.
|
|
(b)
|
Each
Redenomination Notice shall:
|
|
(i)
|
be
delivered at least ten Business Days before the Redenomination
Date;
|
|
(ii)
|
specify
the proposed date (the "Redenomination
Date")
on which such redenomination is to take effect;
and
|
|
(iii)
|
specify
the amount of the Facility to be redenominated (in compliance with
the
limits set out in paragraph (a)
above).
|
|
(c)
|
Following
receipt by the Company
of the Redenomination Notice the Facility Agent or a financial institution
nominated by the Company will enter into foreign exchange contracts
on
market rates (each an "Exchange
Contract")
pursuant to which the Facility Agent or nominated financial institution
agrees to purchase an amount in dollars equal to the Redenomination
Amount
with an amount of euros (the "Exchange
Amount")
required to purchase that amount of dollars using the Facility Agent's
Spot Rate of Exchange or the rate of exchange at which the nominated
financial institution is to provide the Exchange Contract (the
"Redenomination
Amount")
(provided
that
the Facility Agent shall consult with the Company or nominated financial
institution in relation to the setting of the Redenomination Rate)
for
delivery on the Redenomination
Date.
|
52
|
(d)
|
On
the Redenomination Date, the Lenders will make additional Loans
("Redenomination
Loans")
in euros. The amount of each Loan shall be the Exchange Amount relating
to
the relevant dollar amount of the
Facility.
|
|
(e)
|
Upon
ascertaining (and in any event on the date falling three Business
Days
prior to the Redenomination Date) each Exchange Amount, the Facility
Agent
will promptly notify the Company and each Lender of the Exchange
Amounts
and the Redenomination Rate.
|
|
(f)
|
On
the Redenomination Date:
|
|
(i)
|
each
Redenomination Loan will be made as set out in paragraph (d)
above, and the proceeds of such Loans shall be paid to the Facility
Agent;
|
|
(ii)
|
the
Facility Agent shall apply the proceeds of the Redenomination Loans
in
purchase of dollars in accordance with the Exchange Contracts or
to the
financial institution nominated by the Company pursuant to paragraph
(c)
above for the purchase of dollars by that financial institution in
accordance with the Exchange Contracts;
and
|
|
(iii)
|
the
Facility Agent shall apply the amounts of dollars purchased pursuant
to
the Exchange Contracts or received from the financial institution
nominated by the Company pursuant to paragraph (c) above in repayment
in
full of all the Loans which are to be
redenominated.
|
|
(g)
|
On
and following the Redenomination Date, each Redenomination Loan shall
be a
Loan
for all purposes under this
Agreement.
|
|
(h)
|
The
requirements of Clause 4.2
(Conditions
to Utilisation),
Clause 4.3
(Maximum
number of Utilisations)
and Clause 5
(Utilisation
- Loans)
shall be deemed to be satisfied in respect of the Redenomination
Loans.
|
|
(i)
|
Only
one Redenomination Date may occur under this
Agreement.
|
|
(j)
|
Prior
to the occurrence of the Redenomination Date, the Facility Agent
may
require (acting reasonably) such amendments to this Agreement to
be made
as are reasonably necessary to separate the Redenomination Loans
into euro
and dollar tranches of the
Facility.
|
|
(k)
|
Following
the tranching of the Redenomination Loans, any repayment or mandatory
prepayment of the Facility must be made pro rata to the outstandings
under
each euro and dollar tranche.
|
53
SECTION
4
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
7.
|
REPAYMENT
|
|
7.1
|
Repayment
of Loans
|
|
(a)
|
The
Borrowers which
have drawn Loans (and the Company shall ensure that those Borrowers
shall)
repay the aggregate Loans on the Termination
Date.
|
|
(b)
|
The
Borrowers may not reborrow any part of the Facility which is
repaid.
|
|
8.
|
ILLEGALITY,
VOLUNTARY PREPAYMENT AND
CANCELLATION
|
|
8.1
|
Illegality
|
If
it
becomes unlawful in any applicable jurisdiction for a Lender to perform any
of
its obligations as contemplated by this Agreement or to fund, issue or maintain
its participation in any Loan:
|
(a)
|
that
Lender shall promptly notify the Facility Agent upon becoming aware
of
that event;
|
|
(b)
|
upon
the Facility Agent notifying the Company,
the Commitment of that Lender will be immediately cancelled or, as
the
case may be, on such date that Lender's Commitment shall be transferred
to
another person pursuant to Clause 26.11
(Replacement
of Lenders);
and
|
|
(c)
|
each
Borrower shall repay that Lender's participation in the Loan made
to that
Borrower on the last day of the Interest Period for each Loan occurring
after the Facility Agent has notified the Company or, if earlier,
the date
specified by the Lender in the notice delivered to the Facility Agent
(being no earlier than the last day of any applicable grace period
permitted by law) or, as the case may be, on such date that Lender's
participation in the Utilisations shall be transferred at par to
another
person pursuant to Clause 26.11
(Replacement
of Lenders).
|
|
8.2
|
Voluntary
and mandatory cancellation
|
|
(a)
|
The
Company
may, if it gives the Facility Agent not less than three Business
Days' (or
such shorter period as the Majority Lenders may agree) prior notice,
cancel the whole or any part (being a minimum amount of $2,000,000
(or its
equivalent)) of an Available Facility. Any cancellation under this
Clause
8.2
shall reduce the Commitments of the Lenders rateably under that
Facility.
|
|
(b)
|
The
Facilities shall be automatically cancelled if the Press Release
has not
been issued by the date falling 14 days after the date of this
Agreement.
|
|
8.3
|
Voluntary
prepayment of Loans
|
|
(a)
|
Subject
to the Intercreditor Agreement, a
Borrower to which a Loan has been made may, if it or the Company
gives the
Facility Agent not less than five Business Days' (or such shorter
period
as the Majority Lenders may agree) prior notice, prepay the whole
or any
part of that Loan (but, if in part, being an amount that reduces
the Base
Currency Amount of that Loan by a minimum amount of $2,000,000 (or
its
equivalent) subject to any Break Costs.
|
54
|
(b)
|
A
Loan may only be prepaid after the last day of the Availability Period
(or, if earlier, the day on which the applicable Available Facility
is
zero).
|
|
8.4
|
Right
of cancellation and repayment in relation to a single
Lender
|
|
(a)
|
If:
|
|
(i)
|
any
sum payable to any Lender by an Obligor is required to be increased
under
paragraph (c) of Clause 15.2
(Tax
gross-up);
|
|
(ii)
|
any
Lender claims indemnification from an Obligor under Clause 15.3
(Tax
indemnity)
or Clause 16.1
(Increased
costs);
or
|
|
(iii)
|
a
Market Disruption Event occurs pursuant to Clause 13
(Changes
to Calculation of Interest)
in relation to certain but not all the Lenders;
or
|
|
(iv)
|
at
any time a Lender becomes a Non-Consenting
Lender,
|
the
Company
may, whilst the circumstance giving rise to the requirement or indemnification
continues, give the Facility Agent notice of cancellation of the Commitment
of
that Lender and its intention to procure the repayment of that Lender's
participation in the Utilisations or to require the transfer of that Lender's
rights and obligations pursuant to Clause 26.11
(Replacement
of Lenders).
|
(b)
|
On
receipt of a notice referred to in paragraph (a) above in relation
to a
Lender, the Commitment of that Lender shall immediately be reduced
to zero
or transferred to another person pursuant to Clause 26.11
(Replacement
of Lenders).
|
|
(c)
|
On
the last day of each Interest Period which ends after the Company
has
given notice under paragraph (a) (i), (ii) or (iii) above in relation
to a
Lender (or, if earlier, the date specified by the Company in that
notice),
each Borrower to which a Loan is outstanding shall repay that Lender's
participation in that Loan together with all interest and other amounts
accrued under the Finance Documents or the relevant Lender shall
transfer
its rights and obligations pursuant to Clause 26.11
(Replacement
of Lenders).
|
|
(d)
|
On
the last day of each Interest Period which ends after the Company
has
given notice under paragraph (a)(iv) above in relation to a Lender
(or, if
earlier, the date specified by the Company in that notice), each
Borrower
to which a Loan is outstanding shall, with the consent of each of
the
Lenders forming the Majority Lenders (unless the prepayment is funded
by
Company New Equity, Company Subordinated Debt or Retained Cash that
can be
used to pay dividends in accordance with the terms of this Agreement)
repay that Lender's participation in that Loan together with all
interest
and other amounts accrued under the Finance Documents and/or the
relevant
Lender shall transfer its rights and obligations pursuant to Clause
26.11
(Replacement
of Lenders).
|
|
8.5
|
Prepayment
fee
|
|
(a)
|
If
a prepayment
of all or any part of the Facility is made within 36 Months from
Closing:
|
|
(i)
|
under
Clause 8.3 (Voluntary
prepayment of Loans);
|
|
(ii)
|
as
a result of the operation of Clause 9.1 (Exit);
or
|
55
|
(iii)
|
as
a result of the operation of paragraph (d) of Clause.9.2 (Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO),
|
the
Borrower shall pay with the proposed prepayment a fee in an amount equal
to:
| (A) |
if
the prepayment takes place at any time up to (and including) the
date
which is 24 Months from Closing, one per cent. of the principal amount
prepaid to the Facility Agent for distribution to the Lenders and
a
make-whole fee calculated in accordance with Clause 8.6 (Make-whole
Fee)
below; or
|
| (B) |
if
the prepayment takes place at any time from (but excluding) the date
which
is 24 Months from Closing up to (and including) the date which is
36
Months from Closing, one per cent (1%) of the principal amount prepaid
to
the Facility Agent for distribution to the
Lenders.
|
|
(b)
|
No
prepayment
fee shall be payable under paragraph (a) above in relation to a prepayment
of all or any part of the Facility pursuant
to:
|
|
(i)
|
Clause
8.1 (Illegality);
or
|
|
(ii)
|
paragraphs
(a)(i), (ii), (iii) and (iv) of Clause 8.4 (Right
of cancellation and repayment in relation to a single
Lender)
as a result of:
|
|
(A)
|
any
sum payable to a Lender by an Obligor being required to be increased
under
paragraph (c) of Clause 15.2 (Tax
gross-up);
|
|
(B)
|
any
Lender claiming indemnification under Clause 15.3 (Tax
indemnity)
or Clause 16.1 (Increased
costs);
|
|
(C)
|
a
Market Disruption Event occurring pursuant to Clause 13 (Changes
to Calculation of Interest);
or
|
|
(D)
|
or
at any time a Lender becoming a Non-consenting Lender provided that
if any
such prepayment takes place at any time up to (and including) the
date
which is 24 Months from Closing, a prepayment fee of 2 per cent.
of the
principal amount prepaid shall be paid to the Facility Agent for
distribution to the Lenders and if any such prepayment takes place
at any
time after the date which is 24 Months from Closing up to (and including)
the date which is 36 Months from Closing a prepayment fee is payable
in
accordance with sub-paragraph (B) of paragraph (a) above;
or
|
|
(iii)
|
a
refinancing
of all or part of the Facility in which one or more of the Lenders
participate, provided that in respect of each such Lender a fee will
be
payable in accordance with paragraphs (A) and (B) above and calculated
on
the amount, if any, by which the amount prepaid to such Lender(s)
exceeds
such Lender(s) participation in such
refinancing.
|
|
8.6
|
Make-whole
fee
|
|
(a)
|
For
the purposes of paragraph (a)(A) of Clause 8.5 (Prepayment
fee),
"Make-whole
fee"
means an amount equal to the net present value of the amount of interest
(excluding any Mandatory Cost) which would have accrued on the principal
amount of the Facility (and including, for the avoidance of doubt,
all
accrued and capitalised interest) so prepaid from the date of prepayment
to (and including) the date which is 24 Months from Closing, discounted
at
a rate equal to LIBOR plus 0.50 per cent
(0.50%).
|
56
|
(b)
|
For
the purpose of paragraph (a) above, LIBOR shall be determined as
at the
date of prepayment and assuming successive Interest Periods of three
months' duration but taking the actual period from the date of prepayment
to the expiry of the then current Interest Period and the actual
period
from the expiry of the last three month Interest Period so assumed
until
(and including) the date which is 24 Months from
Closing.
|
|
9.
|
MANDATORY
PREPAYMENT
|
|
9.1
|
Exit
|
Upon
the
occurrence
of
an Exit, the Facility will be cancelled and all outstanding Loans, together
with
accrued interest, and all other amounts accrued under the Finance Documents,
shall become immediately due and payable.
|
9.2
|
Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO
|
|
(a)
|
For
the purposes of this Clause 9.2,
Clause 9.3
(Application
of mandatory prepayments)
and Clause 9.4
(Mandatory
Prepayment Accounts):
|
"Acquisition
Proceeds"
means
the Net Proceeds of a claim (a "Recovery
Claim")
against the provider of any Report (in its capacity as a provider of that
Report) except for Excluded Acquisition Proceeds.
"Disposal"
means a
sale, lease, licence, transfer, loan or other disposal by a person of any asset,
undertaking or business (whether by a voluntary or involuntary single
transaction or series of transactions).
"Disposal
Proceeds"
means
the Net Proceeds received by any member of the Group (including any amount
received from any person outside the Group or from the entity being disposed
of
or its Subsidiaries in repayment of intercompany debt of the entity being
disposed of or its Subsidiaries) for any Disposal made by any member of the
Group except for Excluded Disposal Proceeds.
"Excluded
Acquisition Proceeds"
means
any proceeds of a Recovery Claim which relate to a working capital adjustment
or
which are applied or committed to be applied or designated by the board of
directors of the Company to be applied:
|
(i)
|
to
satisfy (or reimburse a member of the Group which has discharged)
any
liability, charge or claim upon a member of the Group by a person
which is
not a member of the Group; or
|
|
(ii)
|
in
compensation for a loss or replacement, reinstatement and/or repair
of
assets of members of the Group which have been lost, destroyed or
damaged,
|
in
each
case as a result of the events or circumstances giving rise to that Recovery
Claim, if those proceeds are so applied, committed to be so applied or
designated by the board of directors of the Company
to be so applied, within 12 Months (or such longer period as the Majority
Lenders may agree) of receipt of such proceeds (provided
that in
the
case of a commitment or designation they are then so applied within 18 Months
of
receipt); or
57
|
(iii)
|
less
than $5,000,000 (or its equivalent) in respect of an individual Recovery
Claim.
|
"Excluded
Disposal Proceeds"
means
the Net Proceeds of any Disposal which is or which are:
|
(i)
|
permitted
under paragraphs (a) to (f), (i), (j) or (l) to (n) of the definition
of
"Permitted Disposal";
|
|
(ii)
|
applied,
committed to be so applied or designated by the board of directors
of the
Company to be applied for reinvestment in the business of the Group,
Permitted Acquisitions or Capital Expenditure within 12 months (or
such
longer period as the Majority Lenders may agree) of receipt of such
proceeds (provided
that in
the case of a commitment or designation they are then so applied
within 18
Months of receipt);
|
|
(iii)
|
an
individual Disposal not falling under the preceding paragraphs where
the
Net Proceeds from that Disposal are an amount less than $5,000,000
(or its
equivalent); or
|
|
(iv)
|
disposals
not falling under the preceding paragraphs the Net Proceeds of which
when
aggregated with the Net Proceeds of other Disposals made in the same
Financial Year of the Company and not falling under the preceding
paragraphs do not exceed an amount of $20,000,000 (or its equivalent)
in
any financial year.
|
"Excluded
Insurance Proceeds"
means
any Net Proceeds of insurance claims:
|
(i)
|
which
are third party liability, business interruption or similar
claims
(including, for the avoidance of doubt, director and officer claims
to the
extent they relate to third party
liability);
|
|
(ii)
|
which
do not exceed an amount of $5,000,000 (or its equivalent) in any
single
case; or
|
|
(iii)
|
which
are applied, committed to be so applied or designated by the board
of
directors of the Company to be so
applied:
|
|
(A)
|
to
meet a third party claim; or
|
|
(B)
|
to
the replacement, reinstatement and/or repair of the assets in respect
of
which the relevant insurance claim was
made,
|
in
each
case within 12 months, (or such longer period as the Majority Lenders may agree)
of receipt of such proceeds (provided
that in
the
case of a commitment or designation they are then so applied within 18 months
of
receipt).
"IPO
Proceeds"
means
the Net Proceeds of any IPO received by any member of the Group or any holding
company of the Parent established by the Investors for the purposes of an IPO
of
the Group and in which each of the Investors has a shareholding.
"Insurance
Proceeds"
means
the Net Proceeds of any insurance claim received by any member of the Group
except for Excluded Insurance Proceeds.
|
(b)
|
The
Company
shall ensure that the Borrowers prepay Loans in the following amounts
at
the times and in the order of application contemplated by Clause
9.3
(Application
of mandatory prepayments):
|
|
(i)
|
the
amount of Acquisition Proceeds;
|
58
|
(ii)
|
the
amount of Disposal Proceeds; and
|
|
(iii)
|
the
amount of Insurance Proceeds,
|
provided
that the
Net
Proceeds arising out of a sale of assets which form part of the Non-Core
Business shall only be applied as to the first 50 per cent. in prepayment of
the
Facility. The remaining Net Proceeds may be retained by the Group.
|
(c)
|
On
and following the Senior Discharge Date, for the period beginning
1
January 2009 and ending 30 June 2009 and for each financial year
of the
Parent thereafter, the Company shall ensure that the Borrowers prepay
Loans at the time and as contemplated by Clause 9.3
(Application
of mandatory prepayments)
in an amount equal to:
|
|
(i)
|
in
respect of each Financial Year at the end of which Debt Cover is
greater
than 4.75:1, 75 per cent. of the Excess Cashflow for that Financial
Year;
|
|
(ii)
|
in
respect of each Financial Year at the end of which Debt Cover is
equal to
or less than 4.75:1 but greater than 3.75:1, 50 per cent. of the
Excess
Cashflow for that Financial Year;
|
|
(iii)
|
in
respect of each Financial Year at the end of which Debt Cover is
equal to
or less than 3.75:1 but greater than 2.75:1, 25 per cent. of the
Excess Cashflow for that Financial Year;
and
|
|
(iv)
|
for
the avoidance of doubt, in respect of each Financial Year at the
end of
which Debt Cover is equal to or less than 2.75:1, 0 per cent. of
the
Excess Cashflow for that Financial Year provided
that from
the applicable percentage of Excess Cashflow shall be deducted any
voluntary prepayments made during that Financial
Year.
|
Any
balance will be retained by the Group and may be used as set out in paragraph
(f) below or may be used for any purpose not expressly prohibited under the
Finance Documents or may (at the option of the Company), subject to the
prerequisites set out in paragraph (b) of the definition of Permitted Payment,
be applied by way of a loan to the Parent or in payment of dividends or
redemption of equity by the Company or in payment of interest or principal
on
the Company Subordinated Debt.
Prior
to
the Senior Discharge Date, any balance following the application of the opening
paragraph of Clause 14.2(d) (Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO)
of the
Senior Facilities Agreement will be retained by the Group and may be used as
set
out in Clause 14.2(f) (Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO)
of the
Senior Facilities Agreement or may (at the option of the Company) if the Senior
Debt Cover ratio is 2:1 or below be utilised to prepay the Facility or, subject
to the prerequisites set out in paragraph (b) of the definition of Permitted
Payment, be applied by way of a loan to the Parent or in payment of dividends
or
redemption of equity by the Company or in payment of interest or principal
on
the Company Subordinated Debt.
59
|
(d)
|
IPO
|
On
or
following the Senior Discharge Date, upon
the
occurrence of an IPO not resulting in a Change of Control, the Company shall
ensure that the Borrowers prepay the Loans in the following amounts as
contemplated by Clause 9.3
(Application
of mandatory prepayments):
| (i) |
if
on the immediately preceding Quarter Date, Debt Cover for the Relevant
Period ending on such Quarter Date was greater than 4.75:1, an amount
equal to 75 per cent. of the IPO
Proceeds:
|
| (ii) |
if
on the immediately preceding Quarter Date, Debt Cover for the Relevant
Period ending on such Quarter Date was greater than 3.75:1 but less
than
or equal to 4.75:1, an amount equal to 50 per cent. of the IPO
Proceeds:
|
| (iii) |
if
on the immediately preceding Quarter Date, Debt Cover for the Relevant
Period ending on such Quarter Date was greater than 2.75:1 but less
than
or equal to 3.75:1, an amount equal to 25 per cent. of the IPO Proceeds:
and
|
| (iv) |
(for
the avoidance of doubt) if, on the immediately preceding Quarter
Date,
Debt Cover for the Relevant Period ending on such Quarter Date was
equal
to or less than 2.75:1, an amount equal to 0 per cent. of the IPO
Proceeds,
|
Any
balance will be retained by the Group and may be used as set out in paragraph
(f) below or otherwise used for any purpose not expressly prohibited under
the
Finance Documents or may (at the option of the Company), subject to the
prerequisites set out in paragraph (b) of the definition of Permitted Payment,
be applied by way of a loan to the Parent or in payment of dividends or
redemption of equity by the Company or payment of interest or principal on
the
Subordinated Debt.
Prior
to
the Senior Discharge Date, any balance following the application of the opening
paragraph of Clause 14.2(e) (Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO)
of the
Senior Facilities Agreement will be retained by the Group and may be used as
set
out in Clause 14.2(f) (Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO)
of the
Senior Facilities Agreement or may (at the option of the Company) if the Senior
Debt Cover ratio is 2:1 or below be utilised to prepay the Facility or, subject
to the prerequisites set out in paragraph (b) of the definition of Permitted
Payment, be applied by way of a loan to the Parent or in payment of dividends
or
redemption of equity by the Company or in payment of interest or principal
on
the Company Subordinated Debt.
|
(e)
|
If
there is an IPO of the Non-Core Business which does not constitute
a
Change of Control, the IPO Proceeds received by the Group shall be
paid as
to the first 50
per cent. of the IPO Proceeds from any such IPO in prepayment of
the
Senior Facilities and the remaining proceeds may be retained by the
Group.
|
|
(f)
|
Amounts
not applied in prepayment of the Senior Facilities or the Facility
pursuant to this Clause 9.2
and not required, if not applied in prepayment, to be applied for
another
purpose specified in this Clause 9.2
will be available for the general corporate or acquisition purposes
of the
Group. For the avoidance of doubt, such amounts shall not be required
to
be held in a blocked account.
|
60
|
9.3
|
Application
of mandatory prepayments
|
|
(a)
|
A
prepayment made under Clause 9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
paragraphs (b) to (e) shall be applied pro rata in prepayment of
the
Loans.
|
|
(b)
|
Unless
the Company makes an election under paragraph (c) below, the Borrowers
shall prepay Loans at the following
times:
|
|
(i)
|
in
the case of any prepayment relating to the amounts of Acquisition
Proceeds, Disposal Proceeds, Insurance Proceeds or IPO Proceeds,
promptly
upon receipt of those proceeds; and
|
|
(ii)
|
in
the case of any prepayment relating to an amount of Excess Cashflow
on the
last day of the first Interest Period ending at least 15 Business
Days
after the date of delivery pursuant to Clause 22.1
(Financial
statements)
of the Annual Financial Statements of the Parent for the relevant
Financial Year.
|
|
(c)
|
Subject
to paragraph (d)
below, the Company may, by giving the Facility Agent not less than
three
Business Days (or such shorter period as the Majority Lenders may
agree)
prior written notice, elect that any prepayment under Clause 9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
due which is to be applied in prepayment of a Loan on a day other
than the
last day of the Interest Period relating to that Loan be applied
in
prepayment of that Loan on the last day of the Interest Period during
which such prepayment falls due.
|
|
(d)
|
If
the Company makes the election under paragraph (c)
above then (subject to there being no Event of Default outstanding)
a
proportion of each relevant Loan equal to the amount of the relevant
prepayment will be due and payable on the last day of its Interest
Period.
In the case of an Event of Default which is continuing the Facility
Agent
shall be entitled to use the amounts credited to the Mandatory Prepayment
Account which are required to be applied pursuant to paragraph (b),
(c),
(d) or (e) of Clause 9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
to pay amounts due and payable under this Clause 9.3
and otherwise under the Finance
Documents.
|
|
(e)
|
If
the Company has made an election under paragraph (c) above but an
Event of
Default under Clause 25.1
(Non-payment) has
occurred and is continuing or a notice has been given by the Facility
Agent pursuant to Clause 25.21
(Acceleration),
that election shall no longer apply and the amount of the relevant
prepayment shall be immediately due and payable (unless the Majority
Lenders otherwise agree in
writing).
|
|
9.4
|
Mandatory
Prepayment Accounts
|
|
(a)
|
The
Company
shall ensure that:
|
|
(i)
|
Disposal
Proceeds, Insurance
Proceeds, IPO Proceeds and Acquisition Proceeds in respect of which
the
Company has made an election under paragraph (c) of Clause 9.3
(Application
of mandatory prepayments)
are paid into a Mandatory Prepayment Account as soon as reasonably
practicable after receipt by a member of the Group;
and
|
|
(ii)
|
an
amount equal to any Excess Cashflow in respect of which the Company
has
made an election under paragraph (d) of Clause 9.3
(Application
of mandatory prepayments)
is paid into a Mandatory Prepayment Account promptly after such
election.
|
61
|
(b)
|
The
Company
and each Borrower irrevocably authorise the Facility Agent to apply
amounts credited to a Mandatory Prepayment Account which are required
to
be applied pursuant to paragraphs (b), (c), (d) or (e) of Clause
9.3
(Application
of mandatory prepayments)
to pay amounts due and payable under Clause 9.3
(Application
of mandatory prepayments)
and otherwise under the Finance
Documents.
|
|
(c)
|
A
Lender, Security Agent or Facility Agent with which a Mandatory Prepayment
Account is held acknowledges and agrees that (i) interest shall accrue
at
normal commercial rates on amounts credited to that Account and subject
to
their being no Event of Default continuing, that the account holder
shall
be entitled to receive such interest (which shall be paid in accordance
with the mandate relating to such account) and (ii) such Account
is
subject to the Transaction
Security.
|
|
9.5
|
General
|
All
prepayments to be made under Clause 9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO)
(other
than upon the occurrence of an Exit or out of IPO Proceeds) are subject to
the
terms of the Intercreditor Agreement, permissibility under local law (including,
without limitation, financial assistance, corporate benefit restrictions on
up
streaming of cash intra-group and the fiduciary and statutory duties of the
directors of the relevant members of the Group). There will be no requirement
to
make any prepayment where the aggregate of the Tax and other cost to the Group
of making that payment or making funds available to another member of the Group
to enable such payment to be made exceeds an amount equal to 5 per cent. of
the
amount to be prepaid. The Company shall ensure that all members of the Group
will use their reasonable endeavours to overcome any restrictions and/or
minimise any costs of a prepayment. If at any time those restrictions are
removed, any relevant proceeds will be applied in prepayment of the Facilities
at the end of the next Interest Period provided
that
the
relevant proceeds are available at such time to be so applied.
|
10.
|
RESTRICTIONS
|
|
10.1
|
Notices
of Cancellation or
Prepayment
|
Any
notice of cancellation or prepayment given by any Party under Clause
8
(Illegality,
Voluntary Prepayment and Cancellation)
or
Clause 9 (Mandatory
Prepayment)
shall
be irrevocable and, unless a contrary indication appears in this Agreement,
shall specify the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation or
prepayment.
|
10.2
|
Interest
and other amounts
|
Any
prepayment under this Agreement shall be made together with accrued interest
on
the amount prepaid and, subject to any Break Costs, without premium or
penalty.
|
10.3
|
No
reborrowing of Term
Facilities
|
No
Borrower may reborrow any part of the
Facility (or a Loan) which is prepaid.
|
10.4
|
Prepayment
in accordance with
Agreement
|
No
Borrower shall repay or prepay all or any part of the Utilisations or cancel
all
or any part of the Commitments except at the times and in the manner expressly
provided for in this Agreement.
62
|
10.5
|
No
reinstatement of
Commitments
|
No
amount
of the Total Commitments cancelled under this Agreement may be subsequently
reinstated.
|
10.6
|
Facility
Agent's receipt of Notices
|
If
the
Facility Agent receives a notice under Clause 8
(Illegality,
Voluntary Prepayment and Cancellation)
or
Clause 9 (Mandatory
Prepayment)
it
shall promptly forward a copy of that notice to either the Company or the
affected Lender, as appropriate.
63
SECTION
5
COSTS
OF UTILISATION
|
11.
|
INTEREST
|
|
11.1
|
Calculation
of interest
|
The
rate
of interest on each Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:
|
(a)
|
Margin;
|
|
(b)
|
LIBOR
or, in relation to any Loan in euro, EURIBOR;
and
|
|
(c)
|
Mandatory
Cost, if any.
|
|
11.2
|
Payment
of interest
- Cash Margin
|
|
(a)
|
The
Borrower to which a Loan has been made shall pay accrued interest
on that
Loan (other than interest in respect of the PIK Margin) on the last
day of
each Interest Period (and, if the Interest Period is longer than
six
Months, on the dates falling at six Monthly intervals after the first
day
of the Interest Period).
|
|
(b)
|
If
payment of any interest accruing under paragraph (a) above is not
permitted under the Intercreditor Agreement, that interest shall
accrue
and be payable by that Borrower on the Business Day immediately after
payment of that interest is permitted under the Intercreditor
Agreement.
|
|
11.3
|
Payment
of interest - PIK Margin
|
Any
interest accruing in respect of the PIK Margin shall be compounded with the
Loan
on the last day of each Interest Period (and, if the Interest Period is longer
than six Months, on the dates falling at six monthly intervals after the first
day of the Interest Period). Any such interest shall after being compounded,
be
treated as part of the principal amount of the Loan and shall be payable
in
accordance with Clause 7 (Repayment),
Clause
8 (Illegality,
Voluntary Prepayment and Cancellation)
and
Clause 25.21(Acceleration).
|
11.4
|
Default
interest
|
|
(a)
|
If
an Obligor fails to pay any amount payable by it under a Finance
Document
on its due date, interest shall accrue on the overdue amount from
the due
date up to the date of actual payment (both before and after judgment)
at
a rate which, subject to paragraph (b) below, is one per cent. higher
than
the rate which would have been payable if the overdue amount had,
during
the period of non-payment, constituted a Loan in the currency of
the
overdue amount for successive Interest Periods, each of a duration
selected by the Facility Agent (acting reasonably). Any interest
accruing
under this Clause 11.4
shall be immediately payable by the Obligor on demand by the Facility
Agent.
|
|
(b)
|
If
any overdue amount consists of all or part of a Loan which became
due on a
day which was not the last day of an Interest Period relating to
that
Loan:
|
|
(i)
|
the
first Interest Period for that overdue amount shall have a duration
equal
to the unexpired portion of the current Interest Period relating
to that
Loan; and
|
64
|
(ii)
|
the
rate of interest applying to the overdue amount during that first
Interest
Period shall be one per cent. higher than the rate which would have
applied if the overdue amount had not become
due.
|
|
(c)
|
Default
interest, if unpaid, arising on an overdue amount will be compounded
with
the overdue amount at the end of each Interest Period applicable
to that
overdue amount but will remain immediately due and
payable.
|
|
11.5
|
Notification
of rates of interest
|
The
Facility Agent shall promptly notify the Lenders and the relevant Borrower
(or
the Company)
of the determination of a rate of interest under this Agreement.
|
11.6
|
Highest
Lawful Rate
|
Notwithstanding
any other provision herein, in no event shall the rate of interest payable
by
any Obligor with respect to any Loan exceed the Highest Lawful
Rate.
|
12.
|
INTEREST
PERIODS
|
|
12.1
|
Selection
of Interest Periods and
Terms
|
|
(a)
|
A
Borrower (or the Company
on behalf of a Borrower) may select an Interest Period for a Loan
in the
Utilisation Request for that Loan or (if the Loan has already been
borrowed) in a Selection Notice.
|
|
(b)
|
Each
Selection Notice for a Loan is irrevocable and must be delivered
to the
Facility Agent by the Borrower (or the Company on behalf of the Borrower)
to which that Loan was made not later than the Specified Time (or
such
later time as the Facility Agent may
agree).
|
|
(c)
|
If
a Borrower (or the Company) fails to deliver a Selection Notice to
the
Facility Agent in accordance with paragraph (b) above, the relevant
Interest Period will be one Month.
|
|
(d)
|
Subject
to this Clause 12,
a
Borrower (or the Company) may select an Interest Period of one, two,
three
or six Months or any other period agreed between the Borrower (or
the
Company) and the Facility Agent (acting on the instructions of the
Majority Lenders if such period is less than six Months or acting
on the
instructions of all the Lenders if such period is more than six Months).
In addition a Borrower (or the Company on its behalf) may select
an
Interest Period of:
|
|
(i)
|
a
period necessary to ensure that the Loans under the Facility are
to be
redenominated in accordance with Clause 6.2
(Redenomination)
have an interest period ending on the Redenomination Date for the
Facility; or
|
|
(ii)
|
a
period necessary to ensure that the last day of the relevant Interest
Period matches any relevant payments under the Hedging
Agreements.
|
|
(e)
|
Each
Interest Period for a Loan shall start on the Utilisation Date or
(if
already made) on the last day of its preceding Interest
Period.
|
|
(f)
|
An
Interest Period for a Loan shall not extend beyond the Termination
Date.
|
|
(g)
|
Prior
to the Syndication Date, Interest Periods shall be one Month or such
other
period as the Facility Agent and the Company may agree and any Interest
Period which would otherwise end during the Month preceding or extend
beyond the Syndication Date shall end on the Syndication
Date.
|
65
|
12.2
|
Non-Business
Days
|
If
an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar
month
(if there is one) or the preceding Business Day (if there is not).
|
12.3
|
Consolidation
and division of Loans
|
|
(a)
|
Subject
to paragraph (b) below, if two or more Interest
Periods:
|
|
(i)
|
end
on the same date; and
|
|
(ii)
|
are
made to the same Borrower,
|
those
Loans will, unless that Borrower (or the Company
on its behalf) specifies to the contrary in the Selection Notice for the next
Interest Period, be consolidated into, and treated as, a single Loan on the
last
day of the Interest Period.
|
(b)
|
Subject
to Clause 4.3
(Maximum
number of Utilisations),
and Clause 5.3
(Currency
and amount)
if a Borrower (or the Company on its behalf) requests in a Selection
Notice that a Loan be divided into two or more Loans, that Loan will,
on
the last day of its Interest Period, be so divided with Base Currency
Amounts specified in that Selection Notice, having an aggregate Base
Currency Amount equal to the Base Currency Amount of the Loan immediately
before its division.
|
|
13.
|
CHANGES
TO THE CALCULATION OF
INTEREST
|
|
13.1
|
Absence
of quotations
|
Subject
to Clause 13.2
(Market
disruption),
if
LIBOR or, if applicable, EURIBOR is to be determined by reference to the
Reference Banks but a Reference Bank does not supply a quotation by the
Specified Time on the Quotation Day, the applicable LIBOR or EURIBOR shall
be
determined on the basis of the quotations of the remaining Reference
Banks.
|
13.2
|
Market
disruption
|
|
(a)
|
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender's share of that
Loan for
the Interest Period shall be the rate per annum which is the sum
of:
|
|
(i)
|
the
Cash
Margin;
|
|
(ii)
|
the
rate notified to the Facility Agent by that Lender as soon as practicable
and in any event before interest is due to be paid in respect of
that
Interest Period, to be that which expresses as a percentage rate
per annum
the cost to that Lender of funding its participation in that Loan
from
whatever source it may reasonably select;
and
|
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Lender's participation
in the
Loan.
|
|
(b)
|
In
this Agreement "Market
Disruption Event"
means:
|
|
(i)
|
at
or about noon on the Quotation Day for the relevant Interest Period
the
Screen Rate is not available and none or only one of the Reference
Banks
supplies a rate to the Facility Agent to determine LIBOR or, if
applicable, EURIBOR for the relevant currency and Interest Period;
or
|
66
|
(ii)
|
before
close of business in London on the Quotation Day for the relevant
Interest
Period, the Facility Agent receives notifications from a Lender or
Lenders
(whose participations in a Loan exceed 50 per cent. of that Loan)
that the
cost to it of obtaining matching deposits in the Relevant Interbank
Market
would be in excess of LIBOR or, if applicable,
EURIBOR.
|
|
13.3
|
Alternative
basis of interest or
funding
|
|
(a)
|
If
a Market Disruption Event occurs and the Facility Agent or the
Company
so requires, the Facility Agent and the Company shall enter into
negotiations (for a period of not more than thirty days) with a view
to
agreeing a substitute basis for determining the rate of
interest.
|
|
(b)
|
Any
alternative basis agreed pursuant to paragraph (a) above shall, with
the
prior consent of all the Lenders and the Company, be binding on all
Parties.
|
|
13.4
|
Break
Costs
|
|
(a)
|
Each
Borrower shall, within three Business Days of demand by a Finance
Party,
pay to that Finance Party its Break Costs attributable to all or
any part
of a Loan or Unpaid Sum being paid by that Borrower on a day other
than
the last day of an Interest Period for that Loan or Unpaid
Sum.
|
|
(b)
|
Each
Lender shall, as soon as reasonably practicable after a demand by
the
Facility Agent, provide a certificate confirming the amount of its
Break
Costs for any Interest Period in which they
accrue.
|
|
14.
|
FEES
|
|
14.1
|
Commitment
fee
|
|
(a)
|
The
Company shall pay to the Facility Agent (for the account of each
Lender) a
fee in the Base Currency computed at the rate of
0.50 per cent. per annum on that Lender's Available Commitment under
the
Facility from the earlier of Closing and the date falling 30 days
after the date of this Agreement until the end of the Availability
Period.
|
| (b) |
The
accrued commitment fee is payable quarterly in arrear on the last
day of
each successive period of three Months which ends during the relevant
Availability Period, on the last day of the relevant Availability
Period
and on the cancelled amount of the relevant Lender's Commitment at
the
time the cancellation is effective provided
that no
fee shall become payable prior to the Scheme
Date.
|
|
14.2
|
Arrangement
fee
|
Subject
to a Utilisation being made under this Agreement, the Company shall pay to
the
Arranger an arrangement fee in the amount and at the times agreed in a Fee
Letter.
|
14.3
|
Agency
fee
|
Subject
to a Utilisation being made under this Agreement, the Company shall pay to
the
Facility Agent (for its own account) an agency fee in the amount and at the
times agreed in a Fee Letter.
67
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
|
15.
|
TAX
GROSS-UP AND
INDEMNITIES
|
|
15.1
|
Definitions
|
|
(a)
|
In
this Agreement:
|
"Protected
Party"
means a
Finance Party which is or will be subject to any liability or required to make
any payment for or on account of Tax in relation to a sum received or receivable
(or any sum deemed for the purposes of Tax to be received or receivable) under
a
Finance Document.
"Qualifying
Lender"
means:
|
(i)
|
in
relation to a UK Obligor, a Lender (other than a Lender within
sub-paragraph (D) below) which is beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document
and is:
|
|
(A)
|
a
Lender:
|
| (1) |
which
is a bank (as defined for the purpose of section 879 of ITA) making
an
advance under a Finance Document;
or
|
| (2) |
in
respect of an advance made under a Finance Document by a person that
was a
bank (as defined for the purpose of section 879 of ITA) at the time
that
that advance was made,
|
and
which
is within the charge to United Kingdom corporation tax as respects any payments
of interest made in respect of that advance;
|
(B)
|
a
Lender which is:
|
| (1) |
a
company resident in the United Kingdom for United Kingdom tax
purposes;
|
| (2) |
a
partnership each member of which
is:
|
|
(b)
|
a
company so resident in the United Kingdom;
or
|
|
(c)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account in computing its chargeable profits (for the purposes of
section
11(2) of the Taxes Act) the whole of any share of interest payable
in
respect of that advance that falls to it by reason of sections 114
and 115
of the
Taxes Act; or
|
| (3) |
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account interest payable in respect of that advance in computing
the
chargeable profits (for the purposes of section 11(2) of the Taxes
Act) of
that company; or
|
68
|
(C)
|
a
Treaty Lender; or
|
|
(D)
|
a
Lender which is a building society (as defined for the purposes of
section
880 of ITA) making an advance under a Finance
Document.
|
|
(ii)
|
in
relation to a U.S. Obligor, a Lender
which:
|
|
(A)
|
is
a US Person; or
|
|
(B)
|
is
not a US Person but is entitled to complete exemption from withholding
of
US federal income tax on interest payable to it in respect of a
Loan
(in each case under this paragraph (ii), a "US
Qualifying Lender").
|
|
(iii)
|
in
relation to an Obligor incorporated in any other jurisdiction, any
Lender.
|
"Tax
Confirmation"
means a
confirmation by a Lender that the person beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document is
either:
|
(i)
|
a
company resident in the United Kingdom for United Kingdom tax
purposes;
|
|
(ii)
|
a
partnership each member of which
is:
|
| (1) |
a
company so resident in the United Kingdom;
or
|
| (2) |
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account in computing its chargeable profits (for the purposes of
section
11(2) of the Taxes Act) the whole of any share of interest payable
in
respect of that advance that falls to it by reason of sections 114
and 115
of the Taxes Act; or
|
|
(iii)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account interest payable in respect of that advance in computing
the
chargeable profits (for the purposes of section 11(2) of the Taxes
Act) of
that company.
|
"Tax
Credit"
means a
credit against, relief or remission for, or repayment of, any Tax.
"Tax
Deduction"
means a
deduction or withholding for or on account of Tax from a payment under a Finance
Document.
"Tax
Payment"
means
either the increase in a payment made by an Obligor to a Finance Party under
Clause 15.2
(Tax
gross-up)
or a
payment under Clause 15.3
(Tax
indemnity).
"Treaty
Lender"
means a
Lender (other than a US Qualifying Lender) which:
|
(i)
|
is
treated as a resident of a Treaty State for the purposes of the relevant
Treaty;
|
|
(ii)
|
does
not carry on a business in the jurisdiction of incorporation of the
respective Obligor
through a permanent establishment with which that Lender's participation
in the Loan is effectively connected;
and
|
|
(iii)
|
fulfils
any other conditions which must be fulfilled under the relevant Treaty
by
residents of that Treaty State for such residents to obtain exemption
from
taxation levied by the United Kingdom on interest, subject to completion
of procedural formalities.
|
69
"Treaty
State"
means a
jurisdiction having a double taxation agreement (a "Treaty")
with
the United Kingdom which makes provision for full exemption from tax imposed
by
the United Kingdom on interest.
"UK
Non-Bank Lender"
means a
Lender which gives a Tax Confirmation in the Transfer Certificate and Lender
Accession Undertaking which it executes on becoming a Party
Unless
a
contrary indication appears, in this Clause 15
a
reference to "determines"
or
"determined"
means a
determination made in the absolute discretion of the person making the
determination.
|
15.2
|
Tax
gross-up
|
|
(a)
|
Each
Obligor
shall make all payments to be made by it without any Tax Deduction,
unless
a Tax Deduction is required by law.
|
|
(b)
|
The
Company shall promptly upon becoming aware that an Obligor must make
a Tax
Deduction (or that there is any change in the rate or the basis of
a Tax
Deduction) notify the Facility Agent accordingly. Similarly, a Lender
shall notify the Facility Agent on becoming so aware in respect of
a
payment payable to that Lender. If the Facility Agent receives such
notification from a Lender it shall promptly notify the Company and
that
Obligor.
|
|
(c)
|
If
a Tax Deduction is required by law to be made by an Obligor, the
amount of
the payment due from that Obligor shall be increased to an amount
which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
(d)
|
An
Obligor is not required to make an increased payment to a Lender
under
paragraph (c) above for a Tax Deduction in respect of Tax imposed
by the
United Kingdom or France from an interest payment, if on the date
on which
the payment falls due:
|
|
(i)
|
the
payment could have been made to the relevant Lender without a Tax
Deduction if it was a Qualifying Lender, but on that date that Lender
is
not or has ceased to be a Qualifying Lender other than as a result
of any
change after the date it became a Lender under this Agreement in
(or in
the interpretation, administration, or application of) any law or
Treaty,
or any published practice or concession of any relevant taxing authority;
or
|
|
(ii)
|
|
(A)
|
the
relevant Lender is a Qualifying Lender
solely under sub-paragraph (i)(B) of the definition of Qualifying
Lender;
|
|
(B)
|
an
officer of HM Revenue & Customs has given (and not revoked) a
direction (a "Direction")
under section 931 of ITA (as that provision has effect on the date
on
which the relevant Lender became a Party) which relates to that payment
and that Lender has received from that Obligor or the Company a certified
copy of that Direction; and
|
|
(C)
|
the
payment could have been made to the Lender without any Tax Deduction
in
the absence of that Direction; or
|
70
|
(iii)
|
the
relevant Lender is a Qualifying Lender solely under
sub-paragraph (i)(B) of the definition of Qualifying Lender and it
has not, other than by reason of any change after the date of this
Agreement in (or in the interpretation, administration, or application
of)
any law, or any published practice or concession of any relevant
taxing
authority, given a Tax Confirmation to the Company;
or
|
|
(iv)
|
the
Tax Deduction would not have been required if the Lender had complied
with
its obligations under paragraph (m) below;
or
|
|
(v)
|
the
relevant Lender is a Treaty Lender with respect to the United Kingdom
and
the relevant Obligor has not received a direction (other than of
a
provisional nature) from HM Revenue & Customs entitling it to make
interest payments to that Treaty Lender without a Tax Deduction with
respect to Tax imposed by the United Kingdom on interest and which
direction remains in full force and
effect.
|
|
(e)
|
If
an
Obligor is required to make a Tax Deduction, that Borrower shall
make that
Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required
by
law.
|
|
(f)
|
Within
thirty days of making either a Tax Deduction or any payment required
in
connection with that Tax Deduction, the Obligor making that Tax Deduction
shall deliver to the Facility Agent for the Finance Party entitled
to the
payment evidence reasonably satisfactory to that Finance Party that
the
Tax Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing
authority.
|
|
(g)
|
A
Treaty Lender and each Obligor which makes a payment to which that
Treaty
Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to
make
that payment without a Tax Deduction (including the filing by the
Treaty
Lender of any relevant tax forms).
|
|
(h)
|
A
UK Non-Bank Lender which becomes a Party on the day on which this
Agreement is entered into gives a Tax Confirmation to the Company
by
entering into this Agreement.
|
|
(i)
|
A
UK Non-Bank Lender shall promptly notify the Company and the Facility
Agent if there is any change in the position from that set out in
the Tax
Confirmation.
|
|
(j)
|
If
a Tax Deduction on account of US federal withholding tax is required
by
law to be made by a US Borrower, or by any Obligor on behalf of a
US
Borrower, from a payment of interest to a Lender on a Loan to that
US
Borrower, paragraph (c) above shall apply only if that Lender has
complied
with its obligations under paragraph (k) below
and:
|
|
(i)
|
was
a US Qualifying Lender on the date it first became a Lender;
and
|
|
(ii)
|
is
a US Qualifying Lender on the date the payment falls due, or has
ceased to
be a US Qualifying Lender because of a change after the date it first
became a Lender in any law or double taxation agreement or official
interpretation, administration or application thereof.
|
|
(k)
|
Each
US Qualifying Lender shall submit to each US Borrower, promptly after
receipt of any written request to do so, two duly completed and signed
copies of the relevant Withholding Form. However, no Lender shall
be
required to submit any Withholding Form if that Lender is not allowed
validly to do so.
|
71
|
15.3
|
Tax
indemnity
|
|
(a)
|
Each
Obligor
shall (within three Business Days of demand by the Facility Agent)
pay to
a Protected Party an amount equal to the loss, liability or cost
which
that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party
in
respect of a Finance Document.
|
|
(b)
|
Paragraph
(a) above shall not apply:
|
|
(i)
|
with
respect to any Tax assessed on a Finance
Party:
|
|
(A)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes;
or
|
|
(B)
|
under
the law of the jurisdiction in which that Finance Party's Facility
Office
is located in respect of amounts received or receivable in that
jurisdiction,
|
if
that
Tax is imposed on or calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by that Finance
Party; or
|
(ii)
|
to
the extent a loss, liability or
cost:
|
|
(A)
|
is
compensated for by an increased payment under Clause 15.2
(Tax
gross-up);
or
|
|
(B)
|
would
have been compensated for by an increased payment under Clause
15.2
(Tax
gross-up)
but was not so compensated solely because one of the exclusions in
paragraph (d) or (j) of Clause 15.2
(Tax
gross-up)
applied.
|
|
(c)
|
A
Protected Party making, or intending to make a claim under paragraph
(a)
above shall promptly notify the Facility Agent of the event which
will
give, or has given, rise to the claim, following which the
Facility
Agent shall notify the Company (or the relevant
Obligor).
|
|
(d)
|
A
Protected Party shall, on receiving a payment from an Obligor under
this
Clause 15.3,
notify the Facility Agent.
|
|
15.4
|
Tax
Credit
|
If
an
Obligor
makes a
Tax Payment and the relevant Finance Party determines that:
|
(a)
|
a
Tax Credit is attributable either to an increased payment of which
that
Tax Payment forms part or to that Tax Payment;
and
|
|
(b)
|
that
Finance Party has obtained, utilised and retained that Tax
Credit,
|
the
Finance Party shall pay an amount to the Obligor
which that Finance Party determines will leave it (after that payment) in the
same after-Tax position as it would have been in had the Tax Payment not been
required to be made by the Obligor.
72
|
15.5
|
Lender
Status Confirmation
|
Each
Lender which becomes a Party to this Agreement after
the
date of this Agreement in respect of a Loan to a Borrower incorporated in the
United Kingdom shall indicate, in the Transfer Certificate and Lender Accession
Undertaking which it executes on becoming a Party (or, if it becomes a Lender
pursuant to an assignment, in a written notice delivered to the Company), which
of the following categories it falls in:
|
(a)
|
a
Qualifying Lender (other than a Treaty Lender);
or
|
|
(b)
|
a
Treaty Lender.
|
If
a New
Lender fails to indicate its status in accordance with this
Clause 15.5
then
such New Lender shall be treated for the purposes of this Agreement as if it
is
not a Qualifying Lender until such time as it notifies the Facility Agent which
category applies (and the Facility Agent, upon receipt of such notification,
shall inform the Company).
|
15.6
|
Stamp
taxes
|
The
Company
shall pay and, within three Business Days of demand, indemnify each Secured
Party and Arranger against any cost, loss or liability that Secured Party or
Arranger incurs in relation to all stamp duty, registration and other similar
Taxes payable in respect of any Finance Document provided
that
this
Clause 15.6
shall
not apply in respect of any stamp duty, registration or other similar Taxes
which are payable in respect of an assignment, transfer or other alienation
of
any kind by a Lender of any of its rights and/or obligations under a Finance
Document.
|
15.7
|
Value
added tax
|
|
(a)
|
All
amounts set out, or expressed to be payable under a Finance Document
by
any Party to a Finance Party which (in whole or in part) constitute
the
consideration for VAT purposes shall be deemed to be exclusive of
any VAT
which is chargeable on such supply, and accordingly, subject to paragraph
(c) below, if VAT is chargeable on any supply made by any Finance
Party to
any Party under a Finance Document, that Party shall pay to the Finance
Party (in addition to and at the same time as paying the consideration)
an
amount equal to the amount of the VAT (and such Finance Party shall
promptly provide an appropriate VAT invoice to such
Party).
|
|
(b)
|
If
VAT is chargeable on any supply made by any Finance Party (the
"Supplier")
to any other Finance Party (the "Recipient")
under a Finance Document, and any Party (the "Relevant
Party")
is required by the terms of any Finance Document to pay an amount
equal to
the consideration for such supply to the Supplier (rather than being
required to reimburse the Recipient in respect of that consideration),
such Party shall also pay to the Supplier (in addition to and at
the same
time as paying such amount) an amount equal to the amount of such
VAT. The
Recipient will promptly pay to the Relevant Party an amount equal
to any
credit or repayment from the relevant tax authority which it reasonably
determines relates to the VAT chargeable on that
supply.
|
|
(c)
|
Where
a Finance Document requires any Party to reimburse a Finance Party
for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance
Party
in respect of the costs or expenses to the extent that the Finance
Party
reasonably determines that neither it nor any other member of any
group of
which it is a member for VAT purposes is entitled to credit or repayment
from the relevant tax authority in respect of the
VAT.
|
73
|
16.
|
INCREASED
COSTS
|
|
16.1
|
Increased
costs
|
|
(a)
|
Subject
to Clause 16.3
(Exceptions)
the Company shall, within three Business Days of a demand by the
Facility
Agent, pay for the account of a Finance Party the amount of any Increased
Costs incurred by that Finance Party or any of its Affiliates as
a result
of (i) the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (ii) compliance
with any law or regulation made after the date of this Agreement,
other
than, in each case, any costs incurred in connection with the
implementation of, or compliance with, the Basel Capital Accord
("Basel
II")
or any laws or regulations relating thereto in force as at the date
of
this Agreement.
|
|
(b)
|
In
this Agreement "Increased
Costs"
means:
|
|
(i)
|
a
reduction in the rate of return from a Facility or on a Finance Party's
(or its Affiliate's) overall
capital;
|
|
(ii)
|
an
additional or increased cost; or
|
|
(iii)
|
a
reduction of any amount due and payable under any Finance
Document,
|
which
is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its Commitment
or funding or performing its obligations under any Finance
Document.
Each
Borrower shall, promptly upon demand by a Lender, pay to such Lender the amount
of any Regulation D Costs actually incurred by such Lender in respect of its
participation in any Loan made to such Borrower (or deposits maintained by
such
Lender to fund that participation).
|
16.2
|
Increased
cost claims
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 16.1
(Increased
costs)
shall notify the Facility Agent of the event giving rise to the claim,
following which the Facility Agent shall promptly notify the
Company.
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the
Facility
Agent, provide a certificate confirming the amount of its Increased
Costs.
|
|
(c)
|
Each
Borrower shall, promptly upon demand by a Lender pay to such Lender
the
amount of any Regulation D Costs actually incurred by such Lender
in
respect of its participation in any Loan made to such Borrower (or
deposits maintained by such Lender to fund that
participation).
|
|
16.3
|
Exceptions
|
|
(a)
|
Clause
16.1
(Increased
costs)
does not apply to the extent any Increased Cost
is:
|
|
(i)
|
attributable
to a Tax Deduction required by law to be made by an
Obligor;
|
|
(ii)
|
compensated
for by Clause 15.3
(Tax
indemnity)
(or would have been compensated for under Clause 15.3
(Tax
indemnity)
but was not so compensated solely because any of the exclusions in
paragraph (b) of Clause 15.3
(Tax
indemnity)
applied);
|
74
|
(iii)
|
compensated
for by the payment of the Mandatory Cost;
or
|
|
(iv)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates
of
any law or regulation.
|
|
(b)
|
In
this Clause 16.3
reference to a "Tax
Deduction"
has the same meaning given to the term in Clause 15.1
(Definitions).
|
|
17.
|
OTHER
INDEMNITIES
|
|
17.1
|
Currency
indemnity
|
|
(a)
|
If
any sum due from an Obligor under the Finance Documents (a "Sum"),
or any order, judgment or award given or made in relation to a Sum,
has to
be converted from the currency (the "First
Currency")
in which that Sum is payable into another currency (the "Second
Currency")
for the purpose of:
|
|
(i)
|
making
or filing a claim or proof against that Obligor;
or
|
|
(ii)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation
or
arbitration proceedings,
|
that
Obligor shall as an independent obligation, within three Business Days of
demand, indemnify the Arranger
and each
other Secured Party to whom that Sum is due against any cost, loss or liability
arising out of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
|
(b)
|
Each
Obligor waives any right it may have in any jurisdiction to pay any
amount
under the Finance Documents in a currency or currency unit other
than that
in which it is expressed to be
payable.
|
|
17.2
|
Other
indemnities
|
The
Company shall (or shall procure that an Obligor will), within three Business
Days of demand, indemnify the Arranger and each other Secured Party against
any
cost, loss or liability incurred by it as a result of:
|
(a)
|
the
occurrence of any Event of Default
including, without limitation, any broken funding costs resulting
from an
Event of Default under Clause 25.18 (Scheme
not effective)
which shall be net of any interest accrued on the Lender Blocked
Account
to and received by the Facility Agent on behalf of the
Lenders;
|
|
(b)
|
a
failure by an Obligor to pay any amount due under a Finance Document
on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 30
(Sharing
among the Finance Parties);
|
|
(c)
|
funding,
or making arrangements to fund, its participation in a Utilisation
requested by a Borrower in a Utilisation Request but not made by
reason of
the operation of any one or more of the provisions of this Agreement
(other than by reason of default or negligence by that Finance Party
alone); or
|
75
|
(d)
|
a
Utilisation (or part of a Utilisation) not being prepaid in accordance
with a notice of prepayment given by a Borrower or the
Company,
|
provided
that, with effect from Closing, such indemnities shall include any such cost,
loss or liability incurred prior to Closing with respect to any breaches of
(or
liabilities due under) the equivalent provisions of the Indemnity
Letter.
|
17.3
|
Indemnity
to the Facility Agent
|
The
Company shall promptly indemnify the Facility Agent against any reasonable
cost,
loss or liability incurred by the Facility Agent (acting reasonably) as a result
of:
|
(a)
|
investigating
any event which it reasonably believes is a
Default;
|
|
(b)
|
entering
into or performing any foreign exchange contract for the purposes
of
paragraph (b) of Clause 31.9
(Change
of currency);
or
|
|
(c)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
|
18.
|
MITIGATION
BY THE
LENDERS
|
|
18.1
|
Mitigation
|
|
(a)
|
Each
Finance Party shall, in consultation with the Company,
take all reasonable steps to mitigate any circumstances which arise
and
which would result in any amount becoming payable under or pursuant
to, or
cancelled pursuant to, any of Clause 8.1
(Illegality),
Clause 15
(Tax
Gross-Up and Indemnities)
or Clause 16
(Increased
Costs)
or paragraph 3 of Schedule 4 (Mandatory
Cost Formulae)
including (but not limited to) transferring its rights and obligations
under the Finance Documents to another Affiliate or Facility
Office.
|
|
(b)
|
Paragraph
(a) above does not in any way limit the obligations of any Obligor
under
the Finance Documents.
|
|
18.2
|
Limitation
of liability
|
|
(a)
|
The
Company
shall indemnify each Finance Party for all costs and expenses reasonably
incurred by that Finance Party as a result of steps taken by it under
Clause 18.1
(Mitigation).
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 18.1
(Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to
do so
might be prejudicial to it in any material
respect.
|
|
19.
|
COSTS
AND
EXPENSES
|
|
19.1
|
Transaction
expenses
|
Subject
to the
relevant agreed caps, the Company shall, in respect of amounts incurred up
to
the Scheme Date, on the Scheme Date and in respect of any other amounts, within
20 Business Days of demand provided
that such
demand shall be accompanied by reasonable details of, amongst others, hours
worked, individuals involved and work done) pay the Facility Agent, the Arranger
and the Security Agent the amount of all reasonable costs and expenses
(including legal fees) incurred by any of them (and, in the case of the Security
Agent, by any Receiver or Delegate) in connection with the negotiation,
preparation, perfection and syndication of:
76
|
(a)
|
the
Finance Documents and any other documents referred to in this Agreement
and the Transaction Security; and
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
|
19.2
|
Amendment
costs
|
If
(a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 31.9
(Change
of currency),
the
Company shall, within three Business Days of demand, reimburse each of the
Facility Agent and the Security Agent for the amount of all reasonable costs
and
expenses (including agreed legal fees) incurred by the Facility Agent and the
Security Agent (and, in the case of the Security Agent, by any Receiver or
Delegate) in responding to, evaluating, negotiating or complying with that
request or requirement.
|
19.3
|
Enforcement
and preservation costs
|
The
Company shall, within three Business Days of demand, pay to the Arranger and
each other Secured Party the amount of all costs and expenses (including legal
fees) incurred by it in connection with the enforcement of or, after a Declared
Default, the preservation of any rights under any Finance Document and the
Transaction Security and any proceedings instituted by or against the
Security
Agent as a consequence of taking or holding the Transaction Security or
enforcing these rights.
77
SECTION
7
GUARANTEE
|
20.
|
GUARANTEE
AND
INDEMNITY
|
|
20.1
|
Guarantee
and indemnity
|
Each
Guarantor irrevocably and unconditionally jointly and severally:
|
(a)
|
guarantees
as primary obligor and not merely as surety to each Finance Party
punctual
performance by each other Obligor of all that Obligor's obligations
under
the Finance Documents;
|
|
(b)
|
undertakes
with each Finance Party that whenever another Obligor does not pay
any
amount when due under or in connection with any Finance Document,
that
Guarantor shall immediately on demand pay that amount as if it was
the
principal obligor; and
|
|
(c)
|
indemnifies
each Finance Party immediately on demand against any cost, loss or
liability suffered by that Finance Party if any obligation guaranteed
by
it is or becomes unenforceable, invalid or illegal. The amount of
the
cost, loss or liability shall be equal to the amount which that Finance
Party would otherwise have been entitled to
recover.
|
|
20.2
|
Continuing
Guarantee
|
This
guarantee is a continuing guarantee and will extend to the ultimate balance
of
sums payable by any Obligor under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part
or any
increase of the Commitments, and this guarantee constitutes a guarantee of
payment and not of collection.
|
20.3
|
Reinstatement
|
If
any
payment by an Obligor or any discharge given by a Finance Party (whether in
respect of the obligations of any Obligor or any security for those obligations
or otherwise) is avoided or reduced as a result of insolvency or any similar
event:
|
(a)
|
the
liability of each Obligor shall continue as if the payment, discharge,
avoidance or reduction had not occurred;
and
|
|
(b)
|
each
Finance Party shall be entitled to recover the value or amount of
that
security or payment from each Obligor, as if the payment, discharge,
avoidance or reduction had not
occurred.
|
|
20.4
|
Waiver
of defences
|
The
obligations of each Guarantor under this Clause 20
will not
be affected by an act, omission, matter or thing which, but for this Clause
20,
would
reduce, release or prejudice any of its obligations under this Clause
20
(without
limitation and whether or not known to it or any Finance Party)
including:
|
(a)
|
any
time, waiver or consent granted to, or composition with, any Obligor
or
other person;
|
|
(b)
|
the
release of any other Obligor or any other person under the terms
of any
composition or arrangement with any creditor of any member of the
Group;
|
78
|
(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 Obligor or other 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 an Obligor or any
other
person;
|
|
(e)
|
any
amendment, novation, supplement, extension, restatement (however
fundamental and whether or not more onerous) or replacement of a
Finance
Document or any other document or security including without limitation
any change in the purpose of, any extension of or any increase in
any
facility or the addition of any new facility under a Finance Document
or
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;
or
|
|
(g)
|
any
insolvency or similar proceedings.
|
|
20.5
|
Immediate
recourse
|
Each
Guarantor waives any right it may have of first requiring any Finance Party
(or
any trustee or agent on its behalf) to proceed against or enforce any other
rights or security or claim payment from any person before claiming from that
Guarantor under this Clause 20.
This
waiver applies irrespective of any law or any provision of a Finance Document to
the contrary.
|
20.6
|
Appropriations
|
Until
all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may:
|
(a)
|
refrain
from applying or enforcing any other moneys, security or rights held
or
received by that Finance Party (or any trustee or agent on its behalf)
in
respect of those amounts, or apply and enforce the same in such manner
and
order as it sees fit (whether against those amounts or otherwise)
and no
Guarantor shall be entitled to the benefit of the same;
and
|
|
(b)
|
hold
in an interest-bearing suspense account any money received from any
Guarantor or on account of any Guarantor's liability under this Clause
20.
|
|
20.7
|
Deferral
of Guarantors' rights
|
Until
all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full and unless the
Facility Agent otherwise directs, no Guarantor will exercise any rights which
it
may have by reason of performance by it of its obligations under the Finance
Documents:
|
(a)
|
to
be indemnified by an Obligor;
|
|
(b)
|
to
claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents;
and/or
|
79
|
(c)
|
to
take the benefit (in whole or in part and whether by way of subrogation
or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant to,
or in
connection with, the Finance Documents by any Finance
Party.
|
|
20.8
|
Release
of Guarantors' right of
contribution
|
If
any
Guarantor (a "Retiring
Guarantor")
ceases
to be a Guarantor in accordance with the terms of the Finance Documents for
the
purpose of any sale or other disposal of that Retiring Guarantor then on the
date such Retiring Guarantor ceases to be a Guarantor:
|
(a)
|
that
Retiring Guarantor is released by each other Guarantor from any liability
(whether past, present or future and whether actual or contingent)
to make
a contribution to any other Guarantor arising by reason of the performance
by any other Guarantor of its obligations under the Finance Documents;
and
|
|
(b)
|
each
other Guarantor waives any rights it may have by reason of the performance
of its obligations under the Finance Documents to take the benefit
(in
whole or in part and whether by way of subrogation or otherwise)
of any
rights of the Finance Parties under any Finance Document or of any
other
security taken pursuant to, or in connection with, any Finance Document
where such rights or security are granted by or in relation to the
assets
of the Retiring Guarantor.
|
|
20.9
|
Additional
security
|
This
guarantee is in addition to and not in any way prejudiced by any other guarantee
or security now or subsequently held by any Finance Party.
|
20.10
|
Guarantee
Limitations - Netherlands
|
The
obligations and liabilities of any Dutch Guarantor
under its guarantee hereunder do not apply to any liability to the extent it
would result in that guarantee constituting unlawful financial assistance within
the meaning of the Dutch Civil Code.
|
20.11
|
Guarantee
Limitations - Sweden
|
The
guarantee made by a Guarantor incorporated in Sweden in respect of obligations
owed by members of the Group that are not Subsidiaries to such Guarantor shall
be limited if (and only if) and to the extent required by an application of
the
provisions of the Companies Act (Aktiebolagslagen)
regulating distribution of assets (including profits and dividends and any
other
form of transfer of value (värdeöverföring)
within
the meaning of the Companies Act) and it is understood that the liability of
such Guarantor under this Clause 20
in
respect of such obligations only applies to the extent permitted by the above
mentioned provisions of the Companies Act.
|
20.12
|
Guarantee
Limitations - United
States
|
|
(a)
|
Each
US Guarantor acknowledges that it will receive valuable direct or
indirect
benefits as a result of the transactions financed by the Finance
Documents.
|
|
(b)
|
Assuming
that paragraph (b) is enforceable against each Finance Party, each
US
Guarantor represents, warrants and agrees
that:
|
80
|
(i)
|
the
aggregate amount of its debts and liabilities, subordinated, contingent
or
otherwise, is not greater than the aggregate value (being the lesser
of
fair valuation and present fair saleable value) of its
assets;
|
|
(ii)
|
its
capital is not unreasonably small to carry on its business as it
is being
conducted;
|
|
(iii)
|
it
has not incurred and does not intend to incur debts beyond its ability
to
pay as they mature; and
|
|
(iv)
|
it
has not made a transfer or incurred any obligation under any Finance
Document with the intent to hinder, delay or defraud any of its present
or
future creditors.
|
|
(c)
|
Notwithstanding
anything to the contrary contained herein or in any other Finance
Document, each Finance Party agrees that the maximum liability of
each US
Guarantor under this Clause 20 shall in no event exceed an amount
equal to
the greatest amount that would not render such US Guarantor's obligations
hereunder and under the other Finance Documents subject to avoidance
under
US Bankruptcy Law or to being set aside, avoided or annulled under
any
Fraudulent Transfer Law, in each case after giving effect (i) to
all other
liabilities of such US Guarantor, contingent or otherwise, that are
relevant under such Fraudulent Transfer Law (specifically excluding,
however, any liabilities of such US Guarantor in respect of intercompany
indebtedness to any Borrower to the extent that such Indebtedness
would be
discharged in an amount equal to the amount paid by such US Guarantor
hereunder) and (ii) to the value as assets of such US Guarantor (as
determined under the applicable provisions of such Fraudulent Transfer
Law) of any rights to subrogation, contribution, reimbursement, indemnity
or similar rights held by such US Guarantor pursuant to (A) applicable
law, or (B) any other agreement providing for an equitable allocation
among such US Guarantor and the Borrowers and other Guarantors of
obligations arising under this Agreement or other guarantees of such
obligations by such parties.
|
81
SECTION
8
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
|
21.
|
REPRESENTATIONS
|
|
21.1
|
General
|
|
(a)
|
The
Parent (with effect from the date it becomes an Obligor) and each
other
Obligor (unless otherwise stated below) makes the representations
and
warranties set out in this Clause 21
on
the dates set out in Clause 21.24 (Times
when representations are made)
to each Finance Party.
|
|
(b)
|
The
representations and warranties set out in this Clause 21
are made with reference to the circumstances existing at that
time.
|
Status,
authorisations and governing law
|
21.2
|
Status
|
|
(a)
|
It
and each of its Subsidiaries (which is a Material Company) is a limited
liability corporation, duly incorporated and validly existing under
the
law of its jurisdiction of
incorporation.
|
|
(b)
|
It
and each of its Subsidiaries (which is a Material Company) has the
power
to own its assets and carry on its business as it is being
conducted.
|
|
21.3
|
Binding
obligations
|
Subject
to the Reservations and, in the case of paragraph (b), the Perfection
Requirements:
|
(a)
|
the
obligations expressed to be assumed by it in each Transaction Document
to
which it is a party are legal, valid, binding and enforceable obligations,
and
|
|
(b)
|
(without
limiting the generality of paragraph (a) above), each Transaction
Security
Document to which it is a party creates the security interests which
that
Transaction Security Document purports to create fully perfected
and those
security interests are valid and effective in all material
respects.
|
|
21.4
|
Non-conflict
with other obligations
|
The
entry
into and performance by it of, and the transactions contemplated by, the
Transaction Documents and the granting of the Transaction Security do not and
will not contravene:
|
(a)
|
any
law or regulation applicable to it in any material
respect;
|
|
(b)
|
its
constitutional documents; or
|
|
(c)
|
any
agreement or instrument binding upon it to an extent which has a
Material
Adverse Effect.
|
|
21.5
|
Power
and authority
|
|
(a)
|
It
has the power to enter into, perform and deliver, and has taken or
will
have taken prior to the relevant time all necessary action to authorise
its entry into, performance and delivery of, the Transaction Documents
to
which it is or will be a party and the transactions contemplated
by those
Transaction Documents.
|
82
|
(b)
|
No
limit on its powers will be exceeded as a result of the borrowing,
grant
of security or giving of guarantees or indemnities contemplated by
the
Transaction Documents to which it is a
party.
|
|
21.6
|
No
filing or stamp taxes
|
Subject
to the Reservations, under the law of its Relevant Jurisdictions it is not
necessary that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp, registration,
notarial or similar taxes or fees be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents, save in
each case for complying with any applicable Perfection
Requirements.
|
21.7
|
Validity
and admissibility in
evidence
|
|
(a)
|
Subject
to the Reservations and the Perfection Requirements, all Authorisations
required:
|
|
(i)
|
to
enable it lawfully to enter into, exercise its rights and comply
with its
obligations in the Transaction Documents to which it is a party;
and
|
|
(ii)
|
to
make the Transaction Documents to which it is a party admissible
in
evidence in its Relevant
Jurisdictions,
|
have
been
obtained or effected (or will be obtained or effected prior to
Closing
or, if
later, the date it enters into that Transaction Document) and are (or will
be)
in full force and effect.
|
(b)
|
All
Authorisations necessary for the conduct of the business, trade and
ordinary activities of members of the Group have been obtained or
effected
and are in full force and effect if failure to obtain or effect those
Authorisations has a Material Adverse
Effect.
|
|
21.8
|
Governing
law and enforcement
|
|
(a)
|
Subject
to the Reservations, the choice of law by which a Finance Document
(to
which it is a party) is expressed to be governed will be recognised
and
enforced in its Relevant
Jurisdictions.
|
|
(b)
|
Subject
to the Reservations, any judgment obtained from a court expressed
to have
jurisdiction in relation to a Finance Document to which it is a party
will
be recognised and enforced in its Relevant
Jurisdictions.
|
No
default or tax liability
|
21.9
|
No
default
|
|
(a)
|
No
Default is continuing under any Finance
Document.
|
|
(b)
|
No
other event or circumstance is outstanding which constitutes (or,
with the
expiry of a grace period, the giving of notice, the making of any
determination or any combination of any of the foregoing, would
constitute) a default or termination event (however described) under
any
other agreement or instrument which is binding on it or any of its
Subsidiaries or to which its (or any of its Subsidiaries') assets
are
subject which has a Material Adverse
Effect.
|
|
21.10
|
Taxation
|
It
is not
(and none of its Subsidiaries being a Material Company is) overdue (taking
into
account any extension or grace period) in the filing of any Tax returns to
an
extent which has, or would have, a Material Adverse Effect.
Provision
of information - general
83
|
21.11
|
No
misleading information
|
|
(a)
|
Any
factual information contained in the Information Memorandum and the
Reports taken as a whole was true and accurate in all material respects
as
at its date or (as the case may be) as at the date the information
is
expressed to be given, and all expressions of opinion or intention
attributed to the Parent in the Information Memorandum were made
after
careful consideration and were at the time made, in the opinion of
the
Parent, based on reasonable
grounds.
|
|
(b)
|
The
financial projections contained in the Base Case Model were prepared
on
the basis of recent historical information at that time and on the
basis
of assumptions that in the opinion of the Parent, were reasonable
at the
time they were made and have been prepared in accordance with the
Accounting Principles.
|
|
(c)
|
At
the time they were prepared, no event or circumstance had occurred
or
arisen and no information had been omitted from the Information Memorandum
and the Reports and no information had been withheld that resulted
in the
information, forecasts or projections then contained in the Information
Memorandum or the Reports taken as a whole being untrue or misleading
in
any material respect as at their stated
date.
|
The
representations and warranties made with respect to the Information Memorandum,
the Base Case Model and the Reports above are made by the Company
and the Parent only and only so far as each is aware after making due and
careful enquiries.
|
21.12
|
Financial
Statements
|
|
(a)
|
The
Original Financial Statements were prepared in accordance with the
Accounting Principles consistently applied unless expressly disclosed
to
the Facility Agent in writing to the contrary or disclosed in the
Financial and Tax Report.
|
|
(b)
|
The
financial statements most recently delivered pursuant to Clause
22.1
(Financial
statements):
|
|
(i)
|
have
been prepared in accordance with the Accounting Principles as applicable
at the date of such financial statements;
and
|
|
(ii)
|
give
a true and fair view of (if audited) or (if unaudited) fairly present
in
all material respects (having regard to the fact that financial statements
which are not audited are prepared for management purposes) the
consolidated financial condition and consolidated results of operations
for the Group for the period to which they relate (to the extent
appropriate for management
accounts).
|
|
21.13
|
Group
Structure Chart
|
The
Group
Structure Chart shows, with respect to the Group
as it
will be immediately after the Scheme Date, all material members of the Group
and
contains a description of the corporate structure of the Group which is true,
accurate and complete in all material respects.
|
21.14
|
Scheme
Documents and other
documents
|
|
(a)
|
The
Scheme Documents contain all the material terms of the
Scheme.
|
|
(b)
|
The
Stockholders Agreement, the Master Intercompany Agreement, the
Implementation Agreement, the Management Investment Agreement, the
constitutional documents of the Parent, the Intercreditor Agreement
and
the Vendor Documents (in each case, as amended to the extent permitted
under this Agreement and the Intercreditor Agreement) contain all
the
material terms of all the agreements and arrangements between (in
the case
of the Stockholders Agreement, the Master Intercompany Agreement,
the
Implementation Agreement, the Management Investment Agreement and
the
constitutional documents of the Parent) the Investors and the Parent
and
(in each other case) between the Vendor Loan Note Holder, the VLN
Security
Trustee and the Parent.
|
84
No
proceedings or breach of laws
|
21.15
|
No
proceedings pending or
threatened
|
Other
than as disclosed in the Legal Due Diligence Report, no litigation, arbitration
or administrative proceedings or investigations of, or before, any court,
arbitral body or agency which are reasonably likely to be adversely determined
and, if adversely determined, would have a Material Adverse Effect have been
started or (to the best of its knowledge or belief) formally threatened in
writing against it or any of its Subsidiaries.
|
21.16
|
No
breach of laws
|
It
has
not (and none of its Subsidiaries has) breached any law or regulation which
breach would have a Material Adverse Effect.
|
21.17
|
Environmental
laws
|
|
(a)
|
Each
member of the Group is in compliance with Clause 24.3
(Environmental
compliance)
and no circumstances have occurred which would prevent such compliance
in
a manner or to an extent which would have a Material Adverse
Effect.
|
|
(b)
|
No
Environmental Claim has been commenced or is threatened against any
member
of the Group where that claim would have, if determined against that
member of the Group, a Material Adverse
Effect.
|
Ownership
of assets
|
21.18
|
Legal
and beneficial ownership
|
It
and
each of its Subsidiaries is the sole legal and beneficial owner of the shares
over which it purports to grant Transaction Security (save in the case of NDS
Asia Pacific Limited, NDS Marketing Israel Limited and Castup Israel Limited)
and, so far as the Parent is aware, after due and careful enquiry, it and each
of its Subsidiaries is the sole legal and beneficial owner of the material
tangible assets over which it purports to grant Transaction Security (save
to
the extent any supranational authority has co-ownership rights over such
material tangible assets).
|
21.19
|
Intellectual
Property
|
|
(a)
|
It:
|
|
(i)
|
is
the sole legal and beneficial owner of or has licensed to it all
the
Intellectual Property which is material in the context of its business
and
which is required by it in order to carry on its business as it is
being
conducted if failure to have the same would have a Material Adverse
Effect; and
|
|
(ii)
|
has
taken all formal or procedural actions in the jurisdictions in which
it
operates (including payment of fees) required to maintain any Intellectual
Property owned by it save to the extent failure to do so would not
have a
Material Adverse Effect.
|
85
|
(b)
|
There
are no adverse circumstances relating to the validity, subsistence
or use
of any of its or its Subsidiaries' Intellectual Property which would
have
a Material Adverse Effect.
|
Provision
of information - Group
|
21.20
|
Holding
Companies
|
Except
for Permitted Holding Company Activity, before Closing, the Company has not
traded or incurred any liabilities or commitments (actual or contingent, present
or future).
Miscellaneous
|
21.21
|
Centre
of main interests and
establishments
|
For
the
purposes of the Council of the European Union Regulation No. 1346/2000 in
Insolvency Proceedings (the "Regulation"),
it is
not aware of any material reason to suggest that its centre of main interest
(as
that term is used in Article 3(1) of the Regulation) and "establishment" (as
that term is used in Article 2(h) of the Regulation is not situated in its
jurisdiction of incorporation.
|
21.22
|
Priority
of ranking
|
Subject
to the Reservations and Perfection Requirements, ranking is in the priority
as
expressed in the Transaction Security Documents and is not subject to any prior
ranking or pari
passu
ranking
Security other than Permitted Security.
|
21.23
|
Title
to assets
|
It
and
each of its subsidiaries has good title to, or valid leases or licences of,
and
all appropriate authorisations to use, the assets necessary to carry on its
business as presently conducted if failure to have the same would have a
Material Adverse Effect.
|
21.24
|
Times
when representations are
made
|
|
(a)
|
The
representations and warranties in this Clause 21
are made by each Original Obligor on the date of this Agreement by
reference to the facts and circumstances existing on such date
provided
that:
|
|
(i)
|
the
Repeating Representations shall be deemed to be repeated on the date
of
each Utilisation Request following the Certain Funds Period, on the
first
day of each Interest Period, on the date of this Agreement, on the
date of
each Utilisation and together with the representation and warranty
set out
in Clause 21.18
(Legal
and beneficial ownership)
on the date of the accession of each Additional Obligor in respect
of
itself only;
|
|
(ii)
|
the
Certain Funds Representations shall be deemed to be repeated on Closing
and on the date of each Utilisation Request during the Certain Funds
Period and on the date of each Utilisation during the Certain Funds
Period;
|
|
(iii)
|
the
representations and warranties set out in Clause 21.11
(No
misleading information)
shall be deemed to be repeated:
|
|
(A)
|
by
the Company;
|
|
(A)
|
on
the date of the issue of the Information Memorandum;
and
|
|
(B)
|
on
the Syndication Date, subject to specific written disclosures made
by the
Company (if any) at least five Business Days prior to the Syndication
Date
(or, if the Arranger has not notified the Company of the intended
Syndication Date ten Business Days' in advance, within five Business
Days
after receipt of such notice) against such representations which,
if so
made, shall qualify such representations;
and
|
86
|
(B)
|
by
the Parent on the date of its accession to the terms of this Agreement,
subject to specific written disclosures made by the Company (if any)
prior
to the date of accession against such representations which, if so
made,
shall qualify such representations;
and
|
|
(iv)
|
the
representations and warranties set out in paragraph
(b) of Clause 21.12
(Financial
Statements)
shall be deemed to be repeated on the date of delivery of the respective
financial statements.
|
|
(b)
|
Each
representation or warranty in this Clause 21
which is deemed to be made or repeated after the date of this Agreement
shall be deemed to be made or repeated by reference to the facts
and
circumstances existing on the date it is so made or
repeated.
|
|
(c)
|
For
the avoidance of doubt the representations and warranties made in
this
Clause 21,
other than in Clause 21.2
(Status)
to Clause 21.5
(Power
and authority),
Clause 21.7
(Validity
and admissibility in evidence),
Clause 21.11
(No
misleading information)
and paragraph (b) of Clause 21.12
(Financial
Statements)
are also made in relation to the
Group.
|
|
22.
|
INFORMATION
UNDERTAKINGS
|
The
undertakings in this Clause 22
remain
in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in
force.
In
this
Clause 22:
"Annual
Financial Statements"
means
the financial statements for a Financial Year delivered pursuant to paragraph
(a) of Clause 22.1
(Financial
statements).
"Monthly
Financial Statements"
means
the financial statements delivered pursuant to paragraph (c) of Clause
22.1
(Financial
statements).
"Quarterly
Financial Statements"
means
the financial statements delivered pursuant to paragraph (b) of Clause
22.1
(Financial
statements).
|
22.1
|
Financial
statements
|
The
Parent shall supply to the Facility Agent in sufficient copies for all the
Lenders:
|
(a)
|
as
soon as they are available, but in any
event:
|
|
(i)
|
within
120 days after the end of each of its Financial Years (save that
the
relevant period shall be 150 days for the first Financial Year after
Closing) its audited consolidated financial statements for that Financial
Year; and
|
|
(ii)
|
within
any statutory time period allowed for the preparation thereof and
only if
requested by the Facility Agent, the financial statements (consolidated
if
appropriate) of each Borrower for that Financial Year (if available
or
required by law to be prepared);
|
87
|
(b)
|
within
45 days after the end of each Financial Quarter ending
after Closing (save that the relevant period shall be 60 days for
Financial Quarters ending on or before 30 June 2009 provided
that
the Parent will use reasonable efforts to deliver within 45 days)
its
consolidated financial statements for that Financial Quarter including
(i)
a commentary by the management; (ii) a comparison against the relevant
Budget; and (iii) details of any One-off Costs, any items of Non-recurring
Expenditure and Capital Expenditure funded by Cash Overfunding, in
each
case in that Financial Quarter; and
|
|
(c)
|
as
soon as they are available, but in any event within 30 days after
the end
of each month ending after Closing(save that the relevant period
shall be
45 days for months ending on or before 30 June 2009 provided
that
the Parent will use reasonable efforts to deliver within 30 days)
its
financial statements, on a consolidated basis for that month including
a
commentary by the management (to include cumulative management accounts
for the Financial Year to date),
|
provided
that
for
periods ending on or before 30 June 2009, the financial statements
delivered pursuant to paragraphs (b) and (c) above will reflect the current
reporting practices of the Group).
|
22.2
|
Provision
and contents of Compliance
Certificate
|
|
(a)
|
Starting
with the Financial Quarter ending 30 June 2009, the Parent shall
supply a Compliance Certificate to the Facility Agent with each set
of its
audited consolidated Annual Financial Statements and each set of
its
consolidated Quarterly Financial
Statements.
|
|
(b)
|
Each
Compliance Certificate shall, amongst other things, set out (in reasonable
detail) computations as to compliance with Clause 23
(Financial
Covenants)
and explanations as to how the figures included were derived (provided
that
compliance with Clause 23.2(a)
shall not be addressed in Compliance Certificates delivered before
30 September 2009) and prepayments to be made from Excess
Cashflow under Clause 9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
and the Margin computations set out in the definition "Margin" as
at the
date as at which those financial statements were drawn up and, in
the case
of a Compliance Certificate provided in respect of Annual Financial
Statements, confirm compliance with the requirement for Guarantor
Coverage
in Clause 24.32
(Guarantors)
and contain a list of the companies that are Material
Companies.
|
|
(c)
|
Each
Compliance Certificate shall be signed by the Chief Financial Officer
or a
director of the Parent and, if required to be delivered with the
consolidated Annual Financial Statements of the Parent, shall be
reported
on by the Parent's Auditors on the proper extraction of the numbers
used
in the financial covenant calculations in such manner (if any) and
on such
conditions that the Auditors specify ((subject to the Facility Agent
and/or each Lender agreeing an engagement letter with the Parent's
Auditors) and unless one of the Big Four Accountants have adopted
a
general policy of not providing such
reports).
|
|
22.3
|
Requirements
as to financial statements
|
|
(a)
|
The
Parent shall procure that each set of Annual Financial Statements,
Quarterly Financial Statements and Monthly Financial Statements includes
a
balance sheet, profit and loss account and cashflow statement provided
that in
respect of any periods ending on or prior to 30 June 2009 this shall
only be required if reflected in the reporting practices of the Group
as
of Closing. In addition the Parent shall procure that each set of
the
Parent's Annual Financial Statements shall be audited by the
Auditors.
|
88
|
(b)
|
Each
set of financial statements delivered by the Parent pursuant to Clause
22.1
(Financial
statements)
(other than under paragraph
(a)(ii)):
|
|
(i)
|
shall
be certified on behalf of the Parent by a director of the Parent
or
the Chief Financial Officer (in each case without personal liability)
as
giving a true and fair view of (in the case of Annual Financial Statements
for any Financial Year), or fairly representing (in other cases),
its
financial condition and operations as at the date as at which those
financial statements were drawn up;
|
|
(ii)
|
in
the case of consolidated financial statements of the Group, shall
be
accompanied by a statement of the Parent comparing actual performance
for
the period to which the financial statements relate
to:
|
|
(A)
|
the
projected performance for that period set out in the Budget;
and
|
|
(B)
|
the
actual performance for the corresponding period in the preceding
Financial
Year of the Group; and
|
|
(iii)
|
shall
be prepared using the Accounting Principles, accounting practices
and
financial reference periods consistent with those applied, in the
case of
the Parent, in the preparation of the Base Case
Model,
|
unless,
in relation to any set of financial statements, the Parent notifies the Facility
Agent that there has been a change in the Accounting Principles, a change of
the
Accounting Principles to IFRS, the accounting practices or the financial
reference periods and it delivers to the Facility Agent:
|
(A)
|
a
description of any change necessary for those financial statements
to
reflect the Accounting Principles, or accounting practices upon which
the
Base Case Model was
prepared; and
|
|
(B)
|
sufficient
information, in form and substance as may be reasonably required
by the
Facility Agent, to enable the Lenders to determine whether Clause
23
(Financial
Covenants)
has been complied with, to determine the Margin as set out in the
definition of "Margin", to determine the amount of any prepayments
to be
made from Excess Cashflow under Clause 9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
and to make an accurate comparison between the financial position
indicated in those financial statements and the
Budget.
|
|
(c)
|
If
the Parent notifies the Facility Agent of a change in accordance
with
paragraph (b)(iii) above or a change of its Financial Year end then
the
Parent and the Facility Agent shall enter into negotiations in good
faith
with a view to agreeing:
|
|
(i)
|
whether
or not the change might result in any material alteration in the
commercial effect of any of the terms of this Agreement;
and
|
89
|
(ii)
|
if
so, any amendments to this Agreement which may be necessary to ensure
that
the change does not result in any material alteration in the commercial
effect of those terms; and
|
|
(iii)
|
any
amendments to the financial covenant levels set out in Clause 23
(Financial
Covenants)
to preserve the then applicable
headroom,
|
and
if
any amendments are agreed they shall take effect and be binding on each of
the
Parties in accordance with their terms.
If
no
such agreement is reached within 30 days of that notification of change, the
Facility Agent shall (if so requested by the Majority Lenders) instruct the
Auditors of the Parent or independent accountants (approved by the Parent or,
in
the absence of such approval within 5 days of request by the Facility Agent
of
such approval, a firm with recognised expertise) to determine any amendment
to
Clause 23.2
(Financial
condition),
the
Margin computations set out in the definition of "Margin", the amount of any
prepayments to be made from Excess Cashflow under Clause 9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO)
and any
other terms of this Agreement which the Auditors or, as the case may be,
accountants (acting as experts and not arbitrators) consider appropriate to
ensure the change does not result in any material alteration in the commercial
effect of the terms of this Agreement. Those amendments shall take effect when
so determined by the Auditors, or as the case may be, accountants. The cost
and
expense of the Auditors or accountants shall be for the account of the
Parent.
Any
reference in this Agreement to any financial statements shall be construed
as a
reference to those financial statements as adjusted to reflect the basis upon
which the Base Case Model was prepared save to the extent amendments have been
made in accordance with paragraph (c) above.
|
22.4
|
Budget
|
|
(a)
|
The
Parent shall supply to the Facility Agent in sufficient copies for
all the
Lenders, as soon as the same become available but in any event within
30
days after the start of each of its Financial Years (commencing with
the
Financial Year commencing 1 July 2009), an annual Budget for that
Financial Year.
|
|
(b)
|
The
Parent shall ensure that each
Budget:
|
|
(i)
|
is
in a form similar to the budget within the Base Case Model and includes
a
projected consolidated profit and loss, balance sheet and cashflow
statement
for the Group for the Financial Year to which the Budget relates.
The
projections shall relate to the 12 month period comprising, and each
month
in, that Financial Year;
|
|
(ii)
|
is
prepared in accordance with the Accounting Principles and the accounting
practices and financial reference periods applied to financial statements
under Clause 22.1
(Financial
statements);
and
|
|
(iii)
|
has
been approved by the board of directors of the
Parent.
|
|
(c)
|
If
the Parent updates or changes the Budget, it shall within not more
than 10
days of the update or change being made deliver to the Facility Agent,
in
sufficient copies for each of the Lenders, such updated or changed
Budget
together with a written explanation of the main changes in that Budget
which shall then become the Budget for the relevant period for the
purposes of this Agreement.
|
90
|
22.5
|
Presentations
|
Upon
the
Facility Agent's request (not to be made more than once in every Financial
Year), at least two directors of the Parent (one of whom shall be the Chief
Financial Officer) must give a presentation to the Finance Parties about the
on-going business and financial performance of the Group.
|
22.6
|
Year-end
|
The
Parent
shall notify the Facility Agent of a change of its Financial
Year-end.
|
22.7
|
Information:
miscellaneous
|
The
Company
shall supply to the Facility Agent (in sufficient copies for all the Lenders,
if
the Facility Agent so requests):
|
(a)
|
at
the same time as they are dispatched, copies of all documents dispatched
by any Obligor (other than in the ordinary course of business) to
its
creditors generally (or any class of them) and all information required
by
law to be provided by
the Parent to its shareholders
generally;
|
|
(b)
|
promptly
upon becoming aware of them, the details of any litigation, arbitration
or
administrative proceedings (including, without limitation, relating
to the
infringement of any Intellectual Property) which are current, threatened
or pending against any member of the Group, and which would be reasonably
likely to have a Material Adverse
Effect;
|
|
(c)
|
promptly
on request, such further information regarding the financial condition,
assets and operations of the Group as any Finance Party, through
the
Facility Agent, may reasonably request;
and
|
|
(d)
|
prior
to Closing, the final version of the Structure Memorandum, the Funds
Flow
Statement and the constitutional documents of the Parent which
constitutional documents may be amended or modified between the date
of
this Agreement and Closing with such amendments or modifications
as do not
materially and adversely affect the interests of the Lenders or which
have
been made with the consent of the Majority Lenders (acting
reasonably).
|
|
22.8
|
Notification
of default
|
The
Company
shall notify the Facility Agent of any Default (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence. The Facility
Agent may, where it has reasonable grounds for believing that a Default is
continuing, request that the Company issue a certificate confirming that no
Default is continuing or, where a Default is continuing, setting out the steps
being taken to remedy that Default.
|
22.9
|
"Know
your customer" checks
|
|
(a)
|
If:
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
91
|
(ii)
|
any
change in the status of an Obligor or the composition of the shareholders
of an Obligor after the date of this Agreement;
or
|
|
(iii)
|
a
proposed assignment or transfer by a Lender of any of its rights
and/or
obligations under this Agreement to a party that is not a Lender
prior to
such assignment or transfer,
|
obliges
the Facility Agent or any Lender (or, in the case of paragraph (iii) above,
any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information
is
not already available to it, each Obligor shall promptly upon the request of
the
Facility Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is customarily required by the Facility
Agent (for itself or on behalf of any Lender) or any Lender (for itself or,
in
the case of the event described in paragraph (iii) above, on behalf of any
prospective new Lender) in order for the Facility Agent, such Lender or, in
the
case of the event described in paragraph (iii) above, any prospective new Lender
to carry out and be satisfied with the results of all necessary "know your
customer" or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents.
|
(b)
|
Each
Lender shall promptly upon the request of the Facility Agent supply,
or
procure the supply of, such documentation and other evidence as is
reasonably requested by the Facility Agent (for itself) in order
for the
Facility Agent to carry out and be satisfied with the results of
all
necessary "know your customer" or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated
in the Finance Documents.
|
|
(c)
|
The
Company
shall, by not less than 10 Business Days' prior written notice to
the
Facility Agent, notify the Facility Agent (which shall promptly notify
the
Lenders) of its intention to request that one of its Subsidiaries
becomes
an Additional Obligor pursuant to Clause 27
(Changes
to the Obligors).
|
|
(d)
|
Following
the giving of any notice pursuant to paragraph (c) above, if the
accession
of such Additional Obligor obliges the Facility Agent or any Lender
to
comply with "know your customer" or similar identification procedures
in
circumstances where the necessary information is not already available
to
it, the Company shall promptly upon the request of the Facility Agent
or
any Lender supply, or procure the supply of, such documentation and
other
evidence as is reasonably requested by the Facility Agent (for itself
or
on behalf of any Lender) or any Lender (for itself or on behalf of
any
prospective new Lender) in order for the Facility Agent or such Lender
or
any prospective new Lender to carry out and be satisfied with the
results
of all necessary "know your customer" or other similar checks under
all
applicable laws and regulations pursuant to the accession of such
Subsidiary to this Agreement as an Additional
Obligor.
|
|
22.10
|
ERISA
|
Each
Obligor shall:
| (a) |
promptly
upon a request by the Facility Agent or a Lender, deliver to the
Facility
Agent copies of Schedule B (Actuarial Information) to the Annual
Report
(IRS Form 5500 Series) with respect to each Employee
Plan;
|
92
| (b) |
within
ten Business Days after it or any ERISA Affiliate becomes aware that
any
ERISA Event has occurred or, in the case of any ERISA Event which
requires
advance notice under Section 4043(b)(3) of ERISA, will occur, deliver
to
the Facility Agent a statement signed by a director or other authorized
signatory of an Obligor or ERISA Affiliate describing that ERISA
Event and
the action, if any, taken or proposed to be taken with respect to
that
ERISA Event;
|
| (c) |
within
ten Business Days after receipt by it or any ERISA Affiliate or any
administrator of an Employee Plan, deliver to the Facility Agent
copies of
each notice from the PBGC stating its intention to terminate any
Employee
Plan in a distress or involuntary termination or to have a trustee
appointed to administer any Employee Plan;
and
|
| (d) |
within
ten Business Days after becoming aware of any event or circumstance
which
might constitute grounds for a distress or involuntary termination
of (or
the appointment of a trustee to administer) any Employee Plan or
Multiemployer Plan, provide an explanation of that event or circumstance
by a director of the Obligor or ERISA Affiliate affected by that
event or
circumstance.
|
|
23.
|
FINANCIAL
COVENANTS
|
|
23.1
|
Financial
definitions
|
In
this
Clause 23:
"Borrowings"
means,
at any time, the outstanding principal or capital amount of any indebtedness
for
or in respect of:
|
(a)
|
moneys
borrowed;
|
|
(b)
|
acceptance
credits (or dematerialised
equivalents);
|
|
(c)
|
moneys
raised under or pursuant to bonds (other than a performance bond
or
advance payment bond issued in respect of the obligations of any
member of
the Group incurred in the ordinary course of business), notes, debentures,
loan stock or any similar
instrument;
|
|
(d)
|
any
finance or capital lease or hire purchase contract which would, in
accordance with the Accounting Principles, be treated as a finance
or
capital lease but only to the extent of such
treatment;
|
|
(e)
|
receivables
sold or discounted (other than to the extent there is no
recourse);
|
|
(f)
|
any
counter-indemnity obligation in respect of a guarantee, indemnity,
bond,
standby or documentary letter of credit or any other instrument issued
by
a bank or financial institution in respect of an underlying liability
of
an entity which is not a member of the Group which would fall within
one
of the other paragraphs of this
definition;
|
|
(g)
|
the
acquisition cost of any asset where the deferred payment is arranged
primarily as a method of raising finance and in circumstances where
the
due date for payment is more than 180 days after the expiry of the
period
customarily allowed by the relevant supplier (save where the payment
deferral results from non or delayed satisfaction of contract terms
by the
supplier or from contract terms establishing payment schedules tied
to
total or partial contract completion and/or to the results of operational
testing procedures);
|
93
|
(h)
|
the
sale price of any asset to the extent paid by the person liable before
the
time of sale or delivery where such advance payment is arranged primarily
as a method of raising finance unless such arrangements are entered
into
customarily by customers of the
Group;
|
|
(i)
|
any
amount raised under any other transaction which would be treated
as
borrowing in accordance with the Accounting
Principles;
|
|
(j)
|
(without
double counting) the amount of any liability in respect of any guarantee
or indemnity for any of the items referred to in the paragraphs above;
and
|
|
(k)
|
redeemable
shares that are redeemable prior to the Termination Date,
|
provided
that indebtedness
owed by one member of the Group to another member of the Group, any Company
Subordinated Debt, any Parent Subordinated Debt and indebtedness under the
Vendor Documents shall not be taken into account and excluding post employment
benefit scheme liabilities and any other liabilities in respect of other
provisions which are treated as borrowings under the Accounting Principles
(including, without limitation, borrowings under derivative transactions) and
any provisions in relation to earn outs to the extent these are not supported
by
a guarantee issued by a third party which has been counter-indemnified by a
member of the Group.
"Capital
Expenditure"
means
any expenditure or obligation in respect of expenditure which in accordance
with
the Accounting Principles is treated as capital expenditure (other than any
Permitted Acquisition and any capital expenditure which is part of restructuring
costs and only taking into account the actual cash payment made where assets
are
replaced and part of the purchase price is paid by way of part
exchange).
"Cashflow
Cover"
means,
in respect of any Relevant Period, the ratio of Consolidated Cashflow for that
Relevant Period to Net Debt Service for that Relevant Period.
"Cash
Overfunding"
means
an amount of $120,000,000 as reduced from time to time when designated by the
Company to be Consolidated Cashflow.
"Consolidated
Cashflow"
means,
in respect of any Relevant Period, Consolidated EBITDA for that Relevant
Period:
|
(a)
|
plus
the
amount of any rebate, refund or credit in respect of any tax on profits,
gains or income actually received in cash by any member of such Group
during such period;
|
|
(b)
|
minus
all Capital Expenditure actually paid by a member of the Group during
the
Relevant Period except to the extent was financed or refinanced from
or
funded from:
|
|
(i)
|
Retained
Cash;
|
|
(ii)
|
any
Permitted Financial Indebtedness;
|
|
(iii)
|
capital
contributions received from landlords in relation to Real Property
in
respect of which a member of the Group is a
tenant;
|
94
|
(iv)
|
Company
New Equity or Company Subordinated Debt;
or
|
|
(v)
|
the
amount of Cash Overfunding up to an amount which, together with the
aggregate amount of Cash Overfunding spent on Non-recurring Expenditure
items paid in cash in accordance with paragraph (n) below, does not
exceed
$ 60,000,000 in aggregate during the life of the
Facility;
|
|
(c)
|
minus
the aggregate of the consideration paid for or cost of any Permitted
Acquisitions and the amount of any Joint Venture Investment made
in cash
during that period to the extent not included in Consolidated EBITDA
and
in each case except to the extent funded from Retained Cash, any
Permitted
Financial Indebtedness, Company New Equity or Company Subordinated
Debt;
|
|
(d)
|
plus
the amount of any loan which was made in respect of a Joint Venture
Investment which is repaid in cash to a member of the Group and the
amount
of any royalty payments made by a Joint Venture Investment to a member
of
the Group;
|
|
(e)
|
minus
all amounts of tax on profits, gains or income actually paid excluding
tax
accrued in the previous financial year that was deducted for the
purpose
of calculating Excess Cashflow in respect of that previous financial
year
(other than any such tax which is referable to any Financial Year
ending
on or before Closing and any tax which is netted off against any
proceeds
received by the Group in accordance with paragraph (b) of the definition
of Net Proceeds) and minus
the amount of any withholding tax withheld from any amount paid to
any
member of the Group which has been taken into account in calculating
Consolidated EBITDA for such
period;
|
|
(f)
|
plus
any decrease in and minus any increase of Working Capital between
the
beginning and end of such Relevant Period, excluding in this calculation
any movements in Working Capital (including inventory and deferred
income)
(either positive or negative) related to the BskyB one-off cards
swap-out
to the extent that it has an impact in the applicable Relevant
Period;
|
|
(g)
|
to
the extent not taken into account in any other paragraph in this
definition minus
all non-cash credits and release of provisions and plus
all non-cash debits and other non-cash charges and provisions included
in
establishing Consolidated EBITDA for such
period;
|
|
(h)
|
to
the extent not taken into account in any other paragraph in this
definition plus
any positive and minus
any negative one-off, non-recurring, extraordinary or exceptional
items
received or which are paid by any member of the Group in cash during
such
period (excluding the One-off Costs up to an amount of $60,000,000
in
aggregate during the life of the Facility) to the extent not already
taken
into account in calculating Consolidated EBITDA for such period or
provided for in Acquisition Costs or funded from Retained Cash, any
Permitted Financial Indebtedness, Company New Equity or Company
Subordinated Debt (and where such items comprise consideration receivable
by a member of the Group in connection with a Disposal, the gross
consideration receivable shall be used in determining the amount
to be
added back);
|
95
|
(i)
|
to
the extent included in Consolidated EBITDA or in any other paragraph
of
this definition, excluding
the effect of all cash movements associated with the Acquisition,
the
Acquisition Costs and the costs of any share options of the Group
existing
on Closing;
|
|
(j)
|
plus
any Company New Equity or Company Subordinated Debt provided in accordance
with paragraph (e) of Clause 23.3
(Financial
testing);
|
|
(k)
|
deducting
any fees, cash or charges of a non-recurring nature related to any
equity
offering, investments, acquisitions, disposals or Permitted Financial
Indebtedness (whether or not successful) except to the extent funded
from
Retained Cash or paid out of the proceeds raised on an equity or
debt
securities offering or other Permitted Financial
Indebtedness;
|
|
(l)
|
deducting
the amount of arm's length management, consulting, investor and advisory
fees (other than in respect of any cash movements falling under paragraph
(k) above) paid to any of the Investors to the extent not taken into
account in Consolidated EBITDA and other than those funded from Retained
Cash, any Permitted Financial Indebtedness, Company New Equity or
Company
Subordinated Debt;
|
|
(m)
|
deducting
the amount of any dividends or other profit distributions paid in
cash
during such period to a third party (not being a member of the Group)
which is a shareholder in a member of the Group and any amounts paid
by
any member of the Group under the Vendor Documents unless funded
from
amounts described in paragraphs (b) and (c) of the definition of
Retained
Cash;
|
|
(n)
|
plus
the amount of the Cash Overfunding designated and applied by the
Parent to
a Financial Quarter during that Relevant Period equivalent to the
amount
of Non-recurring Expenditure paid in cash and incurred at such time
up to
an amount which, together with the aggregate amount of Cash Overfunding
spent on Capital Expenditure in accordance with paragraph (b)(v)
above, does not exceed $60,000,000 in aggregate during the life of
the
Facility;
|
|
(o)
|
deducting
other Permitted Payments made from the Group not included above unless
funded out of Retained Cash; and
|
|
(p)
|
deducting
the costs relating to the BskyB one-off cards swap-out paid in cash,
including any royalties payable in relation
thereto.
|
"Consolidated
EBITDA"
means,
for any Relevant Period, the consolidated profits of the Group from ordinary
activities:
|
(a)
|
before
deducting Interest
Payable, any other Interest for which any member of the Group is
liable
and any deemed finance charge in respect of any post-employment benefit
scheme liabilities;
|
|
(b)
|
before
deducting any
amount of Tax on profits, gains or income paid or payable by any
member of
the Group;
|
96
|
(c)
|
after
adding back
(to the extent otherwise deducted) any amount attributable to any
amortisation of intangible assets (including amortisation of any
goodwill
arising on any Permitted Acquisition or Acquisition Costs), any
depreciation or impairment of tangible assets and any costs or provisions
relating to any share option schemes of the Group existing at
Closing;
|
|
(d)
|
after
deducting
(to the extent included) Interest Income and/or any other Interest
accruing in favour of any member of the
Group;
|
|
(e)
|
excluding
any items (positive or negative) of a one-off, non-recurring,
extraordinary, unusual or exceptional nature (including, without
limitation, the restructuring of the activities of an entity and
reversals
of any provisions for the cost of restructuring, disposals, revaluations
or impairment of non-current assets, disposals of assets associated
with
discontinued operations and the costs associated with any aborted
Permitted Acquisition or aborted equity or debt securities
offering);
|
|
(f)
|
excluding
One-off Costs identified in the Base Case
Model;
|
|
(g)
|
after
adding back
(to the extent otherwise deducted) the amount of management, consulting,
investor and advisory fees paid to the Investors or Permira during
such
period;
|
|
(h)
|
after
deducting
(to the extent otherwise included) any gain over book value arising
in
favour of a member of the Group in the disposal of any asset (not
being
any disposals made in the ordinary course of trading) during such
period
and any gain arising on any revaluation of any asset during such
period;
|
|
(i)
|
after
adding back (to
the extent otherwise deducted) any loss against book value incurred
by a
member of the Group on the disposal or write down of any asset (not
being
any disposal made in the ordinary course of trading) during such
period
and any loss arising on any revaluation of any asset during such
period;
|
|
(j)
|
after
adding back
Acquisition Costs to the extent
deducted;
|
|
(k)
|
after
adding back
(to the extent not otherwise included) the amount of any dividends
or
other profit distributions (net of withholding tax) received in cash
by
any member of the Group during such period from companies which are
not
members of the Group;
|
|
(l)
|
after
adding back
an
amount equal to the amount of any reduction, or deducting
an
amount equal to the amount of any increase, in the consolidated income
from operations of the Group as a result of a revaluation or recognition
of assets and liabilities of members of the Group which would not
have
occurred but for the occurrence of the Acquisition, in each case
during
such period;
|
|
(m)
|
after
adding
(to the extent not already included) the realised gains or deducting
(to the extent not otherwise deducted) the realised losses arising
at
maturity or on termination of forward foreign exchange and other
currency
hedging contracts entered into with respect to the operational cashflows
of the Group (but taking no account of any unrealised gains or loss
on any
hedging or other derivative instrument
whatsoever);
|
97
|
(n)
|
after
adding back
(to the extent otherwise deducted) any fees, costs or charges of
a
non-recurring nature related to any equity or debt offering, compensation
payments to departing management, investments (including any Joint
Venture
Investment), acquisitions or Permitted Financial Indebtedness (whether
or
not successful);
|
|
(o)
|
after
adding back
(to the extend otherwise deducted) any costs or provisions relating
to any
share option or management equity incentive schemes of the
Group;
|
|
(p)
|
after
adding
the proceeds of any business interruption or similar
insurance;
|
|
(q)
|
after
deducting
the amount of profit of any entity (which is not a member of the
Group) in
which any member of the Group has an ownership interest to the extent
that
the amount of such profit included in the accounts of the Group exceeds
the amount (net of any applicable withholding tax) received in cash
by
members of the Group through distributions by that
entity;
|
|
(r)
|
after
deducting
the amount of deferred revenue security fees released through the
profit
and loss account related to the one-off cards swap-out of
BskyB;
|
|
(s)
|
after
adding back
the cost of the BskyB one-off cards swap-out and any related royalties
payable in relation thereto; and
|
|
(t)
|
after
adding back
any profits or after
deducting
any losses resulting from extraordinary adjustments in the deferred
revenues accounting estimates.
|
"Consolidated
Net Finance Charges"
means,
for any Relevant Period, the amount of Interest Payable during that period
less
Interest Income during that period.
"Consolidated
Total Net Debt"
means,
at any time, the aggregate amount of all obligations of the Group for or in
respect of Borrowings but:
|
(a)
|
including,
in the case of finance leases, only the capitalised value
thereof;
|
|
(b)
|
deducting
the aggregate amount of available Cash and Cash Equivalent Investments
held by any member of the Group;
|
|
(c)
|
deducting
the amount of Working Capital relating to the BskyB one-off cards
swap-out
to the extent that it has an impact in the applicable Relevant
Period;
|
|
(d)
|
adding
back
Trapped Cash; and
|
|
(e)
|
adding
back
the amount of Cash Overfunding up to an amount of $60,000,000 less
any
amounts utilised at such time to fund One-off
Costs,
|
and
so
that no amount shall be included or excluded more than once.
"Current
Assets"
means
the aggregate of trade receivables and other current assets (but excluding
Cash
and Cash Equivalent Investments) maturing within twelve months from the date
of
computation and excluding:
|
(a)
|
receivables
in relation to tax rebates or credits on
profits;
|
|
(b)
|
one-off
non-recurring items, extraordinary items, exceptional items and other
non-operating items;
|
98
|
(c)
|
insurance
claims; and
|
|
(d)
|
any
accrued Interest owing to any member of the
Group.
|
"Current
Liabilities"
means
the aggregate of all liabilities (including trade creditors and other current
liabilities and accrued expenses) falling due within twelve months from the
date
of computation but excluding:
|
(a)
|
liabilities
for Borrowings and Interest;
|
|
(b)
|
liabilities
for Tax on profits;
|
|
(c)
|
one-off
non-recurring items, extraordinary items, exceptional items and other
non-operating items;
|
|
(d)
|
insurance
claims; and
|
|
(e)
|
liabilities
in relation to dividends declared but not paid by the
Company.
|
"Debt
Cover"
means,
in respect of any Relevant Period, the ratio of Consolidated Total Net Debt
on
the last day of that Relevant Period to Consolidated EBITDA for that Relevant
Period.
"Excess
Cashflow"
means
for any Financial Year of the Parent, Consolidated Cashflow for that period
less:
|
(a)
|
Net
Debt Service;
|
|
(b)
|
to
the extent that the Net Proceeds giving rise to the relevant mandatory
prepayment have been included in calculating Consolidated Cashflow
(and
not deducted under paragraph (e) below), mandatory prepayments falling
due
(other than in respect of Excess Cashflow calculated for the immediately
preceding Financial Year) during such
period;
|
|
(c)
|
mandatory
prepayments made as a result of illegality, market disruption or
as a
result of a Lender
requesting a tax gross-up, tax indemnity payment or payment of increased
costs;
|
|
(d)
|
to
the extent included in Consolidated Cashflow, any amount received
by way
of Company New Equity or by way of Company Subordinated
Debt;
|
|
(e)
|
the
amount of Net Proceeds received by the Group which are permitted
to be
retained by the Group to the extent included in Consolidated
Cashflow;
|
|
(f)
|
the
amount of any IPO Proceeds received by the Group which are permitted
to be
retained by the Group to the extent included in Consolidated
Cashflow;
|
|
(g)
|
Acquisition
Costs (to the extent included in Consolidated Cashflow), in each
case not
funded by Borrowings;
|
|
(h)
|
to
the extent not already deducted from Consolidated Cashflow, any payments
falling under paragraphs (b), (d) and (f) (to the extent of payments
to
persons who are not members of the Group) and (h) of the definition
of
Permitted Payment;
|
|
(i)
|
tax
accrued during such Financial Year but not paid but, in the case
of the
first Financial Year, only to the extent exceeding tax
paid;
|
99
|
(j)
|
any
increase in Trapped Cash between the first day of the Relevant Period
and
the last day of the Relevant
Period;
|
|
(k)
|
any
payment to fund the purchase of management equity or other compensation
to
existing management;
|
|
(l)
|
for
the period 1 January 2009 to 30 June 2009, any
positive (inflow) change in Working
Capital;
|
|
(m)
|
any
Capital Expenditure which has been during that Financial Year
contractually committed by any member of the Group to be spent in
a
subsequent Financial Year; and
|
|
(n)
|
an
amount of $10,000,000 (or its equivalent) as de
minimis
amount.
|
"Financial
Quarter"
means
the period commencing on the day after one Quarter Date and ending on the next
Quarter Date.
"Financial
Year"
means
the annual accounting period of the Group ending on or about 30 June in
each year.
"Interest"
means
interest received and interest and amounts in the nature of interest paid in
respect of any Borrowings including, without limitation:
|
(a)
|
the
interest element of finance leases;
|
|
(b)
|
discount
and acceptance fees and costs payable (or deducted) in respect of
any
Borrowings;
|
|
(c)
|
fees
payable in connection with the issue or maintenance of any bond,
letter of
credit, guarantee or other assurance against financial loss which
constitutes Borrowings and is issued by a third party on behalf of
a
member of the Group and accrues after
Closing;
|
|
(d)
|
repayment
and prepayment premiums payable or incurred in repaying or prepaying
any
Borrowings; and
|
|
(e)
|
commitment,
utilisation and non-utilisation fees payable or incurred or accrued
after
Closing in respect of Borrowings.
|
"Interest
Cover"
means,
in respect of any Relevant Period, the ratio of Consolidated EBITDA for that
Relevant Period to Consolidated Net Finance Charges for that Relevant
Period.
"Interest
Income"
means,
for the Relevant Period, the amount of Interest accrued (whether or not
received) due to members of the Group during such period.
"Interest
Payable"
means
for the Relevant Period, the aggregate of Interest accrued (whether or not
paid
or capitalised) in respect of any Borrowings of any member of the Group during
that Relevant Period but:
|
(a)
|
excluding
any amortisation of fees, costs and expenses incurred in connection
with
the raising of any Borrowings; and
|
|
(b)
|
excluding
any
capitalised Interest, the amount of any discount amortised and other
non-cash interest charges during the Relevant
Period,
|
and
calculated on the basis that:
100
|
(i)
|
the
amount of Interest accrued will be increased by an amount equal to
any
amount payable by members of the Group under hedging agreements in
respect
of Interest in relation to that Relevant Period;
and
|
|
(ii)
|
the
amount of Interest accrued will be reduced by an amount equal to
any
amount payable to members of the Group under hedging agreements in
respect
of Interest in relation to that Relevant
Period.
|
"Net
Debt Service"
means,
in respect of any Relevant Period, the aggregate of:
|
(a)
|
Consolidated
Net Finance Charges;
|
|
(b)
|
the
aggregate of all scheduled payments of principal of any Borrowings
(and,
in the case of the Senior
Facilities and the Facility as adjusted as the result of any voluntary
or
mandatory prepayments) falling due for payment but
excluding
any amounts falling due under any overdraft or Revolving Facility
(including, without limitation, any Ancillary Facility, Fronted Ancillary
Facility or Fronting Ancillary Commitments) which were available
for
simultaneous redrawing according to the terms of such facility but
for any
voluntary cancellation; and
|
|
(c)
|
the
amount of the capital element of any payments in respect of that
Relevant
Period payable under any finance lease or capital lease entered into
by
any member of the Group,
|
and
so
that no amount shall be included more than once.
"Non-recurring
Expenditure"
means
the aggregate of the following:
|
(a)
|
the
costs relating to any one-off cards swap out or free cards paid in
cash
and in relation to BskyB, Direct TV, Direct TV LA, Sky Mexico, Sky
Italia
and Sky Brazil contracts;
|
|
(b)
|
the
costs (including but not limited to legal expenses and penalty, security
or settlement payments) relating to the Echostar litigation
(as that litigation is described in the Legal Due Diligence Report
and the
Echostar Report);
|
|
(c)
|
the
cash outflow related to the accruals on the balance sheet of any
member of
the Group as at the last day of the most recent Financial Quarter
ending
prior to Closing relating to the Yeda and Gemstar
litigations;
|
|
(d)
|
the
cash impact of a reduction in the Xxxxxx 60 day payment period referred
to
in the Base Case Model and the Financial and Tax Report;
|
|
(e)
|
the
cash outflow related to the release of deferred tax liabilities existing
at Closing; and
|
|
(f)
|
any
other non-recurring costs and
expenses.
|
"One-off
Costs"
means
the aggregate of the following:
|
(a)
|
any
deficit in defined benefit pension plans required to be settled as
a
result of the Transaction;
|
|
(b)
|
at
any time, the cost and taxes (whether withholding tax or any other
form of
tax) in order to extract Cash existing as at Closing from
Israel;
|
101
|
(c)
|
any
costs related to the settlement of the Yeda dispute
(as that dispute is described in the Legal Due Diligence Report),
but
excluding recurring royalty costs;
|
|
(d)
|
any
earn-out and management bonuses, in each case payable in respect
of past
acquisitions; and
|
|
(e)
|
any
one-off costs (payable either to Gemstar or customers) in respect
of
Gemstar settlements but excluding recurring royalty
payments.
|
"Quarter
Date"
means
each of 31 March, 30 June, 30 September and 31 December.
"Relevant
Period"
means
(other than as set out in paragraph (d) of Clause 23.3
(Financial
testing)
each
period of twelve months ending on the last day of the Parent's Financial Year
and each period of twelve months ending on the last day of each Financial
Quarter of the Parent's Financial Year.
"Retained
Cash"
means
the aggregate of:
|
(a)
|
Net
Proceeds permitted to be retained and not required to be immediately
prepaid or reinvested in the business of the
Group;
|
|
(b)
|
Excess
Cashflow arising from a previous Financial Year which the Company
is not obliged to prepay (including any Unused Amount and any de
minimis
amount which has been permitted to be deducted in calculating that
Excess
Cashflow in a previous Financial Year);
and
|
|
(c)
|
any
IPO Proceeds permitted to be retained (including from any IPO of
the
Non-Core Business); and
|
|
(d)
|
any
Net Proceeds permitted to be retained from any disposal of assets
of the
Non-Core Business,
|
in
each
case to the extent not already taken into account in any other paragraph of
the
relevant definition or otherwise applied in any manner permitted by the Finance
Documents.
"Senior
Consolidated Total Net Debt"
means,
at any time, the Consolidated Total Net Debt after deducting that part of the
Consolidated Total Net Debt attributable to the Facility.
"Senior
Debt Cover"
means,
in respect of any Relevant Period, the ratio of Senior Consolidated Total Net
Debt on the last day of that Relevant Period to the Consolidated EBITDA for
that
Relevant Period.
"Trapped
Cash"
means
20 per cent. of the cash balances held in members of the Group incorporated
in
Israel as at the relevant date provided
that
such
percentage may be reduced and/or increased if the Parent delivers to the
Facility Agent a certificate confirming that it is feasible and/or necessary,
based upon advice from its professional advisers, to extract cash from Israel
at
such lower or higher percentage cost.
"Unused
Amount"
has the
meaning given that term in Clause 23.2
(Financial
condition).
"Working
Capital"
means
on any date Current Assets less Current Liabilities.
|
23.2
|
Financial
condition
|
The
Parent shall ensure that:
102
|
(a)
|
Cashflow
Cover:
Cashflow Cover in respect of any Relevant Period specified in column
1
below shall not be less than the ratio set out in column 2 below
opposite
that Relevant Period.
|
|
Column
1
Relevant
Period
|
Column
2
Ratio
|
|
Relevant
Period expiring 30 September 2009
|
1:1
|
|
Relevant
Period expiring 31 December 2009
|
1:1
|
|
Relevant
Period expiring 31 March 2010
|
1:1
|
|
Relevant
Period expiring 30 June 2010
|
1:1
|
|
Relevant
Period expiring 30 September 2010
|
1:1
|
|
Relevant
Period expiring 31 December 2010
|
1:1
|
|
Relevant
Period expiring 31 March 2011
|
1:1
|
|
Relevant
Period expiring 30 June 2011
|
1:1
|
|
Relevant
Period expiring 30 September 2011
|
1:1
|
|
Relevant
Period expiring 31 December 2011
|
1:1
|
|
Relevant
Period expiring 31 March 2012
|
1:1
|
|
Relevant
Period expiring 30 June 2012
|
1:1
|
|
Relevant
Period expiring 30 September 2012
|
1:1
|
|
Relevant
Period expiring 31 December 2012
|
1:1
|
|
Relevant
Period expiring 31 March 2013
|
1:1
|
|
Relevant
Period expiring 30 June 2013
|
1:1
|
|
Relevant
Period expiring 30 September 2013
|
1:1
|
|
Relevant
Period expiring 31 December 2013
|
1:1
|
|
Relevant
Period expiring 31 March 2014
|
1:1
|
|
Relevant
Period expiring 30 June 2014
|
1:1
|
|
Relevant
Period expiring 30 September 2014
|
1:1
|
|
Relevant
Period expiring 31 December 2014
|
1:1
|
|
Relevant
Period expiring 31 March 2015
|
1:1
|
|
Relevant
Period expiring 30 June 2015
|
1:1
|
|
Relevant
Period expiring 30 September 2015
|
1:1
|
|
Relevant
Period expiring 31 December 2015
|
1:1
|
103
|
(b)
|
Interest
Cover:
Interest Cover in respect of any Relevant Period specified in column
1
below shall be or shall exceed the ratio set out in column 2 below
opposite that Relevant Period.
|
|
Column
1
Relevant
Period
|
Column
2
Ratio
|
|
Relevant
Period expiring 30 June 2009
|
1.25:1
|
|
Relevant
Period expiring 30 September 2009
|
1.40:1
|
|
Relevant
Period expiring 31 December 2009
|
1.45:1
|
|
Relevant
Period expiring 31 March 2010
|
1.45:1
|
|
Relevant
Period expiring 30 June 2010
|
1.50:1
|
|
Relevant
Period expiring 30 September 2010
|
1.60:1
|
|
Relevant
Period expiring 31 December 2010
|
1.65:1
|
|
Relevant
Period expiring 31 March 2011
|
1.70:1
|
|
Relevant
Period expiring 30 June 2011
|
1.75:1
|
|
Relevant
Period expiring 30 September 2011
|
1.85:1
|
|
Relevant
Period expiring 31 December 2011
|
1.90:1
|
|
Relevant
Period expiring 31 March 2012
|
1.95:1
|
|
Relevant
Period expiring 30 June 2012
|
2.00:1
|
|
Relevant
Period expiring 30 September 2012
|
2.00:1
|
|
Relevant
Period expiring 31 December 2012
|
2.05:1
|
|
Relevant
Period expiring 31 March 2013
|
2.10:1
|
|
Relevant
Period expiring 30 June 2013
|
2.20:1
|
|
Relevant
Period expiring 30 September 2013
|
2.30:1
|
|
Relevant
Period expiring 31 December 2013
|
2.35:1
|
|
Relevant
Period expiring 31 March 2014
|
2.40:1
|
|
Relevant
Period expiring 30 June 2014
|
2.50:1
|
|
Relevant
Period expiring 30 September 2014
|
2.60:1
|
|
Relevant
Period expiring 31 December 2014
|
2.60:1
|
|
Relevant
Period expiring 31 March 2015
|
2.60:1
|
|
Relevant
Period expiring 30 June 2015
|
2.60:1
|
|
Relevant
Period expiring 30 September 2015
|
2.60:1
|
|
Relevant
Period expiring 31 December 2015
|
2.60:1
|
104
|
(c)
|
Debt
Cover:
Debt Cover in respect of any Relevant Period specified in column
1 below
shall not exceed the ratio set out in column 2 below opposite that
Relevant Period.
|
|
Column
1
Relevant
Period
|
Column
2
Ratio
|
|
Relevant
Period expiring 30 June 2009
|
7.90:1
|
|
Relevant
Period expiring 30 September 2009
|
7.75:1
|
|
Relevant
Period expiring 31 December 2009
|
7.25:1
|
|
Relevant
Period expiring 31 March 2010
|
7.00:1
|
|
Relevant
Period expiring 30 June 2010
|
6.90:1
|
|
Relevant
Period expiring 30 September 2010
|
6.15:1
|
|
Relevant
Period expiring 31 December 2010
|
6.00:1
|
|
Relevant
Period expiring 31 March 2011
|
5.75:1
|
|
Relevant
Period expiring 30 June 2011
|
5.60:1
|
|
Relevant
Period expiring 30 September 2011
|
5.15:1
|
|
Relevant
Period expiring 31 December 2011
|
5.10:1
|
|
Relevant
Period expiring 31 March 2012
|
4.85:1
|
|
Relevant
Period expiring 30 June 2012
|
4.60:1
|
|
Relevant
Period expiring 30 September 2012
|
4.15:1
|
|
Relevant
Period expiring 31 December 2012
|
4.00:1
|
|
Relevant
Period expiring 31 March 2013
|
3.75:1
|
|
Relevant
Period expiring 30 June 2013
|
3.55:1
|
|
Relevant
Period expiring 30 September 2013
|
3.55:1
|
|
Relevant
Period expiring 31 December 2013
|
3.55:1
|
|
Relevant
Period expiring 31 March 2014
|
3.55:1
|
|
Relevant
Period expiring 30 June 2014
|
3.55:1
|
|
Relevant
Period expiring 30 September 2014
|
3.55:1
|
|
Relevant
Period expiring 31 December 2014
|
3.55:1
|
|
Relevant
Period expiring 31 March 2015
|
3.55:1
|
|
Relevant
Period expiring 30 June 2015
|
3.55:1
|
|
Relevant
Period expiring 30 September 2015
|
3.55:1
|
|
Relevant
Period expiring 31 December 2015
|
3.55:1
|
105
|
(d)
|
Capital
Expenditure:
The aggregate Capital Expenditure (other than Capital Expenditure
funded
from Retained Cash, Company New Equity or Company Subordinated Debt)
of
the Group in respect of each Financial Year of the Parent specified
in
column 1 below shall not exceed the amount set out in column 2 below
opposite that Financial Year.
|
|
Column
1
Financial
Year Ending
|
Column 2
Maximum Capital Expenditure
|
|||
|
30
June 2009
|
$
|
31,000,000
|
||
|
30
June 2010
|
$
|
37,000,000
|
||
|
30
June 2011
|
$
|
36,500,000
|
||
|
30
June 2012
|
$
|
41,500,000
|
||
|
30
June 2013
|
$
|
46,000,000
|
||
|
30
June 2014
|
$
|
51,500,000
|
||
|
30
June 2015
|
$
|
57,500,000
|
||
|
30
June 2016
|
$
|
64,000,000
|
||
If
in any
Financial Year (the "Original
Financial Year")
the
amount of the Capital Expenditure spent is less than the maximum amount
permitted to be spent for that Original Financial Year (the difference being
referred to below as the "Unused
Amount"),
then
the maximum expenditure set out in column 2 above for the immediately following
Financial Year (the "Carry
Forward Year")
shall
be increased by an amount equal to 50 per cent. of the Unused
Amount.
In
any
Carry Forward Year, the original amount specified in column 2 above shall be
treated as having been incurred after any Unused Amount carried forward into
such Carry Forward Year.
Up
to 25
per cent. of permitted Capital Expenditure from the next Financial Year may
be
carried back to such Financial Year with a corresponding reduction for the
next
following Financial Year.
If
the
Group makes a Permitted Acquisition which:
|
(i)
|
increases
Consolidated EBITDA,
|
then
the
amount of the maximum Capital Expenditure permitted
above shall be increased by an amount equal to 120 per cent. of the Capital
Expenditure budgeted for the entities acquired pursuant to the Permitted
Acquisition.
|
23.3
|
Financial
testing
|
|
(a)
|
Subject
to paragraphs (c) and (d) below, the financial covenants set out
in Clause
23.2
(Financial
condition)
shall be calculated in accordance with the Accounting Principles
(as
applied in the Base Case Model except as changed in accordance with
this
Agreement) and tested by reference to each of the financial statements
and/or each Compliance Certificate delivered pursuant to Clause
22.2
(Provision
and contents of Compliance Certificate).
No item shall be taken into account more than once in any
calculation.
|
106
|
(b)
|
In
respect of any Relevant Period, the exchange rate used in relation
to
Consolidated Total Net Debt shall be the exchange rate used in respect
of
the Term Facilities for the euro/dollar hedge entered into by the
Company
on or before Closing to the extent hedged. The effect of all unrealised
currency exchange gains and losses shall be
excluded.
|
|
(c)
|
For
each of the Relevant Periods ending on a date which is less than
12 months
after Closing:
|
|
(i)
|
for
the purpose of Cashflow Cover, Consolidated Cashflow and Net Debt
Service
shall be calculated on an actual basis for the period from the first
day
of the first Financial
Quarter falling after Closing to the relevant test
date;
|
|
(ii)
|
for
the purposes of Interest Cover only, Consolidated Net Finance Charges
for
the complete Financial Quarters which have elapsed since Closing
shall be
annualised; and
|
|
(iii)
|
for
all other purposes, all items shall be calculated on an actual basis
over
the previous 12 month period.
|
|
(d)
|
For
the purpose of calculation of any financial covenant ratio (other
than in
relation to Excess Cashflow) (the "Acquisition
and Disposal Adjustment"):
|
|
(i)
|
there
shall be included in determining Consolidated EBITDA and Consolidated
Cashflow for any Relevant Period (including the portion thereof occurring
prior to the relevant acquisition):
|
|
(A)
|
the
earnings before interest, tax, depreciation and amortisation (calculated
on the same basis as Consolidated EBITDA, mutatis
mutandis)
and cashflow (calculated on the same basis as Consolidated Cashflow,
mutatis
mutandis)
for the period of any person, property, business or material fixed
asset
acquired and not subsequently sold, transferred or otherwise disposed
of
by any member of the Group during such period (each such person,
property,
business or asset acquired and not subsequently disposed of an
"Acquired
Entity or Business");
and
|
|
(B)
|
if
material (unless, in relation to any material adjustment which could
be
made as a result of net cost savings, the Parent elects not to include
such net cost savings in the determination of Consolidated EBITDA),
an
adjustment in respect of each Acquired Entity or Business acquired
during
such period equal to the amount of the Pro Forma Adjustment (as defined
in
paragraph (v) below) with respect to such Acquired Entity or Business
for
such period; and
|
|
(ii)
|
there
shall be excluded in determining Consolidated EBITDA and Consolidated
Cashflow for any period the earnings before interest, tax, depreciation
and amortisation (calculated on the same basis as Consolidated EBITDA,
mutatis
mutandis)
and cashflow (calculated on the same basis as Consolidated Cashflow,
mutatis
mutandis)
of any person, property, business or material fixed asset sold,
transferred or otherwise disposed of by any member of the Group during
such period (including the portion thereof occurring prior to such
sale,
transfer, disposition or conversion) (each such person, property,
business
or asset so sold or disposed of, a "Sold
Entity or Business");
|
107
|
(iii)
|
Consolidated
Net Finance Charges and Net Debt Service will be adjusted to reflect
the
assumption or repayment of debt relating to any Acquired Entity or
Business or Sold Entity or
Business;
|
|
(iv)
|
Capital
Expenditure will be adjusted to reflect the Capital Expenditure relating
to any Acquired Entity or Business or Sold Entity or Business;
and
|
|
(v)
|
for
the purposes of this Clause 23.3
"Pro
Forma Adjustment"
shall mean, for any Relevant Period that includes any of the four
Financial Quarters first following the acquisition of or investment
in an
Acquired Entity or Business, with respect to the Consolidated EBITDA
and
Consolidated Cashflow of that Acquired Entity or Business, the
pro
forma
increase or decrease in such Consolidated EBITDA and Consolidated
Cashflow
projected by the Parent in good faith as a result of reasonably
identifiable and supportable net cost savings or additional net costs,
as
the case may be, realisable during such period by combining the operations
of such Acquired Entity or Business with the operations of the Parent
and
its Subsidiaries, which, if above $10,000,000 has been verified by
one of
the Big Four Accountants, provided
that so
long as such net cost savings or additional net costs will be realisable
at any time during such period, it may be assumed, for purposes of
projecting such pro
forma
increase or decrease to such Consolidated EBITDA and Consolidated
Cashflow, that such net cost savings or additional net costs will
be
realisable during such period and, provided
further that any
such pro
forma
increase or decrease to such Consolidated EBITDA and Consolidated
Cashflow
shall be without duplication for net cost savings or additional net
costs
actually realised during such period and already included in such
Consolidated EBITDA and Consolidated
Cashflow.
|
|
(e)
|
In
the event of a breach of Clause 23.2(a)
(Cashflow
Cover),
Clause 23.2(b)
(Interest
Cover)
or Clause 23.2(c)
(Debt
Cover)
and no later than 15 Business Days after the date on which the relevant
Compliance Certificate is required to be delivered (the "Equity
Cure Period")
and provided
that
such Compliance Certificate is accompanied by a notice of intent
to cure,
signed by the chief financial officer or a director of the Parent
and
outlining, in reasonable detail, the steps being taken to remedy
the
breach (a "Cure
Notice"),
if the Company receives (directly or indirectly) the cash proceeds
of
Company New Equity or Company Subordinated Debt and applies the same
in
prepayment of the Facility in accordance with Clause 9.3 (Application
of mandatory prepayments), then
such financial covenants shall be recalculated as at the relevant
test
date for that Relevant Period and calculated for the Relevant Periods
ending on each of the three subsequent Quarter Dates giving effect
to the
following pro
forma
adjustments:
|
|
(i)
|
Consolidated
Cashflow for the last quarter of the Relevant Period shall be increased
solely for the purpose of measuring the financial covenant set out
in
Clause 23.2(a)
above and not for any other purpose, by an amount equal to the amount
of
Company New Equity and/or Company Subordinated
Debt;
|
108
|
(ii)
|
Consolidated
Total Net Debt under this Agreement shall be decreased for the purpose
of
measuring the financial covenant set out in Clause 23.2(c)
above by an amount equal to the Company New Equity and/or Company
Subordinated Debt; and
|
|
(iii)
|
Consolidated
Total Net Debt shall be deemed to have been decreased at the beginning
of
that Relevant Period as if there was a voluntary prepayment by an
amount
equal to the Company New Equity and/or Company Subordinated Debt
and
Consolidated Net Finance Charges for that Relevant Period recalculated
assuming such a prepayment solely for the purpose of measuring the
financial covenant set out in Clause 23.2(b)
above.
|
If,
after
giving effect to the foregoing recalculations, the Company shall then be in
compliance with the requirements of all financial covenants the Company shall
be
deemed to have satisfied the requirements of such financial covenants as of
the
relevant date of determination with the same effect as though there had been
no
failure to comply therewith at such date, and the applicable breach or default
of such financial covenants which had occurred shall be deemed cured for all
purposes of the Finance Documents.
During
the Equity Cure Period, if a Cure Notice was delivered, a Default (but not
an
Event of Default) shall be deemed to be continuing unless and until the cash
proceeds of such Company
New Equity or Company Subordinated Debt is applied in accordance with this
Clause.
The
above
equity cure right may be exercised no more than four times over the life of
the
Facility, and may not be used in consecutive Financial Quarters.
|
24.
|
GENERAL
UNDERTAKINGS
|
The
undertakings in this Clause 24
remain
in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in
force.
Authorisations
and compliance with laws
|
24.1
|
Authorisations
|
Subject
to the Reservations and the Perfection Requirements, each Obligor shall promptly
obtain, comply with and do all that is necessary to maintain in full force
and
effect any Authorisation required under any applicable law to:
|
(a)
|
enable
it to perform its obligations under the Finance Documents
and Scheme Documents;
|
|
(b)
|
ensure
the legality, validity, enforceability or admissibility in evidence
of any
Finance Document or, where failure to do so would have a Material
Adverse
Effect, Scheme Document; and
|
|
(c)
|
carry
on its business, where failure to do so has a Material Adverse
Effect.
|
|
24.2
|
Compliance
with laws
|
Each
Obligor shall (and the Company
shall ensure that each member of the Group will) comply in all respects with
all
laws to which it is subject including the Foreign Corrupt Practices Act (15
USC
§§78dd-1 et seq.), if applicable, if failure so to comply would have a Material
Adverse Effect.
109
|
24.3
|
Environmental
compliance
|
Each
Obligor shall (and the Company
shall ensure that each member of the Group will):
|
(a)
|
comply
with all Environmental Laws;
|
|
(b)
|
obtain,
maintain and ensure compliance with all requisite Environmental Permits;
and
|
|
(c)
|
implement
procedures to monitor compliance with and to prevent liability under
any
Environmental Law,
|
where
failure to do so would have a Material Adverse Effect.
|
24.4
|
Taxation
|
Each
Obligor shall (and the Company
shall ensure that each member of the Group will) pay and discharge all Taxes
imposed upon it or its assets within the time period allowed or, if later,
before incurring material penalties unless and only to the extent
that:
|
(a)
|
such
payment is being contested in good faith
and in accordance with any relevant
procedures;
|
|
(b)
|
adequate
reserves are being maintained in accordance with the Accounting Principles
for those Taxes and the costs required to contest them which have
been
disclosed in its latest financial statements (or where incurred
subsequently will be disclosed in the next financial statements)
delivered
to the Facility Agent under Clause 22.1
(Financial
statements)
(if required to be disclosed under the Accounting Principles);
and
|
|
(c)
|
such
payment can be withheld without incurring material penalties and
failure
to pay those Taxes does not have a Material Adverse
Effect.
|
Restrictions
on business focus
|
24.5
|
Merger
|
No
Obligor shall (and the Company
shall ensure that no other member of the Group will) enter into any
amalgamation, demerger, merger, consolidation or corporate reconstruction other
than a Permitted Transaction.
|
24.6
|
Change
of business
|
The
Company
shall procure that no substantial change is made to the general nature of the
business of the Group taken as a whole from that carried on by the Group at
the
date of this Agreement.
|
24.7
|
Acquisitions
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Obligor shall (and the
Company
shall ensure that no other member of the Group will) acquire a company
or
any shares or securities or a business or undertaking (or, in each
case,
any interest in any of them).
|
|
(b)
|
Paragraph
(a) above does not apply to an acquisition of a company, of shares,
securities or a business or undertaking (or, in each case, any interest
in
any of them) or the incorporation of a company which is a Permitted
Acquisition.
|
110
|
24.8
|
Joint
ventures
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Obligor shall (and the
Company
shall ensure that no member of the Group
will):
|
|
(i)
|
enter
into, invest in or acquire (or agree to invest
in or acquire, unless such agreement is subject to Majority Lender
approval) any shares, stocks, securities or other interest in any
Joint
Venture; or
|
|
(ii)
|
transfer
any assets or lend to or guarantee or give an indemnity for or give
Security for the obligations of a Joint Venture or maintain the solvency
of or provide working capital to any Joint Venture (or agree to do
any of
the foregoing, unless such agreement is subject to Majority Lender
approval).
|
|
(b)
|
Paragraph
(a) above does not apply to any acquisition (or agreement to acquire)
any
interest in a Joint Venture or transfer of assets (or agreement to
transfer assets) to a Joint Venture or loan made to or guarantee
given in
respect of the obligations of a Joint Venture if such transaction
is a
Permitted Joint Venture.
|
|
24.9
|
Holding
Companies
|
Notwithstanding
any other provision of this Agreement, the Parent
shall not trade, carry on any business, own any assets or incur any liabilities
except for:
|
(a)
|
a
Permitted Holding Company Activity (subject to the proviso in such
definition); and
|
|
(b)
|
(for
the avoidance of doubt) any activity specifically permitted for the
Parent
under the definitions of Permitted Acquisition, Permitted Disposal,
Permitted Financial Indebtedness, Permitted Guarantee, Permitted
Loan,
Permitted Payment, Permitted Security, Permitted Share Issue or Permitted
Transaction.
|
|
24.10
|
Centre
of main interests and
establishments
|
No
Obligor whose jurisdiction of incorporation is in a member state of the European
Union
shall
deliberately change its "centre of main interests" (as that term is used in
Article 3(1) of The Council of the European Union Regulation No. 1346/2000
on
Insolvency Proceedings (the "Regulation"))
in a
manner which would materially and adversely affect the interests of the Lenders
as a whole.
Restrictions
on dealing with assets and Security
|
24.11
|
Pari
passu ranking
|
Each
Obligor shall ensure that at all times any claims of a Finance Party or Hedge
Counterparty against it under the Finance Documents rank at least pari
passu
with the
claims of all its other unsecured and unsubordinated creditors except those
creditors whose claims are mandatorily preferred by laws of general application
to companies.
|
24.12
|
Negative
pledge
|
In
this
Clause 24.12,
"Quasi-Security"
means a
transaction described in paragraph (b) below.
Except
as
permitted under paragraph (c) below:
|
(a)
|
No
Obligor shall (and the Company
shall ensure that no other member of the Group will) create or permit
to
subsist any Security over any of its
assets.
|
111
|
(b)
|
No
Obligor shall (and the Company shall ensure that no other member
of the
Group will):
|
|
(i)
|
sell,
transfer or otherwise dispose to any person who is not a member of
the
Group of any of its assets on terms whereby they are or may be leased
to
or re-acquired by an Obligor
or
by any other member of the Group;
|
|
(ii)
|
sell,
transfer or otherwise dispose of any of its receivables to any person
who
is not a member of the Group on recourse
terms;
|
|
(iii)
|
enter
into any arrangement under which money or the benefit of a bank or
other
account may be applied, set-off or made subject to a combination
of
accounts; or
|
|
(iv)
|
enter
into any other preferential arrangement having a similar
effect,
|
in
circumstances where the arrangement or transaction is entered into primarily
as
a method of raising Financial Indebtedness or of financing the acquisition
of an
asset.
|
(c)
|
Paragraphs
(a) and (b) above do not apply to any Security or (as the case may
be)
Quasi-Security, which is
Permitted Security.
|
|
24.13
|
Disposals
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Obligor shall (and the
Company
shall ensure that no member of the Group will) enter into a single
transaction or a series of transactions (whether related or not)
and
whether voluntary or involuntary to sell, lease, transfer or otherwise
dispose of any asset.
|
|
(b)
|
Paragraph
(a) above does not apply to any sale, lease, transfer or other disposal
which is a Permitted Disposal.
|
|
24.14
|
Preservation
of assets
|
The
Group
shall preserve sufficient title to, or valid leases or licences of, and all
appropriate authorisations to use, the assets necessary to carry on the business
of the Group as it is presently conducted where failure to do so would have
a
Material Adverse Effect.
|
24.15
|
Arm's
length basis
|
|
(a)
|
Except
as permitted by paragraph (b) below, no Obligor shall (and the
Company
shall ensure no member of the Group will) enter into any material
transaction with any Investor, their Affiliates (other than a member
of
the Group) or any person not being a member of the Group except on
arm's
length terms or better.
|
|
(b)
|
The
following transactions shall not be a breach of this Clause 24.15:
|
|
(i)
|
intra-Group
loans permitted under Clause 24.16
(Loans
or credit);
|
|
(ii)
|
fees,
costs and expenses payable under the Transaction Documents delivered
to
the Facility Agent under Clause 4.1
(Initial
conditions precedent)
or agreed by the Facility Agent or as set out in the Funds Flow Statement;
and
|
|
(iii)
|
any
Permitted Transactions.
|
112
Restrictions
on movement of cash - cash out
|
24.16
|
Loans
or credit
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Obligor shall (and the
Company
shall ensure that no member of the Group will) be a creditor in respect
of
any Financial Indebtedness.
|
|
(b)
|
Paragraph
(a) above does not apply to:
|
|
(i)
|
a
Permitted Loan;
|
|
(ii)
|
a
Permitted Payment; or
|
|
(iii)
|
a
Permitted Guarantee.
|
|
24.17
|
No
Guarantees or indemnities
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Obligor shall (and the
Company
shall ensure that no member of the Group will) incur or allow to
remain
outstanding any guarantee in respect of any obligation of any
person.
|
|
(b)
|
Paragraph
(a) above does not apply to a guarantee which
is:
|
|
(i)
|
a
Permitted Guarantee; or
|
|
(ii)
|
a
Permitted Transaction.
|
|
24.18
|
Dividends
and share redemption
|
|
(a)
|
Except
as permitted under paragraph (b) below, the Company
shall ensure that no member of the Group (other than the Parent)
will:
|
|
(i)
|
declare,
make or pay any dividend, charge, fee or other distribution (or interest
on any unpaid dividend, charge, fee or other distribution) (whether
in
cash or in kind) on or in respect of its share capital (or any class
of
its share capital);
|
|
(ii)
|
repay
or distribute any dividend or share premium
reserve;
|
|
(iii)
|
pay
or allow any member of the Group to pay any management, advisory
or other
fee to or to the order of the
Parent or any of the shareholders of the Parent;
or
|
|
(iv)
|
redeem,
repurchase, defease, retire or repay any of its share capital or
resolve
to do so.
|
|
(b)
|
Paragraph
(a) above does not apply to:
|
|
(i)
|
a
Permitted Payment; or
|
|
(ii)
|
a
Permitted Transaction.
|
|
24.19
|
Subordinated
Debt
|
|
(a)
|
Except
as permitted under paragraph (b) below, the Company
shall ensure that no member of the Group (other than the Parent),
will:
|
|
(i)
|
repay
or prepay any principal amount (or capitalised interest) outstanding
under
the Facility, the Vendor Documents,
the Company Subordinated Debt or the Parent Subordinated
Debt;
|
|
(ii)
|
pay
any interest or any other amounts payable in connection with the
Facility,
the Vendor Documents, the Company Subordinated Debt or the Parent
Subordinated Debt; or
|
113
|
(iii)
|
purchase,
redeem, defease or discharge, exchange or enter into any sub-participation
arrangements in respect of any amount outstanding with respect to
the
Facility, the Vendor Documents or the Company Subordinated Debt or
the
Parent Subordinated Debt; or
|
|
(iv)
|
make
any other payment (whether directly or indirectly) to the Parent
or to an
Investor (or any entity through which that Investor holds its interest
in
the Parent).
|
|
(b)
|
Paragraph
(a) does not apply to a payment, repayment, prepayment, purchase,
redemption, defeasance or discharge which
is:
|
|
(i)
|
a
Permitted Payment; or
|
|
(ii)
|
a
Permitted Transaction.
|
Restrictions
on movement of cash - cash in
|
24.20
|
Financial
Indebtedness
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Obligor shall (and the
Company
shall ensure that no member of the Group will) incur or allow to
remain
outstanding any Financial
Indebtedness.
|
|
(b)
|
Paragraph
(a) above does not apply to Financial Indebtedness which
is:
|
|
(i)
|
Permitted
Financial Indebtedness; or
|
|
(ii)
|
a
Permitted Transaction.
|
|
24.21
|
Share
capital
|
No
Obligor shall (and the Company
shall ensure no member of the Group will) issue any shares except pursuant
to:
|
(a)
|
a
Permitted Share Issue; or
|
|
(b)
|
a
Permitted Transaction.
|
Miscellaneous
|
24.22
|
Insurance
|
|
(a)
|
Each
Obligor
shall (and the Company shall ensure that each member of the Group
will)
maintain insurances on and in relation to its business and assets
against
those material risks and to the extent as is usual for companies
carrying
on the same or substantially similar
business.
|
|
(b)
|
All
insurances must be with reputable independent insurance companies
or
underwriters.
|
|
24.23
|
Pensions
|
The
Company
shall ensure that all pension schemes operated by or maintained for the benefit
of members of the Group and/or any of its employees are funded to the extent
required by applicable local law and regulations where failure to do so would
have a Material Adverse Effect.
|
24.24
|
Access
|
While
an
Event of Default is continuing, upon reasonable notice being given by the
Facility Agent and after consultation with the Company,
each Obligor will procure that any one or more representatives of the Facility
Agent and/or the Security Agent and/or accountants or other professional
advisers appointed by the Facility Agent and/or the Security Agent are allowed
access during normal business hours (at the cost of the Company) to the
premises, books and accounts of each member of the Group provided
that
all
information obtained as a result of such access shall be subject to the
confidentiality restrictions set out in this Agreement.
114
|
24.25
|
Intellectual
Property
|
Each
Obligor shall (and the Company
shall procure that each member of the Group will):
|
(a)
|
preserve
and maintain the subsistence and validity of the Intellectual Property
necessary for the business of the relevant member of the
Group;
|
|
(b)
|
use
reasonable endeavours to prevent any infringement in any material
respect
of the Intellectual Property;
|
|
(c)
|
make
registrations and pay all registration fees and taxes necessary to
maintain the Intellectual Property in full force and effect and record
its
interest in that Intellectual
Property;
|
|
(d)
|
not
use or permit the Intellectual Property to be used in a way or take
any
step or omit to take any step in respect of that Intellectual Property
which may materially and adversely affect the existence or value
of the
Intellectual Property or imperil the right of any member of the Group
to
use such property; and
|
|
(e)
|
not
discontinue the use of the Intellectual
Property,
|
where,
in each
case, failure to do so would have a Material Adverse Effect.
|
24.26
|
Amendments
|
No
Obligor shall (and the Company
shall ensure that no member of the Group will) amend, vary, novate, supplement,
supersede, waive or terminate the share transfer provisions in the
constitutional documents of any member of the Group whose shares are pledged
under the Transaction Security Documents except in each case in writing in
a way
which would not materially and adversely affect the interests of the Lenders
taken as a whole.
|
24.27
|
Financial
assistance
|
Each
Obligor shall (and the Company
shall procure that each member of the Group will), where applicable, comply
in
all respects with Sections 151 to 158 of the United Kingdom Companies Xxx 0000
and any equivalent legislation in other jurisdictions including in relation
to
the execution of the Transaction Security Documents and payment of amounts
due
under this Agreement.
|
24.28
|
Treasury
Transactions
|
|
(a)
|
No
Obligor shall (and the Company
will procure that no members of the Group will) enter into any Treasury
Transaction, other than:
|
|
(i)
|
the
hedging transactions contemplated by the Hedging Letter and documented
by
the Hedging Agreements;
|
|
(ii)
|
spot
and forward delivery foreign exchange contracts entered into in the
ordinary course of business and not for speculative
purposes;
|
115
|
(iii)
|
any
Treasury Transaction that the Group elects to enter into in respect
of the
euro denominated portions of the Senior
Facilities and/or euro denominated portions of the Facility;
and
|
|
(iv)
|
any
Treasury Transaction entered into for the hedging of actual or projected
real exposures arising in the ordinary course of trading activities
of a
member of the Group and not for speculative
purposes.
|
|
(b)
|
The
Company
shall ensure that all currency and interest rate hedging arrangements
contemplated by the Hedging Letter are implemented in accordance
with the
terms of the Hedging Letter and that such arrangements are not terminated,
varied or cancelled without the consent of the Facility Agent (acting
on
the instructions of the Majority Lenders), save (in the case of
arrangements documented by the Hedging Agreements) as permitted by
the
Intercreditor Agreement.
|
|
24.29
|
Cash
Management
|
|
(a)
|
After
the Clean-Up Date
in
respect of the Acquisition, and subject to paragraph (b) below, each
Obligor will use reasonable endeavours to ensure that it shall not,
and
none of its Subsidiaries will, at any time, hold cash in excess of
$30,000,000 (or its equivalent) in aggregate among all Obligors with
any
bank which is not an Approved Bank for more than 3
months.
|
|
(b)
|
No
Obligor shall be obliged at any time to procure that any Subsidiary
transfers any cash under paragraph
(a):
|
|
(i)
|
at
a time when to do so would cause the Obligor or the Subsidiary (despite
that person using all reasonable endeavours to avoid the relevant
Tax
liability) to incur a material Tax liability or to otherwise incur
any
material cost or expense;
|
|
(ii)
|
if
(despite that person using all reasonable efforts to avoid the breach
or
result) to do so would breach:
|
|
(A)
|
any
applicable law or agreement or result in personal liability for the
Obligor or the Subsidiary or any of such person's directors or management;
or
|
|
(B)
|
any
directors or fiduciary duties or any regulatory requirements applicable
to
or agreement binding on the Obligor or the
Subsidiary;
|
|
(iii)
|
if
it involves a Subsidiary in which there is a minority
interest;
or
|
|
(iv)
|
if
it involves an amount which is less than $1,000,000 (or its equivalent)
for each such Subsidiary.
|
|
24.30
|
Information
|
Each
Obligor shall (and the Company
shall procure that each member of the Group will) ensure that any other
information provided to the Finance Parties (other than as contained in the
Information Memorandum and the Reports) is (to the best of its knowledge and
belief having made due and careful enquiries) true and accurate in all material
respects as at the time such information was provided.
116
|
24.31
|
Auditors
|
No
Obligor will change its (and the Parent
will not change the Group's) auditors save to any one of the Big Four
Accountants.
|
24.32
|
Guarantors
|
The
Company shall
ensure that any member of the Group which is a Material Company (other than
a
Material Company incorporated in France) shall, subject to the Security
Principles, become an Additional Guarantor within 20 Business Days of delivery
of the Compliance Certificate for the Annual Financial Statements or 20 Business
Days of its acquisition, as the case may be in accordance with the terms hereof
provided
that
there
will be a grace period of 30 Business Days where such Material Company is
incorporated in a jurisdiction in which no existing Obligor is
incorporated.
The
Company shall ensure that:
|
(i)
|
on
the date falling 90 days after Closing;
and
|
|
(ii)
|
as
at the end of each Financial Year (beginning with the Financial Year
ended
30 June 2009),
|
the
aggregate of the earnings before interest, tax, depreciation and amortisation
(calculated on the same basis as Consolidated EBITDA, mutatis
mutandis)
and
Gross Assets (as applicable) of the Guarantors and each French Guarantor (under
and as defined in the Senior Facilities Agreement) (taking each entity on an
unconsolidated basis and excluding all intra-group items) is no less than 80
per
cent. of the Consolidated EBITDA and Gross Assets (as applicable) of the Group
(the "Guarantor
Coverage").
For
the
purposes of paragraph (i) above, Guarantor Coverage shall be determined by
reference to (for the first test) the consolidated annual accounts of the Group
for the financial year ending 30 June 2008 and (for each test
thereafter) the most recent Annual Financial Statements (or other financial
statements agreed between the Company and the Facility Agent).
|
(b)
|
The
earnings before interest, tax, depreciation and amortisation (calculated
on the same basis as Consolidated EBITDA, mutatis
mutandis)
and Gross Assets (as applicable) of each of Orbis and Jungo and their
respective Subsidiaries shall not be included in the Consolidated
EBITDA
and Gross Assets (as applicable) of the Group for the calculation
of the
Guarantor Coverage.
|
|
(c)
|
In
respect of Orbis or Jungo or any of their respective Subsidiaries,
if on
the date falling 24 Months after
Closing:
|
|
(i)
|
it
is still a wholly-owned member of the Group;
and
|
|
(ii)
|
according
to the Group's most recent Annual Financial Statements, it has EBITDA
and/or Gross Assets on an unconsolidated basis representing 10
per cent. or more of the Consolidated EBITDA or Gross Assets (as
applicable) of the Group,
|
it
shall
accede as a Guarantor and security over its shares shall be granted in favour
of
the Lenders
(but it
shall not be required to grant Security itself) provided
that
if the
Company delivers a certificate to the Facility Agent no later than 3 Business
Day's prior to the date falling 24 Months after Closing (such date being the
"Notice
Date")
that
there is a planned initial public offering of the shares in or disposal of,
Orbis or Jungo or any of their Subsidiaries, the relevant company will not
be
required to accede as a Guarantor and no security over its shares will be
required unless and until it is a wholly-owned member of the Group on the date
falling 6 Months after the Notice Date.
117
|
24.33
|
Consent
to Scheme of Arrangement and Capital
Reduction
|
The
Lenders (as creditors of the Company) hereby give their consent to the Scheme
as
envisaged in the Scheme Documents and the Capital Reduction as detailed in
the
Structure Memorandum.
|
24.34
|
Takeover
undertakings
|
The
Company shall (and from the date on which it becomes an Additional Obligor,
the
Parent will):
|
(a)
|
comply
in all material respects with all laws and regulations relevant in
the
context of the Scheme;
|
|
(b)
|
not
without the consent of the Facility Agent (acting on the instructions
of
the Majority Lenders) agree to amend, waive, revise, withdraw or
agree to
decide not to enforce in whole or in part any material term or material
condition
(including, without limitation, the conditions relating to competition
clearances by the European Commission and pursuant to the Israeli
Restrictive Business Practices Law 5748-1988 listed in Conditions
7 and 8
of Appendix I (Conditions) to the Press Release) of the Scheme where
its
agreement is required for such amendment, waiver, revision, withdrawal
or
decision unless:
|
|
(i)
|
by
failing to so amend, waive, revise, withdraw or agree not to enforce
any
such term or condition the Company or the Parent would be entitled
not to
proceed with the Scheme;
|
|
(ii)
|
the
Panel does not or would not (in each case were it to exercise jurisdiction
over the Company) consent to the Company or the Parent not proceeding
with
the Scheme;
|
|
(iii)
|
it
is to increase the purchase price in accordance with paragraph (e)
below; or
|
|
(iv)
|
in
the case of any material term, it does not materially and adversely
affect
the interests of the Lenders;
|
|
(c)
|
keep
the Facility Agent reasonably informed as to the progress of the
Scheme
and any material developments in relation to the
Scheme;
|
|
(d)
|
promptly
supply to the Facility Agent copies of all documents, notices or
announcements received or issued by it in relation to the Scheme
which it
is permitted to make available to the Facility Agent following its
reasonable request for such
information;
|
|
(e)
|
except
with the prior written consent of the Facility Agent (acting on the
instructions of the Majority Lenders) or if the excess is funded
by way of
Parent
New Equity or Parent Subordinated Debt, not increase and ensure that
there
is no increase in the purchase price payable per share in the Parent
above
that agreed between the Arrangers and the
Parent;
|
118
|
(f)
|
unless
required by any law or regulation (including in respect of the Panel)
were
it to exercise jurisdiction over the Company, the Company must not
make
any statement or announcement (other than the Press Release, the
Scheme
Documents or any required filings by the Parent with the Securities
and
Exchange Commission in respect of the Transaction) containing any
information or statement concerning the Finance Documents or Finance
Parties without the prior approval of the Facility Agent (acting
on the
instructions of the Majority Lenders) (such consent not to be unreasonably
withheld or delayed);
|
|
(g)
|
ensure
that the Parent has been re-registered as a private company prior
to
Closing;
|
|
(h)
|
deliver
evidence that the Second Court Order has been granted and delivered
for
registration to the Registrar of Companies within 15 Business Days
of
Closing; and
|
|
(i)
|
ensure
that the Scheme Documents contain all the material terms of the
Scheme.
|
|
24.35
|
Further
assurance
|
|
(a)
|
Each
Obligor shall (and the Company shall procure that each member of
the Group
will) promptly do all such acts or execute all such documents (including
assignments, transfers, mortgages, charges, notices and instructions)
as
the Security Agent may reasonably specify (and in such form as the
Security Agent may reasonably require in favour of the Security Agent
or
its nominee(s));
|
|
(i)
|
subject
to the Security Principles, to perfect within the time frames set
out
therein the Security created or intended to be created under or evidenced
by the Transaction Security Documents (which may include the execution
of
a mortgage, charge, assignment or other Security over all or any
of the
assets which are, or are intended to be, the subject of the Transaction
Security);
|
|
(ii)
|
for
the exercise of any rights, powers and remedies of the Security Agent
or
the Finance Parties provided by or pursuant to the Finance Documents
or by
law at the times provided; and/or
|
|
(iii)
|
following
the occurrence of a Declared Default to facilitate the realisation
of the
assets which are, or are intended to be, the subject of Security
under the
Transaction Security Documents.
|
|
(b)
|
Subject
to the Security Principles, if any Obligor which has entered into
one or
more Transaction Security Documents acquires a material asset (including
any right, account, investment or otherwise) which is either not
subject
to that Transaction Security Document, or in relation to which a
perfection requirement or other step must be taken in relation to
that
asset in connection with an existing Security Document, that Obligor
shall
(in all cases subject to the Security Principles) ensure that a
Transaction Security Document is entered into, or as required by
the
applicable Transaction Security Document that a similar perfection
requirement or other step is taken, in each case, in connection with
that
asset.
|
119
|
24.36
|
Conditions
subsequent
|
|
(a)
|
For
each Guarantor listed in paragraph 5
of
Schedule
12
(Security
Principles),
the Vendor Loan Note Holder and the VLN Security Trustee, the Company
shall provide as soon as practicable after Closing and in any event
within
90 days of Closing the documents set out in Part II of Schedule 2
(Conditions
Precedent and conditions subsequent)
each in form and substance satisfactory to the Facility Agent (acting
reasonably), to the extent not already so delivered and provided
that such
documents may be delivered within 180 days of Closing with respect
to NDS
Holdings B.V. (to the extent it has not been wound up).
|
|
(b)
|
Subject
to the proviso in paragraph (a) above in respect of Transaction Security
to be granted by NDS Holdings B.V. or over its shares, the Company
shall
procure that, subject to the Security Principles, the Transaction
Security
Documents by which the Transaction Security is granted over the asset
classes of the relevant Guarantors, the Vendor Loan Note Holder and
the
VLN Security Trustee, set out in Part II of Schedule 2 (Conditions
Precedent and conditions subsequent)
together with any other Transaction Security Documents or other documents
requested by the Facility Agent in accordance with the Security
Principles, are delivered to the Facility Agent (in form and substance
satisfactory to the Facility Agent, acting reasonably) as soon as
reasonably practicable and in any event within 90 days of Closing
(unless
such delivery is either waived or the time of delivery extended by
the
Facility Agent (acting on the instructions of the Majority Lenders,
acting
reasonably except in the case of delivery of any of the Transaction
Security Documents, where the Facility Agent shall act on the instructions
of the Super Majority Lenders)).
|
|
(c)
|
If
NDS Holdings B.V. is wound up within such period, the Company shall
provide within 180 days of Closing a share pledge over all of the
shares
in NDS Sweden AB (and any documents agreed to be provided thereunder)
together with legal opinions as to capacity and enforceability and
related
corporate authorisations (including a director's certificate), each
in
form and substance satisfactory to the Facility Agent (acting
reasonably).
|
|
(d)
|
The
Company shall provide within two Business Days of the Scheme Date
executed
versions of the following documents in the form delivered pursuant
to Part
I of Schedule 2 (Conditions
Precedent and conditions subsequent)
(save, in the case of any legal opinion, with any amendments necessary
to
reflect any change in law since the date on which the legal opinion
was
previously delivered) or in such other form and substance satisfactory
to
the Facility Agent (acting
reasonably):
|
|
(i)
|
Vendor
Party Accession Undertaking (as that term is defined in the Intercreditor
Agreement) executed by the Vendor Loan Note Holder (in its capacity
as
such);
|
|
(ii)
|
Vendor
Party Accession Undertaking (as that term is defined in the Intercreditor
Agreement) executed by the VLN Security Trustee (in its capacity
as
such);
|
|
(iii)
|
an
English law assignment by way of security granted by the Vendor Loan
Note
Holder and the VLN Security Trustee in favour of the Security Agent
in
respect of all their respective rights, title, interest and benefit
under
the Vendor Loan Notes, Vendor Loan Note Instrument and VLN
Debentures;
|
120
|
(iv)
|
the
Vendor Documents other than the VLN Pledges (in the case of the VLN
Debentures, each dated on a date after the debentures listed in paragraph
3(b)(i) of Part I of Schedule 2 (Conditions
Precedent and conditions subsequent);
|
|
(v)
|
a
certificate as to the existence and good standing (including verification
of tax status, if available) of the Vendor Loan Note Holder from
the
appropriate governmental authorities in the Vendor Loan Note Holder's
jurisdiction of organisation and in each other jurisdiction where
the
Vendor Loan Note Holder is qualified to do business (if any) and
where the
failure to be so qualified would have a Material Adverse Effect on
the
Vendor Loan Note Holder;
|
|
(vi)
|
a
certificate of an authorised signatory of the Vendor Loan Note Holder
certifying that each copy document relating to it specified in this
paragraph (d) of Clause 24.36 (Conditions
subsequent)
and Part I of Schedule 2 (Conditions
Precedent and conditions subsequent)
are correct, complete and in full force and effect and have not been
amended or superseded and there has not been any breach of guaranteeing
or
borrowing restrictions as at the date of the
Certificate;
|
|
(vii)
|
a
legal opinion by Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special US
counsel to the Vendor Loan Note Holder and the VLN Security Trustee,
with
respect to their respective capacity to enter into the Finance Documents
to which each is party; and
|
|
(viii)
|
a
legal opinion from Linklaters LLP as the legal advisers to the Facility
Agent relating to the Finance Documents to which the Vendor Loan
Note
Holder and the VLN Security Trustee are
party.
|
|
24.37
|
Baskets
|
|
(a)
|
If
in any Financial Year of the Parent (the "Original
Financial Year")
the aggregate amount of the annual basket contained in paragraph
(g)(iv)
of the definition of Permitted Acquisition or paragraph (t) of the
definition of Permitted Disposal originally applied, committed to
be
applied or designated by the board of directors to be applied in
that
Financial Year is less than the basket originally available for that
Financial Year (the difference being referred to as the "Available
Amount"),
then the maximum basket for the immediately following Financial Year
(the
"Carry
Forward Year")
shall be increased by an amount equal to the Available Amount provided
that
the original basket shall be used first and if the Available Amount
is not
used for the relevant basket in that Carry Forward Year, it shall
cease to
be available. In any Carry Forward Year, the original amount of that
basket shall be treated as having been applied before any Available
Amount
carried forward into such Carry Forward Year. The basket for the
next
Financial Year may be carried back to the current Financial Year
with a
corresponding reduction for the next following Financial Year provided
that
in
respect of the annual basket relating to paragraph (g) (iv) of Permitted
Acquisition, only 50 per cent. of the basket may be carried back.
|
|
24.38
|
Anti-Terrorism
Laws
|
| (a) |
No
Obligor shall engage in any transaction that violates any of the
applicable prohibitions set forth in any Anti-Terrorism
Law.
|
| (b) |
None
of the funds or assets of such Obligor that are used to repay the
Facility
shall constitute property of, or shall be beneficially owned directly
or
indirectly by, any Designated Person and (b) no Designated Person
shall
have any direct or indirect interest in such Obligor that would constitute
a violation of any Anti-Terrorism
Laws.
|
121
| (c) |
No
Obligor shall, and each Obligor shall procure that none of its
Subsidiaries will, fund all or part of any payment under this Agreement
out of proceeds derived from transactions that violate the prohibitions
set forth in any Anti-Terrorism
Law.
|
|
24.39
|
US
Regulation
|
Each
Obligor shall ensure that it will not, by act or omission, become subject to
regulation under any of the laws or regulations:
|
(a)
|
applicable
to a "public utility" within the meaning of, or subject to regulation
under, the United States Federal Power Act of 1920 (16 USC §§791
et seq); and
|
|
(b)
|
applicable
to an "investment company" or a company "controlled" by an "investment
company" within the meaning of the United States Investment Company
Act of
1940 (15 USC. §§
80a-1 et seq.) or subject to regulation under any United States federal
or
state law or regulation that limits its ability to incur or guarantee
indebtedness.
|
|
24.40
|
Margin
Regulations
|
| (a) |
Each
US Obligor shall (and the Company shall ensure that each US Obligor
shall)
use the proceeds of the Loans without violating Regulation U or X
or any
applicable US federal or state laws or
regulations.
|
| (b) |
If
requested by the Facility Agent, each US Borrower shall furnish to
the
Facility Agent a statement in conformity with the requirements of
FR Form
U-1 referred to in Regulation U.
|
|
24.41
|
ERISA
|
Each
Obligor shall:
| (a) |
ensure
that neither it nor any ERISA Affiliate engages in a complete or
partial
withdrawal, within the meaning of Sections 4203 and 4205 of ERISA,
from
any Multiemployer Plan without the prior consent of the Majority
Lenders;
|
| (b) |
ensure
that any material liability imposed on it or any ERISA Affiliate
pursuant
to Title IV of ERISA is paid and discharged when
due;
|
| (c) |
ensure
that neither it nor any ERISA Affiliate adopts an amendment to an
Employee
Plan requiring the provision of security under ERISA or the Internal
Revenue Code without the prior consent of the Majority Lenders;
and
|
| (d) |
ensure
that no Employee Plan is terminated under Section 4041 of
ERISA.
|
|
24.42
|
Intercompany
Loan
|
The
Company shall procure that the loan made by the Parent to NDS Limited (in the
amount of $327,000,000), as disclosed to the Facility Agent prior to the date
of
this Agreement, is cancelled in full prior to Closing.
122
|
24.43
|
Parent
company guarantees, indemnities and
counter-indemnities
|
Where
any
third-party requests a parent company guarantee, indemnity or counter-indemnity
after the date of this Agreement the Parent shall use reasonable endeavours
to
procure that that guarantee, indemnity or counter-indemnity is granted by the
Company and not by the Parent.
|
24.44
|
Redundant
Security
|
Each
Obligor shall (and the Company shall procure that each member of the Group
will)
use reasonable endeavours to discharge and release any Security which does
not
secure any outstanding actual or contingent obligation promptly upon becoming
aware of the same.
|
25.
|
EVENTS
OF
DEFAULT
|
Each
of
the events or circumstances set out in this
Clause 25
is an
Event of Default.
|
25.1
|
Non-payment
|
An
Obligor does not pay on the due date any amount payable pursuant to a Finance
Document at the place at and in the currency in which it is expressed to be
payable unless:
|
(a)
|
if
failure to pay is caused by an administrative or technical error
in the
case of principal and interest, payment is made within three Business
Days
of its due date; and
|
|
(b)
|
in
the case of any other amount, payment is made within five Business
Days of
its due date.
|
|
25.2
|
Financial
covenants
|
Subject
to paragraph (e) of Clause 1.2
(Construction),
any
requirement of Clause 23
(Financial
Covenants)
is not
satisfied.
|
25.3
|
Other
obligations
|
|
(a)
|
An
Obligor or
the Vendor Loan Note Holder or the VLN Security Trustee does not
comply
with any provision of the Finance Documents (other than those referred
to
in Clause 25.1
(Non-payment)
and Clause 25.2
(Financial
covenants)).
|
|
(b)
|
No
Event of Default under paragraph (a) above (other than with respect
to
non-compliance with Clause 24.36
(Conditions
subsequent))
will occur if the failure to comply is capable of remedy and is remedied
within 20 Business Days of the earlier of the Facility Agent giving
written notice to the Company or the Company becoming aware of the
failure
to comply.
|
|
25.4
|
Misrepresentation
|
|
(a)
|
Any
representation or statement made or deemed to be made by an
Obligor
or
the Vendor Loan Note Holder or the VLN Security Trustee in the Finance
Documents or any other document delivered by or on behalf of any
Obligor
under or in connection with any Finance Document is or proves to
have been
incorrect or misleading when made or deemed to be
made.
|
|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure
to
comply is capable of remedy and is remedied within 20 Business Days
of the
earlier of the Facility Agent giving written notice to the Company
or the
Company becoming aware of the failure to
comply.
|
|
25.5
|
Cross
default
|
|
(a)
|
Any
Financial Indebtedness of any member of the Group is not paid when
due nor
within any originally applicable grace
period.
|
123
|
(b)
|
Any
Financial Indebtedness of any member of the Group is declared to
be or
otherwise becomes due and payable prior to its specified maturity
as a
result of an event of default (however
described).
|
|
(c)
|
Any
commitment for any Financial Indebtedness of any member of the
Group
is
cancelled or suspended by a creditor of any member of the Group as
a
result of an event of default (however
described).
|
|
(d)
|
Any
creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group due and payable
prior to
its specified maturity as a result of an event of default (however
described).
|
|
(e)
|
No
Event of Default will occur under this Clause 25.5
if
the aggregate amount of Financial Indebtedness or commitment for
Financial
Indebtedness falling within paragraphs (a) to (d) above is less than
$10,000,000 (or its equivalent).
|
|
(f)
|
No
Event of Default will occur under this Clause 25.5
solely as a result of an Event of Default (as defined in the Senior
Facilities Agreement) under Clause 30.2 (Financial
covenants)
of the Senior Facilities Agreement.
|
For
the
purpose of this Clause 25.5,
Financial Indebtedness shall not include Financial Indebtedness incurred under
the Company Subordinated Debt, the Parent Subordinated Debt, any loans made
by
one member of the Group to another member of the Group or any Financial
Indebtedness supported by a Letter of Credit issued under the Revolving Facility
or by a similar instrument issued pursuant to an Ancillary Facility or Fronted
Ancillary Facility and, prior to the VLN Long-stop Date, the Vendor
Documents.
|
25.6
|
Insolvency
|
A
Material Company is unable to pay (but not deemed unable to pay pursuant to
any
applicable law) or admits its inability to pay its debts as they fall due,
suspends or threatens to suspend making payments on any of its debts or, by
reason of actual or anticipated financial difficulties, commences negotiations
with one or more of its creditors with a view to a general rescheduling of
any
of its indebtedness.
|
25.7
|
Insolvency
proceedings
|
|
(a)
|
Any
corporate
action, legal proceedings or other formal procedure or formal step
is
taken in relation to:
|
|
(i)
|
the
suspension of payments
(including emergency regulations (noodregeling)),
a moratorium of any indebtedness, winding-up, dissolution, administration
or reorganisation (by way of voluntary arrangement, scheme of arrangement
or otherwise) of any Material Company other than a solvent liquidation
or
reorganisation of any member of the Group which does not materially
and
adversely affect the interests of the
Lenders;
|
|
(ii)
|
a
composition or assignment or arrangement or compromise (whether court
approved or otherwise) with any creditor of any Material Company
for
reasons of financial difficulty of the Material
Company;
|
124
|
(iii)
|
the
appointment of a liquidator (other than in respect of a solvent
liquidation of a member of the Group which is not an Obligor), receiver,
administrative receiver, interim receiver, administrator, compulsory
manager or other similar officer in respect of any Material Company
or any
of its assets; or
|
|
(iv)
|
any
analogous procedure or step is taken in any
jurisdiction.
|
|
(b)
|
Paragraph
(a) above shall not apply to:
|
|
(i)
|
any
proceedings which are contested in good faith and discharged, stayed
or
dismissed within 20 Business Days of commencement;
or
|
|
(ii)
|
any
step or procedure contemplated by paragraph (b) of the definition
of
Permitted Transaction.
|
|
(c)
|
Any
US Obligor:
|
|
(i)
|
applies
for, or consents to, the appointment of, or the taking of possession
by, a
receiver, custodian, trustee, examiner or liquidator of itself or
of all
or a substantial part of its
property;
|
|
(ii)
|
makes
a general assignment for the benefit of its
creditors;
|
|
(iii)
|
commences
a voluntary case under US Bankruptcy
Law;
|
|
(iv)
|
files
a petition with respect to itself seeking to take advantage of any
other
law relating to bankruptcy, insolvency, reorganisation, liquidation,
dissolution, arrangement or winding up, or composition or readjustment
of
debts;
|
|
(v)
|
takes
any corporate action for the purpose of effecting any of the foregoing
with respect to itself;
|
|
(vi)
|
is
unable or admits inability to pay its debts as they fall due, suspends
making payments on any of its debts or, by reason of actual or anticipated
financial difficulties; or
|
|
(vii)
|
is
the subject of involuntary proceedings under US Bankruptcy Law which
have
not been contested and discharged, stayed or dismissed within 20
Business
Days of commencement.
|
|
(d)
|
Paragraph
(c) above shall not apply to any step or procedure contemplated by
paragraph (b) of the definition of Permitted
Transaction.
|
|
25.8
|
Creditors'
process
|
Any
expropriation, attachment, sequestration, distress or execution or any analogous
process in any jurisdiction affects any asset or assets of a Material Company
exceeding an aggregate value of $10,000,000 (or its equivalent) unless such
process is either being contested in good faith and/or shown as frivolous or
vexatious and is discharged within 20 Business Days after
commencement.
|
25.9
|
Unlawfulness
and invalidity
|
|
(a)
|
It
is or becomes unlawful for an Obligor or
the Vendor Loan Note Holder or the VLN Security Trustee to perform
any of
its material obligations under the Finance Documents or any Transaction
Security created or expressed to be created or evidenced by the
Transaction Security Documents ceases to be effective and this
individually or cumulatively materially and adversely affects the
interests of the Lenders taken as a whole under the Finance
Documents.
|
125
|
(b)
|
Any
material obligation or obligations of any Obligor or the Vendor Loan
Note
Holder or the VLN Security Trustee under any Finance Documents are
not
(subject to the Reservations and Perfection Requirements) or cease
to be
legal, valid, binding or enforceable and the cessation individually
or
cumulatively materially and adversely effects the interests of the
Lenders
taken as a whole under the Finance
Documents.
|
|
(c)
|
No
Event of Default under paragraphs (a) and (b) above will occur if
the
issue is capable of being remedied and is remedied within 20 Business
Days
of the earlier of the Company becoming aware of the issue or being
given
written notice of the issue by the Facility
Agent.
|
|
25.10
|
Intercreditor
Agreement
|
|
(a)
|
Any
party (other than a Finance Party,
as defined in this Agreement and the Senior Facilities Agreement)
fails to
comply with the provisions of, or does not perform its obligations
under,
the Intercreditor Agreement; or
|
|
(b)
|
a
representation or warranty given by that party in the Intercreditor
Agreement is incorrect in any material
respect,
|
and,
if
the non-compliance or circumstances giving rise to the misrepresentation are
capable of remedy, it is not remedied within 20 Business Days of the earlier
of
the Facility Agent giving written notice to that party or that party becoming
aware of the non-compliance or misrepresentation.
|
25.11
|
Cessation
of business
|
The
Group
taken as a whole suspends or ceases to carry on (or threatens to suspend or
cease to carry on) all or a material part of its business.
|
25.12
|
Audit
qualification
|
The
Auditors of the Group qualify the audited annual consolidated financial
statements of the Parent in a way which has a Material Adverse
Effect.
|
25.13
|
Repudiation
and rescission of
agreements
|
An
Obligor or
the
Vendor Loan Note Holder or the VLN Security Trustee rescinds or purports to
rescind or repudiates or purports to repudiate a Finance Document or evidences
an intention to rescind or repudiate a Finance Document in any way which is
materially adverse to the interest of the Lenders under that Finance Document
taken as a whole.
|
25.14
|
Litigation
|
An
Obligor is party to any litigation which is reasonably expected to be adversely
determined (taking into account any bona fide right of appeal of the relevant
member of the Group, as supported by an opinion from legal counsel acting for
that member of the Group in such litigation), and if so adversely determined,
would have a Material Adverse Effect.
|
25.15
|
Expropriation
|
The
shares or any material part of the assets of an
Obligor
is the subject of a seizure, compulsory acquisition, nationalisation or an
expropriation having a Material Adverse Effect.
126
|
25.16
|
Judgments
|
An
Obligor has an unsatisfied
judgment against it which would have a Material Adverse Effect.
|
25.17
|
Material
adverse change
|
Any
event
or circumstance occurs which has a Material Adverse Effect.
|
25.18
|
Scheme
not effective
|
The
Scheme does not become effective on or before the day falling 14 days after
Closing.
|
25.19
|
ERISA
|
Any
of
the following events results in the imposition of or granting of security,
or
the incurring of a liability or a material risk of incurring a liability, which
in either case, individually and/or in the aggregate, has or could reasonably
be
expected to have a Material Adverse Effect:
|
(a)
|
any
ERISA Event occurs or is reasonably expected to
occur;
|
|
(b)
|
any
Obligor or ERISA Affiliate incurs or is likely to incur a liability
to or
on account of a Multiemployer Plan as a result of a violation of
Section
515 of ERISA or under Section 4201, 4204 or 4212(c) of
ERISA;
|
|
(c)
|
with
respect to any Employee Plan subject to Title IV of ERISA, the present
value of the "benefit liabilities" (within the meaning of Section
4001(a)(16) of ERISA) under that Employee Plan exceeds the fair market
value of the assets of such plan using the actuarial assumptions
and
methods used by the actuary to that Employee Plan in its most recent
valuation of that Employee Plan; or
|
|
(d)
|
any
Obligor or ERISA Affiliate incurs or is likely to incur a liability
to or
on account of an Employee Plan under Section 409, 502(i) or 502(l)
of
ERISA or Section 401(a)(29), 4971 or 4975 of the Internal Revenue
Code.
|
|
25.20
|
Ownership
of the Company
|
The
Company is not or ceases to be a direct and wholly-owned Subsidiary of the
Parent.
|
25.21
|
Acceleration
|
|
(a)
|
Subject
to Clause 4.4
(Certain
Funds)
on and at any time after the occurrence of an Event of Default which
is
continuing, other than an Event of Default referred to in paragraph
(b)
below, the Facility Agent may, and shall if so directed by the Majority
Lenders, by notice to the Company:
|
|
(i)
|
cancel
the Total Commitments and/or
Fronting Ancillary Commitments at which time they shall immediately
be
cancelled;
|
|
(ii)
|
declare
that all or part of the Utilisations, together with accrued interest,
and
all other amounts accrued or outstanding under the Finance Documents
be
immediately due and payable, at which time they shall become immediately
due and payable;
|
|
(iii)
|
declare
that all or part of the Utilisations be payable on demand, at which
time
they shall immediately become payable on demand by the Facility Agent
on
the instructions of the Majority Lenders;
and/or
|
|
(iv)
|
exercise
or direct the Security Agent to exercise any or all of its rights,
remedies, powers or discretions under the Finance
Documents.
|
127
|
(b)
|
If
an Event of Default occurs under Clause 25.7 (Insolvency
proceedings)
in relation to any US Borrower:
|
|
(i)
|
the
Total Commitments shall immediately be cancelled; and
|
|
(ii)
|
all
of the Loans, together with accrued interest, and all other amounts
accrued under the Finance Documents shall be immediately due and
payable;
|
|
(iii)
|
in
each case automatically and without any direction, notice, declaration
or
other act.
|
|
25.22
|
Clean-Up
Period
|
|
(a)
|
Notwithstanding
any other provision of any Finance Document, any Event of Default
constituting a Clean-Up Default shall only apply if it is continuing
at
any time after the applicable
Clean-Up Date.
|
|
(b)
|
For
the avoidance of doubt, no Clean-Up Period shall apply to any Event
of
Default arising under Clause 24.36
(Conditions
subsequent).
|
|
25.23
|
Exchange
Rate Fluctuations
|
When
applying baskets, thresholds and other exceptions to the representations and
warranties, undertakings and Events of Default (but, for the avoidance of doubt,
excluding the financial undertakings in Clause 23
(Financial
Covenants))
under
this Agreement, the equivalent to an amount in dollars shall be calculated as at
the date of the Group incurring or making the relevant disposal, acquisition,
investment, lease, loan, debt or guarantee or taking other relevant action.
No
Event of Default or breach of any representation and warranty or undertaking
shall arise merely as a result of a subsequent change in the dollar equivalent
of any relevant amount due to fluctuations in exchange rates.
128
SECTION
9
CHANGES
TO PARTIES
|
26.
|
CHANGES
TO THE
LENDERS
|
|
26.1
|
Assignments
and transfers by the
Lenders
|
Subject
to this Clause 26,
a
Lender (the "Existing
Lender")
may:
|
(a)
|
assign
any of its rights; or
|
|
(b)
|
transfer
by novation any of its rights and
obligations,
|
under
any
Finance Document to another bank or financial institution or to a trust, fund
or
other entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial assets
(the "New
Lender").
The
Facility Agent shall maintain a book-entry transfer register (the "Register")
solely
in this capacity as Facility Agent for the Borrowers for the purposes of all
assignments or transfers made pursuant to this Clause 26
and
shall provide a copy of the Register to the Company at six monthly intervals
starting from the date of this Agreement and otherwise as requested by the
Company.
|
26.2
|
Conditions
of assignment or transfer
|
|
(a)
|
On
or before the earlier of Closing and the Syndication Date, the consent
of
the Company
is required for any transfer, assignment or sub-participation (which
transfers any discretion with regard to the exercise of voting rights)
by
an Existing Lender other than a transfer to an entity contained on
the
list agreed between the Company and the Arranger (the "Agreed
List").
|
|
(b)
|
After
Closing, the Company must be consulted before any transfer, assignment
or
sub-participation (which transfers any discretion with regard to
the
exercise of voting rights) by an Existing Lender, unless the transfer,
assignment or sub-participation is
to:
|
|
(i)
|
a
Lender selected from the Agreed
List;
|
|
(ii)
|
another
Lender or an Affiliate of a Lender;
or
|
|
(iii)
|
a
fund within the same investor group as and under common management
with
the fund which is the Existing
Lender,
|
provided
that,
if an
Event of Default is continuing no consultation with the Company shall be
required.
|
(c)
|
The
Company
must be provided with a copy of each document evidencing any such
transfer, assignment or sub-participation promptly after its execution
(except in the case of a sub-participation where no discretion with
regard
to voting rights is transferred).
|
|
(d)
|
Each
assignment or transfer of any Lender's participation shall be in
aggregate
in a minimum amount of $1,000,000 (or its equivalent) and shall not
result
in a Lender (together with its Affiliates, or, in respect of funds,
funds
belonging to the same investor group) participating with an amount
of less
than $2,000,000 (or its equivalent) in the Commitments or Utilisations
made under this Agreement.
|
129
|
(e)
|
An
assignment will only be effective
on:
|
|
(i)
|
receipt
by the Facility Agent of written confirmation from the New Lender
(in form
and substance satisfactory to the Facility Agent) that the New Lender
will
assume the same obligations to the other Finance Parties and the
other
Secured Parties as it would have been under if it was an Existing
Lender;
|
|
(ii)
|
the
New Lender entering into the documentation required for it to accede
as a
party to the Intercreditor Agreement;
and
|
|
(iii)
|
the
performance by the Facility Agent of all "know your customer" or
other
checks relating to any person that it is required to carry out in
relation
to such assignment to a New Lender, the completion of which the Facility
Agent shall promptly notify to the Existing Lender and the New
Lender.
|
|
(f)
|
A
transfer will only be effective if the New Lender enters into the
documentation required for it to accede as a party to the Intercreditor
Agreement and if the procedure set out in Clause 26.5
(Procedure
for transfer)
is complied with.
|
|
(g)
|
If:
|
|
(i)
|
a
Lender assigns or transfers any of its rights or obligations under
the
Finance Documents or changes its Facility Office;
and
|
|
(ii)
|
as
a result of circumstances existing at the date the assignment, transfer
or
change occurs, an Obligor would be obliged to make a payment to the
New
Lender or Lender acting through its new Facility Office under Clause
15
(Tax
Gross-Up and Indemnities)
or Clause 16
(Increased
Costs),
|
then
the
New Lender or Lender acting through its new Facility Office is only entitled to
receive payment under those Clauses to the same extent as the Existing Lender
or
Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
|
26.3
|
Assignment
or transfer fee
|
Unless
the Facility Agent otherwise agrees and excluding an assignment or transfer
to
an Affiliate of a Lender or made in connection with primary syndication of
the
Facilities, the New Lender shall, on the date upon which an assignment or
transfer takes effect, pay to the Facility Agent (for its own account) a fee
of
$2,500.
|
26.4
|
Limitation
of responsibility of Existing
Lenders
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender
for:
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of
the
Transaction Documents, the Transaction Security or any other
documents;
|
|
(ii)
|
the
financial condition of any Obligor;
|
|
(iii)
|
the
performance
and observance by any Obligor or any other member of the Group of
its
obligations under the Transaction Documents or any other documents;
or
|
130
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Transaction Document or any other
document,
|
and
any
representations or warranties implied by law are excluded.
|
(b)
|
Each
New Lender confirms to the Existing Lender, the other Finance Parties
and
the Secured Parties that it:
|
|
(i)
|
has
made (and shall continue to make) its own independent investigation
and
assessment of the financial condition and affairs of each Obligor
and its
related entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it
by the
Existing Lender or any other Finance Party in connection with any
Transaction Document or the Transaction Security;
and
|
|
(ii)
|
will
continue to make its own independent appraisal of the creditworthiness
of
each Obligor and its related entities whilst any amount is or may
be
outstanding under the Finance Documents or any Commitment is in
force.
|
|
(c)
|
Nothing
in any Finance Document obliges an Existing Lender
to:
|
|
(i)
|
accept
a re-transfer or re-assignment from a New Lender of any of the rights
and
obligations assigned or transferred
under this Clause 26;
or
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason
of
the non-performance by any Obligor of its obligations under the
Transaction Documents or otherwise.
|
|
26.5
|
Procedure
for transfer
|
|
(a)
|
Subject
to the conditions set out in Clause 26.2
(Conditions
of assignment or transfer)
a
transfer is effected in accordance with paragraph (c) below when
the
Facility Agent executes an otherwise duly completed Transfer Certificate
and Lender Accession Undertaking delivered to it by the Existing
Lender
and the New Lender. The Facility Agent shall, subject to paragraph
(b)
below, as soon as reasonably practicable after receipt by it of a
duly
completed Transfer Certificate and Lender Accession Undertaking appearing
on its face to comply with the terms of this Agreement and delivered
in
accordance with the terms of this Agreement, execute that Transfer
Certificate and Lender Accession
Undertaking.
|
|
(b)
|
The
Facility Agent shall only be obliged to execute a Transfer Certificate
and
Lender Accession Undertaking delivered to it by the Existing Lender
and
the New Lender once it is satisfied it has complied with all necessary
"know your customer" or similar other checks under all applicable
laws and
regulations in relation to the transfer to such New
Lender.
|
|
(c)
|
On
the Transfer Date:
|
|
(i)
|
to
the extent that in the Transfer Certificate and Lender Accession
Undertaking the Existing Lender seeks to transfer by novation its
rights
and obligations under the Finance Documents and in respect of the
Transaction Security each of the Obligors and other members of the
Group
party to any Finance Document or the Transaction Security and the
Existing
Lender shall be released from further obligations towards one another
under the Finance Documents and in respect of the Transaction Security
and
their respective rights against one another under the Finance Documents
and in respect of the Transaction Security shall be cancelled (being
the
"Discharged
Rights and Obligations");
|
131
|
(ii)
|
each
of the Obligors and other members of the Group party to any Finance
Document and the New Lender shall assume obligations towards one
another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor or other member
of the
Group and the New Lender have assumed and/or acquired the same in
place of
that Obligor and the Existing
Lender;
|
|
(iii)
|
the
Facility Agent, the Arranger, the Security Agent, the New Lender
and the
other Lenders shall acquire the same rights and assume the same
obligations between themselves and in respect of the Transaction
Security
as they would have acquired and assumed had the New Lender been an
Original Lender with the rights, and/or obligations acquired or assumed
by
it as a result of the transfer and to that extent the Facility Agent,
the
Arranger and the Security Agent shall each be released from further
obligations to each other under the Finance Documents;
and
|
|
(iv)
|
the
New Lender shall become a Party as a "Lender".
|
|
26.6
|
Copy
of Transfer Certificate and Lender Accession Undertaking to
Company
|
The
Facility Agent shall, as soon as reasonably practicable after it has executed
a
Transfer Certificate and Lender Accession
Undertaking, send to the Company a copy of that Transfer Certificate and Lender
Accession Undertaking.
|
26.7
|
Transfer
to Group Company
|
No
member
of the Group may buy, purchase, repurchase or defease any
amount
of any of the Facility or otherwise enter into any other arrangements having
a
similar effect including (for the avoidance of doubt) sub-participations,
derivative arrangements or synthetic arrangements.
|
26.8
|
Disclosure
of information
|
|
(a)
|
Any
Lender may disclose to any of its Affiliates and any other
person:
|
|
(i)
|
to
(or through) whom that Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under
the
Finance Documents;
|
|
(ii)
|
with
(or through) whom that Lender enters into (or may potentially enter
into)
any sub-participation in relation to, or any other transaction under
which
payments are to be made by reference to, the Finance Documents or
any
Obligor;
|
|
(iii)
|
to
whom, and to the extent that, information is required to be disclosed
by
any applicable law or regulation;
or
|
|
(iv)
|
for
whose benefit that Lender creates Security (or may do so) pursuant
to
Clause 26.10
(Security
Interests over Lenders' rights);
and
|
|
(b)
|
any
Finance Party may disclose to a rating agency or its professional
advisers, or (with the consent of the Company)
any other person,
|
|
(i)
|
any
information about any Obligor or the Group it has received from the
Obligors under this Agreement and the Finance Documents as that Lender
or
other Finance Party shall consider appropriate if, in relation to
paragraphs (a)(i), (a)(ii) and (a)(iv) above, the person to whom
the
information is to be given has entered into a Confidentiality
Undertaking.
|
132
|
(ii)
|
Any
Confidentiality Undertaking signed by a Finance Party pursuant to
this
Clause 26.8
shall supersede any prior confidentiality undertaking signed by such
Finance Party for the benefit of any member of the
Group.
|
|
(iii)
|
Each
Lender shall, promptly upon its request, provide the Company with
a copy
of each Confidentiality Undertaking (and any amendment thereto) except
in
the case of a sub-participation where no discretion with regard to
voting
rights is transferred.
|
|
26.9
|
Affiliates
of Lenders as Hedge
Counterparties
|
|
(a)
|
An
Affiliate of a Lender which becomes a Hedge Counterparty shall accede
to
this Agreement and to the Intercreditor Agreement by delivery to
the
Security
Agent of a duly completed accession undertaking in the form required
under
the Intercreditor Agreement.
|
|
(b)
|
Where
this Agreement or any other Finance Document imposes an obligation
on a
Hedge Counterparty and the relevant Hedge Counterparty is an Affiliate
of
a Lender and is not a party to that document, the relevant Lender
shall
ensure that the obligation is performed by its
Affiliate.
|
|
26.10
|
Security
Interests over Lenders'
rights
|
In
addition to the other rights provided to Lenders under this Clause 26,
each
Lender may, at any time create Security in or over (whether by way of collateral
or otherwise) all or any of its rights under any Finance Document to secure
obligations of that Lender including, without limitation:
|
(a)
|
any
Security to secure obligations to a federal reserve or central bank;
and
|
|
(b)
|
in
the case of any Lender which is a fund, any Security granted to any
holders (or trustee or representatives of holders) of obligations
owed, or
securities issued, by that Lender as security for those obligations
or
securities,
|
except
that no such Security shall:
|
(ii)
|
release
a Lender from any of its obligations under the Finance Documents
or
substitute the beneficiary of the relevant Security for the Lender
as a
party to any of the Finance Documents;
or
|
|
(iii)
|
require
any payments to be made by an Obligor or grant to any person any
more
extensive rights than those required to be made or granted to the
relevant
Lender under the Finance Documents.
|
|
26.11
|
Replacement
of Lenders
|
If
at any
time any Lender becomes an Affected Lender or Non-Consenting Lender
then the Company may, on 10 Business Days' prior written notice to the Facility
Agent and that Lender (unless the Company and the Facility Agent agree to a
longer time period in relation to any request) replace that Lender by causing
it
to (and that Lender shall by execution of a Lender and Accession Undertaking
within that 5 Business Days' period) transfer all of its rights and obligations
under this Agreement to a Lender or other entity designated by the Company
(other than a member of the Group) for a purchase price equal to that Lender's
participations in the Loans then outstanding, in either case with all accrued
interests, fees and other amounts payable to that Lender under this
Agreement.
133
For
the
purposes of this Clause 26.11:
"Affected
Lender"
means a
Lender in respect of which a Borrower or the Company is at that time entitled
to
serve a notice under Clause 8.4
(Right
of cancellation and prepayment in relation to a single Lender)
or
whose rights and obligations under this Agreement would, but for this Clause
26.11
(Replacement
of Lenders)
be
cancelled pursuant to Clauses 8.1
(Illegality);
and
"Non-Consenting
Lender"
means
any Lender which does not agree to consent to any waiver or amendment of any
provision of the Finance Documents which has been requested by the Company
or
any other Obligor where the requested amendment or waiver has been approved
by
the Majority Lenders and requires the consent of more than the Majority
Lenders.
|
27.
|
CHANGES
TO THE
OBLIGORS
|
|
27.1
|
Assignment
and transfers by Obligors
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
|
27.2
|
Additional
Borrowers
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (c) and (d) of Clause
22.9
("Know
your customer" checks),
the Company may request that any of its Subsidiaries becomes an Additional
Borrower. That Subsidiary shall become an Additional Borrower
if:
|
|
(i)
|
Either
(A) that Subsidiary is incorporated in the same jurisdiction as another
Borrower under the Facility or in another Pre-Approved Jurisdiction
or (B)
the Lenders under the Facility (acting reasonably) approve the addition
of
that Subsidiary for the purposes of the Facility;
and
|
|
(ii)
|
the
Company and that Subsidiary deliver to the Facility Agent a duly
completed
and executed Accession Letter;
|
|
(iii)
|
the
Subsidiary is (or becomes) a Guarantor prior to becoming a
Borrower;
|
|
(iv)
|
the
Company confirms that no Default is continuing or would occur as
a result
of that Subsidiary becoming an Additional Borrower;
and
|
|
(v)
|
the
Facility Agent has received all of the documents and other evidence
listed
in Part III of Schedule 2 (Conditions
Precedent and conditions subsequent)
in relation to that Additional Borrower, each in form and substance
satisfactory to the Facility Agent.
|
|
(b)
|
The
Facility Agent shall notify the Company
and the Lenders promptly upon being satisfied that it has received
(in
form and substance satisfactory to it) all the documents and other
evidence listed in Part III of Schedule 2 (Conditions
Precedent and conditions subsequent).]
|
|
27.3
|
Resignation
of a Borrower
|
|
(a)
|
In
this Clause 27.3,
Clause 27.5
(Resignation
of a Guarantor)
and Clause 27.7
(Resignation
and release of Security on disposal),
"Third
Party Disposal"
means the disposal (including by way of an IPO) of an Obligor to
a person
which is not a member of the Group or an IPO of an Obligor where
that
disposal or IPO is permitted under Clause 24.13
(Disposals)
or made with the approval of the Majority Lenders.
|
134
|
(b)
|
The
Company may request that any Borrower ceases to be a Borrower by
delivering to the Facility Agent a Resignation
Letter.
|
|
(c)
|
The
Facility Agent shall accept a Resignation Letter and notify the Company
and the other Finance Parties of its acceptance if:
|
|
(i)
|
the
Company
has confirmed that no Event of Default is continuing or would result
from
the acceptance of the Resignation
Letter;
|
|
(ii)
|
the
Borrower is under no actual or contingent obligations as a Borrower
under
any Finance Documents;
|
|
(iii)
|
where
the Borrower is also a Material Company, it ceases to be a Borrower
in
connection with a Third Party Disposal; and
|
|
(iv)
|
the
Company has confirmed that it shall ensure that any relevant Disposal
Proceeds will be applied in accordance with Clause 9.3
(Application
of mandatory prepayments).
|
|
(d)
|
Upon
notification by the Facility Agent to the Company
of its acceptance of the resignation of a Borrower, that company
shall
cease to be a Borrower and shall have no further rights or obligations
under the Finance Documents as a
Borrower.
|
|
(e)
|
The
consent of all Lenders will be required for any resignation of the
Company.
|
|
27.4
|
Additional
Guarantors
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (c) and (d) of Clause
22.9
("Know
your customer" checks),
the Company may request that any of its Subsidiaries and the Parent
become
an Additional Guarantor.
|
|
(b)
|
A
member of the Group shall become an Additional Guarantor
if:
|
|
(i)
|
the
Company
and the proposed Additional Guarantor deliver to the Facility Agent
a duly
completed and executed Accession Letter;
|
|
(ii)
|
the
Facility Agent has received all of the documents and other evidence
listed
in Part III of Schedule 2 (Conditions
Precedent and conditions subsequent)
in relation to that Additional Guarantor, each in form and substance
satisfactory to the Facility Agent (acting reasonably and on the
instructions of the Majority Lenders except in the case of a waiver
of
delivery of any of the Transaction Security Documents, where the
Facility
Agent shall act on the instructions of the Super Majority Lenders);
and
|
|
(iii)
|
it
grants security in accordance with the Security
Principles.
|
|
(c)
|
The
Facility Agent shall notify the Company
and the Lenders promptly upon being satisfied that it has received
(in
form and substance satisfactory to it) all the documents and other
evidence listed in Part III of Schedule 2 (Conditions
Precedent and conditions subsequent).
|
|
27.5
|
Resignation
of a Guarantor
|
|
(a)
|
The
Company
may request that a Guarantor ceases to be a Guarantor by delivering
to the
Facility Agent a Resignation Letter
if:
|
135
|
(i)
|
that
Guarantor is being disposed of by way of a Third Party Disposal and
the
Company
has confirmed this is the case; and
|
|
(ii)
|
Guarantor
Coverage is, taking into account the resignation of the relevant
Guarantor, still met; or
|
|
(iii)
|
the
Super Majority Lenders have consented to the resignation of that
Guarantor.
|
|
(b)
|
The
Facility Agent shall accept a Resignation Letter and notify the
Company
and the Lenders of its acceptance if, either it is a Guarantor forming
all
or part of the Non-Core Business or forming all or any part of the
Jungo
Business, the Jungo Tools Business, the Hugo IP Business or the shares
in
the capital of Jungo or, in any other case:
|
|
(i)
|
the
Company
has confirmed that no Event of Default is continuing or would result
from
the acceptance of the Resignation
Letter;
|
|
(ii)
|
no
payment is due from the Guarantor under Clause 20.1
(Guarantee
and indemnity);
|
|
(iii)
|
where
the Guarantor is also a Borrower, it is under no actual or contingent
obligations as a Borrower and has resigned and ceased to be a Borrower
under Clause 27.3
(Resignation
of a Borrower);
and
|
|
(iv)
|
if
the Guarantor ceases to be a Guarantor in connection with a Third
Party
Disposal, the Company has confirmed that it shall ensure that the
Disposal
Proceeds will be applied, in accordance with Clause 9.3 (Application
of mandatory prepayments).
|
|
(c)
|
The
consent of all the Lenders will be required for any resignation by
the
Parent or the Company.
|
|
27.6
|
Repetition
of Representations
|
Delivery
of an Accession letter constitutes confirmation by the relevant Subsidiary
that
the representations and warranties referred to in paragraph (a)(i) of Clause
21.24
(Times
when representations made)
are
true and correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
|
27.7
|
Resignation
and release of Security on
disposal
|
|
(a)
|
If
a Borrower or Guarantor is or is proposed to be the subject of a
Third
Party Disposal then:
|
|
(i)
|
where
that Borrower or Guarantor created Transaction Security over any
of its
assets or business in favour of the Security
Agent, or Transaction Security in favour of the Security Agent was
created
over the shares (or equivalent) of that Borrower or Guarantor, the
Security Agent shall, subject to paragraph (d) below, at the cost
and
request of the Company, release those assets, business or shares
(or
equivalent) and issue (where applicable) certificates of
non-crystallisation;
|
|
(ii)
|
the
Security Agent shall, on behalf of all the Finance Parties, waive
all
claims (actual or contingent) against that Borrower or Guarantor
under the
Finance Documents;
|
|
(iii)
|
the
resignation of that Borrower or Guarantor and related release of
Transaction Security and waiver of claims referred to in paragraphs
(i)
and (ii) above shall become effective on the date of that disposal;
and
|
136
|
(iv)
|
if
the disposal of that Borrower or Guarantor is not made, the Resignation
Letter of that Borrower or Guarantor and the related release of
Transaction Security referred to in paragraph (a) above shall have
no
effect and the obligations of the Borrower or Guarantor and the
Transaction Security created or intended to be created by or over
that
Borrower or Guarantor shall continue in full force and
effect.
|
|
(b)
|
If
an Obligor disposes of any asset as expressly permitted by and in
accordance with the terms of this Agreement and such asset is the
subject
of Transaction Security in favour of the Security
Agent, the Security Agent shall, subject to paragraph (d) below,
at the
cost and request of the Company, immediately release those assets
and
issue certificates of
non-crystallisation.
|
|
(c)
|
If
a Guarantor resigns as permitted by and in accordance with the terms
of
this Agreement and such Guarantor has granted (or is the subject
of)
Transaction Security in favour of the Security Agent, the Security
Agent
shall, subject to paragraph (d) below, at the cost and request of
the
Company, release that Transaction Security and issue (where applicable)
certificates of
non-crystallisation.
|
| (d) |
If
all Secured Liabilities (as defined in each applicable Swedish Security
Document) have not been discharged in full the release of any Transaction
Security created under a Swedish Security Document shall at all times
be
subject to the written express consent of the Security
Agent.
|
137
SECTION
10
THE
FINANCE PARTIES
|
28.
|
ROLE
OF THE FACILITY AGENT, THE ARRANGER, THE ISSUING BANK AND
OTHERS
|
|
28.1
|
Appointment
of the Facility Agent
|
|
(a)
|
Each
of the Arranger and the Lenders appoints the Facility Agent to act
as its
agent under and in connection with the Finance
Documents.
|
|
(b)
|
Each
of the Arranger and the Lenders authorises the Facility Agent to
exercise
the rights, powers, authorities and discretions specifically given
to the
Facility Agent under or in connection with the Finance Documents
together
with any other incidental rights, powers, authorities and
discretions.
|
|
28.2
|
Duties
of the Facility Agent
|
|
(a)
|
The
Facility Agent shall promptly forward to a Party the original or
a copy of
any document which is delivered to the Facility Agent for that Party
by
any other Party.
|
|
(b)
|
Except
where a Finance Document specifically provides otherwise, the Facility
Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another
Party.
|
|
(c)
|
If
the Facility Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the other Finance
Parties.
|
|
(d)
|
If
the Facility Agent is aware of the non-payment of any principal,
interest,
commitment fee or other fee payable to a Finance Party (other than
the
Facility Agent, the Arranger or the Security
Agent) under this Agreement it shall promptly notify the other Finance
Parties.
|
|
(e)
|
The
Facility Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
|
|
(f)
|
The
Facility Agent, acting for these purposes solely as an agent of the
Borrower, will maintain (and make available for inspection by the
Borrower
and the Lenders upon reasonable prior notice at reasonable times)
a
register for the recordation of, and will record, the names and addresses
of the Lenders and the respective amounts of the Commitments and
Loans of
each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all
purposes and the Borrowers, the Fiscal Agent and the Lenders shall
treat
each person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement.
|
|
28.3
|
Role
of the Arranger
|
Except
as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
|
28.4
|
No
fiduciary duties
|
|
(a)
|
Nothing
in this Agreement constitutes the Facility Agent
and/or the Arranger as a trustee or fiduciary of any other
person.
|
138
|
(b)
|
None
of the Facility Agent, the Security Agent or the Arranger shall be
bound
to account to any Lender for any sum or the profit element of any
sum
received by it for its own account.
|
|
28.5
|
Business
with the Group
|
The
Facility Agent, the Security
Agent and the Arranger may accept deposits from, lend money to and generally
engage in any kind of banking or other business with any member of the
Group.
|
28.6
|
Rights
and discretions
|
|
(a)
|
The
Facility 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
Facility Agent may assume (unless it has received notice to the contrary
in its capacity as agent for the Lenders)
that:
|
|
(i)
|
no
Default
has occurred (unless it has actual knowledge of a Default arising
under
Clause 25.1 (Non-payment));
|
|
(ii)
|
any
right,
power, authority or discretion vested in any Party or the Majority
Lenders
has not been exercised; and
|
|
(iii)
|
any
notice
or
request made by the Company (other than a Utilisation Request or
Selection
Notice) is made on behalf of and with the consent and knowledge of all the
Obligors.
|
|
(c)
|
The
Facility Agent may engage, pay for and rely on the advice or services
of
any lawyers, accountants, surveyors or other
experts.
|
|
(d)
|
The
Facility Agent may act in relation to the Finance Documents through
its
personnel and agents.
|
|
(e)
|
The
Facility Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this
Agreement.
|
|
(f)
|
Notwithstanding
any other provision of any Finance Document to the contrary, none
of the
Facility Agent or the Arranger is obliged
to:
|
|
(i)
|
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; or
|
|
(ii)
|
disclose
the Indemnity Letter, the Hedging Letter, the Stockholders Agreement
or
any Fee Letter to any other Finance Party (or potential
Lender).
|
|
28.7
|
Majority
Lenders' instructions
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, the Facility
Agent
shall (i) exercise any right, power, authority or discretion vested
in it
as Facility Agent in accordance with any instructions given to it
by the
Majority Lenders (or, if so instructed by the Majority Lenders, refrain
from exercising any right, power, authority or discretion vested
in it as
Facility 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
Lenders.
|
139
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties
other than the Security
Agent.
|
|
(c)
|
The
Facility Agent may refrain from acting in accordance with the instructions
of the Majority Lenders (or, if appropriate, the Lenders) 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.
|
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Facility Agent may act (or refrain
from
taking action) as it considers to be in the best interest of the
Lenders
provided
that when
exercising the rights, powers, authorities and discretions given
to the
Facility Agent under or in connection with the Finance Documents
(or any
other rights, powers, authorities and discretions, incidental thereto),
the Facility Agent shall, at all times, act
reasonably.
|
|
(e)
|
The
Facility Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document. This paragraph (e)
shall not
apply to any legal or arbitration proceeding relating to the perfection,
preservation or protection of rights under the Transaction Security
Documents or enforcement of the Transaction Security or Transaction
Security Documents.
|
|
28.8
|
Responsibility
for documentation
|
None
of
the
Facility Agent or the Arranger:
|
(a)
|
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Facility
Agent
or
the Arranger an Obligor or any other person given in or in connection
with
any Finance Document or the Information Memorandum or the Reports
or the
transactions contemplated in the Finance Documents;
or
|
|
(b)
|
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or the Transaction Security
or any
other agreement, arrangement or document entered into, made or executed
in
anticipation of or in connection with any Finance Document or the
Transaction Security.
|
|
28.9
|
Exclusion
of liability
|
|
(a)
|
Without
limiting paragraph (b) below, the Facility Agent will
not be liable for any action taken by it under or in connection with
any
Finance Document or the Transaction Security, unless directly caused
by
its gross negligence or wilful
misconduct.
|
|
(b)
|
No
Party (other than the Facility Agent) may take any proceedings against
any
officer, employee or agent of the Facility Agent in respect of any
claim
it might have against the Facility Agent or in respect of any act
or
omission of any kind by that officer, employee or agent in relation
to any
Finance Document or any Transaction Document and any officer, employee
or
agent of the Facility Agent may rely on this Clause subject to Clause
1.6
(Third
party rights)
and the provisions of the Third Parties
Act.
|
140
|
(c)
|
The
Facility Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the
Finance Documents to be paid by the Facility Agent if the Facility
Agent
has taken all necessary steps as soon as reasonably practicable to
comply
with the regulations or operating procedures of any recognised clearing
or
settlement system used by the Facility Agent for that
purpose.
|
|
(d)
|
Nothing
in this Agreement shall oblige the Facility Agent or the Arranger
to carry
out any "know your customer" or other checks in relation to any person
on
behalf of any Lender and each Lender confirms to the Facility Agent
and
the Arranger that it is solely responsible for any such checks it
is
required to carry out and that it may not rely on any statement in
relation to such checks made by the Facility Agent or the
Arranger.
|
|
28.10
|
Lenders'
indemnity to the Facility Agent and the Security
Agent
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify each of the Facility
Agent and the Security
Agent, within three Business Days of demand, against any cost, loss or liability
incurred by the Facility Agent (including under Clause 6.2
(Redenomination) or
the
Security Agent (otherwise than by reason of the Facility Agent's or the Security
Agent's gross negligence or wilful misconduct) in acting as Facility Agent
or as
Security Agent under the Finance Documents (unless the Facility Agent or the
Security Agent has been reimbursed by an Obligor pursuant to a Finance
Document).
|
28.11
|
Resignation
of the Facility Agent
|
|
(a)
|
The
Facility Agent may (after consultation with the Company)
resign and appoint one of its Affiliates acting through an office
in the
United Kingdom as successor by giving notice to the Lenders and the
Company.
|
|
(b)
|
Alternatively
the Facility Agent may resign by giving notice to the Lenders and
the
Company, in which case the Majority Lenders (after consultation with
the
Company) may appoint a successor Facility
Agent.
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Facility Agent
in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Facility Agent (after consultation with
the
Company) may appoint a successor Facility Agent (acting through an
office
in the United Kingdom).
|
|
(d)
|
The
retiring Facility Agent shall, at its own cost, make available to
the
successor Facility Agent such documents and records and provide such
assistance as the successor Facility Agent may reasonably request
for the
purposes of performing its functions as Facility Agent under the
Finance
Documents.
|
|
(e)
|
The
Facility Agent's resignation notice shall only take effect upon the
appointment of a successor.
|
|
(f)
|
Upon
the appointment of a successor, the retiring Facility Agent shall
be
discharged from any further obligation in respect of the Finance
Documents
but shall remain entitled to the benefit of this Clause 28.11.
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.
|
141
|
(g)
|
After
consultation with the Company, the Majority Lenders may, by notice
to the
Facility Agent, require it to resign in accordance with paragraph
(b)
above. In this event, the Facility Agent shall resign in accordance
with
paragraph (b) above.
|
|
28.12
|
Confidentiality
|
|
(a)
|
In
acting as agent for the Finance Parties, the Facility Agent shall
be
regarded as acting through its agency division which shall be treated
as a
separate entity from any other of its divisions or
departments.
|
|
(b)
|
If
information is received by another division or department of the
Facility
Agent, it may be treated as confidential to that division or department
and the Facility Agent shall not be deemed to have notice of
it.
|
|
(c)
|
Notwithstanding
any other provision of any Finance Document to the contrary, none
of the
Facility Agent and the Arranger are obliged to disclose to any other
person (i) any confidential information or (ii) any other information
if
the disclosure would or might in its reasonable opinion constitute
a
breach of any law or a breach of a fiduciary
duty.
|
|
28.13
|
Relationship
with the Lenders
|
|
(a)
|
The
Facility Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office unless
it has
received not less than five Business Days prior notice from that
Lender to
the contrary in accordance with the terms of this
Agreement.
|
|
(b)
|
Each
Lender shall supply the Facility Agent with any information required
by
the Facility Agent in order to calculate the Mandatory Cost in accordance
with Schedule 4 (Mandatory
Cost Formulae).
|
|
(c)
|
Each
Lender shall supply the Facility Agent with any information that
the
Security Agent may reasonably specify (through the Facility Agent)
as
being necessary or desirable to enable the Security Agent to perform
its
functions as Security Agent. Each Lender shall deal with the Security
Agent exclusively through the Facility Agent and shall not deal directly
with the Security Agent.
|
|
28.14
|
Credit
appraisal by the Lenders
|
Without
affecting the responsibility of any Obligor for information supplied by it
or on
its behalf in connection with any Finance Document, each Lender
and
confirms to the Facility Agent and the Arranger 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 Finance
Document including but not limited to:
|
(a)
|
the
financial condition, status and nature of each member of the
Group;
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of
any
Finance Document and the Transaction Security and any other agreement,
arrangement or document entered into, made or executed in anticipation
of,
under or in connection with any Finance Document or the Transaction
Security;
|
|
(c)
|
whether
that Secured 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 Finance Document, the Transaction Security or
the
transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation
of,
under or in connection with any Finance
Document;
|
142
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Memorandum,
the
Reports and any other information provided by the Facility Agent
any Party
or by any other person under or in connection with any Finance Document,
the transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed
in
anticipation of, under or in connection with any Finance Document;
and
|
|
(e)
|
the
right or title of any person in or to, or the value or sufficiency
of any
part of the Charged Property, the priority of any of the Transaction
Security or the existence of any Security affecting the Charged
Property.
|
|
28.15
|
Reference
Banks
|
If
a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which
it
is an Affiliate) ceases to be a Lender, the Facility Agent shall (in
consultation with the Company)
appoint another Lender or an Affiliate of a Lender to replace that Reference
Bank.
|
28.16
|
Deduction
from amounts payable by the Facility
Agent
|
If
any
Party owes an amount to the Facility Agent under the Finance Documents the
Facility Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Facility Agent
would otherwise be obliged to make under the Finance Documents and apply the
amount deducted in or towards satisfaction of the amount owed.
For the
purposes of the Finance Documents that Party shall be regarded as having
received any amount so deducted.
|
28.17
|
Reliance
and engagement letters
|
Each
Finance Party and Secured Party confirms that each of the Arranger and the
Facility Agent has authority to accept on its behalf and ratifies the acceptance
on its behalf of any letters or reports already accepted by the Arranger or
Facility Agent the terms of any reliance letter or engagement letters relating
to the Reports or any reports or letters provided by accountants in connection
with the Finance Documents or the transactions contemplated in the Finance
Documents (including any net asset letter in connection with the financial
assistance procedures) and to bind it in respect of those Reports, reports
or
letters and to sign such letters on its behalf and further confirms that it
accepts the terms and qualifications set out in such letters.
|
28.18
|
Affiliate
facility offices
|
|
(a)
|
A
Lender may designate an Affiliate of that Lender as its Facility
Office
for the purpose of participating in or making Utilisations to Borrowers
in
particular countries.
|
|
(b)
|
An
Affiliate of a Lender may be designated for the purposes of paragraph
(a):
|
|
(i)
|
by
appearing under the name of the Lender in Part II of Schedule 1
(The
Original Parties)
and executing this Agreement; or
|
143
|
(ii)
|
by
being referred to in and executing a Transfer Certificate and Lender
Accession Undertaking by which the Lender becomes a
Party.
|
|
(c)
|
An
Affiliate of a Lender referred to in this Clause 28.18
shall not have any Commitment, but shall be entitled to all rights
and
benefits under the Finance Documents relating to its participation
in
Utilisations, and shall have the corresponding duties of a Lender
in
relation thereto, and is a Party to this Agreement and each other
relevant
Finance Document for those
purposes.
|
|
(d)
|
A
Lender which has an Affiliate appearing under its name in Part II
of
Schedule 1 (The
Original Parties)
or, as the case may be, in a Transfer Certificate and Lender Accession
Undertaking, will procure, subject to the terms of this Agreement,
that
the Affiliate participates in Utilisations to the relevant Borrower(s)
in
place of that Lender.
|
|
29.
|
CONDUCT
OF BUSINESS BY THE FINANCE
PARTIES
|
No
provision of this Agreement will:
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
(b)
|
oblige
any Finance Party to investigate or claim any credit, relief, remission
or
repayment available to it or the extent, order and manner of any
claim;
or
|
|
(c)
|
oblige
any Finance Party to disclose any information relating to its affairs
(tax
or otherwise) or any computations in respect of
Tax.
|
|
30.
|
SHARING
AMONG THE FINANCE
PARTIES
|
|
30.1
|
Payments
to Finance Parties
|
If
a
Finance Party (a "Recovering
Finance Party")
receives or recovers any amount from an Obligor other than in accordance with
Clause 31
(Payment
Mechanics)
and
applies that amount to a payment due under the Finance Documents
then:
|
(a)
|
the
Recovering Finance Party shall, within three Business Days, notify
details
of the receipt or recovery, to the Facility
Agent;
|
|
(b)
|
the
Facility Agent shall determine whether the receipt or recovery is
in
excess of the amount the Recovering Finance Party would have been
paid had
the receipt or recovery been received or made by the Facility Agent
and
distributed in accordance with Clause 31
(Payment
Mechanics),
without taking account of any Tax which would be imposed on the Facility
Agent in relation to the receipt, recovery or distribution;
and
|
|
(c)
|
the
Recovering Finance Party shall, within three Business Days of demand
by
the Facility Agent, pay to the Facility Agent an amount (the "Sharing
Payment")
equal to such receipt or recovery less any amount which the Facility
Agent
determines may be retained by the Recovering Finance Party as its
share of
any payment to be made, in accordance with Clause 31.5
(Partial
payments).
|
144
|
30.2
|
Redistribution
of payments
|
The
Facility Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the
Recovering Finance Party) in accordance with Clause 31.5
(Partial
payments).
|
30.3
|
Recovering
Finance Party's rights
|
|
(a)
|
On
a distribution by the Facility Agent under Clause 30.2
(Redistribution
of payments),
the Recovering Finance Party will be subrogated to the rights of
the
Finance Parties which have shared in the
redistribution.
|
|
(b)
|
If
and to the extent that the Recovering Finance Party is not able to
rely on
its rights under paragraph (a) above, the Finance Parties which have
shared in the redistribution will turn over any proceeds received
from the
relevant Obligor on such rights promptly upon receipt of the same
to the
Recovering Finance Party.
|
|
30.4
|
Reversal
of redistribution
|
If
any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
|
(a)
|
each
Finance Party which has received a share of the relevant Sharing
Payment
pursuant to Clause 30.2
(Redistribution
of payments)
shall, upon request of the Facility Agent, pay to the Facility Agent
for
account of that Recovering Finance Party 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 Finance Party
for its
proportion of any interest on the Sharing Payment which that Recovering
Finance Party is required to pay);
and
|
|
(b)
|
that
Recovering Finance Party's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable
to the reimbursing Finance Party for the amount so
reimbursed.
|
|
30.5
|
Exceptions
|
|
(a)
|
This
Clause 30
shall not apply to the extent that the Recovering Finance Party would
not,
after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant
Obligor.
|
|
(b)
|
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received
or
recovered as a result of taking legal or arbitration proceedings,
if:
|
|
(i)
|
it
notified the other Finance Party of the legal or arbitration proceedings;
and
|
|
(ii)
|
the
other 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.
|
145
SECTION
11
ADMINISTRATION
|
31.
|
PAYMENT
MECHANICS
|
|
31.1
|
Payments
to the Facility Agent
|
|
(a)
|
On
each date on which an Obligor or a Lender is required to make a payment
under a Finance Document that Obligor or Lender shall make the same
available to the Facility Agent (unless a contrary indication appears
in a
Finance Document) for value on the due date at the time and in such
funds
specified by the Facility Agent as being customary at the time for
settlement of transactions in the relevant currency in the place
of
payment.
|
|
(b)
|
Payment
shall be made to such account in the principal financial centre of
the
country of that currency (or, in relation to euro, in a principal
financial centre in a Participating Member State or London) with
such bank
as the Facility Agent specifies.
|
|
31.2
|
Distributions
by the Facility Agent
|
|
(a)
|
Each
payment received by the Facility Agent under the Finance Documents
for
another Party shall, subject to Clause 31.3
(Distributions
to an Obligor)
and Clause 31.4
(Clawback)
be made available by the Facility Agent as soon as practicable after
receipt to the Party entitled to receive payment in accordance with
this
Agreement (in the case of a Lender, for the account of its Facility
Office), to such account as that Party may notify to the Facility
Agent by
not less than five Business Days' notice with a bank in the principal
financial centre of the country of that currency (or, in relation
to euro,
in the principal financial centre of a Participating Member State
or
London).
|
|
(b)
|
If
funds are returned to the Facility Agent in accordance with Clause
10.9
(Release
of Blocked Accounts)
of the Parent Debenture, the Facility Agent shall ensure that such
funds
are distributed to the applicable Lenders pro
rata
to
their Commitments and each Party authorises the Facility Agent to
make
such payment accordingly.
|
|
31.3
|
Distributions
to an Obligor
|
The
Facility Agent may (with the consent of the Obligor or in accordance with Clause
32
(Set-Off))
apply
any amount received by it for that Obligor in or towards payment (on the date
and in the currency and funds of receipt) of any amount due from that Obligor
under the Finance Documents or in or towards purchase of any amount of any
currency to be so applied.
|
31.4
|
Clawback
|
|
(a)
|
Where
a sum is to be paid to the Facility Agent under the Finance Documents
for
another Party, the Facility Agent is not obliged to pay that sum
to that
other Party (or to enter into or perform any related exchange contract)
until it has been able to establish to its satisfaction that it has
actually received that sum.
|
|
(b)
|
If
the Facility Agent pays an amount to another Party and it proves
to be the
case that the Facility Agent had not actually received that amount,
then
the Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Facility Agent shall on demand refund the
same
to the Facility Agent together with interest on that amount from
the date
of payment to the date of receipt by the Facility Agent, calculated
by the
Facility Agent to reflect its cost of funds
provided
that no
Borrower will have any obligation to refund any such sum received
by it
and which is subject to Clause 4.4
(Certain
Funds).
|
146
|
31.5
|
Partial
payments
|
|
(a)
|
If
the Facility Agent receives a payment for application against amounts
due
in respect of any Finance Documents that is insufficient to discharge
all
the amounts then due and payable by an Obligor under those Finance
Documents, the Facility Agent shall apply that payment towards the
obligations of that Obligor under those Finance Documents in the
following
order:
|
|
(i)
|
first,
in or towards payment pro
rata
of
any unpaid fees, costs and expenses of the Facility Agent, the Arranger
and the Security Agent under those Finance
Documents;
|
|
(ii)
|
secondly,
in or towards payment pro
rata
of
any accrued interest, fee or commission due but unpaid under those
Finance
Documents;
|
|
(iii)
|
thirdly,
in or towards payment pro
rata
of
any principal due but unpaid under those Finance Documents;
and
|
|
(iv)
|
fourthly,
in or towards payment pro
rata
of
any other sum due but unpaid under the Finance
Documents.
|
|
(b)
|
The
Facility Agent shall, if so directed by the Majority Lenders, vary
the
order set out in paragraphs (a)(ii) to (iv)
above.
|
|
(c)
|
Paragraphs
(a) and (b) above will override any appropriation made by an
Obligor.
|
|
31.6
|
No
set-off by Obligors
|
All
payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
|
31.7
|
Business
Days
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day
shall
be made on the next Business Day in the same calendar month (if there
is
one) or the preceding Business Day (if there is
not).
|
|
(b)
|
During
any extension of the due date for payment of any principal or Unpaid
Sum
under this Agreement interest is payable on the principal or Unpaid
Sum at
the rate payable on the original due
date.
|
|
31.8
|
Currency
of account
|
|
(a)
|
Subject
to paragraphs (b) to (e) below, the Base Currency is the currency
of
account and payment for any sum due from an Obligor under any Finance
Document.
|
|
(b)
|
A
repayment of a Utilisation or Unpaid Sum or a part of a Utilisation
or
Unpaid Sum shall be made in the currency in which that Utilisation
or
Unpaid Sum is denominated on its due
date.
|
|
(c)
|
Each
payment of interest shall be made in the currency in which the sum
in
respect of which the interest is payable was denominated when that
interest accrued.
|
|
(d)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
147
|
(e)
|
Any
amount expressed to be payable in a currency other than the Base
Currency
shall be paid in that other
currency.
|
|
31.9
|
Change
of currency
|
|
(a)
|
Unless
otherwise prohibited by law, if more than one currency or currency
unit
are at the same time recognised by the central bank of any country
as the
lawful currency of that country,
then:
|
|
(i)
|
any
reference in the Finance Documents to, and any obligations arising
under
the Finance Documents in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country designated
by the Facility Agent (after consultation with the Company);
and
|
|
(ii)
|
any
translation from one currency or currency unit to another shall be
at the
official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded
up or
down by the Facility Agent (acting
reasonably).
|
|
(b)
|
If
a change in any currency of a country occurs, this Agreement will,
to the
extent the Facility Agent (acting reasonably and after consultation
with
the Company)
specifies to be necessary, be amended to comply with any generally
accepted conventions and market practice in the Relevant Interbank
Market
and otherwise to reflect the change in
currency.
|
|
32.
|
SET-OFF
|
If
an
Event of Default is continuing, a Finance Party may set off any matured
obligation due from an Obligor under the Finance Documents (to the extent
beneficially owned by that Finance Party) against any matured obligation owed
by
that Finance Party to that Obligor, regardless of the place of payment, booking
branch or currency of either obligation.
If the
obligations are in different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of business for
the
purpose of the set-off.
|
33.
|
NOTICES
|
|
33.1
|
Communications
in writing
|
Any
communication to be made under or in connection with the Finance Documents
shall
be made in writing and, unless otherwise stated, may be made 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 the Finance
Documents is:
|
(a)
|
in
the case of the Company, that identified with its
name below;
|
|
(b)
|
in
the case of each Lender that notified in writing to the Facility
Agent on
or prior to the date on which it becomes a Party;
and
|
|
(c)
|
in
the case of the Facility Agent or the Security Agent, that identified
with
its name below,
|
148
or
any
substitute address, fax number or department or officer as the Party may notify
to the Facility Agent (or the Facility Agent may notify to the other Parties,
if
a change is made by the Facility 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 the Finance Documents 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 Facility
Agent or
the Security
Agent will be effective only when actually received by the Facility
Agent
or Security Agent and then only if it is expressly marked for the
attention of the department or officer identified with the Facility
Agent's or Security Agent's signature below (or any substitute department
or officer as the Facility Agent or Security Agent shall specify
for this
purpose).
|
|
(c)
|
All
notices from or to an Obligor shall be sent through the Facility
Agent.
|
|
(d)
|
Any
communication or document made or delivered to the Company in accordance
with this Clause 33.3
will be deemed to have been made or delivered to each of the
Obligors.
|
|
33.4
|
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address or fax number or change of address
or
fax number pursuant to Clause 33.2
(Addresses)
or
changing its own address or fax number, the Facility Agent shall notify the
other Parties.
|
33.5
|
Electronic
communication
|
|
(a)
|
Any
communication to be made between the Facility Agent or the Security
Agent and a Lender under or in connection with the Finance Documents
may
be made by electronic mail or other electronic means, if the Facility
Agent, the Security Agent and the relevant
Lender:
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an
accepted
form of communication;
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any
other
information required to enable the sending and receipt of information
by
that means; and
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
(b)
|
Any
electronic communication made between the Facility Agent and a Lender
or
the Security
Agent will be effective only when actually received in readable form
and
in the case of any electronic communication made by a Lender to the
Facility Agent or the Security Agent only if it is addressed in such
a
manner as the Facility Agent or Security Agent shall specify for
this
purpose.
|
149
|
33.6
|
Use
of websites
|
|
(a)
|
The
Company
may satisfy its obligation under this Agreement to deliver any information
in relation to those Lenders (the "Website
Lenders")
who accept this method of communication by posting this information
onto
an electronic website designated by the Company and the Facility
Agent
(the "Designated
Website")
if:
|
|
(i)
|
the
Facility Agent expressly agrees (after consultation with each of
the
Lenders) that it will accept communication of the information by
this
method;
|
|
(ii)
|
both
the Company
and the Facility Agent are aware of the address of and any relevant
password specifications for the Designated Website;
and
|
|
(iii)
|
the
information is in a format previously agreed between the Company
and the
Facility Agent.
|
If
any
Lender (a "Paper
Form Lender")
does
not agree to the delivery of information electronically then the Facility Agent
shall notify the Company accordingly and the Company shall at its own cost,
supply the information to the Facility Agent (in sufficient copies for each
Paper Form Lender) in paper form. In any event the Company shall at its own
cost, supply the Facility Agent with at least one copy in paper form of any
information required to be provided by it.
|
(b)
|
The
Facility Agent shall supply each Website Lender with the address
of and
any relevant password specifications for the Designated Website following
designation of that website by the Company
and the Facility Agent.
|
|
(c)
|
The
Company shall promptly upon becoming aware of its occurrence notify
the
Facility Agent if:
|
|
(i)
|
the
Designated Website cannot be accessed due to technical
failure;
|
|
(ii)
|
the
password specifications for the Designated Website
change;
|
|
(iii)
|
any
new information which is required to be provided under this Agreement
is
posted onto the Designated Website;
|
|
(iv)
|
any
existing information which has been provided under this Agreement
and
posted onto the Designated Website is amended;
or
|
|
(v)
|
the
Company
becomes aware that the Designated Website or any information posted
onto
the Designated Website is or has been infected by any electronic
virus or
similar software.
|
If
the
Company
notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v) above,
all information to be provided by the Company under this Agreement after the
date of that notice shall be supplied in paper form unless and until the
Facility Agent and each Website Lender is satisfied that the circumstances
giving rise to the notification are no longer continuing.
|
(d)
|
Any
Website Lender may request, through the Facility Agent, one paper
copy of
any information required to be provided under this Agreement which
is
posted onto the Designated Website.
The Company shall at its own cost comply with any such request within
ten
Business Days.
|
150
|
33.7
|
English
language
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must
be in
English.
|
|
(b)
|
All
other documents provided under or in connection with any Finance
Document
must be:
|
|
(i)
|
in
English; or
|
|
(ii)
|
if
not in English, and if so required by the Facility 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.
|
CALCULATIONS
AND
CERTIFICATES
|
|
34.1
|
Accounts
|
In
any
litigation or arbitration proceedings arising out of or in connection with
a
Finance Document, the entries made in the accounts maintained by a Finance
Party
are prima
facie
evidence
of the matters to which they relate.
|
34.2
|
Certificates
and determinations
|
Any
certification or determination by a Finance Party of a rate or amount under
any
Finance Document is, in the absence of manifest error, conclusive evidence
of
the matters to which it relates.
|
34.3
|
Day
count convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.
|
35.
|
PARTIAL
INVALIDITY
|
If,
at
any time, any provision of the Finance Documents 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.
|
36.
|
REMEDIES
AND
WAIVERS
|
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party or Secured Party, any right or remedy under the Finance Documents 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.
|
37.
|
AMENDMENTS
AND
WAIVERS
|
|
37.1
|
Required
consents
|
|
(a)
|
Subject
to Clause 37.2
(Exceptions)
any term of the Finance Documents may be amended or waived only with
the
consent of the Majority Lenders and the Company and any such amendment
or
waiver will be binding on all
Parties.
|
151
|
(b)
|
The
Facility Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause 37.
|
|
(c)
|
Each
Obligor agrees to any such amendment or waiver permitted by this
Clause
37
which is agreed to by the Company; this includes any amendment or
waiver
which would, but for this paragraph (c), require the consent of all
of the
Guarantors.
|
|
37.2
|
Exceptions
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
(i)
|
the
definition of "Change
of Control"
or "Majority
Lenders"
or "Super
Majority Lenders"
in Clause 1.1
(Definitions);
|
|
(ii)
|
any
provision which expressly requires the consent of all the
Lenders;
|
|
(iii)
|
Clause
2.2
(Finance
Parties' rights and obligations),
Clause 26
(Changes
to the Lenders)
or Clause 30
(Sharing
among the Finance Parties)
(other than changes consequential on or required to implement a Structural
Adjustment);
|
|
(iv)
|
the
provisions of this Clause 37
including the definition of "Structural
Adjustment";
|
|
(v)
|
any
waiver of an obligation to prepay on an Exit;
or
|
|
(vi)
|
any
amendment to the order of priority or subordination under the
Intercreditor Agreement or the manner in which the proceeds of enforcement
of the Transaction Security are distributed (other than changes
consequential on or required to implement a Structural
Adjustment),
|
shall
not
be made without the prior consent of all the Lenders.
|
(b)
|
An
amendment or waiver that has the effect of releasing any guarantees
or
Transaction Security (unless permitted under this Agreement or any
other
Finance Document or relating to a sale or disposal of an asset which
is
the subject of the Transaction Security where such sale or disposal
is a
Permitted Disposal or a Permitted Transaction or any other disposal
or
transaction to which the Majority Lenders have consented in accordance
with the Finance Documents) shall not be made without the prior consent
of
the Super Majority Lenders.
|
|
(c)
|
Any
amendment or waiver which relates to the rights or obligations applicable
to a particular Loan and which does not materially and adversely
affect
the rights or interests of Lenders in respect of other Loans shall
only
require the consent of the Majority Lenders (or the relevant Super
Majority Lenders, as the case may be) as if references in this clause
to
"Lenders" were only to Lenders participating in that Loan. For the
avoidance of doubt, the prepayment of the Facility in full or in
part
other than as permitted under the Finance Documents shall require
only the
consent of the Majority Lenders under the Term
Facilities.
|
|
(d)
|
An
amendment or waiver which relates to the rights or obligations of
the
Facility Agent, the Arranger or the Security Agent may not be effected
without the consent of the Facility Agent, the Arranger or the Security
Agent.
|
|
(e)
|
Subject
to the provisions of the Intercreditor Agreement, a Structural Adjustment
may be approved with the consent of the Majority Lenders and of each
Lender that is assuming a Commitment or an increased Commitment in
the
relevant Loan or whose Commitment is being extended or redenominated
or to
whom any amount is owing which is being reduced, deferred or redenominated
(as the case may be).
|
152
|
(f)
|
For
the purposes of this Clause 37
"Structural
Adjustment"
means an amendment, waiver or variation of the terms of some or all
of the
Finance Documents that results from or is intended to result from
or
constitutes:
|
|
(i)
|
the
introduction of an additional loan,
commitment or facility into this
Agreement;
|
|
(ii)
|
an
increase in or addition of any Commitment, any extension of the
availability or maturity of any Commitment, any redenomination of
any
Commitment into another currency except as set out in this Agreement
and
any extension of the date for or redenomination of, or a reduction
of, any
amount owing under a Finance
Document;
|
|
(iii)
|
an
extension to the date of payment or maturity of any principal, interest,
fees, commission or other amount payable under the Finance
Documents;
|
|
(iv)
|
a
reduction in the Margin or a reduction in any payment of principal,
interest, fees, commission or other amount
payable;
|
|
(v)
|
a
change in currency of payment of any principal, interest, fees, commission
or other amount payable under the Finance Documents;
and
|
|
(vi)
|
any
amendment to the Finance Documents (including changes to, the taking
of or
the release coupled with the immediate retaking of security) consequential
on or required to implement or reflect anything described above in
paragraphs (i) to (v) above.
|
|
(g)
|
If
a Lender does not accept or reject a waiver or request within 15
Business
Days (unless the Company
and the Facility Agent agree to a longer time period in relation
to any
request) or abstains from accepting or rejecting a request of it
being
made, its Commitment and/or participation shall not be included for
the
purpose of calculating the Total Commitments or participations under
the
relevant Facility when ascertaining whether a certain percentage
of Total
Commitments and/or participations has been obtained to approve an
amendment or waiver or (in relation to a Structural Adjustment) whether
the consent of all of the Lenders under the relevant Facility has
been
obtained.
|
|
(h)
|
The
Commitment and/or participation of any Non-Consenting Lender shall
not be
included for the purpose of calculating the Total Commitments or
participations under the relevant Facility when ascertaining whether
a
certain percentage of Total Commitments and/or participations has
been
obtained if, within 3 Business Days of the Company's request, such
Non-Consenting Lender has not entered into a legally binding agreement
to
transfer its Commitment and/or participation to another person eligible
to
become a Lender.
|
|
38.
|
COUNTERPARTS
|
Each
Finance Document (except
when governed by French law) 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 the Finance Document.
153
|
39.
|
US
PATRIOT
ACT
|
Each
Lender and the Facility
Agent (for itself and not on behalf of any Lender) hereby notifies the Obligors
that pursuant to the requirements of the US Patriot Act, it is required to
obtain, verify and record information that identifies each Obligor, which
information includes the name and address of such Obligor and other information
that will allow such Lender or the Facility Agent, as applicable, to identify
such Obligor in accordance with the US Patriot Act. Each of the Obligors shall,
and shall cause each of its Subsidiaries to, provide such information and take
such actions as are reasonably requested by the Facility Agent or any Lender
in
order to assist the Facility Agent and the Lenders in maintaining compliance
with the US Patriot Act.
154
SECTION
12
GOVERNING
LAW AND ENFORCEMENT
|
40.
|
GOVERNING
LAW
|
This
Agreement is governed by English law.
|
41.
|
ENFORCEMENT
|
|
41.1
|
Jurisdiction
of English courts
|
|
(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.
|
|
(c)
|
This
Clause 41.1
is
for the benefit of the Finance Parties and Secured Parties only.
As a
result, no Finance Party or Secured Party shall be prevented from
taking
proceedings relating to a Dispute in any other courts with jurisdiction.
To the extent allowed by law, the Finance Parties and Secured Parties
may
take concurrent proceedings in any number of
jurisdictions.
|
|
41.2
|
Service
of process
|
|
(a)
|
Without
prejudice to any other mode of service allowed under any relevant
law,
each Obligor (other than an Obligor incorporated in England and
Wales):
|
|
(i)
|
irrevocably
appoints
NDS Finance Limited as its agent for service of process in relation
to any
proceedings before the English courts in connection with any Finance
Document and NDS Finance Limited by its execution of this Agreement,
accepts that appointment); and
|
|
(ii)
|
agrees
that failure by an agent for service of process to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
|
|
(b)
|
If
any person appointed as an agent for service of process is unable
for any
reason to act as agent for service of process, the Company
(on behalf of all the Obligors) must immediately (and in any event
within
20 Business Days of such event taking place) appoint another agent
on
terms acceptable to the Facility Agent. Failing this, the Facility
Agent
may appoint another agent for this
purpose.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
155
SCHEDULE
1
The Original Parties
PART
I
The
Original Obligors
|
Name
of Original Borrower
|
Registration
number (or equivalent, if any)
|
|
The
Company
|
06617193
|
|
Name
of Original Guarantor
|
Registration
number (or equivalent, if any)
|
|
The
Company
|
06617193
|
156
PART
II
The
Original Lenders
|
Name
of Original Lender
|
Commitment
|
|||
|
JPMorgan
Chase Bank,
N.A., London Branch
|
$
|
192,500,000
|
||
|
Xxxxxx
Xxxxxxx Bank
|
$
|
192,500,000
|
||
|
Total
|
$
|
385,000,000
|
||
157
SCHEDULE
2
Conditions
Precedent and conditions subsequent
PART
I
Conditions
precedent to initial Utilisation during the Certain Funds
Period
|
1.
|
Documentation
|
|
(a)
|
A
copy of the constitutional documents of the
Company, the Vendor Loan Note Holder and each Closing Obligor including
(except in the case of the Vendor Loan Note Holder, the Parent and
the
Company) a shareholders' resolution amending its constitutional documents
as agreed with the Facility Agent.
|
|
(b)
|
If
required under applicable law or practice, a copy of a resolution
of the
board of directors (or equivalent) of the Company, the Vendor Loan
Note
Holder and each Closing Obligor:
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Transaction
Documents to which it is a party and resolving that it execute, deliver
and perform the Transaction Documents to which it is a
party;
|
|
(ii)
|
authorising
a specified person or persons to execute the Finance Documents to
which it
is a party on its behalf;
|
|
(iii)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch
all
documents and notices (including, if relevant, any Utilisation Request
and
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a party;
and
|
|
(iv)
|
in
the case of an Obligor other than the Company,
authorising the Company to act as its agent in connection with the
Finance
Documents.
|
|
(c)
|
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above in relation to the Finance Documents
and related documents.
|
|
(d)
|
If
required under applicable law or practice, a copy of a resolution
signed
by all the holders of the issued shares in the
Company and each Closing Obligor (other than the Parent), approving
the
terms of, and the transactions contemplated by, the Finance Documents
to
which the relevant Obligor is a
party.
|
|
(e)
|
A
certificate of an authorised signatory of the Company, the Vendor
Loan
Note Holder (in agreed form) and each Closing Obligor certifying
that each
copy document relating to it specified in this Part I of Schedule
2 is
correct, complete and in full force and effect and has not been amended
or
superseded and there has not been any breach of guaranteeing or borrowing
restrictions, in each case as at a date no earlier than the date
of this
Agreement.
|
158
|
(f)
|
Required
"know your customer" information in respect of the Company, the Vendor
Loan Note Holder and each Closing Obligor and, to the extent required
by
any Finance Party, the Investors as notified to the Company prior
to the
date of this Agreement.
|
|
(g)
|
A
certificate as to the existence and good standing (including verification
of tax status, if available) of the Vendor Loan Note Holder from
the
appropriate governmental authorities in the Vendor Loan Note Holder's
jurisdiction of organisation and in each other jurisdiction where
the
Vendor Loan Note Holder is qualified to do business (if any) and
where the
failure to be so qualified would have a Material Adverse Effect on
the
Vendor Loan Note Holder.
|
|
2.
|
Completion
Requirements
|
|
(a)
|
Certificates
from an authorised signatory of each of Permira and the Parent together
certifying that the Investors will make cash contributions or rollover
existing investments by way of subscription for ordinary shares,
shareholder loans, preferred equity certificates and/or asset or
business
contributions in an aggregate amount equal to at least 40% of the
aggregate funded capital structure at Closing (together, the "Equity
Contribution");*
|
|
(b)
|
Substantially
simultaneous lending of the Term Facilities and the
Facility.*
|
|
(c)
|
The
Parent has received sufficient cash which is standing to the credit
of the
Group Blocked Account which, when aggregated with the amounts to
be paid
into the Lender Blocked Account under this Agreement and the Senior
Facilities Agreement as evidenced by the utilisation requests submitted
thereunder, are sufficient to satisfy its cash payment obligations
under
the Scheme as set out in the Structure Memorandum and the Funds Flow
Statement.
|
|
(d)
|
Confirmation
from Nuclobel Topco 1 S.àr.l. and Nuclobel Topco 2 S.àr.l. that the
Permira Holdcos (as defined in the Structure Memorandum) have been
capitalised.*
|
|
(e)
|
Evidence
that the fees due to the Arranger, the Lenders and the Facility Agent
on
the Scheme Date and the legal fees which have been agreed to be paid
on
the Scheme Date and in respect of which an invoice has been provided
to
the Company have been paid or will be paid on or prior to the Scheme
Date
(which evidence may be provided by a Utilisation Request in agreed
form).*
|
|
3.
|
Finance
Documents
|
|
(a)
|
This
Agreement, the Senior
Facilities Agreement, the Intercreditor Agreement and the Fee Letters
executed by the Company and the Closing Obligors party
thereto.*
|
|
(b)
|
|
|
(i)
|
A
debenture from each of the Parent, the Company and each other company
incorporated in the United Kingdom which is listed as a Guarantor
and
marked as "Closing Obligor" in paragraph 5
of Schedule
12
(Security
Principles).*
|
159
|
(ii)
|
An
agreed form English law assignment by way of security granted by
the
Vendor Loan Note Holder and the VLN Security Trustee in favour of
the
Security Agent in respect of all their respective rights, title,
interest
and benefit in and to the Vendor Loan Notes, Vendor Loan Note Instrument
and VLN Debentures.*
|
|
(c)
|
A
copy of a side letter in relation to any potential claims against
the
providers of any of the Reports where any of them have been addressed
to
Nuclobel Lux 1 S.àr.l.
|
|
(d)
|
The
Hedging Letter.
|
|
4.
|
Legal
Opinions
|
|
(a)
|
Legal
opinions from Linklaters as the legal advisers to the Facility Agent
relating to entry into the Finance Documents by the Company and each
Closing Obligor.
|
|
(b)
|
Agreed
form of legal opinion by Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
special US counsel to the Vendor Loan Note Holder and the VLN Security
Trustee, with respect to their respective capacity to enter into
the
Finance Documents to which each is a
party.
|
|
(c)
|
Agreed
form of legal opinion from Linklaters LLP as the legal advisers to
the
Facility Agent relating to the Finance Documents to which the Vendor
Loan
Note Holder and the VLN Security Trustee are
party.
|
|
5.
|
Other
documents and evidence
|
|
(a)
|
The
Base Case Model.
|
|
(b)
|
The
Reports (including, except in the case of the Technical Report
for which there will be a disclosure letter, reliance letters (or
addressee language) in favour of the Finance Parties, the Company
and
Nuclobel Lux 1 S.àr.l. only).
|
|
(c)
|
The
Structure Memorandum (including reliance letters (or addressee language)
in favour of the Finance Parties).
|
|
(d)
|
The
Funds Flow Statement.
|
|
(e)
|
Group
corporate ownership structure chart and list of Material
Companies.
|
|
(f)
|
Draft
Press Release.
|
|
(g)
|
A
copy of each Scheme Document.*
|
|
(h)
|
The
following in relation to the
Scheme:
|
|
(i)
|
a
copy of the shareholder resolution approving the
Scheme;*
|
|
(ii)
|
a
copy of the Implementation Agreement;*
and
|
|
(iii)
|
copy
of the court
order sanctioning the Scheme;*
|
The
documents
provided
in paragraphs (g)-(h) above are not required to be in form and substance
satisfactory to the Facility Agent.
160
|
6.
|
Miscellaneous
|
|
(a)
|
Evidence
that steps 1 to 12
specified in the Structure Memorandum to be completed prior to the
first
utilisation have been completed.*
|
|
(b)
|
Each
Vendor Document (other than the VLN Pledges) in agreed
form.
|
161
PART
II
Conditions
subsequent within 90 days of Closing
|
1.
|
Obligors
|
|
(a)
|
A
copy of the constitutional documents of each Guarantor,
the Vendor Loan Note Holder and the VLN Security Trustee including
in
relation to a Dutch Obligor, a recent extract from the Dutch trade
register (handelsregister)
relating to it.
|
|
(b)
|
If
required under applicable law or practice, a copy of a resolution
of the
board of directors (or equivalent) of each Guarantor, the Vendor
Loan Note
Holder and the VLN Security
Trustee:
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Accession
Letter
and the Finance Documents to which it is a party and resolving that
it
execute, deliver and perform the Accession Letter and any other Finance
Documents to which it is a party;
|
|
(ii)
|
authorising
a specified person or persons to execute the Accession Letter and
any
other Finance Documents to which it is a party on its
behalf;
|
|
(iii)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch
all
documents and notices (including, if relevant, any Utilisation Request
and
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a party;
and
|
|
(iv)
|
authorising
the Company
to act as its agent in connection with the Finance
Documents.
|
|
(c)
|
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above in relation to the Finance Documents
and related documents.
|
|
(d)
|
If
required under applicable law or practice, a copy of a resolution
signed
by all the holders of the issued shares in each Guarantor (which
are
members of the Group), approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Guarantor is
a
party.
|
|
(e)
|
A
certificate of an authorised signatory of the Guarantor, the Vendor
Loan
Note Holder and the VLN Security Trustee certifying that each copy
document relating to it specified in this Part II of Schedule 2 is
correct, complete and in full force and effect and has not been amended
or
superseded and there has not been any breach of guaranteeing or borrowing
restrictions.
|
|
(f)
|
In
respect of a Dutch Obligor, if required, a copy of a resolution of
its
general meeting of shareholders or board of supervisory directors
(if any)
approving its execution and the terms of, and the transactions
contemplated by, the Finance Documents (and, if applicable, appointing
one
or more authorised persons to represent the relevant Dutch Obligor
in case
of a conflict of interest) and of a concurring unconditional advice
of any
works council or union which has advisory rights in respect of the
transactions contemplated in the Finance
Documents.
|
162
|
(g)
|
If
such Guarantor is a US Obligor and in the case of the Vendor Loan
Note
Holder and VLN Security Trustee, a certificate as to the existence
and
good standing (including verification of tax status, if available)
of the
US Obligor from the appropriate governmental authorities in such
US
Obligor's jurisdiction of organisation and in each other jurisdiction
where such US Obligor is qualified to do business (if any), and where
the
failure to be so qualified would have a Material Adverse Effect on
such US
Obligor.
|
|
(h)
|
If
such Guarantor is a US Obligor, a solvency
certificate.
|
|
(i)
|
In
the case of US Obligors, control agreements with respect to deposit
accounts, as required by the relevant Transaction Security
Document.
|
|
2.
|
Documents
|
|
(a)
|
Accession
of each Guarantor as a guarantor of the Senior Facilities and the
Facility
and the Intercreditor Agreement.
|
|
(b)
|
Each
Transaction Security Document (and any documents agreed to be provided
thereunder) executed by each Guarantor specified below opposite the
relevant Transaction Security
Document:
|
|
Name
of Guarantor
|
Transaction
Security Document
|
|
|
NDS
Finance Limited
|
Share
Pledge over NDS Americas Inc.
Share
Pledge over NDS Holdings B.V.
Pledge
over IP rights in the US (if any)
|
|
|
NDS
Limited
|
Share
Pledge over NDS Technologies France SAS
Pledge
over IP rights in the US
|
|
|
News
Datacom Limited
|
Pledge
over IP rights in the US
|
|
|
NDS
Sweden AB
|
Share
Pledge over NDS Technologies Israel Limited
Business
Mortgage(s), if any
Real
Estate Mortgage(s) (if any material real estate)
Pledge
over intercompany loans, if any
Pledge
over IP rights, if any
|
|
|
NDS
Americas Inc.
|
Security
Agreement
Pledge
Agreement (if required in accordance with the Security
Principles)
Deposit
Account Control Agreement, if any
Mortgages/Deed
of Trust (if any material real
estate)
|
163
|
Name
of Guarantor
|
Transaction
Security Document
|
|
NDS
Holdings B.V.
|
Share
Pledge over NDS Sweden AB
|
|
|
NDS
Technologies Israel Limited
|
Floating
Charge Agreement (which, for the avoidance of doubt, shall be
second
ranking for so long as the existing Security in favour of the
State of
Israel remains in place)
|
|
|
Parent
|
Pledge
over IP rights in the US (if any)
|
|
|
Digi-Media
Vision Limited
|
Pledge
over IP rights in the US (if
any)
|
|
(c)
|
A
New York law assignment by way of security (and any documents agreed
to be
provided thereunder) granted by the Vendor Loan Note Holder and the
VLN
Security Trustee in favour of the Security Agent in respect of all
their
respective rights, title, interest and benefit under the VLN
Pledges.
|
|
(d)
|
A
copy of the constitutional documents of any member of the Group whose
shares are subject to Security under any Transaction Security Document
referred to in paragraph (c) above, together with any resolutions
of the
shareholders of that member of the Group adopting such changes to
the
constitutional documents of that member of the Group as may be necessary
to enable the Security Agent to enforce the Transaction Security
without
restriction by that member of the Group or its
directors.
|
|
3.
|
Legal
opinions
|
|
(a)
|
Legal
opinions from the legal advisers to the Facility Agent relating to
entry
into the Finance Documents by the Guarantors and, where customary
in the
relevant jurisdictions and with respect to capacity only, from the
legal
advisers of the relevant Guarantor.
|
|
(b)
|
A
legal opinion by Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special US
counsel to the Vendor Loan Note Holder and the VLN Security Trustee,
with
respect to their respective capacity to enter into the New York law
assignment referred to in paragraph 2(c)
above.
|
|
(c)
|
A
legal opinion by Linklaters LLP as the New York law legal advisers
to the
Facility Agent relating to the New York law assignment referred to
in
paragraph 2(c) above.
|
|
4.
|
Other
documents and evidence
|
|
(a)
|
If
the proposed Guarantor is incorporated in a jurisdiction other than
England and Wales, evidence that the agent for service of process
specified in Clause 41.2
(Service
of process),
if not an Obligor, has accepted its appointment in relation to the
proposed Guarantor.
|
164
|
|
(b)
|
Required
"know your customer" information in relation to the
Guarantor.
|
|
(c)
|
Such
documentary evidence as legal counsel to the Facility Agent may reasonably
require, that such Guarantor has complied with any procedures reasonably
required in its jurisdiction to permit the giving of financial assistance
or analogous process.
|
|
(d)
|
The
VLN Pledges (each dated on a date after the equivalent Transaction
Security Documents listed in paragraph 2(b)
above).
|
165
PART
III
Conditions
Precedent required to be delivered by an Additional
Obligor
|
1.
|
Obligors
|
|
(a)
|
A
copy of the constitutional documents of the Additional Obligor
including in relation to a Dutch Obligor, a recent extract from the
Dutch
trade register (handelsregister)
relating to it.
|
|
(b)
|
If
required under applicable law or practice, a copy of a resolution
of the
board of directors (or equivalent) of the Additional
Obligor:
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Accession
Letter
and Finance Documents to which it is a party and resolving that it
execute, deliver and perform the Accession Letter and any other Finance
Documents to which it is a party;
|
|
(ii)
|
authorising
a specified person or persons to execute the Accession Letter and
other
Finance Documents to which it is a party on its
behalf;
|
|
(iii)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch
all
documents and notices (including, if relevant, in
relation to an Additional Borrower, any Utilisation Request or Selection
Notice) to be signed and/or despatched by it under or in connection
with
the Finance Documents to which it is a party;
and
|
|
(iv)
|
authorising
the Company to act as its agent in connection with the Finance
Documents.
|
|
(c)
|
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above in relation to the Finance Documents
and related documents.
|
|
(d)
|
If
required under applicable law, a copy of a resolution signed by all
the
holders of the issued shares in the Additional Obligor (which are
members
of the Group), approving the terms of, and the transactions contemplated
by, the Finance Documents to which the Additional Obligor is a
party.
|
|
(e)
|
A
certificate of an authorised signatory of the Additional Obligor
certifying that each copy document relating to it specified in this
Part
III of Schedule 2 is correct, complete and in full force and effect
and
has not been amended or superseded and there has not been any breach
of
guaranteeing or borrowing
restrictions.
|
|
(f)
|
In
respect of a Dutch Obligor, if required, a copy of a resolution of
its
general meeting of shareholders or board of supervisory directors
(if any)
approving its execution and the terms of, and the transactions
contemplated by, the Finance Documents (and, if applicable, appointing
one
or more authorised persons to represent the relevant Dutch Obligor
in case
of a conflict of interest) and of a concurring unconditional advice
of any
works council or union which has advisory rights in respect of the
transactions contemplated in the Finance
Documents.
|
166
|
(g)
|
If
such Additional Obligor is a US Obligor, a certificate as to the
existence
and good standing (including verification of tax status, if available)
of
the US Obligor from the appropriate governmental authorities in such
US
Obligor's jurisdiction of organisation and in each other jurisdiction
where such US Obligor is qualified to do business and where the failure
to
be so qualified would have a Material Adverse Effect on such US
Obligor.
|
|
(h)
|
If
such Additional Obligor is a US Obligor, a solvency
certificate.
|
|
(i)
|
In
the case of US Obligors, control agreements with respect to deposit
accounts as required by the relevant Transaction Security
Document.
|
|
2.
|
Documents
|
|
(a)
|
Accession
of the Additional Obligor to the Senior Facilities Agreement, this
Agreement and the Intercreditor
Agreement.
|
|
(b)
|
Each
Transaction Security Document (and any documents agreed to be provided
thereunder) reasonably required by the Facility Agent and to be provided
in accordance with the Security Principles and executed by the Additional
Obligor.
|
|
(c)
|
A
copy of the constitutional documents of any member of the Group whose
shares are subject to Security under any Transaction Security Document
referred to in paragraph (b) above, together with any resolutions
of the
shareholders of that member of the Group adopting such changes to
the
constitutional documents of that member of the Group as may be necessary
to enable the Security Agent to enforce the Transaction Security
without
restriction by that member of the Group or its
directors.
|
|
3.
|
Legal
opinions
|
Legal
opinions from the legal advisers to the Facility Agent relating to entry into
the Finance Documents by the Additional Obligor and, where customary in the
relevant jurisdictions and with respect to capacity only, from the legal
advisers of the Additional Obligor.
|
4.
|
Other
documents and evidence
|
|
(a)
|
If
the proposed Additional Obligor is incorporated in a jurisdiction
other
than England and Wales, evidence that the agent for service of process
specified in Clause 41.2
(Service
of process),
if not an Obligor, has accepted its appointment in relation to the
proposed Additional Obligor.
|
|
(b)
|
Required
"know your customer" information in relation to the
Guarantor.
|
|
(c)
|
Such
documentary evidence as legal counsel to the Facility Agent may reasonably
require, that such Additional Obligor has (to the extent reasonable)
complied with any procedure reasonably required in its jurisdiction
to
permit the giving of financial assistance or analogous
process.
|
167
SCHEDULE
3
Requests
PART
I
Utilisation
Request Loans
From: [Borrower]
Company*
To: [Facility
Agent]
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$385,000,000 Mezzanine Facility Agreement
dated
[ ]
(the " Facility Agreement")
|
1.
|
We
refer to the Facility Agreement. This is a Utilisation Request. Terms
defined in the Facility Agreement have the same meaning in this
Utilisation Request unless given a different meaning in this Utilisation
Request.
|
|
2.
|
[We
wish to borrow a Loan on the following
terms:
|
|
(a)
|
Borrower:
|
[ ]
|
|
(b)
|
Proposed
Utilisation Date:
|
[ ]
(or, if that is not a Business Day, the next Business
Day)
|
|
(c)
|
Currency
of Loan:
|
[ ]
|
|
(d)
|
Amount:
|
[ ]
or, if less, the Available Facility
|
|
(e)
|
Interest
Period:
|
[ ]
|
|
3.
|
We
confirm that each condition specified in Clause 4.2
(Conditions
to Utilisation)
is satisfied on the date of this Utilisation
Request.
|
|
4.
|
[The
proceeds of this Loan should be credited to [account]].
|
|
5.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
authorised
signatory for
[the
Company on behalf of [insert
name of relevant Borrower]]/[insert
name of Borrower]*
NOTES:
*
Amend
as
appropriate. The Utilisation Request can be given by the Borrower or by the
Company.
** Select
the Facility to be utilised and delete references to the other
Facilities.
168
PART
II
Selection
Notice
From: [Borrower]
Company*
To: [Facility
Agent]
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$385,000,000 Mezzanine Facility Agreement
dated
[ ]
(the "Facility Agreement")
|
1.
|
We
refer to the Facility Agreement. This is a Selection Notice. Terms
defined
in the Facility Agreement have the same meaning in this Selection
Notice
unless given a different meaning in this Selection
Notice.
|
|
2.
|
We
refer to the following Loan[s] with an Interest Period ending on
[ ]**.
|
|
3.
|
[We
request that the above Loan[s] be divided into [ ]
Loans with the following Base Currency Amounts and Interest Periods:]
***
|
or
[We
request that the next Interest Period for the above Loan[s] is [ ]].****
|
4.
|
This
Selection Notice is irrevocable.
|
Yours
faithfully
authorised
signatory for
[the
Company on behalf of] [insert
name of relevant Borrower]]/[insert
name of Relevant Borrower]*
NOTES:
| * |
Amend
as appropriate. The Selection Notice can be given by the Borrower
or the
Company.
|
| ** |
Insert
details of all Loans which have an Interest Period ending on the
same
date.
|
| *** |
Use
this option if division of Loans for the relevant Facility is
requested.
|
| **** |
Use
this option if sub-division is not
required.
|
169
PART
III
Redenomination
Notice
From: [Facility
Agent]
To: Company
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$385,000,000 Mezzanine Facility Agreement
dated
[ ]
(the "Facility Agreement")
|
1.
|
We
refer to the Facility Agreement. This is a Redenomination Notice.
Terms
defined in the Facility Agreement have the same meaning in this
Redenomination Notice unless given a different meaning in this
Redenomination Notice.
|
|
2.
|
We
request [that $[ ]
of the Facility be redenominated into euros [and] that $[ ]
of the Facility be redenominated into
euros.
|
|
3.
|
We
request that the above redenomination should occur and be effective
on
[ ].
|
|
4.
|
This
Redenomination Notice is
irrevocable.
|
Yours
faithfully
[Facility
Agent]
170
PART
IV
Withdrawal
Notice
From: [Company]
on behalf of the Parent
To: [Security
Agent]
Dated: [ ]
Dear
Sirs
NDS
Finance Limited
- $385,000,000 Mezzanine Facility Agreement
dated
[ ]
(the "Facility Agreement")
|
1.
|
We
refer to the Facility Agreement. This is a Withdrawal Notice. Terms
defined in the Facility Agreement have the same meaning in this Withdrawal
Notice unless given a different meaning in this Withdrawal
Notice.
|
|
2.
|
The
intended Scheme Date is [ ].
|
|
3.
|
We
request that on the Scheme Date the following amounts are transferred
from
the Group Blocked Account and credited to accounts of the following
recipients in accordance with the payment instructions set out
below:
|
|
(a)
|
$[ ]
to [recipient],
credited to [account]
in accordance with [insert
payment instructions/the attached payment instructions];
|
|
(b)
|
[repeat
(a) above for each payment to be made]
|
|
4.
|
We
request that on the Scheme Date the following amounts are transferred
from
the Lender Blocked Account and credited to accounts of the following
recipients in accordance with the payment instructions set out
below:
|
|
(a)
|
$[ ]
to [recipient],
credited to [account]
in accordance with [insert
payment instructions/the attached payment instructions];
|
|
(b)
|
[repeat
(a) above for each payment to be made]
|
|
5.
|
This
Withdrawal Notice is irrevocable, subject to the occurrence of the
Scheme
Date and the conditions to withdrawal set out in the Parent
Debenture.
|
Yours
faithfully
authorised
signatory for
[the
Company] on behalf of the Parent
171
SCHEDULE
4
Mandatory
Cost Formulae
|
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate
Lenders
for the cost of compliance with (a) the requirements of the Bank
of
England and/or the Financial Services Authority (or, in either case,
any
other authority which replaces all or any of its functions) or (b)
the
requirements of the European Central
Bank.
|
|
2.
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Facility Agent shall calculate, as a percentage rate, a rate
(the
"Additional
Cost Rate")
for each Lender, in accordance with the paragraphs set out below.
The
Mandatory Cost will be calculated by the Facility Agent as a weighted
average of the Lenders' Additional Cost Rates (weighted in proportion
to
the percentage participation of each Lender in the relevant Loan)
and will
be expressed as a percentage rate per
annum.
|
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in a
Participating Member State will be the percentage notified by that
Lender
to the Facility Agent. This percentage will be certified by that
Lender in
its notice to the Facility Agent to be its reasonable determination
of the
cost (expressed as a percentage of that Lender's participation in
all
Loans made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans
made
from that Facility Office.
|
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in the
United Kingdom will be calculated by the Facility Agent as
follows:
|
Where:
| A |
is
the percentage of Eligible Liabilities (assuming these to be in excess
of
any stated minimum) which that Lender is from time to time required
to
maintain as an interest free cash ratio deposit with the Bank of
England
to comply with cash ratio
requirements.
|
| B |
is
the percentage rate of interest (excluding the Margin and the Mandatory
Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in paragraph (a) of Clause 11.4 (Default
interest))
payable for the relevant Interest Period on the
Loan.
|
| C |
is
the percentage (if any) of Eligible Liabilities which that Lender
is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
| D |
is
the percentage rate per annum payable by the Bank of England to the
Facility Agent on interest bearing Special
Deposits.
|
| E |
is
designed to compensate Lenders for amounts payable under the Fees
Rules
and is calculated by the Facility Agent as being the average of the
most
recent rates of charge supplied by the Reference Banks to the Facility
Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.
|
172
|
5.
|
For
the purposes of this Schedule:
|
|
(a)
|
"Eligible
Liabilities"
and "Special
Deposits"
have the meanings given to them from time to time under or pursuant
to the
Bank of England Act 1998 or (as may be appropriate) by the Bank of
England;
|
|
(b)
|
"Fees
Rules"
means the rules on periodic fees contained in the FSA Supervision
Manual
or such other law or regulation as may be in force from time to time
in
respect of the payment of fees for the acceptance of
deposits;
|
|
(c)
|
"Fee
Tariffs"
means the fee tariffs specified in the Fees Rules under the activity
group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required
pursuant to the Fees Rules but taking into account any applicable
discount
rate); and
|
|
(d)
|
"Tariff
Base"
has the meaning given to it in, and will be calculated in accordance
with,
the Fees Rules.
|
|
6.
|
In
application of the above formulae, A, B, C and D will be included
in the
formulae as percentages (i.e. 5 per cent. will be included in the
formula
as 5 and not as 0.05). A negative result obtained by subtracting
D from B
shall be taken as zero. The resulting figures shall be rounded to
four
decimal places.
|
|
7.
|
If
requested by the Facility Agent, each Reference Bank shall, as soon
as
practicable after publication by the Financial Services Authority,
supply
to the Facility Agent, the rate of charge payable by that Reference
Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect
of the relevant Financial Year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the
average
of the Fee Tariffs applicable to that Reference Bank for that Financial
Year) and expressed in pounds per £1,000,000 of the Tariff Base of that
Reference Bank.
|
|
8.
|
Each
Lender shall supply any information required by the Facility Agent
for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
on
or prior to the date on which it becomes a
Lender:
|
|
(a)
|
the
jurisdiction of its Facility Office;
and
|
|
(b)
|
any
other information that the Facility Agent may reasonably require
for such
purpose.
|
Each
Lender shall promptly notify the Facility Agent of any change to the information
provided by it pursuant to this paragraph.
|
9.
|
The
percentages of each Lender for the purpose of A and C above and the
rates
of charge of each Reference Bank for the purpose of E above shall
be
determined by the Facility Agent based upon the information supplied
to it
pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a
Lender notifies the Facility Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits and Special Deposits
are
the same as those of a typical bank from its jurisdiction of incorporation
with a Facility Office in the same jurisdiction as its Facility
Office.
|
|
10.
|
The
Facility Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates
any
Lender and shall be entitled to assume that the information provided
by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above
is
true and correct in all respects.
|
173
|
11.
|
The
Facility Agent shall distribute the additional amounts received as
a
result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender
and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
|
12.
|
Any
determination by the Facility Agent pursuant to this Schedule in
relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount
payable to a Lender shall, in the absence of manifest error, be conclusive
and binding on all Parties.
|
|
13.
|
The
Facility Agent may from time to time, after consultation with the
Company
and the Lenders, determine and notify to all Parties any amendments
which
are required to be made to this Schedule in order to comply with
any
change in law, regulation or any requirements from time to time imposed
by
the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces
all or
any of its functions) and any such determination shall, in the absence
of
manifest error, be conclusive and binding on all
Parties.
|
174
SCHEDULE
5
Form
of Transfer Certificate and Lender Accession
Undertaking
To: [ ]
as
Facility Agent and [ ]
as
Security Agent
From: [The
Existing Lender]
(the
"Existing
Lender")
and
[The
New Lender]
(the
"New
Lender")
Dated: [ ]
NDS
Finance Limited –
$385,000,000 Mezzanine Facility Agreement
dated
[ ]
(the "Facility Agreement")
|
1.
|
We
refer to the Facility Agreement and to the Intercreditor Agreement
(as
defined in the Facility Agreement). This agreement (the "Agreement")
shall take effect as a Transfer Certificate and Lender Accession
Undertaking for the purpose of the Facility Agreement and as a Lender
Accession Undertaking for the purposes of the Intercreditor Agreement
(and
as defined therein). Terms defined in the Facility Agreement have
the same
meaning in this Agreement unless given a different meaning in this
Agreement.
|
|
2.
|
We
refer to Clause 26.5
(Procedure
for transfer)
of the Facility Agreement:
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender's Commitment, rights and obligations referred to in the Schedule
in
accordance with Clause 26.5
(Procedure
for transfer).
|
|
(b)
|
The
proposed Transfer Date is [ ].
|
|
(c)
|
The
Facility Office and address, fax number and attention details for
notices
of the New Lender for the purposes of Clause 33.2
(Addresses)
are set out in the Schedule.
|
|
3.
|
The
New Lender expressly acknowledges the limitations on the Existing
Lender's
obligations set out in paragraph (c) of Clause 26.4
(Limitation
of responsibility of Existing Lenders).
|
|
4.
|
[The
New Lender confirms that the person beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document
is either:
|
|
(a)
|
a
company resident in the United Kingdom for United Kingdom tax
purposes;
|
|
(b)
|
a
partnership each member of which
is:
|
|
(i)
|
a
company so resident in the United Kingdom;
or
|
|
(ii)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and brings into
account in computing its chargeable profits (for the purposes of
section
11(2) of the Taxes Act) the whole of any share of interest payable
in
respect of that advance that falls to it by reason of sections 114
and 115
of the Taxes Act; or
|
|
(c)
|
a
company not so resident in the United Kingdom which carries on a
trade in
the United Kingdom through a permanent establishment and which brings
into
account interest payable in respect of that advance in computing
the
chargeable profits (for the purposes of section 11(2) of the Taxes
Act) of
that company.]*
|
175
|
(d)
|
[a
Treaty Lender].
|
|
5.
|
The
New Lender confirms that it is [a Qualifying Lender (other than a
Treaty
Lender)] [a Treaty Lender]**.
|
|
6.
|
We
refer to Clause 21.2 (Change
of Senior Lender or Mezzanine Lender)
of the Intercreditor Agreement:
|
|
(a)
|
In
consideration of the New Lender being accepted as a Senior Lender
for the
purposes of the Intercreditor Agreement (and as defined therein),
the New
Lender confirms that, as from [date],
it intends to be party to the Intercreditor Agreement as a Senior
Lender,
and undertakes to perform all the obligations expressed in the
Intercreditor Agreement to be assumed by a Senior Lender and agrees
that
it shall be bound by all the provisions of the Intercreditor Agreement,
as
if it had been an original party to the Intercreditor
Agreement.
|
|
(b)
|
The
undertakings contained in this Agreement have been entered into on
the
date stated above.
|
|
7.
|
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.
|
This
Agreement is governed by and construed in accordance with English
law.
|
[Please
note that the following steps should be taken in order for the New Lender to
obtain the benefit of the Transaction Security: [ ]]
NOTES:
|
*
|
Amend
as appropriate. This paragraph must only be included where the New
Lender
is a UK non-bank Lender.
|
|
**
|
Amend
as appropriate. Each New Lender is required to confirm which of these
two
categories it falls within. If there are Borrowers other than UK
incorporated Borrowers, each New Lender is required to confirm which
of
these two categories it falls within in respect of a Loan to a Borrower
incorporated in the United Kingdom.
|
176
SCHEDULE
[ ]
Commitment/rights
and obligations to be transferred
[insert
relevant details]
[Facility
Office address, fax number and attention details for notices and account details
for payments,]
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
|
By:
|
This
Agreement is accepted as a Transfer Certificate and Lender Accession Undertaking
for the purposes of the Facilities Agreement by the Facility Agent, and as
a
Lender Accession Undertaking for the purposes of the Intercreditor Agreement
by
the Facility Agent and the Security
Agent, and the Transfer Date is confirmed as [ ].
[Facility
Agent]
By:
[Security
Agent]
By:
177
SCHEDULE
6
Form
of Accession letter
To: [ ]
as
Facility Agent
From: [Subsidiary]
and
Company
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$385,000,000 Mezzanine Facility Agreement
dated
[ ]
(the "Facility Agreement")
|
1.
|
We
refer to the Facility Agreement. This is an Accession Letter. Terms
defined in the Facility Agreement have the same meaning in this Accession
Letter unless given a different meaning in this Accession
Letter.
|
|
2.
|
[Subsidiary]
agrees to become an Additional [Borrower]/[Guarantor] and to be bound
by
the terms of the Facility Agreement, the Intercreditor Agreement
and the
other Finance Documents as an Additional [Borrower]/[Guarantor] pursuant
to Clause [27.2
(Additional
Borrowers)]*/[Clause
27.4
(Additional
Guarantors)]
of the Facility Agreement and as an [Obligor] pursuant to Clause
[ ]
of the Intercreditor Agreement. [Subsidiary]
is a company duly incorporated under the laws of [name
of relevant jurisdiction]
and is a limited liability company and registered number [ ].
|
|
3.
|
[Subsidiary's]
administrative details are as
follows:
|
Address:
Fax
No.:
Attention:
|
4.
|
This
Accession Letter is governed by English
law.
|
[This
Guarantor Accession Letter is entered into by deed.]**
|
Company
|
[Subsidiary]
|
NOTES:
| * |
Insert
if Accession Letter is for an Additional
Borrower.
|
|
**
|
If
the Facilities are fully drawn there may be an issue in relation
to past
consideration for a proposed Additional Guarantor. This can be overcome
by
acceding by way of deed.
|
178
SCHEDULE
7
Form
of Resignation Letter
To: [ ]
as
Facility Agent
From: [resigning
Obligor]
and
Company
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$385,000,000 Mezzanine Facility Agreement
dated
[ ]
(the "Facility Agreement")
|
1.
|
We
refer to the Facility Agreement. This is a Resignation Letter. Terms
defined in the Facility Agreement have the same meaning in this
Resignation Letter unless given a different meaning in this Resignation
Letter.
|
|
2.
|
Pursuant
to [Clause 27.3
(Resignation
of a Borrower)]/Clause
27.5
(Resignation
of a Guarantor),
we request that [resigning
Obligor]
be released from its obligations as a [Borrower]/[Guarantor] under
the
Facility Agreement, the Intercreditor Agreement and the Finance
Documents.
|
|
3.
|
We
confirm that:
|
|
(a)
|
no
Default is continuing or would result from the acceptance of this
request;
[and]
|
|
(b)
|
[this
request is given in relation to a Third Party Disposal of [resigning
Obligor]*;
[and]
|
|
(c)
|
[the
Disposal Proceeds have been or will be applied in accordance with
Clause
9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO);]**
|
|
(d)
|
[ ].***
|
|
4.
|
This
letter is governed by English law.
|
|
5.
|
The
Company agrees to indemnify the Finance Parties and Secured Parties
for
any costs, expenses, or liabilities which would have been payable
by
[resigning
Obligor]
in connection with the Finance Documents but for the release set
out in
paragraph 1 above.
|
|
Company
|
[resigning
Obligor]
|
|
By:
|
By:
|
NOTES:
| * |
Insert
where resignation only permitted in case of a Third Party
Disposal.
|
|
**
|
Amend
as appropriate, e.g. to reflect agreed procedure for payment of proceeds
into a specified account.
|
| *** |
Insert
any other conditions required by the Facilities
Agreement.
|
179
SCHEDULE
8
Form
of Compliance Certificate
To: [ ]
as
Facility Agent
From: Parent
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$385,000,000 Mezzanine Facility
dated
[ ]
(the "Facility Agreement")
|
1.
|
We
refer to the Facility Agreement. This is a Compliance Certificate.
Terms
defined in the Facility Agreement have the same meaning when used
in this
Compliance Certificate unless given a different meaning in this Compliance
Certificate.
|
|
2.
|
We
confirm that:
|
|
(a)
|
in
respect of the Relevant Period ending on [ ]
Consolidated Cashflow for the Relevant Period was [ ]
and Net Debt Service for the Relevant Period was [ ].
Therefore Consolidated Cashflow for such Relevant Period was [ ]
times Net Debt Service for such Relevant Period and the covenant
contained
in paragraph (a) of Clause 23.2
(Financial
condition)
[has/has not] been complied with;
|
|
(b)
|
in
respect of the Relevant Period ending on [ ]
Consolidated EBITDA for such Relevant Period was [ ]
and Consolidated Net Finance Charges for such Relevant Period were
[ ].
Therefore Consolidated EBITDA for such Relevant Period was [ ]
times Consolidated Net Finance Charges for such Relevant Period and
the
covenant contained in paragraph (b) of Clause 23.2
(Financial
condition)
[has/has not] been complied with;
|
|
(c)
|
on
the last day of the Relevant Period ending on [ ]
Consolidated Total Net Debt was [ ]
and Consolidated EBITDA for such Relevant Period was [ ]].
Therefore Consolidated Total Net Debt at such time [did/did not]
exceed
[ ]
times Consolidated EBITDA for such Relevant Period and the covenant
contained in paragraph (c) of Clause 23.2
(Financial
condition)
[has/has not] been complied with;
|
|
(d)
|
Capital
Expenditure for the [initial
period]/[Financial
Year of the Group] ending on [ ]
was [ ].
Therefore Capital Expenditure during [the
initial period]/[such
Financial Year] [was/was not] in excess of [ ]
(being the maximum expenditure permitted in that period [after taking
into
account unused capital expenditure for the preceding Financial Year
equal
to [ ]]
and the covenant contained in paragraph (d) of Clause 23.2
(Financial
condition)
[has/has not] been complied with;
|
180
We
confirm that Debt Cover is [ ]:1
and
that, therefore, the Facility A Margin should be [ ]%
p.a.,
the Facility B Margin should be [ ]%
p.a.
and the Revolving Facility Margin should be [ ]%
p.a.
|
(e)
|
Excess
Cashflow for the Financial Year of the Group ending [ ]
was [ ].
Therefore the Excess Cashflow to be applied in prepayment pursuant
to
Clause 9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
will be [ ].
|
|
3.
|
[We
confirm that no Default is
continuing.]*
|
|
4.
|
[We
confirm that the following companies constitute Material Companies
for the
purposes of the Facility Agreement: [ ].]
|
[We
confirm that the aggregate of the earnings before interest, tax, depreciation
and amortisation (calculated on the same basis as Consolidated EBITDA) of the
Guarantors and the aggregate gross assets of the Guarantors (calculated in
each
case on an unconsolidated basis and excluding all intra-group items and
investments in Subsidiaries of any member of the Group)
represents not less than 80 per cent. of Consolidated EBITDA and consolidated
gross assets of the Group.]
|
Signed
|
|
|
||
|
Director
|
Director
|
|||
|
of
|
of
|
|||
|
Parent
|
Parent
|
[insert
applicable certification language]
for and on behalf of
[name
of auditors of the Parent]
NOTES:
|
*
|
If
this statement cannot be made, the certificate should identify any
Default
that is continuing and the steps, if any, being taken to remedy
it.
|
181
SCHEDULE
9
LMA
Form of Confidentiality Undertaking
[Letterhead
of Lender]
To:
|
|
[insert
name of Potential
Lender]
|
Re:
The
Facilit[y/ies]
|
Borrower: (the
"Borrower")
Date:
Amount:
Facility
Agent:
|
Dear
Sirs
We
understand that you are considering participating in the
Facilit[y/ies].
In
consideration of us agreeing to make available to you certain information,
by
your signature of a copy of this letter you agree as follows:
|
1.
|
Confidentiality
Undertaking
|
You
undertake:
|
(a)
|
to
keep the Confidential Information confidential and not to disclose
it to
anyone except as provided for by paragraph 2 below and to ensure
that the
Confidential Information is protected with security measures and
a degree
of care that would apply to your own confidential
information;
|
|
(b)
|
to
use the Confidential Information only for the Permitted
Purpose;
|
|
(c)
|
to
use all reasonable endeavours to ensure that any person to whom you
pass
any Confidential Information (unless disclosed under paragraph 2(b)
below)
acknowledges and complies with the provisions of this letter as if
that
person were also a party to it; and
|
|
(d)
|
[not
to make enquiries of any member of the Group or any of their officers,
directors, employees or professional advisors relating directly or
indirectly to the Facilit[y/ies].]
|
|
2.
|
Permitted
Disclosure
|
We
agree
that you may disclose Confidential Information:
|
(a)
|
to
members of the Participant Group and their officers, directors, employees
and professional advisers to the extent necessary for the Permitted
Purpose and to any auditors of members of the Participant
Group;
|
182
|
(b)
|
to
any person to (or through) whom you assign or transfer (or may potentially
assign or transfer) all or any of the rights, benefits and obligations
which you may acquire under to the Facilit[y/ies] or with (or through)
whom you enter into (or may potentially enter into) any sub-participation
in relation to, or any other transaction under which payments are
to be
made by reference to the Facilit[y/ies] or the relevant Borrower
or any
member of the relevant Group in each case so long as that person
has
delivered an undertaking to you in equivalent form to this
undertaking;
|
|
(c)
|
(i)
where requested or required by any court of competent jurisdiction
or any
competent judicial, governmental, supervisory or regulatory body,
(ii)
where required by the rules of any stock exchange on which the shares
or
other securities of any member of the Participant Group are listed
or
(iii) where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Participant Group;
or
|
|
(d)
|
with
the prior written consent of us and the
Borrower.
|
|
3.
|
Notification
of Required or Unauthorised
Disclosure
|
You
agree
(to the extent permitted by law) to inform us of the full circumstances of
any
disclosure under paragraph 2(b) or upon becoming aware that Confidential
Information has been disclosed in breach of this letter.
|
4.
|
Return
of Copies
|
If
we so
request in writing, you shall return all Confidential Information supplied
to
you by us and destroy or permanently erase all copies of Confidential
Information made by you and use all reasonable endeavours to ensure that anyone
to whom you have supplied any Confidential Information destroys or permanently
erases such Confidential Information and any copies made by them, in each case
save to the extent that you or the recipients are required to retain any such
Confidential Information by any applicable law, rule or regulation or by any
competent judicial, governmental, supervisory or regulatory body or in
accordance with internal policy, or where the Confidential Information has
been
disclosed under paragraph 2(b) above.
|
5.
|
Continuing
Obligations
|
The
obligations in this letter are continuing and, in particular, shall survive
the
termination of any discussions or negotiations between you and us.
Notwithstanding the previous sentence, the obligations in this letter shall
cease (a) if you become a party to or otherwise acquire (by assignment or
sub-participation) an interest, direct or indirect, in the Facilit[y/ies] or
(b)
twelve months after you have returned all Confidential Information supplied
to
you by us and destroyed or permanently erased all copies of Confidential
Information made by you (other than any such Confidential Information or copies
which have been disclosed under paragraph 2 above (other than sub-paragraph
2(a)) or which, pursuant to paragraph 4 above, are not required to be returned
or destroyed).
183
|
6.
|
No
Representation; Consequences of Breach,
etc
|
You
acknowledge and agree that:
|
(a)
|
neither
we, nor any of our officers, employees or advisers (each a "Relevant
Person")
(i) make any representation or warranty, express or implied, as to,
or
assume any responsibility for, the accuracy, reliability or completeness
of any of the Confidential Information or any other information supplied
by us or any member of the Group or the assumptions on which it is
based
or (ii) shall be under any obligation to update or correct any inaccuracy
in the Confidential Information or any other information supplied
by us or
any member of the Group or be otherwise liable to you or any other
person
in respect to the Confidential Information or any such information;
and
|
|
(b)
|
we
or members of the Group may be irreparably harmed by the breach of
the
terms of this letter and damages may not be an adequate remedy; each
Relevant Person or member of the Group may be granted an injunction
or
specific performance for any threatened or actual breach of the provisions
of this letter by you.
|
|
7.
|
No
Waiver; Amendments, etc
|
This
letter sets out the full extent of your obligations of confidentiality owed
to
us in relation to the information the subject of this letter.
No
failure or delay in exercising any right, power or privilege under this letter
will operate as a waiver thereof nor will any single or partial exercise of
any
right, power or privilege preclude any further exercise thereof or the exercise
of any other right, power or privileges under this letter. The terms of this
letter and your obligations under this letter may only be amended or modified
by
written agreement between us.
|
8.
|
Inside
Information
|
You
acknowledge that some or all of the Confidential Information is or may be
price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation relating to insider dealing
and you undertake not to use any Confidential Information for any unlawful
purpose.
|
9.
|
Nature
of Undertakings
|
The
undertakings given by you under this letter are given to us and (without
implying any fiduciary obligations on our part) are also given for the benefit
of the Borrower and each other member of the Group.
|
10.
|
Third
Party Rights
|
|
(a)
|
Subject
to paragraphs 6 and 9, the terms of this letter may be enforced and
relied
upon only by you and us and the Company
(without requiring its signature) and the operation of the Contracts
(Rights of Third Parties) Xxx 0000 is
excluded.
|
184
|
(b)
|
Notwithstanding
any provisions of this letter, the parties to this letter do not
require
the consent of any Relevant Person to rescind or vary this letter
at any
time except that this letter may not be amended without the prior
written
consent of the Company.
|
|
11.
|
Governing
Law and Jurisdiction
|
|
(a)
|
This
letter (including the agreement constituted by your acknowledgement
of its
terms) shall be governed by and construed in accordance with the
laws of
England.
|
|
(b)
|
The
parties submit to the non-exclusive jurisdiction of the English
courts.
|
|
12.
|
Definitions
|
In
this
letter (including the acknowledgement set out below):
"Confidential
Information"
means
any information relating to the Borrower, the Group, and the Facilit[y/ies]
including, without limitation, the Information Memorandum provided to you by
us
or any of our affiliates or advisers, in whatever form, and includes information
given orally and any document, electronic file or any other way of representing
or recording information which contains or is derived or copied from such
information but excludes information that (a) is or becomes public knowledge
other than as a direct or indirect result of any breach of this letter or (b)
is
known by you before the date the information is disclosed to you by us or any
of
our affiliates or advisers or is lawfully obtained by you after that date,
other
than from a source which is connected with the Group and which, in either case,
as far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality.
"Company"
means
NDS Finance Limited (registration number [ ]).
"Group"
means
the Borrower and each of its holding companies and subsidiaries and each
subsidiary of each of its holding companies (as each such term is defined in
the
Companies Act 1985).
"Information
Memorandum"
means
the information memorandum prepared in relation to the
Facilit[y/ies].
"Permitted
Purpose"
means
considering and evaluating whether to enter into the
Facilit[y/ies].
"Participant
Group"
means
you, each of your holding companies and subsidiaries and each subsidiary of
each
of your holding companies (as each such term is defined in the Companies Act
1985).
Please
acknowledge your agreement to the above by signing and returning the enclosed
copy.
Yours
faithfully
For
and
on behalf of
[Lender]
To:
[Arranger]
The
Borrower and each other member of the Group
We
acknowledge and agree to the above:
For
and
on behalf of
[Potential
Lender]
185
SCHEDULE
10
Timetable
|
Loans
in euro
|
Loans
in other
currencies
|
||||
|
Delivery
of a duly completed Utilisation Request (Clause 5.1
(Delivery
of a Utilisation Request)
or a Selection Notice (Clause 12.1 (Selection
of Interest Periods and Terms)).
|
U-3
9.30
am
|
U-3
9.30
am
|
|||
|
Facility
Agent determines (in relation to a Utilisation) the Base Currency
Amount
of the Loan, if required under Clause 5.4
(Lenders'
participation).
|
U-3
Noon
|
U-3
Noon
|
|||
|
Facility
Agent notifies the Lenders of the Loan in accordance with Clause
5.4
(Lenders'
participation).
|
U-3
3.00pm
|
U-3
3.00pm
|
|||
|
LIBOR
or EURIBOR is fixed.
|
Quotation
Day as of 11.00am (London time) in respect of LIBOR and as of 11.00am
(Brussels time) in respect of EURIBOR
|
Quotation
Day as of 11.00am
|
"U" = date
of
Utilisation
"U
-
X" = X
Business Days prior to date of Utilisation
186
SCHEDULE
11
Material
Companies
NDS
Limited
Digi-Media
Vision Limited
News
Datacom Limited
NDS
Technologies France SAS
NDS
Americas, Inc.
NDS
Technologies Israel Limited
NDS
Sweden AB
NDS
Holdings B.V.
187
SCHEDULE
12
Security
Principles
|
1.
|
Security
Principles
|
|
(a)
|
The
guarantees and security to be provided will be given in accordance
with
the Security Principles set out in this Schedule 12.
This Schedule 12 addresses the manner in which these Security Principles
will impact on the guarantees and security proposed to be taken in
relation to the Finance Documents.
|
|
(b)
|
The
Security Principles embody recognition by all parties that there
may be
certain legal and practical difficulties in obtaining security from
all
Guarantors in every jurisdiction in which Guarantors are incorporated.
In
particular:
|
|
(i)
|
all
guarantees and security granted will be limited to the extent advised
by
local counsel and tax advisors as being necessary or reasonably desirable
to comply with local legal requirements and recommended tax
structuring;
|
|
(ii)
|
general
statutory limitations, financial assistance, corporate benefit, fraudulent
preference, "thin capitalisation" rules, retention of title claims
and
similar principles may limit the ability of a Guarantor to provide
a
guarantee or security or may require that the guarantee be limited
by an
amount or otherwise.
All guarantees and security will be limited to comply with all such
restrictions. The Company will use reasonable endeavours to assist
in
demonstrating that adequate corporate benefit accrues to each Guarantor
and otherwise overcoming such
limitations;
|
|
(iii)
|
in
the case of any joint venture or non-wholly owned Subsidiary, all
guarantees and security will be limited to comply with restrictions
in the
joint venture agreement, the shareholders' agreement or the applicable
law. The Company will use reasonable endeavours to avoid or overcome
such
restrictions;
|
|
(iv)
|
the
security and extent of its perfection will be agreed taking into
account
the cost to the Group of providing security and the proportionate
benefit
accruing to the Lenders;
|
|
(v)
|
any
assets subject to third party arrangements which are permitted by
this
Agreement, and the Mezzanine Facility Agreement and which prevent
those
assets from being charged will be excluded from the Security in any
relevant Transaction Security Document provided
that
reasonable endeavours to obtain consent to charging any such assets
shall
be used by the relevant Guarantor if the relevant asset is
material;
|
|
(vi)
|
Guarantors
will not be required to give guarantees or enter into Transaction
Security
Documents if that would conflict with the fiduciary duties of their
directors or contravene any legal prohibition or result in a risk
of
personal or criminal liability on the part of any officer provided
that
the relevant Guarantor shall use reasonable endeavours to overcome
any
such obstacle;
|
188
|
(vii)
|
perfection
of security, when required, and other legal formalities will be completed
as soon as practicable and, in any event, within the time periods
specified in the Finance Documents therefor or (if earlier or to
the
extent no such time periods are specified in the Finance Documents)
within
the time periods specified by applicable law in order to ensure due
perfection;
|
|
(viii)
|
prior
to a Declared Default perfection of security granted will not be
required
if it would have a material adverse effect on the ability of the
relevant
Guarantor to conduct its operations and business in the ordinary
course as
otherwise permitted by the Finance
Documents;
|
|
(ix)
|
the
maximum guaranteed or secured amount may be limited to minimise stamp
duty, notarisation, registration or other applicable fees, taxes
and
duties where the benefit of increasing the granted or secured amount
is
disproportionate to the level of such fee, taxes and
duties;
|
|
(x)
|
where
a class of assets to be secured includes material and immaterial
assets,
if the cost of granting security over the immaterial assets is
disproportionate to the benefit of such security, security will be
granted
over the material assets only;
|
|
(xi)
|
unless
granted under a global security document governed by the law of the
jurisdiction of a Guarantor or under English law all security (other
than
share security over its Guarantor subsidiaries) shall be governed
by the
law of and secure assets located in the jurisdiction of incorporation
of
that Guarantor;
|
|
(xii)
|
guarantee
and security limitations may mean that access to the assets of a
Guarantor
is limited, in which case, any asset security granted by that Guarantor
shall be proportionate to the value of its
guarantee;
|
|
(xiii)
|
no
perfection action will be required in jurisdictions where Guarantors
are
not located but perfection action may be required in the jurisdiction
of
one Guarantor in relation to security granted by another Guarantor
located
in a different jurisdiction. Subject to those principles, perfection
action may also be required in respect of material intellectual property
rights in jurisdictions where such rights are
registered;
|
|
(xiv)
|
local
law restrictions may mean that the Senior Lenders and the Mezzanine
Lenders (each as defined in the Intercreditor Agreement) may not
be able
to benefit from the same security;
and
|
|
(xv)
|
the
Security Agent will hold one set of security for the Senior Lenders/and
the Mezzanine Lenders unless a second ranking security is required
by
local law for the Mezzanine
Lenders.
|
|
(c)
|
Reasonable
legal fees, disbursements, registration costs, taxes, notary fees
and
other costs and expenses related to the guarantees and security incurred
by legal counsel to the Company
and by legal counsel to the Arranger will be paid by the Company
up to an
agreed cap. Any additional costs and expenses (including legal fees)
incurred in connection with the preservation of rights and/or enforcement
of the guarantees and security will be paid by the
Company.
|
189
|
2.
|
Limitations
of US Security
|
The
obligations under the Finance Documents of any member of the Group which is
a
member of the US consolidated tax group may only benefit from any security
granted
over the shares, stock or other ownership interests of any Controlled Foreign
Corporation to the extent of 65 per cent. of such shares, stock or ownership
interests and such Controlled Foreign Corporation shall not be required to
guarantee, pledge its assets to secure or otherwise support the obligations
under the Finance Documents of any member of the Group which is a member of
the
US consolidated tax group.
|
3.
|
Guarantors
and Security
|
Each
guarantee and security will be an upstream, cross-stream and downstream
guarantee and each guarantee and security will be for all liabilities of the
Obligors under the Finance Documents in accordance with, and subject to, the
requirements of the Security Principles in each relevant
jurisdiction.
To
the
extent possible, all security shall be given in favour of the Security
Agent and not the Finance Parties individually. "Parallel debt" provisions
will
be used where necessary; such provisions will be contained in the Intercreditor
Agreement and not the individual security documents unless required under local
laws. To the extent possible, there should be no action required to be taken
in
relation to the guarantees or security when any Lender transfers any of its
participation in the Facilities to a new Lender.
The
Guarantors will be required to pay the cost of any re-execution, notarisation,
re-registration, amendment or other perfection requirement for any security
on
any transfer on or prior to the Syndication Date by the Arranger to a new Lender
if this is within the amount for which the Group is liable under paragraph
1(c)
above. Otherwise the cost or fee shall be for the account of the transferee
Lender.
|
4.
|
Terms
of Security Documents
|
The
following principles will be reflected in the terms of any security taken as
part of the Transaction Security:
|
(a)
|
the
security will be first ranking security over such present and future
assets of the Group as are agreed to be material in accordance with
the
Security Principles, to the extent
possible;
|
|
(b)
|
security
will not be enforceable until a Declared
Default;
|
|
(c)
|
representations
and undertakings shall only be included in each security document
to
confirm any registration or perfection of the security and, to the
extent
not provided elsewhere in the Finance Documents, due authorisation,
validity and enforceability unless otherwise expressly required by
local
law and shall otherwise be no more onerous than the Service Facilities
Agreement;
|
190
|
(d)
|
prior
to the occurrence of a Declared Default provisions of each Transaction
Security Document will not be unduly burdensome on the Guarantor
or
interfere unreasonably with the operation of its business and will
be
limited to those required to create or maintain effective security
and not
impose commercial obligations;
|
|
(e)
|
information,
such as lists of assets, will be
provided:
|
|
(i)
|
if
required by local law to perfect or register the security to that
extent
every three months;
|
|
(ii)
|
if
customarily made available for security of that type in a jurisdiction
no
more frequently than every six months (or, if specifically required
to be
more frequently by law, as frequently as required by law) ;
or
|
|
(iii)
|
following
an Event of Default which is outstanding, on the Security
Agent's reasonable request;
|
|
(f)
|
the
Lenders and Hedge Counterparties shall only be able to exercise a
power of
attorney following the occurrence of a Declared Default or if the
relevant
Guarantor has failed to comply with a further assurance or perfection
obligation within 10 Business Days of being notified of that failure
and
being requested to comply;
|
|
(g)
|
security,
will where possible and practical, automatically create security
over
future assets of the same type as those already secured;
and
|
|
(h)
|
in
the Transaction Security Documents there will be no repetition or
extension of clauses set out in this Agreement (or the Intercreditor
Agreement) such as those relating to notices, cost and expenses,
indemnities, tax gross up, distribution of proceeds and release of
security unless required by applicable local
law.
|
|
5.
|
Guarantor
|
Name:
Parent
The
Company
NDS
Limited (UK) - "Closing Obligor"
NDS
Sweden AB
Digi-Media
Vision Limited (UK) - "Closing Obligor"
News
Datacom Limited (UK) - "Closing Obligor"
NDS
Technologies Israel Limited
NDS
Americas Inc.
NDS
Holdings B.V. (to the extent not wound up within 180 days of
Closing).
191
|
6.
|
Security
Jurisdictions
|
Subject
to these Security Principles the shares in each Guarantor (other than the
Parent) shall be secured.
No
security other than share security shall be granted in India or
China.
|
7.
|
Bank
accounts
|
Subject
to these Security Principles, a Guarantor shall grant security over its bank
accounts but it shall be free to deal with those accounts in the course of
its
business until a Declared Default, save to the extent agreed otherwise in
respect of cash collateral and mandatory prepayment holding
accounts.
If
required by local law to perfect the security, notice of the security will
be
served on the account bank within 5 Business Days of the security being granted
and the Guarantor shall use its reasonable endeavours to obtain an
acknowledgement of that notice within 20 Business Days of service. If the
Guarantor has used its reasonable endeavours but has not been able to obtain
acknowledgement its obligation to obtain acknowledgement shall cease on the
expiry of that 20 Business Day period. Irrespective of whether notice of the
security is required for perfection, if the service of notice would prevent
the
Guarantor from using a bank account in the ordinary course of its business
no
notice of security shall be served until the occurrence of a Declared
Default.
Any
security over bank accounts shall be subject to any prior security interests
in
favour of the account bank which are created either by law or in the standard
terms and conditions of the account bank. The notice of security may request
these are waived by the account bank but the Guarantor shall not be required
to
change its banking arrangements if these security interests are not waived
or
only partially waived.
If
required under local law security over bank accounts will be registered subject
to the general principles set out in these Security Principles.
|
8.
|
Fixed
assets and inventory
|
Subject
to these Security Principles, a Guarantor shall grant security over its material
fixed assets and its material inventory but it shall be free to deal with those
assets and that inventory in the course of its business until a Declared
Default.
No
notice
whether to third parties or by attaching a notice to the fixed assets or
inventory shall be prepared or given until a Declared Default.
If
required under local law security over fixed assets or inventory will be
registered subject to the general principles set out in these Security
Principles.
|
9.
|
Insurance
Policies
|
Subject
to these Security Principles, a Guarantor will only grant security over its
insurance policies if claims under such policies are subject to Clause
9.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO).
192
If
required by local law to perfect the security, notice of the security will
be
served on the insurance provider within 5 Business Days of the security being
granted and the Guarantor shall use its reasonable endeavours to obtain an
acknowledgement of that notice within 20 Business Days of service. If the
Guarantor has used its reasonable endeavours but has not been able to obtain
acknowledgement its obligation to obtain acknowledgement shall cease on the
expiry of that 20 Business Day period.
No
loss
payee or other endorsement shall be made on the insurance policy.
|
10.
|
Intellectual
Property
|
Subject
to these Security Principles, a Guarantor shall grant security over its material
intellectual property but it shall be free to deal with those assets in the
course of its business (including, without limitation, allowing its intellectual
property to lapse if no longer material to its business) until a Declared
Default.
No
security shall be granted over any intellectual property which cannot be secured
under the terms of the relevant licensing agreement. A Guarantor shall use
its
reasonable endeavours to obtain consent to allow security to be granted over
such material intellectual property.
No
notice shall be prepared or given to any third party from whom intellectual
property is licensed until a Declared Default.
If
required under local law security over intellectual property will be registered
under the law of that Transaction Security Document or at a relevant
supra-national registry (such as the EU) subject to the general principles
set
out in these Security Principles.
|
11.
|
Intercompany
receivables
|
Subject
to these Security Principles, a Guarantor shall grant security over its material
intercompany receivables but it shall be free to deal with those receivables
in
the course of its business until a Declared Default.
If
required by local law to perfect the security, notice of the security will
be
served on the relevant lender within 5 Business Days of the security being
granted and the Guarantor shall use its reasonable endeavours to obtain an
acknowledgement of that notice within 20 Business Days of service. Irrespective
of whether notice of the security is required for perfection if the service
of
notice would prevent the Guarantor from dealing with an intercompany receivable
in the ordinary course of its business no notice of security shall be served
until the occurrence of a Declared Default.
If
required under local law security over intercompany receivables will be
registered subject to the general principles set out in these Security
Principles.
|
12.
|
Trade
receivables
|
Subject
to these Security Principles, a Guarantor shall grant security over its material
trade receivables but it shall be free to deal with those receivables in the
course of its business until a Declared Default.
193
No
notice
of security may be served until the occurrence of a Declared
Default.
No
security will be granted over any trade receivables which cannot be secured
under the terms of the relevant contract.
If
required under local law security over trade receivables will be registered
subject to the general principles set out in these Security
Principles.
Any
list
of trade receivables required shall not include details of the underlying
contracts unless required under local law.
|
13.
|
Shares
|
Subject
to these Security Principles, a Guarantor shall grant a charge over the shares
in other Guarantors which are its Subsidiaries and a pledge shall also be
granted over a Guarantor's ultimate holding company in the same jurisdiction
of
its incorporation.
However,
no share security will be granted over the Parent or any of its Holding
Companies.
The
relevant Transaction Security Document will be governed by the laws of the
Guarantor whose shares are being secured and not by the law of the country
of
the Guarantor granting the security.
Until
a
Declared Default, the charging Guarantor will be permitted to retain and to
exercise voting rights to any shares charged by it in a manner which does not
adversely affect the validity or enforceability of the security or cause an
Event of Default to occur and the company whose shares have been charged will
be
permitted to pay dividends.
Where
customary, within 3 Business Days of execution of the share charge, the share
certificate and a stock transfer form executed in blank will be provided to
the
Security Agent and where required by law the share certificate or shareholders
register will be endorsed or written up and the endorsed share certificate
or a
copy of the written up register provided to the Security Agent.
Unless
the restriction is required by law, the constitutional documents of the company
whose shares have been charged will be amended to remove any restriction on
the
transfer or the registration of the transfer of the shares on enforcement of
the
security granted over them
|
14.
|
Real
estate
|
Subject
to these Security Principles, a Guarantor shall grant security over its material
real estate.
There
will be no obligation to investigate title, provide surveys or other insurance
or environmental due diligence.
A
Guarantor will be under no obligation to obtain any landlord consent required
to
grant security over its material real estate, nor to investigate the possibility
thereof.
Costs of
granting real estate security must be within the agreed costs cap and the amount
secured by each security over material real estate may be restricted to an
agreed level.
194
|
15.
|
Release
of Security
|
Unless
required by local law (for
example, in the case of the Swedish Security Documents) the circumstances in
which the security shall be released should not be dealt with in individual
security documents but, if so required, shall, except to the extent required
by
local law, be the same as those set out in the Intercreditor
Agreement.
195
SIGNATURES
THE
COMPANY
NDS
FINANCE LIMITED
|
By:
|
|
|
Address:
|
0
Xxxxxxxx Xxxxxxxxx
|
|
000
Xxxx Xxxx
|
|
|
Xxxx
Xxxxxxx, Xxxxxxxxx, XX0 0XX
|
|
|
Fax:
|
+
00 000 000 0000
|
|
Attention:
|
Xxxxxx
Xxxxxxxx
|
THE
ORIGINAL BORROWER
NDS
FINANCE LIMITED
By:
|
Address:
|
0
Xxxxxxxx Xxxxxxxxx
|
|
000
Xxxx Xxxx
|
|
|
Xxxx
Xxxxxxx, Xxxxxxxxx, XX0 0XX
|
|
|
Fax:
|
+
00 000 000 0000
|
|
Attention:
|
Xxxxxx
Xxxxxxxx
|
THE
ORIGINAL GUARANTOR
NDS
FINANCE LIMITED
By:
|
Address:
|
0
Xxxxxxxx Xxxxxxxxx
|
|
000
Xxxx Xxxx
|
|
|
Xxxx
Xxxxxxx, Xxxxxxxxx, XX0 0XX
|
|
|
Fax:
|
+
00 000 000 0000
|
|
Attention:
|
Xxxxxx
Xxxxxxxx
|
196
THE
ARRANGERS
X.X.
XXXXXX PLC
By:
|
Address:
|
000
Xxxxxx Xxxx
|
|
Xxxxxx
XX0X 0XX
|
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Xxxxxxxx
Manessian
|
XXXXXX
XXXXXXX BANK INTERNATIONAL LIMITED
By:
|
Address:
|
00
Xxxxx Xxxxxx
|
|
Xxxxxx
Xxxxx
|
|
|
Xxxxxx
X00 0XX
|
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Senior
Lending Group
|
THE
FACILITY AGENT
X.X.
XXXXXX EUROPE LIMITED
By:
|
Address:
|
000
Xxxxxx Xxxx
|
|
Xxxxxx
XX0X 0XX
|
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Loan
and Agency
|
THE
SECURITY
AGENT
X.X.
XXXXXX EUROPE LIMITED
By:
|
Address:
|
000
Xxxxxx Xxxx
|
|
Xxxxxx
XX0X 0XX
|
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Loan
and Agency
|
197
THE
ORIGINAL LENDERS
JPMORGAN
CHASE BANK, N.A., LONDON BRANCH
By:
|
Address:
|
000
Xxxxxx Xxxx
|
|
Xxxxxx
XX0X 0XX
|
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Xxxxxxxx
Manessian
|
XXXXXX
XXXXXXX BANK
By:
|
000
Xxxxx Xxxx Xxxxxx
|
|
|
0xx
Xxxxx
|
|
|
Xxxx
Xxxx Xxxx
|
|
|
XX
00000-0000
|
|
|
XXX
|
|
|
x00
000 000 0000
|
|
|
Attention:
|
Senior
Lending Group
|
198
