CONTENTS
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
JPMORGAN
CHASE BANK, N.A., LONDON BRANCH
acting
as
Issuing Bank
and
X.X.
XXXXXX EUROPE LIMITED
acting
as
Security Agent
Ref:
ADF/WLN/LEF
Linklaters
LLP
CONTENTS
| CLAUSE | PAGE | |
|
SECTION
1
|
||
|
INTERPRETATION
|
||
|
1.
|
Definitions
and Interpretation
|
3 |
|
SECTION
2
|
||
|
THE
FACILITIES
|
||
|
2.
|
The
Facilities
|
59 |
|
3.
|
Purpose
|
61 |
|
4.
|
Conditions
of Utilisation
|
62 |
|
SECTION
3
|
||
|
UTILISATION
|
||
|
5.
|
Utilisation
- Loans
|
65 |
|
6.
|
Utilisation
- Letters of Credit
|
67 |
|
7.
|
Letters
of Credit
|
70 |
|
8.
|
Conversion
of Acquisition Loans
|
72 |
|
9.
|
Optional
Currencies
|
73 |
|
10.
|
Ancillary
Facilities and Fronted Ancillary Facilities
|
75 |
|
11.
|
Uncommitted
Acquisition Facility
|
83 |
|
SECTION
4
|
||
|
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
||
|
12.
|
Repayment
|
84 |
|
13.
|
Illegality,
Voluntary Prepayment and Cancellation
|
86 |
|
14.
|
Mandatory
Prepayment
|
89 |
|
15.
|
Restrictions
|
95 |
|
SECTION
5
|
||
|
COSTS
OF UTILISATION
|
||
|
16.
|
Interest
|
97 |
|
17.
|
Interest
Periods
|
98 |
|
18.
|
Changes
to the Calculation of Interest
|
100 |
|
19.
|
Fees
|
101 |
|
SECTION
6
|
||
|
ADDITIONAL
PAYMENT OBLIGATIONS
|
||
|
20.
|
Tax
Gross-Up and Indemnities
|
103 |
|
21.
|
Increased
Costs
|
109 |
|
22.
|
Other
Indemnities
|
110 |
|
23.
|
Mitigation
by the Lenders
|
112 |
|
24.
|
Costs
and Expenses
|
112 |
|
SECTION
7
|
||
|
GUARANTEE
|
||
|
25.
|
Guarantee
and Indemnity
|
113 |
|
SECTION
8
|
||
|
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
|
||
|
26.
|
Representations
|
118
|
|
27.
|
Information
Undertakings
|
123
|
|
28.
|
Financial
Covenants
|
130
|
||
|
29.
|
General
Undertakings
|
146
|
||
|
30.
|
Events
of Default
|
159
|
||
|
SECTION
9
|
||||
|
CHANGES
TO PARTIES
|
||||
|
31.
|
Changes
to the Lenders
|
166
|
||
|
32.
|
Changes
to the Obligors
|
171
|
||
|
SECTION
10
|
||||
|
THE
FINANCE PARTIES
|
||||
|
33.
|
Role
of the Facility Agent, the Arranger, the Issuing Bank and
Others
|
175
|
||
|
34.
|
Conduct
of Business by the Finance Parties
|
181
|
||
|
35.
|
Sharing
among the Finance Parties
|
182
|
||
|
SECTION
11
|
||||
|
ADMINISTRATION
|
||||
|
36.
|
Payment
Mechanics
|
184
|
||
|
37.
|
Set-Off
|
186
|
||
|
38.
|
Notices
|
186
|
||
|
39.
|
Calculations
and Certificates
|
189
|
||
|
40.
|
Partial
Invalidity
|
189
|
||
|
41.
|
Remedies
and Waivers
|
189
|
||
|
42.
|
Amendments
and Waivers
|
190
|
||
|
43.
|
Counterparts
|
192
|
||
|
44.
|
US
Patriot Act
|
192
|
||
|
SECTION
12
|
||||
|
GOVERNING
LAW AND ENFORCEMENT
|
||||
|
45.
|
Governing
Law
|
193
|
||
|
46.
|
Enforcement
|
193
|
THE
SCHEDULES
|
SCHEDULE
|
PAGE
|
|||
|
SCHEDULE
1
The Original Parties
|
194
|
|||
|
SCHEDULE
2
Condition Precedent and conditions subsequent
|
196
|
|||
|
SCHEDULE
3
Requests
|
205
|
|||
|
SCHEDULE
4
Mandatory Cost Formulae
|
210
|
|||
|
SCHEDULE
5 Form
of Transfer Certificate and Lender Accession
Undertaking
|
213
|
|||
|
SCHEDULE
6 Form of
Accession Letter
|
216
|
|||
|
SCHEDULE
7 Form
of Resignation Letter
|
217
|
|||
|
SCHEDULE
8 Form
of Compliance Certificate
|
218
|
|||
|
SCHEDULE
9 LMA
Form of Confidentiality Uundertaking
|
220
|
|||
|
SCHEDULE
10
Timetables
|
224
|
|||
|
SCHEDULE
11
Form of Letter of Credit
|
226
|
|||
|
SCHEDULE
12
Material Ccompanies
|
229
|
|||
|
SCHEDULE
13
Security Principles
|
230
|
|||
|
SCHEDULE
14
Form of TEG Letter
|
238
|
|||
|
SCHEDULE
15
Further Acquisition Facility Lender Accession Undertaking
|
240
|
|||
2
THIS
AGREEMENT is
dated August 2008 and made
between:
|
(1)
|
NDS
FINANCE LIMITED (registration
number 06617193) (the "Company");
|
|
(2)
|
THE
SUBSIDIARIES
of
the Parent listed in Part I of Schedule 1 (The
Original Parties)
as original borrowers (the "Original
Borrowers");
|
|
(3)
|
THE
SUBSIDIARIES of
the Parent listed in Part I of Schedule 1 (The
Original Parties)
as original guarantors (the "Original
Guarantors");
|
|
(4)
|
X.X.
XXXXXX PLC and
XXXXXX
XXXXXXX BANK INTERNATIONAL LIMITED as
mandated lead arrangers (whether acting individually or together,
the
"Arranger");
|
|
(5)
|
THE
FINANCIAL INSTITUTIONS listed
in Part II of Schedule 1 (The
Original Parties)
as original lenders (the "Original
Lenders");
|
|
(6)
|
X.X.
XXXXXX EUROPE LIMITED
as
agent of the other Finance Parties (the "Facility
Agent");
|
|
(7)
|
X.X.
XXXXXX EUROPE LIMITED
as
security agent for the Secured Parties (the "Security
Agent");
and
|
|
(8)
|
JPMORGAN
CHASE BANK, N.A., LONDON BRANCH as
issuing bank (the "Issuing
Bank").
|
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
Facility Commitment"
means:
|
(a)
|
in
relation to any Acquisition Facility Lender on the date the Uncommitted
Acquisition Facility becomes available under Clause 11
(Uncommitted
Acquisition Facility),
the amount in the Base Currency made available by it on such
date;
|
| (b) |
in
relation to any Acquisition Facility Lender at any other time,
the amount
in the Base Currency of any Acquisition Facility Commitment
transferred to
it under, or in accordance with, this
Agreement,
|
3
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Acquisition
Facility Lender"
means:
|
(a)
|
each
Lender which makes available an Acquisition Facility Loan in accordance
with Clause 11
(Uncommitted
Acquisition Facility);
and
|
|
(b)
|
any
bank, financial institution, trust, fund or other entity which has
become
an Acquisition Facility Lender in accordance with Clause 31 (Changes
to the Lenders),
|
which
in
each case has not ceased to be an Acquisition Facility Lender in accordance
with
this Agreement.
"Acquisition
Facility Loan"
means a
Loan made or to be made under the Uncommitted Acquisition Facility or the
principal amount outstanding for the time being of that Loan.
"Acquisition
Facility Repayment Date"
means
each of the repayment dates commencing on or after 54 months after Closing
and
occurring no more frequently than the Facility A Repayment Dates as agreed
between the Facility Agent (acting on the instructions of the Acquisition
Facility Lenders) and the Company when the Uncommitted Acquisition Facility
becomes available under Clause 11
(Uncommitted
Acquisition Facility).
"Acquisition
Loan"
means
any Loan made under the Revolving Facility for the purposes set out in
sub-paragraphs (i) to (iv) of paragraph (c) of Clause 3.1
(Purpose).
"Acquisition
Sub-Limit"
means,
prior to the Conversion Date, $50,000,000 of the Revolving Credit Facility.
On
and from the Conversion Date following conversion of the Acquisition Loans
pursuant to Clause 8
(Conversion
of Acquisition Loans),
the
Acquisition Sub-Limit shall be reduced to zero.
"Acquisition
Term Loan"
has the
meaning given to that term in Clause 8
(Conversion
of Acquisition Loans).
"Acquisition
Term Loan Repayment Date"
means
each of the dates specified in paragraph (d) of Clause 12.1
(Repayment
of Term Loans).
"Additional
Borrower"
means a
company which becomes a Borrower in accordance with Clause 32
(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 32
(Changes
to the Obligors).
"Additional
Obligor"
means
an Additional Borrower or an Additional Guarantor.
"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
Commencement Date"
means,
in relation to an Ancillary Facility, the date on which that Ancillary Facility
is first made available, which date shall be a Business Day within the
Availability Period for the Revolving Facility.
4
"Ancillary
Commitment"
means,
in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base
Currency Amount which that Ancillary Lender has agreed (whether or not subject
to satisfaction of conditions precedent) to make available from time to time
under an Ancillary Facility as notified to the Facility Agent pursuant to Clause
10.2 (Availability),
to the
extent that amount is not cancelled or reduced under this Agreement or the
Ancillary Documents relating to that Ancillary Facility.
"Ancillary
Document"
means
each document relating to or evidencing the terms of an Ancillary
Facility.
"Ancillary
Facility"
means
any ancillary facility (other than a Fronted Ancillary Facility) made available
by an Ancillary Lender in accordance with Clause 10
(Ancillary
Facilities and Fronted Ancillary Facilities).
"Ancillary
Lender"
means
each Lender (or Affiliate of a Lender) which makes available an Ancillary
Facility in accordance with Clause 10
(Ancillary
Facilities and Fronted Ancillary Facilities),
acting
in its capacity as a provider of that Ancillary Facility.
"Ancillary Outstandings"
means:
|
(a)
|
at
any time, in relation to an Ancillary Lender and an Ancillary Facility
the
aggregate of the equivalents (as calculated by that Ancillary Lender)
in
the Base Currency of the following amounts outstanding under that
Ancillary Facility then in force:
|
|
(i)
|
the
principal amount under each overdraft facility and on demand short
term
loan facility (net of any credit balances on any account of any Borrower
of an Ancillary Facility with the Ancillary Lender making available
that
Ancillary Facility to the extent that such credit balance is freely
available to be set off by that Ancillary Lender against liabilities
owed
to it by that Borrower under that Ancillary Facility and excluding
any
liability in respect of amounts of interest, fees and similar charges)
(ignoring for this purpose, where agreed by the Ancillary Lender,
any
liability in respect of BACS
facilities);
|
|
(ii)
|
the
face amount of each guarantee, bond and letter of credit under that
Ancillary Facility (to the extent not repaid or prepaid and net of
any
cash cover and otherwise as reduced in accordance with its terms
and by
calls thereon which have been satisfied and excluding any liability
in
respect of amounts of interest, fees and similar charges);
and
|
|
(iii)
|
the
amount fairly representing the aggregate exposure (excluding any
liability
in respect of amounts of interest, fees and similar charges) of that
Ancillary Lender under each other type of accommodation provided
under
that Ancillary Facility; and
|
|
(b)
|
in
relation to a Fronting Ancillary Lender and Fronted Ancillary Lender
and a
Fronted Ancillary Facility, the aggregate of the amounts (in the
Base
Currency as calculated by the relevant Fronting Ancillary Lender)
outstanding as referred to in paragraphs (a)(i), (a)(ii) and (a)(iii)
above (where, for this purpose, references in paragraph (a) above to
Ancillary Lender and Ancillary Facility shall be read as references
to
Fronting Ancillary Lender and Fronted Ancillary Lender and Fronted
Ancillary Facility respectively) under that Fronted Ancillary
Facility,
|
5
in
each
case as determined by such Ancillary Lender or Fronting Ancillary Lender in
accordance with the relevant Ancillary Document or Fronted Ancillary Document
(as the case may be) or normal banking practice.
"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:
|
(a)
|
in
relation to each Term Facility (other than the Uncommitted Acquisition
Facility), the period from and including the date of this Agreement
to and
including the earlier of:
|
|
(i)
|
the
date on which the Scheme lapses or is
withdrawn;
|
|
(ii)
|
15 days
after Closing; and
|
|
(iii)
|
27
February 2009;
|
|
(b)
|
in
relation to the Revolving Facility (other than the Acquisition Sub-Limit),
the period from and including Closing to and including the date falling
one Month prior to the Termination Date in respect of the Revolving
Facility;
|
|
(c)
|
in
relation to the Acquisition Sub-Limit, the period from and including
Closing to and including the Conversion Date;
and
|
|
(d)
|
in
relation to the Uncommitted Acquisition Facility, the period from
and
including the date of this Agreement to and including the date falling
48
Months from Closing but subject at all times to the relevant Acquisition
Facility Lenders agreeing to make any Acquisition Facility Loan(s)
available in accordance with Clause 11
(Uncommitted
Acquisition Facility).
|
6
"Available
Amount"
has the
meaning given to that term in Clause 29.37
(Baskets).
"Available
Commitment"
means,
in relation to a Facility, a Lender's Commitment under that Facility minus
(subject to Clause 10.9
(Affiliates
of Lenders as Ancillary Lenders, Fronting Ancillary Lenders or Fronted Ancillary
Lenders)
and as
set out below):
|
(a)
|
the
Base Currency Amount of its participation in any outstanding Utilisations
under that Facility and, in the case of the Revolving Facility only,
the
Base Currency Amount of the aggregate of its Ancillary Commitments,
Fronting Ancillary Commitments and Fronted Ancillary Commitments;
and
|
|
(b)
|
in
relation to any proposed Utilisation, the Base Currency Amount of
its
participation in any other Utilisations that are due to be made under
that
Facility on or before the proposed Utilisation Date and, in the case
of
the Revolving Facility only, the Base Currency Amount
of:
|
|
(A)
|
its
Ancillary Commitment in relation to any new Ancillary Facility; or
|
|
(B)
|
its
Fronting Ancillary Commitment or Fronted Ancillary Commitment (as
the case
may be) in relation to any new Fronted Ancillary
Facility,
|
in
each
case due to be made available on or before the proposed Utilisation
Date.
For
the
purposes of calculating a Lender's Available Commitment in relation to any
proposed Utilisation under the Revolving Facility only, the following amounts
shall not be deducted from a Lender's Commitment under that
Facility:
|
(i)
|
that
Lender's participation in any Revolving Facility Utilisations that
are due
to be repaid or prepaid on or before the proposed Utilisation Date;
and
|
|
(ii)
|
that
Lender's (or its Affiliate's) Ancillary Commitments, Fronting Ancillary
Commitments and/or Fronted Ancillary Commitments to the extent that
they
are due to be reduced or cancelled on or before the proposed Utilisation
Date.
|
"Available
Facility"
means,
in relation to a Facility, the aggregate for the time being of each Lender's
Available Commitment in respect of that Facility.
"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:
|
(a)
|
in
relation to a Utilisation, the amount specified in the Utilisation
Request
delivered by a Borrower for that Utilisation (or, in the case of
a
utilisation under the Revolving Facility (or, to the extent available
in
other currencies, the Uncommitted Acquisition Facility), if the amount
requested is not denominated in the Base Currency, that amount converted
into the Base Currency at the Facility Agent's Spot Rate of Exchange
on
the date which is three Business Days before the Utilisation Date
or, if
later, on the date the Facility Agent receives the Utilisation Request
in
accordance with the terms of this Agreement) and, in the case of
a Letter
of Credit, as adjusted under Clause 6.7
(Revaluation
of Letters of Credit)
at annual intervals; and
|
7
|
(b)
|
in
relation to an Ancillary Commitment, a Fronting Ancillary Commitment
or a
Fronted Ancillary Commitment, the amount specified as such in the
notice
delivered to the Facility Agent by the Company pursuant to Clause
10.2
(Availability)
(or, if the amount specified is not denominated in the Base Currency,
that
amount converted into the Base Currency at the Facility Agent's Spot
Rate
of Exchange on the date which is three Business Days before the Ancillary
Commencement Date for that Ancillary Facility or Fronted Ancillary
Facility or, if later, the date the Facility Agent receives the notice
of
the Ancillary Commitment, Fronting Ancillary Commitment or Fronted
Ancillary Commitment in accordance with the terms of this
Agreement),
|
as
adjusted to reflect any repayment, prepayment, consolidation or division of
a
Utilisation, or (as the case may be) cancellation or reduction of an Ancillary
Facility or Fronted Ancillary Facility.
"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 32
(Changes
to the Obligors)
and, in
respect of an Ancillary Facility or a Fronted Ancillary Facility only, any
Affiliate of a Borrower that becomes a borrower of that Ancillary Facility
or
Fronted Ancillary Facility with the approval of the relevant Lender pursuant
to
the provisions of Clause 10.10
(Affiliates
of Borrowers).
"Borrowings"
has the
meaning given to that term in Clause 28.1
(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.
|
8
"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 27.4
(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
|
|
(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 28.1
(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;
|
9
|
(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);
|
|
(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 28.1
(Financial
definitions).
"Cash
Overfunding"
has the
meaning given to that term in Clause 28.1
(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 30.1
(Non-payment),
Clause 30.3
(Other
obligations)
(but only so far as that Event of Default arises from a breach of
a
Certain Funds Undertaking), Clause 30.4
(Misrepresentation)
(but only so far as that Event of Default arises from a misrepresentation
under a Certain Funds Representation), Clause 30.6
(Insolvency),
Clause 30.7
(Insolvency
Proceedings),
Clause 30.8
(Creditors'
Process),
Clause 30.9
(Unlawfulness
and Invalidity)
or Clause 30.13
(Repudiation
and Rescission of Agreements);
or
|
10
|
(b)
|
insofar
only as the following Events of Default relate to the Parent, any
circumstance constituting an Event of Default under Clause 30.4
(Misrepresentation)
(but only so far as that Event of Default arises from a misrepresentation
under Clause 26.3
(Binding
obligations)
in respect only of the Transaction Security Documents to which the
Parent
is a Party), Clause 30.6
(Insolvency),
Clause 30.7
(Insolvency
Proceedings),
Clause 30.8
(Creditors'
Process)
or Clause 30.13
(Repudiation
and Rescission of Agreements).
|
"Certain
Funds Period"
means:
|
(a)
|
in
respect of a Term Facility (other than the Uncommitted Acquisition
Facility), the period from and including the date of this Agreement
to and
including the last day of its Availability Period;
and
|
|
(b)
|
in
respect of the Revolving Facility, from (and including) the date
of this
Agreement until (and including) the date falling 15 days after
Closing.
|
"Certain
Funds Representations"
means
the Representations set out in Clause 26.2
(Status),
Clause 26.3
(Binding
obligations),
Clause
26.4
(Non-conflict
with other obligations),
Clause
26.5
(Power
and authority),
Clause 26.7
(Validity
and admissibility in evidence),
Clause 26.14
(Scheme
Documents and other documents)
and
Clause 26.20
(Holding
Companies)
in each
case in respect of the Company only.
"Certain
Funds Undertakings"
means,
in relation to the Company only the undertakings set out in
Clause 29.5
(Merger),
Clause 29.7
(Acquisitions),
Clause 29.8
(Joint
ventures),
Clause 29.11
(Pari
passu ranking),
Clause 29.12
(Negative
pledge),
Clause 29.13
(Disposals),
Clause 29.16
(Loans
or credit),
Clause 29.17
(No
Guarantees or indemnities),
Clause 29.18
(Dividends
and share redemption),
Clause 29.20
(Financial
Indebtedness)
and
Clause 29.34
(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.
|
11
"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:
|
(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 29.36
(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 any Permitted Acquisition, the period of
90
days from closing of that Permitted Acquisition.
"Closing"
means
the date of first Utilisation of the Term Facilities.
"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 13 (Security
Principles).
"Commitment"
means a
Facility A Commitment, a Facility B Commitment, a Facility C Commitment, a
Revolving Facility Commitment or an Acquisition Facility Commitment (to the
extent made available under Clause 11 (Uncommitted
Acquisition Facility).
"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.
12
"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 Facilities and the
Mezzanine 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 Facilities and the Mezzanine 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 Facilities and the Mezzanine Facility on terms reasonably acceptable
to the Facility Agent (acting
reasonably).
|
"Compliance
Certificate"
means a
certificate substantially in the form set out in Schedule 8 (Form
of Compliance Certificate).
"Confidentiality
Agreements"
means:
|
(a)
|
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
|
|
(b)
|
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 28.1
(Financial
definitions).
13
"Consolidated
EBITDA"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Consolidated
Net Finance Charges"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Consolidated
Total Net Debt"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Controlled
Foreign Corporation"
has the
meaning given to it in Section 957 of the Internal Revenue Code.
"Conversion
Date"
means
the date falling three years after Closing.
"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 28.1
(Financial
definitions).
"Current
Liabilities"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Debt
Cover"
has the
meaning given to such that in Clause 28.1
(Financial
definitions).
"Debt
Push Down and Reorganisation"
means a
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 30.21
(Acceleration).
"Default"
means
an Event of Default or any event or circumstance specified in Clause
30
(Events
of Default)
which
(with the expiry of a grace period or the giving of notice specified under
Clause 30
(Events
of Default)),
would
be an Event of Default.
"Delegate"
means
any delegate, agent, attorney or co-trustee appointed by the Security
Agent.
"Designated
Gross Amount"
has the
meaning given to that term in Clause 10.2
(Availability).
"Designated
Net Amount"
has the
meaning given to that term in Clause 10.2
(Availability).
"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.
14
"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
|
|
(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;
|
15
| (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
|
| (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 30
(Events
of Default).
"Excess
Cashflow"
has the
meaning given to that term in Clause 28.1
(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.
"Expiry
Date"
means,
for a Letter of Credit, the last day of its Term.
"Facility"
means a
Term Facility or the Revolving Facility.
16
"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"
means
the term loan facility made available under this Agreement as described in
paragraph (a)(i) of Clause 2.1
(The
Facilities).
"Facility
A Commitment"
means:
|
(a)
|
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility A Commitment" in Part
II of
Schedule 1 (The
Original Parties)
and the amount of any other Facility A Commitment transferred to
it under
this Agreement; and
|
|
(b)
|
in
relation to any other Lender, the amount in the Base Currency of
any
Facility A Commitment transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
A Loan"
means a
Loan made or to be made under Facility A or the principal amount outstanding
for
the time being of that Loan.
"Facility
A Repayment Date"
means
each of the dates specified in paragraph (a) of Clause 12.1
(Repayment
of Term Loans)
as
Repayment Dates.
"Facility
B"
means
the term loan facility made available under this Agreement as described in
paragraph (a)(ii) of Clause 2.1
(The
Facilities).
"Facility
B Commitment"
means:
|
(a)
|
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility B Commitment" in Part
II of
Schedule 1 (The
Original Parties)
and the amount of any other Facility B Commitment transferred to
it under
this Agreement; and
|
|
(b)
|
in
relation to any other Lender, the amount in the Base Currency of
any
Facility B Commitment transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
B Loan"
means a
Loan made or to be made under Facility B or the principal amount outstanding
for
the time being of that Loan.
"Facility
B Repayment Date"
means
the day which is 7.5 years from Closing.
"Facility
C"
means
the term loan facility made available under this Agreement as described in
paragraph (a)(iii) of Clause 2.1
(The
Facilities).
"Facility
C Commitment"
means:
|
(a)
|
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility C Commitment" in Part
II of
Schedule 1 (The
Original Parties)
and the amount of any other Facility C Commitment transferred to
it under
this Agreement; and
|
17
|
(b)
|
in
relation to any other Lender, the amount in the Base Currency of
any
Facility C Commitment transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
C Loan"
means a
Loan made or to be made under Facility C or the principal amount outstanding
for
the time being of that Loan.
"Facility
C Repayment Date"
means
the day which is 8 years after Closing.
"Facility
Office"
means
the office or offices notified by a Lender or the Issuing Bank to the Facility
Agent in writing on or before the date it becomes a Lender or the Issuing Bank
(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:
|
(a)
|
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 19
(Fees);
and
|
|
(b)
|
any
other agreement setting out fees referred to in Clause 19.4
(Fees
payable in respect of Letters of Credit)
or Clause 19.5
(Interest,
commission and fees on Ancillary Facilities and Fronted Ancillary
Facilities).
|
"Finance
Document"
means
this Agreement, any Accession Letter, any Ancillary Document or any Fronted
Ancillary Document, 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, the Issuing
Bank, a Hedge Counterparty, any Ancillary Lender, any Fronting Ancillary Lender
or any Fronted Ancillary Lender.
"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 30.5
(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 28.1
(Financial
definitions).
18
"Financial
Year"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Fraudulent
Transfer Law"
means
any applicable US Bankruptcy Law or any applicable US state fraudulent transfer
or conveyance law.
"French
Borrower"
means a
Borrower incorporated in France.
"French
Guarantor"
means a
Guarantor incorporated in France.
"French
Obligor"
means
an Obligor incorporated in France.
"Fronted
Ancillary Commencement Date"
means,
in relation to a Fronted Ancillary Facility, the date on which that Fronted
Ancillary Facility is first made available which date shall be a Business Day
within the Availability Period for the Revolving Facility.
"Fronted
Ancillary Commitment"
means,
in relation to a Fronted Ancillary Lender and a Fronted Ancillary Facility,
the
maximum Base Currency Amount which that Fronted Ancillary Lender has agreed
(whether or not subject to satisfaction of conditions precedent) to
counter-indemnify the Fronting Ancillary Lender from time to time under the
Fronted Ancillary Facility as notified by the Company to the Facility Agent
pursuant to Clause 10.2
(Availability)
to the
extent that amount is not cancelled or reduced under this Agreement or the
Fronted Ancillary Documents relating to that Fronted Ancillary
Facility.
"Fronted
Ancillary Document"
means
each document evidencing the terms of a Fronted Ancillary Facility.
"Fronted
Ancillary Facility"
means
an ancillary facility made available by a Fronting Ancillary Lender and one
or
more Fronted Ancillary Lenders in accordance with Clause 10 (Ancillary
Facilities and Fronted Ancillary Facilities).
"Fronted
Ancillary Lender"
means
each Lender (or Affiliate of a Lender) which participates in a Fronted Ancillary
Facility in accordance with Clause 10 (Ancillary
Facilities and Fronted Ancillary Facilities)
and
which provides a counter-indemnity in favour of a Fronting Ancillary Lender
in
respect of that Fronted Ancillary Facility.
"Fronting
Ancillary Commitment"
means,
in relation to a Fronting Ancillary Lender and a Fronted Ancillary Facility,
the
maximum Base Currency Amount of that Fronting Ancillary Lender under that part
of the Fronted Ancillary Facility for which it is not counter-indemnified by
Fronted Ancillary Lenders pursuant to paragraph (b) of Clause 10.11
(Fronted
Ancillary Commitment Indemnities),
as
notified by the Company to the Facility Agent pursuant to
Clause 10.2
(Availability)
to the
extent that amount is not cancelled or reduced under this Agreement or the
Fronted Ancillary Documents relating to that Fronted Ancillary
Facility.
"Fronting
Ancillary Lender"
means
each Lender (or Affiliate of a Lender) which makes available a Fronted Ancillary
Facility in accordance with Clause 10 (Ancillary
Facilities and Fronted Ancillary Facilities)
and
which is counter-indemnified in respect of part of that Fronted Ancillary
Facility by one or more Fronted Ancillary Facility Lenders.
"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).
19
"Further
Acquisition Facility Lender"
has the
meaning given to it in Clause 11.1 (The
Uncommitted Acquisition Facility).
"Further
Acquisition Facility Lender Accession Undertaking"
means a
document substantially in the form set out in Schedule 15 (Further
Acquisition Facility Lender Accession Undertaking).
"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.
"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 32
(Changes
to the Obligors).
"Guarantor
Coverage"
has the
meaning given to it in Clause 29.32 (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 Mezzanine 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 29.28
(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
Mezzanine 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.
20
"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 Facilities and the Mezzanine
Facility.
"Intellectual Property"
means:
|
(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 Mezzanine Facility, the VLN Security Trustee and the Vendor
Loan Note Holder.
"Interest"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Interest
Cover"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Interest
Income"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Interest
Payable"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Interest
Period"
means,
in relation to a Loan, each period determined in accordance with
Clause 17
(Interest
Periods)
and, in
relation to an Unpaid Sum, each period determined in accordance with
Clause 16.3
(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.
21
"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).
"Issuing
Bank"
means
each Lender identified above as an Issuing Bank and any other Lender which
has
notified the Facility Agent that it has agreed to the Company's request to
be an
Issuing Bank pursuant to the terms of this Agreement (and if more than one
Lender has so agreed, such Lenders shall be referred to, whether acting
individually or together, as the "Issuing
Bank")
provided
that,
in
respect of a Letter of Credit issued or to be issued pursuant to the terms
of
this Agreement, the "Issuing Bank" shall be the Issuing Bank which has issued
or
agreed to issue that Letter of Credit.
"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.
"L/C
Proportion"
means
in relation to a Lender in respect of any Letter of Credit, the proportion
(expressed as a percentage) borne by that Lender's Available Commitment to
the
relevant Available Facility immediately prior to the issue of that Letter of
Credit, adjusted to reflect any assignment or transfer under this Agreement
to
or by that Lender.
"Legal
Due Diligence Report"
means
the legal due diligence report dated 13 June 2008 prepared by Xxxxxxxx Chance
LLP relating to the Acquisition.
"Lender"
means:
|
(a)
|
any
Original Lender;
|
|
(b)
|
any
bank, financial institution, trust, fund or other entity which has
become
a Party in accordance with Clause 31
(Changes
to the Lenders);
and
|
|
(c)
|
in
relation to the Uncommitted Acquisition Facility, any bank, financial
institution, trust, fund or other entity which becomes a Lender for
the
purpose of making the Uncommitted Acquisition Facility available
pursuant
to Clause 11
(Uncommitted
Acquisition Facility),
|
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.
22
"Letter
of Credit"
means:
|
(a)
|
a
letter of credit, substantially in the form set out in Schedule 11
(Form
of Letter of Credit)
or in any other form requested by a Revolving Facility Borrower (or
the
Company on its behalf) and agreed by the Facility Agent and the Issuing
Bank; or
|
|
(b)
|
any
guarantee, indemnity or other instrument in a form requested by a
Revolving Facility Borrower (or the Company on its behalf) and agreed
by
the Facility Agent and the Issuing
Bank.
|
"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
Term Loan or a Revolving Facility 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 30.1
(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 19.1
(Commitment
fee)
to
Clause 19.4
(Fees
payable in respect of Letters of Credit)
only),
Clause 30.7
(Insolvency
proceedings),
Clause 30.8
(Creditor's
Process),
Clause 30.9
(Unlawfulness
and Invalidity),
Clause 30.10
(Intercreditor
Agreement),
Clause 30.11
(Cessation
of business),
Clause 30.12
(Audit
qualification)
or
Clause 30.13
(Repudiation
and Recission of Agreements).
"Majority Lenders"
means:
|
(a)
|
(for
the purposes of paragraph (a) of Clause 42.1
(Required
consents)
in the context of a waiver in relation to a proposed Utilisation
of a
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 Commitments in respect of the relevant
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).
|
23
"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:
|
(a)
|
in
relation to any Facility A Loan 3.0 per cent. per
annum;
|
|
(b)
|
in
relation to any Facility B Loan 3.5 per cent. per
annum;
|
|
(c)
|
in
relation to any Facility C Loan 4.0 per cent. per
annum;
|
|
(d)
|
in
relation to any Revolving Facility Loan (including any Acquisition
Term
Loan) 3.0 per cent. per annum;
|
|
(e)
|
in
relation to the Uncommitted Acquisition Facility, such amount as
is agreed
between the relevant Borrowers and the Acquisition Facility Lenders,
provided
that
it
shall not exceed the Margin for Facility
A;
|
|
(f)
|
in
relation to any Unpaid Sum relating or referable to a Facility, the
rate
per annum specified above for that Facility;
and
|
|
(g)
|
in
relation to any other Unpaid Sum, the highest rate specified
above,
|
and
provided that
if:
|
(i)
|
no
Event of Default has occurred and is
continuing;
|
|
(ii)
|
a
period of at least 12 Months has expired since Closing;
and
|
|
(iii)
|
Debt
Cover in respect of the most recently completed Relevant Period is
within
a range set out below,
|
then
the
Margin for each Loan under Facility A, Facility B and the Revolving Facility
will be the percentage per annum set out below in the column for that Facility
opposite that range:
24
|
Debt
Cover
|
Facility A/Revolving
Facility Margin
(% per annum)
|
Facility B Margin
(% per annum)
|
|||||
|
Equal
to or greater than 4.75:1
|
3.00
|
3.50
|
|||||
|
Equal
to or greater than 4.25:1 but less than 4.75:1
|
2.75
|
3.50
|
|||||
|
Equal
to or greater than 3.75:1 but less than 4.25:1
|
2.50
|
3.25
|
|||||
|
Equal
to or greater than 3.25:1 but less than 3.75:1
|
2.25
|
As
above
|
|||||
|
Less
than 3.25:1
|
2.00
|
As
above
|
|||||
However:
|
(i)
|
any
increase or decrease in the Margin for a Loan shall take effect on
the
date (the "reset
date")
falling two Business Days after the date on which the Compliance
Certificate for that Relevant Period is delivered to the Facility
Agent
pursuant to Clause 27.2
(Provisions
and contents of Compliance Certificate)
or, if a variation has not taken effect because an Event of Default
has
occurred and is continuing, on the first Business Day on which that
Event
of Default ceases to be continuing (provided
that
payments to a Lender will only be reduced or increased (as the case
may
be) to the extent it was a Lender during the part of that Interest
Period
when a lower or higher Margin (as the case may be) should have
applied);
|
|
(ii)
|
while
an Event of Default is continuing the Margin for Facility A, Facility
B
and the Revolving Facility shall be the highest percentage per annum
set
out above for a Loan under that Facility;
and
|
|
(iii)
|
for
the purpose of determining the Margin, Debt Cover and Relevant Period
shall be determined in accordance with Clause 28.1
(Financial
definitions).
|
"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 18.2
(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:
25
|
(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 28
(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.
|
"Material
Company"
means,
at any time:
|
(a)
|
an
Obligor; or
|
|
(b)
|
a
Subsidiary of the Parent which:
|
|
(i)
|
is
listed in Schedule 12 (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 28.3
(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.
|
"Mezzanine
Facility"
means
the mezzanine loan facility made available under the Mezzanine Facility
Agreement.
"Mezzanine
Facility Agreement"
means
the mezzanine facility agreement dated the same date as this Agreement and
made
between, among others, the Company as borrower and original guarantor, X.X.
Xxxxxx Europe Limited as the mezzanine agent, the Arranger as the mezzanine
arrangers, X.X. Xxxxxx Europe Limited as security agent and the persons named
in
that mezzanine facility agreement as lenders.
26
"Mezzanine
Finance Documents"
means
the Finance Documents as defined in the Mezzanine Facility
Agreement.
"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.
"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 28.1
(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;
|
27
|
(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 31.11
(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.
"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.
"Optional
Currency"
in
relation to a Revolving Facility Utilisation or an Uncommitted Acquisition
Facility Loan (to the extent agreed with the Acquisition Facility Lenders),
means Euro, Sterling or any other currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3
(Conditions
relating to Optional Currencies).
"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.
28
"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 Facilities and the Mezzanine 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).
"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;
|
29
|
(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;
|
|
(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 Facilities exceed in aggregate $200,000,000 or its equivalent
(plus Retained Cash, the proceeds of any Company Subordinated Debt
or
Company New Equity);
|
30
|
(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 28.2
(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;
|
31
|
(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
|
(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 28.2
(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,
|
32
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 28.3 (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;
|
|
(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;
|
33
|
(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 29.8
(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 14.2
(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;
|
|
(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:
34
|
(a)
|
arising
under any of the Finance Documents, Mezzanine 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 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);
|
|
(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
for Facility C; 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;
|
35
|
(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 Mezzanine Finance
Documents;
|
|
(b)
|
a
guarantee by a member of the Group of the obligations of an
Obligor;
|
|
(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;
|
36
|
(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 29.8
(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;
|
|
(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 the "Permitted Loan"
would be a Permitted Loan applicable to the Parent, (s) and (u)) none of the
above permissions shall apply to the Parent.
37
"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);
|
|
(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 29.18 (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).
|
38
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:
|
(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 Facilities (plus
Retained Cash and the proceeds of any Company Subordinated Debt and Company
New
Equity) (other than contributed pursuant to paragraph (e) of
Clause 28.3
(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;
|
39
|
(b)
|
a
loan made to a Joint Venture to the extent and in the amount permitted
by
the undertakings in Clause 29.8
(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 29.42 (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);
|
|
(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;
|
40
|
(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,
|
provided
that
(other
than as set out in the foregoing paragraphs (c)
and (d)
(in each case) to the extent that 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 the Mezzanine Facility 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;
|
41
|
(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,
|
provided
that (other
than as set out in the foregoing paragraphs (a),
(f),
(g) insofar as it is permitted for the Parent, (h) and (i)), 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
|
42
|
(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;
|
|
(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;
|
43
|
(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 29.4
(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,
|
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 of Facility C 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;
|
44
|
(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;
|
|
(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);
|
45
|
(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,
|
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 29.28 (Treasury
Transaction);
"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 20
(Tax
gross-up and indemnities).
"Quarter
Date"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Quasi
Security"
has the
meaning given to that term in Clause 29.12
(Negative
pledge).
"Quotation
Day"
means,
in relation to any period for which an interest rate is to be
determined:
|
(a)
|
(if
the currency is sterling) the first day of that
period;
|
46
|
(b)
|
(if
the currency is euro) two TARGET Days before the first day of that
period;
or
|
|
(c)
|
(for
any other currency) two Business Days before the first day of that
period,
|
|
(d)
|
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 9.4
(Redenomination).
"Redenomination
Notice"
means a
notice substantially in the form set out in Part III of Schedule 3
(Requests)
given
in accordance with Clause 9.4
(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.
"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 28.1
(Financial
definitions).
47
"Renewal
Request"
means a
written notice delivered to the Facility Agent in accordance with
Clause 6.6
(Renewal
of a Letter of Credit).
"Repayment
Date"
means a
Facility A Repayment Date, a Facility B Repayment Date, a Facility C Repayment
Date, an Acquisition Facility Repayment Date, an Acquisition Term Loan Repayment
Date or the last day of an Interest Period for a Revolving Facility
Loan.
"Repayment
Instalment"
means
each instalment for repayment of the Term Loans referred to in
Clause 12.1
(Repayment
of Term Loans).
"Repeating
Representations"
means
each of the representations set out in Clause 26.2
(Status),
Clause 26.3
(Binding
obligations),
Clause 26.4
(Non-conflict
with other obligations),
Clause 26.5
(Power
and authority)
and
Clause 26.7
(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 31.8
(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).
"Retained
Cash"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"Revolving
Facility"
means
the revolving credit facility made available under this Agreement as described
in paragraph (a)(iv) of Clause 2.1
(The
Facilities).
"Revolving
Facility Borrower"
means a
Borrower under the Revolving Facility.
"Revolving Facility Commitment"
means:
|
(a)
|
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Revolving Facility Commitment"
in
Part II of Schedule 1 (The
Original Parties)
and the amount of any other Revolving Facility Commitment transferred
to
it under this Agreement; and
|
| (b) |
in
relation to any other Lender, the amount in the Base Currency
of any
Revolving Facility Commitment transferred to it under this
Agreement,
|
48
to
the
extent not transferred by it, cancelled or reduced under this Agreement
provided
that
from the
Conversion Date the Revolving Facility shall be reduced by the amount
of the
Acquisition Sub-Limit.
"Revolving
Facility Loan"
means a
Loan made or to be made under the Revolving Facility or the principal amount
outstanding for the time being of that Loan.
"Revolving
Facility Utilisation"
means a
Revolving Facility Loan or a Letter of Credit.
"Rollover
Loan"
means
one or more Revolving Facility Loans:
|
(a)
|
made
or to be made on the same day that:
|
|
(i)
|
a
maturing Revolving Facility Loan is due to be repaid;
or
|
|
(ii)
|
a
demand by the Facility Agent or the Issuing Bank pursuant to a drawing
in
respect of a Letter of Credit is due to be
met;
|
|
(b)
|
the
aggregate amount of which is equal to or less than the maturing Revolving
Facility Loan or the relevant claim in respect of that Letter of
Credit;
|
|
(c)
|
in
the same currency as the maturing Revolving Facility Loan (unless
it arose
as a result of the operation of Clause 9.2
(Unavailability
of a currency))
or the relevant claim in respect of that Letter of Credit;
and
|
|
(d)
|
made
or to be made to the same Borrower for the purpose
of:
|
|
(i)
|
refinancing
that maturing Revolving Facility Loan;
or
|
|
(ii)
|
satisfying
the relevant claim in respect of that Letter of
Credit.
|
"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.
00
"Xxxxxx
Xxxxx Xxxxx"
means
the court order authorising the Capital Reduction.
"Secured
Parties"
means
each Finance Party, each Ancillary Lender, each Fronting Ancillary Lender and
each Fronted Ancillary Lender (including any Affiliate of a Lender which is
an
Ancillary Lender, Fronting Ancillary Lender or Fronted Ancillary Lender) from
time to time party to this Agreement and each Hedge Counterparty and each
Finance Party (as defined in the Mezzanine Facility Agreement) from time to
time
party to the Mezzanine Facility 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 13 (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 17
(Interest
Periods)
in
relation to a Term Loan.
"Senior Debt Cover"
has the
meaning given to it in Clause 28.1
(Financial
definitions).
"Specified
Time"
means a
time determined in accordance with Schedule 10 (Timetables).
"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.
50
"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.
"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.
"TEG
Letter"
means
any letter delivered in the form of Schedule 14 (Form
of TEG Letter)
for the
purposes of Clause 16.6 (Effective
global rate)
of the
Agreement.
"Term"
means
each period determined under this Agreement for which the Issuing Bank is under
a liability under a Letter of Credit.
"Term
Facility"
means
Facility A, Facility B, Facility C or the Uncommitted Acquisition
Facility.
"Termination Date"
means:
|
(a)
|
in
relation to Facility A, the date falling 7 years from
Closing;
|
|
(b)
|
in
relation to Facility B, the date falling 7.5 years from
Closing;
|
|
(c)
|
in
relation to Facility C, the date falling 8 years from
Closing;
|
|
(d)
|
in
relation to the Uncommitted Acquisition Facility, the date falling
7 years from Closing or any later date agreed between the Company and
the Acquisition Facility Lenders (but no later than the Termination
Date
for Facility C); and
|
|
(e)
|
in
relation to the Revolving Facility and the Acquisition Term Loans,
the
date falling 7 years from Closing.
|
"Term
Loan"
means a
Facility A Loan, a Facility B Loan, a Facility C Loan, an Acquisition Term
Loan
or an Acquisition Facility Loan.
"Third
Party Disposal"
has the
meaning given to that term in paragraph (a) of Clause 32.3
(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.
51
"Total
Acquisition Facility Commitments"
means
the aggregate of the Acquisition Facility Commitments being $0 until the date
on
which the Uncommitted Acquisition Facility becomes available pursuant to
Clause 11
(Uncommitted
Acquisition Facility),
on
which date it shall be such amount as agreed by the Acquisition Facility Lenders
to be made available provided
that
such
amount shall not exceed the Uncommitted Acquisition Facility Limit.
"Total
Commitments"
means
the aggregate of the Total Facility A Commitments, the Total Facility B
Commitments, the Total Facility C Commitments, the Total Acquisition Facility
Commitments and the Total Revolving Facility Commitments.
"Total
Facility A Commitments"
means
the aggregate of the Facility A Commitments, being $300,000,000 at the date
of
this Agreement.
"Total
Facility B Commitments"
means
the aggregate of the Facility B Commitments, being $295,000,000 at the date
of
this Agreement.
"Total
Facility C Commitments"
means
the aggregate of the Facility C Commitments, being $295,000,000 at the date
of
this Agreement.
"Total
Revolving Facility Commitments"
means
the aggregate of the Revolving Facility Commitments, being $150,000,000 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 Mezzanine 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(c)
or
(d) of Part II of Schedule 2 (Conditions
precedent and conditions subsequent)
or
paragraph 2(c) 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
|
52
|
(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"
means
the uncommitted acquisition facility made available under this Agreement and
described in paragraph (a)(v) of Clause 2.1
(The
Facilities).
"Uncommitted
Acquisition Facility Limit"
means
$75,000,000.
"Unpaid
Sum"
means
any sum due and payable but unpaid by an Obligor under the Finance
Documents.
"Unused
Amount"
has the
meaning given to that term in Clause 28.1
(Financial
definitions).
"US"
and
"United
States"
means
the United States of America, its territories and possessions.
"US
Bankruptcy Law"
means
the United States Bankruptcy Code of 1978 (Title 11 of the United States Code)
or any other United States federal or state bankruptcy, insolvency or similar
law.
"US
Borrower"
means a
Borrower that is a US Person.
"US$"
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 or a Letter of Credit.
"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
|
53
|
(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.
54
|
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 "Issuing
Bank",
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 25
(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.
|
55
|
(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
Borrower providing "cash
cover"
for a Letter of Credit, an Ancillary Facility or a Fronted Ancillary
Facility means a Borrower paying an amount in the currency of the
Letter
of Credit (or, as the case may be, Ancillary Facility or Fronted
Ancillary
Facility) to an interest-bearing account in the name of the Borrower
and
the following conditions being met:
|
|
(i)
|
the
account is with the Facility Agent (if the cash cover is to be provided
for all the Lenders) or with a Finance Party (if the cash cover is
to be
provided for that Finance Party);
|
|
(ii)
|
until
no amount is or may be outstanding under that Letter of Credit or
Ancillary Facility or Fronted Ancillary Facility, withdrawals from
the
account may only be made to pay a Finance Party amounts due and payable
to
it under this Agreement in respect of that Letter of Credit or Ancillary
Facility or Fronted Ancillary Facility;
and
|
|
(iii)
|
the
Borrower has executed a security document over that account, in form
and
substance satisfactory to the Facility Agent or the Finance Party
with
which that account is held, creating a first ranking security interest
over that account.
|
|
(e)
|
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 28.2
(Financial
condition)
on any Quarter Date but where the requirements of Clause 28.2
(Financial
condition)
are complied with on the next Quarter Date, the Event of Default
caused by
the failure to meet the requirements of Clause 28.2
(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 30.21
(Acceleration).
|
|
(f)
|
A
Borrower "repaying"
or "prepaying"
a
Letter of Credit or Ancillary Outstandings
means:
|
|
(i)
|
that
Borrower providing cash cover for that Letter of Credit or in respect
of
the Ancillary Outstandings;
|
|
(ii)
|
the
maximum amount payable under the Letter of Credit, Ancillary Facility
or
Fronted Ancillary Facility being reduced or cancelled;
|
|
(iii)
|
in
the case of a Letter of Credit, that Letter of Credit is returned
by the
beneficiary with its written confirmation that it is released and
cancelled;
|
|
(iv)
|
in
the case of a Letter of Credit, a bank or financial institution approved
by the Issuing Bank (acting reasonably) has issued an unconditional
and
irrevocable guarantee, indemnity, counter indemnity or similar assurance
against financial loss in respect of amounts due under that Letter
of
Credit; or
|
56
|
(v)
|
the
Issuing Bank or Ancillary Lender or Fronting Ancillary Lender being
satisfied that it (and in the case of a Fronted Ancillary Facility
each
Fronted Ancillary Lender) has no further liability under that Letter
of
Credit or Ancillary Facility or Fronted Ancillary
Facility,
|
and
the
amount by which a Letter of Credit is, or Ancillary Outstandings are, repaid
or
prepaid under sub-paragraphs (f)(i) and (f)(ii) above is the amount of the
relevant cash cover or reduction.
|
(g)
|
An
amount borrowed includes any amount utilised by way of Letter of
Credit or
under an Ancillary Facility or Fronted Ancillary
Facility.
|
|
(h)
|
A
Lender funding its participation in a Utilisation includes a Lender
participating in a Letter of
Credit.
|
|
(i)
|
An
outstanding amount of a Letter of Credit at any time is the maximum
amount
that is or may be payable by the relevant Borrower in respect of
that
Letter of Credit at that time.
|
|
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.
|
|
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.
|
57
|
(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)
|
|
(i)
|
a
winding-up, administration or dissolution includes a Dutch entity
being
declared bankrupt (failliet
verklaard)
or dissolved (ontbonden);
|
|
(ii)
|
a
moratorium includes surseance
van betaling and
a moratorium is declared or occurs includes surseance
verleend;
|
|
(iii)
|
insolvency
includes bankruptcy and moratorium;
|
|
(iv)
|
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);
|
|
(v)
|
a
trustee in bankruptcy includes a
curator;
|
|
(vi)
|
an
administrator includes a bewindvoerder;
|
|
(vii)
|
an
attachment includes a beslag;
and
|
|
(viii)
|
a
subsidiary includes a dochtermaatschappij
as
defined in Article 2:24a of the Dutch Civil
Code.
|
58
SECTION
2
THE
FACILITIES
|
2.
|
THE
FACILITIES
|
|
2.1
|
The
Facilities
|
|
(a)
|
Subject
to the terms of this Agreement, the Lenders make
available:
|
|
(i)
|
a
Base Currency term loan facility in an aggregate amount equal to
the Total
Facility A Commitments;
|
|
(ii)
|
a
Base Currency term loan facility in an aggregate amount equal to
the Total
Facility B Commitments;
|
|
(iii)
|
a
Base Currency term loan facility in an aggregate amount equal to
the Total
Facility C Commitments;
|
|
(iv)
|
a
multicurrency revolving credit facility in an aggregate Base Currency
Amount which is equal to the Total Revolving Facility Commitments;
and
|
|
(v)
|
an
uncommitted term loan facility in an aggregate amount equal to the
Acquisition Facility Commitments from time to
time.
|
|
(b)
|
Each
Term Facility (other than the Uncommitted Acquisition Facility) will
be
available to the Company and the Uncommitted Acquisition Facility
and the
Revolving Facility will be available to all the Borrowers. The Parent
shall not be a Borrower under any
Facility.
|
|
(c)
|
Subject
to the terms of this Agreement and the Ancillary Documents, an Ancillary
Lender may make available an Ancillary Facility to any of the Revolving
Facility Borrowers (or Affiliates of a Revolving Facility
Borrower).
|
|
(d)
|
Subject
to the terms of this Agreement and the Fronted Ancillary Documents,
a
Fronting Ancillary Lender and Fronted Ancillary Lender may make available
a Fronted Ancillary Facility to any of the Revolving Facility Borrowers
(or Affiliates of a Revolving Facility
Borrower).
|
|
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:
|
59
|
(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.
|
|
2.4
|
Acquisition
Loans
|
The
total
amount of Acquisition Loans outstanding at any time shall not exceed the
Acquisition Sub-Limit.
|
2.5
|
UK
Obligors
|
|
(a)
|
In
respect of any Obligor incorporated in the United
Kingdom:
|
|
(i)
|
its
obligations under Clauses 19
(Fees), 20
(Tax
Gross-up and indemnities), 21
(Increased
costs), 22
(Other
indemnities), 24
(Costs
and Expenses)
and 25
(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 2.5
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).
|
60
|
3.
|
PURPOSE
|
|
3.1
|
Purpose
|
|
(a)
|
Each
Borrower shall apply all amounts borrowed by it under a Term Facility
(other than the Uncommitted Acquisition Facility) to
finance:
|
|
(i)
|
a
reduction in the share capital of the Company (the "Capital
Reduction")
and the payment of a dividend by the
Company;
|
|
(ii)
|
the
payment of costs and expenses incurred by the Company, 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; and
|
|
(iii)
|
the
refinancing of existing indebtedness of the Group (including any
related
fees, costs and expenses of such
refinancing),
|
in
each
case in accordance with the Structure Memorandum and the Funds Flow
Statement.
|
(b)
|
Each
Borrower shall apply all amounts borrowed by it under the Uncommitted
Acquisition Facility towards financing or refinancing payments made
in
respect of:
|
|
(i)
|
Permitted
Acquisitions (other than the
Acquisition);
|
|
(ii)
|
the
payment of costs and expenses incurred by the Borrowers or any other
member of the Group in connection with a Permitted Acquisition (other
than
the Acquisition);
|
|
(iii)
|
the
refinancing of indebtedness of entities acquired pursuant to a Permitted
Acquisition (other than the Acquisition) (including loans made to
those
entities to effect such refinancing);
and
|
|
(iv)
|
costs,
Capital Expenditure and expenses related to restructuring (including,
without limitation, relocations, redundancies, carve outs and corporate
reorganisations) or to refinance such expenditure (including the
proceeds
of utilisations of the Revolving Facility) in relation to a Permitted
Acquisition (other than the Acquisition) or any other
restructuring.
|
|
(c)
|
Subject
to Clause 2.4
(Acquisition
Loans),
each Revolving Facility Borrower shall apply all amounts borrowed
by it
under the Revolving Facility, any Letter of Credit and any utilisation
of
any Ancillary Facility or Fronted Ancillary Facility to finance or
refinance:
|
|
(i)
|
Permitted
Acquisitions;
|
|
(ii)
|
the
payment of costs and expenses incurred by the Borrowers or any other
member of the Group in connection with a Permitted
Acquisition;
|
|
(iii)
|
the
refinancing of indebtedness of entities acquired pursuant to a Permitted
Acquisition (including loans made to those entities to effect such
refinancing);
|
|
(iv)
|
costs,
Capital Expenditure and expenses related to restructuring (including,
without limitation, relocations, redundancies, carve outs and corporate
reorganisations) or to refinance such expenditure in relation to
a
Permitted Acquisition or any other
restructuring;
|
61
|
(v)
|
the
purposes set out in paragraph (a) above;
and
|
|
(vi)
|
the
general corporate purposes of the
Group,
|
to
the
extent drawn on Closing, 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 (other than in respect of the Uncommitted
Acquisition Facility) if:
|
(a)
|
prior
to Closing, each Closing Obligor has become an Additional Guarantor
in
accordance with Clause 32 (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
|
|
(a)
|
Subject
to Clause 4.5
(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:
|
|
(i)
|
no
Event of Default or Default is continuing or would occur as a result
of
the proposed Utilisation; and
|
|
(ii)
|
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.
|
|
(b)
|
The
conditions specified in paragraph (a) above shall not apply to Rollover
Loans unless the Facility Agent has served a notice pursuant to Clause
30.21
(Acceleration)
after the applicable Certain Funds Period has
ended.
|
62
|
4.3
|
Conditions
relating to Optional
Currencies
|
|
(a)
|
A
currency will constitute an Optional Currency in relation to a Revolving
Facility Utilisation if it is euro or sterling
or:
|
|
(i)
|
is
readily available in the amount required and freely convertible into
the
Base Currency in the Relevant Interbank Market at the Specified Time
or,
if later, on the date the Facility Agent receives the relevant Utilisation
Request and the Utilisation Date for that Utilisation;
and
|
|
(ii)
|
it
has been approved by the Facility Agent (acting on the instructions
of all
the Lenders participating in the Revolving Facility, acting reasonably)
on
or prior to receipt by the Facility Agent of the relevant Utilisation
Request for that Utilisation.
|
|
(b)
|
If
the Facility Agent has received a written request from the Company
for a
currency to be approved under paragraph (a)(ii) above, the Facility
Agent
will confirm to the Company by the Specified
Time:
|
|
(i)
|
whether
or not the Lenders have granted their approval;
and
|
|
(ii)
|
if
approval has been granted, the minimum amount (approximately equivalent
to
the minimum amount for a Utilisation in the Base Currency) for any
subsequent Utilisation in that
currency.
|
|
4.4
|
Maximum
number of Utilisations
|
|
(a)
|
A
Borrower (or the Company) may not deliver a Utilisation Request if
as a
result of the proposed Utilisation:
|
|
(i)
|
more
than 15 Term Loans (excluding any Acquisition Facility Loans);
or
|
|
(ii)
|
more
than 30 Utilisations under the Revolving Facility;
or
|
|
(iii)
|
more
than the number of Acquisition Facility Loans agreed between the
Facility
Agent (acting on the instructions of the Acquisition Facility Lenders)
and
the Company,
|
would
be
outstanding.
|
(b)
|
A
Borrower (or the Company) may not request that a Term Loan be divided
if,
as a result of the proposed division, 15 or more Term Loans would
be
outstanding (excluding any Acquisition Facility Loans).
|
|
(c)
|
Any
Loan made by a single Lender under Clause 9.2
(Unavailability
of a currency)
shall not be taken into account in this Clause 4.4.
|
|
(d)
|
Subject
to paragraph (a) above, a Borrower (or the Company) may not request
that a
Letter of Credit be issued under the Revolving Facility if, as a
result of
the proposed Utilisation, 10 or more Letters of Credit would be
outstanding.
|
|
4.5
|
Certain
Funds
|
|
(a)
|
Notwithstanding
the provisions of Clause 4.2
(Conditions
to Utilisation):
|
|
(i)
|
a
Utilisation of:
|
|
(A)
|
the
Term Facilities (other than the Uncommitted Acquisition Facility)
for the
purposes specified in paragraph (a) of Clause 3.1
(Purpose);
or
|
63
|
(B)
|
the
Revolving Facility (but only to the extent drawn on Closing) for
the
purposes specified in paragraphs (c)(v) and (vi) of
Clause 3.1
(Purpose);
or
|
|
(ii)
|
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:
|
(A)
|
that
all the representations and warranties in Clause 26
(Representations) (other than a Certain Funds Representation) are
not true
in all respects; and
|
|
(B)
|
a
Default (other than a Certain Funds Default) is
continuing,
|
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
respective Facility, the Lenders will not exercise their rights under
Clause 30.21
(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 4.5.
|
|
(c)
|
For
the avoidance of doubt, save as expressly stated otherwise, this
Clause 4.5
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.
|
|
4.6
|
Debt
Push Down
|
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 42.2
(Exceptions))
such
Debt Push Down and Reorganisation is implemented on terms which have all been
approved by the Majority Lenders.
|
4.7
|
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 32
(Changes
to the Obligors);
|
64
|
(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;
|
|
(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 a 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 may
agree).
|
5.2
|
Completion
of a Utilisation Request for
Loans
|
|
(a)
|
Each
Utilisation Request for a Loan is irrevocable and will not be regarded
as
having been duly completed unless:
|
|
(i)
|
it
identifies the Facility to be utilised and, in the case of a Revolving
Facility Loan, the designation as an Acquisition Loan (if
applicable);
|
|
(ii)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period
applicable to that Facility;
|
|
(iii)
|
the
currency and amount of the Utilisation comply with
Clause 5.3
(Currency
and amount);
|
|
(iv)
|
in
respect of any Utilisation drawn on Closing, the account specified
therein
is the Lender Blocked Account; and
|
|
(v)
|
the
proposed Interest Period complies with Clause 17
(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:
|
|
(i)
|
in
relation to a Term Facility (other than the Uncommitted Acquisition
Facility), the Base Currency;
|
65
|
(ii)
|
in
relation to the Uncommitted Acquisition Facility, the Base Currency
or any
other currency agreed between the Facility Agent (acting on instructions
of the Acquisition Facility Lenders) and the Company;
and
|
|
(iii)
|
in
relation to the Revolving Facility, the Base Currency or an Optional
Currency.
|
|
(b)
|
The
amount of the proposed Utilisation must
be:
|
|
(i)
|
a
minimum of $10,000,000 for Facility A or, if less, the Available
Facility;
|
|
(ii)
|
a
minimum of $10,000,000 for Facility B or, if less, the Available
Facility;
|
|
(iii)
|
a
minimum of $10,000,000 for Facility C or, if less, the Available
Facility;
|
|
(iv)
|
a
minimum amount as agreed between the Facility Agent (acting on
instructions of the Acquisition Facility Lenders) and the Company
for the
Uncommitted Acquisition Facility or, if less, the Available Facility;
or
|
|
(v)
|
for
the Revolving Facility:
|
|
(A)
|
if
the currency selected is the Base Currency, a minimum of $2,000,000
or, if
less, the Available Facility; or
|
|
(B)
|
if
the currency selected is an Optional Currency, the minimum amount
specified by the Facility Agent pursuant to paragraph (b)(ii) of
Clause 4.3
(Conditions
relating to Optional Currencies)
or, if less, the Available
Facility.
|
|
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.
|
|
(c)
|
The
Facility Agent shall determine the Base Currency Amount of each Revolving
Facility Loan which is to be made in an Optional Currency and notify
each
Lender of the amount, currency and the Base Currency Amount of each
Loan
and the amount of its participation in that Loan by the Specified
Time.
|
|
5.5
|
Limitations
on Utilisations
|
|
(a)
|
Neither
the Revolving Facility nor the Uncommitted Acquisition Facility shall
be
utilised unless a Utilisation has been made (or will be made
simultaneously) under a Term Facility (other than the Uncommitted
Acquisition Facility).
|
|
(b)
|
Notwithstanding
any other provision of this
Agreement:
|
|
(i)
|
the
maximum aggregate Base Currency Amount of all Letters of Credit under
the
Revolving Facility shall not exceed $25,000,000;
and
|
|
(ii)
|
the
maximum aggregate amount of the Ancillary Commitments, the Fronting
Ancillary Commitments and the Fronted Ancillary Commitments of all
Lenders
shall not exceed $75,000,000.
|
66
|
5.6
|
Limitation
on Revolving Facility Loans beyond the Conversion
Date
|
No
Utilisation of the Revolving Facility may be requested that would cause the
total amount of the Revolving Facility Loans (excluding any Acquisition Loans)
outstanding on or after the Conversion Date to be greater than the Total
Revolving Facility Commitments as reduced on the Conversion Date in accordance
with Clause 8
(Conversion
of Acquisition Loans).
|
5.7
|
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 Mezzanine Facility are drawn
proportionately to each other.
|
5.8
|
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.
|
|
(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.
|
UTILISATION
- LETTERS OF CREDIT
|
|
6.1
|
The
Revolving Facility
|
|
(a)
|
The
Revolving Facility may be utilised by way of Letters of
Credit.
|
|
(b)
|
Other
than Clause 5.5
(Limitations
on Utilisations),
Clause 5
(Utilisation
- Loans)
does not apply to utilisations by way of Letters of
Credit.
|
|
6.2
|
Delivery
of a Utilisation Request for Letters of
Credit
|
A
Revolving Facility Borrower (or the Company on its behalf) may request a Letter
of Credit to be issued 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 may agree).
|
6.3
|
Completion
of a Utilisation Request for Letters of
Credit
|
Each
Utilisation Request for a Letter of Credit is irrevocable and will not be
regarded as having been duly completed unless:
67
|
(a)
|
it
specifies that it is for a Letter of
Credit;
|
|
(b)
|
it
identifies the Revolving Facility Borrower of the Letter of
Credit;
|
|
(c)
|
it
identifies the Issuing Bank which is to issue the Letter of
Credit;
|
|
(d)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period
applicable to the Revolving
Facility;
|
|
(e)
|
the
currency and amount of the Letter of Credit comply with
Clause 6.4
(Currency
and amount);
|
|
(f)
|
the
form of Letter of Credit is attached and is agreed with the Issuing
Bank
or is substantially in the form set out in Schedule 11 (Form
of Letter of Credit);
|
|
(g)
|
the
delivery instructions for the Letter of Credit are
specified;
|
|
(h)
|
the
Issuing Bank is not prohibited from dealing with the beneficiary
of the
Letter of Credit by any applicable law, regulation or internal
requirement;
|
|
(i)
|
the
termination date for the Letter of Credit is no later than the Termination
Date for the Revolving Facility or, if later, the conditions in
Clause 6.8
(Cash
Cover)
are satisfied.
|
|
6.4
|
Currency
and amount
|
|
(a)
|
The
currency specified in a Utilisation Request must be the Base Currency
or
an Optional Currency.
|
|
(b)
|
Subject
to Clause 5.5
(Limitations
on Utilisations),
the amount of the proposed Letter of Credit must be an amount whose
Base
Currency Amount is not more than the Available Facility and which
is:
|
|
(i)
|
if
the currency selected is the Base Currency, a minimum of $2,000,000
(or
equivalent) or, if less, the Available Facility;
or
|
|
(ii)
|
if
the currency selected is an Optional Currency, the minimum amount
specified by the Facility Agent pursuant to paragraph (b)(ii) of
Clause 4.3
(Conditions
relating to Optional Currencies)
(such minimum amount may be revalued by the Facility Agent at normal
intervals from the date of the Letter of Credit) or, if less, the
Available Facility.
|
|
6.5
|
Issue
of Letters of Credit
|
|
(a)
|
If
the conditions set out in this Agreement have been met, the Issuing
Bank
shall issue the Letter of Credit on the Utilisation
Date.
|
|
(b)
|
Subject
to Clause 4.5
(Certain
Funds),
the Issuing Bank will only be obliged to comply with paragraph (a)
above
if on the date of the Utilisation Request or Renewal Request and
on the
proposed Utilisation Date:
|
|
(i)
|
in
the case of a Letter of Credit to be renewed in accordance with
Clause 6.6
(Renewal
of a Letter of Credit)
no notice of acceleration or cancellation has been given pursuant
to
Clause 30.21
(Acceleration)
as a result of the occurrence of an Event of Default and, in the
case of
any other Utilisation, no Default is continuing or would occur as
a result
from the proposed Utilisation; and
|
68
|
(ii)
|
in
relation to a Utilisation on Closing, all the representations and
warranties in Clause 26 (Representations)
which are made or deemed to be made on Closing are true and accurate
or,
in relation to any other Utilisation (other than pursuant to a Renewal
Request), the Repeating Representations that are stipulated to be
made by
each 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).
|
|
(c)
|
The
amount of each Lender's participation in each Letter of Credit will
be
equal to the proportion borne by its Available Commitment to the
Available
Facility (in each case in relation to the Revolving Facility) immediately
prior to the issue of the Letter of
Credit.
|
|
(d)
|
The
Facility Agent shall determine the Base Currency Amount of each Letter
of
Credit which is to be issued in an Optional Currency and shall notify
the
Issuing Bank and each Lender of the details of the requested Letter
of
Credit and its participation in that Letter of Credit by the Specified
Time.
|
|
6.6
|
Renewal
of a Letter of Credit
|
|
(a)
|
A
Revolving Facility Borrower (or the Company on its behalf) may request
that any Letter of Credit issued on behalf of that Revolving Facility
Borrower be renewed by delivery to the Facility Agent of a Renewal
Request
in substantially similar form to a Utilisation Request for a Letter
of
Credit by the Specified Time.
|
|
(b)
|
The
Finance Parties shall treat any Renewal Request in the same way as
a
Utilisation Request for a Letter of Credit except that the conditions
set
out in paragraph (f) of Clause 6.3
(Completion
of a Utilisation Request for Letters of Credit)
shall not apply.
|
|
(c)
|
The
terms of each renewed Letter of Credit shall be the same as those
of the
relevant Letter of Credit immediately prior to its renewal, except
that:
|
|
(i)
|
its
amount may be less than the amount of the Letter of Credit immediately
prior to its renewal; and
|
|
(ii)
|
its
Term shall start on the date which was the Expiry Date of the Letter
of
Credit immediately prior to its renewal, and shall end on the proposed
Expiry Date specified in the Renewal
Request.
|
|
(d)
|
If
the conditions set out in this Agreement have been met, the Issuing
Bank
shall amend and re-issue any Letter of Credit pursuant to a Renewal
Request.
|
|
6.7
|
Revaluation
of Letters of Credit
|
|
(a)
|
If
any Letters of Credit are denominated in an Optional Currency, the
Facility Agent shall at annual intervals after the date of the respective
Letter of Credit recalculate the Base Currency Amount of each Letter
of
Credit by notionally converting into the Base Currency the outstanding
amount of that Letter of Credit on the basis of the Facility Agent's
Spot
Rate of Exchange on the date of
calculation.
|
|
(b)
|
The
Company shall, if requested by the Facility Agent within five Business
Days of any calculation under paragraph (a) above, ensure that within
three Business Days sufficient Revolving Facility Utilisations are
prepaid
to prevent the Base Currency Amount of the Revolving Facility Utilisations
exceeding the Total Revolving Facility Commitments (after deducting
the
total Ancillary Commitments, Fronting Ancillary Commitments and Fronted
Ancillary Commitments) by more than 5 per cent. following any adjustment
to a Base Currency Amount under paragraph (a) of this Clause 6.7.
|
69
|
6.8
|
Cash
Cover
|
If
the
Facilities are prepaid in full or on the Termination Date for the Revolving
Facility if there are Letters of Credit outstanding the Company
shall:
|
(a)
|
provide
cash cover in an amount not exceeding the maximum principal amount
of any
such outstanding Letters of Credit;
or
|
|
(b)
|
provide
counter-indemnification by a financial institution approved by the
Issuing
Bank in respect of each such Letter of
Credit.
|
Any
such
outstanding Letter of Credit may remain outstanding for a period of up to 12
months following the Termination Date for the Revolving Facilities if so
cash-collateralised or counter-indemnified.
|
7.
|
LETTERS
OF CREDIT
|
|
7.1
|
Immediately
payable
|
If
a
Letter of Credit or any amount outstanding under a Letter of Credit is expressed
to be immediately payable, the Borrower that requested (or on behalf of which
the Company requested) the issue of that Letter of Credit shall repay or prepay
that amount immediately.
|
7.2
|
Claims
under a Letter of Credit
|
|
(a)
|
Each
Revolving Facility Borrower irrevocably and unconditionally authorises
the
Issuing Bank to pay any claim made or purported to be made under
a Letter
of Credit requested by it (or requested by the Company on its behalf)
and
which appears on its face to be in order (in this Clause 7,
a
"claim").
|
|
(b)
|
Each
Revolving Facility Borrower shall immediately on demand, or if such
payment is being funded by a Revolving Facility Loan, within four
Business
Days of demand, pay to the Facility Agent for the Issuing Bank an
amount
equal to the amount of any claim.
|
|
(c)
|
Each
Revolving Facility Borrower acknowledges that the Issuing
Bank:
|
|
(i)
|
is
not obliged to carry out any investigation or seek any confirmation
from
any other person before paying a claim;
and
|
|
(ii)
|
deals
in documents only and will not be concerned with the legality of
a claim
or any underlying transaction or any available set-off, counterclaim
or
other defence of any person.
|
|
(d)
|
The
obligations of a Revolving Facility Borrower under this
Clause 7
will not be affected by:
|
|
(i)
|
the
sufficiency, accuracy or genuineness of any claim or any other document;
or
|
|
(ii)
|
any
incapacity of, or limitation on the powers of, any person signing
a claim
or other document.
|
70
|
7.3
|
Indemnities
|
|
(a)
|
Each
Revolving Facility Borrower shall immediately on demand, or if such
payment is being funded by a Revolving Facility Loan, within four
Business
Days of demand, indemnify the Issuing Bank against any cost, loss
or
liability incurred by the Issuing Bank (otherwise than by reason
of the
Issuing Bank's gross negligence or wilful misconduct) in acting as
the
Issuing Bank under any Letter of Credit requested by (or on behalf
of)
that Revolving Facility Borrower.
|
|
(b)
|
Each
Lender shall (according to its L/C Proportion) immediately on demand
indemnify the Issuing Bank against any cost, loss or liability incurred
by
the Issuing Bank (otherwise than by reason of the Issuing Bank's
gross
negligence or wilful misconduct) in acting as the Issuing Bank under
any
Letter of Credit (unless the Issuing Bank has been reimbursed by
an
Obligor pursuant to a Finance
Document).
|
|
(c)
|
If
any Lender is not permitted (by its constitutional documents or any
applicable law) to comply with paragraph (b) above, then that Lender
will
not be obliged to comply with paragraph (b) and shall instead be
deemed to
have taken, on the date the Letter of Credit is issued (or if later,
on
the date the Lender's participation in the Letter of Credit is transferred
or assigned to the Lender in accordance with the terms of this Agreement),
an undivided interest and participation in the Letter of Credit in
an
amount equal to its L/C Proportion of that Letter of Credit. On receipt
of
demand from the Facility Agent, that Lender shall pay to the Facility
Agent (for the account of the Issuing Bank) an amount equal to its
L/C
Proportion of the amount demanded.
|
|
(d)
|
The
Revolving Facility Borrower which requested (or on behalf of which
the
Company requested) a Letter of Credit shall immediately on demand
reimburse any Lender for any payment it makes to the Issuing Bank
under
this Clause 7.3
in
respect of that Letter of Credit.
|
|
(e)
|
The
obligations of each Lender under this Clause 7
are continuing obligations and will extend to the ultimate balance
of sums
payable by that Lender in respect of any Letter of Credit, regardless
of
any intermediate payment or discharge in whole or in
part.
|
|
(f)
|
The
obligations of any Lender or any Revolving Facility Borrower under
this
Clause 7
will not be affected by any act, omission, matter or thing which,
but for
this Clause 7,
would reduce, release or prejudice any of its obligations under this
Clause 7
(without limitation and whether or not known to it or any other person)
including:
|
|
(i)
|
any
time, waiver or consent granted to, or composition with, any Obligor,
any
beneficiary under a Letter of Credit or any other
person;
|
|
(ii)
|
the
release of any other Obligor or any other person under the terms
of any
composition or arrangement with any creditor or any member of the
Group;
|
|
(iii)
|
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, any beneficiary under a Letter of Credit
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;
|
71
|
(iv)
|
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
beneficiary under a Letter of Credit or any other
person;
|
|
(v)
|
any
amendment (however fundamental) or replacement of a Finance Document,
any
Letter of Credit (if made with the consent of the Company) or any
other
document or security;
|
|
(vi)
|
any
unenforceability, illegality or invalidity of any obligation of any
person
under any Finance Document, any Letter of Credit or any other document
or
security; or
|
|
(vii)
|
any
insolvency or similar proceedings.
|
|
7.4
|
Rights
of contribution
|
No
Obligor will be entitled to any right of contribution or indemnity from any
Finance Party in respect of any payment it may make under this Clause
7.
|
7.5
|
Settlement
Conditional
|
Any
settlement or discharge between a Lender and the Issuing Bank shall be
conditional upon no security or payment to the Issuing Bank by a Lender or
any
other person on behalf of a Lender being avoided or reduced by virtue of any
laws relating to bankruptcy, insolvency, liquidation or similar laws of general
application and, if any such security or payment is so avoided or reduced,
the
Issuing Bank shall be entitled to recover the value or amount of such security
or payment from such Lender subsequently as if such settlement or discharge
had
not occurred.
|
7.6
|
Exercise
of Rights
|
The
Issuing Bank shall not be obliged before exercising any of the rights, powers
or
remedies conferred upon it in respect of any Lender by this Agreement or by
law:
|
(a)
|
to
take any action or obtain judgment in any court against any
Obligor;
|
|
(b)
|
to
make or file any claim or proof in a winding-up or dissolution of
any
Obligor; or
|
|
(c)
|
to
enforce or seek to enforce any other security taken in respect of
any of
the obligations of any Obligor under this
Agreement.
|
|
8.
|
CONVERSION
OF ACQUISITION LOANS
|
|
(a)
|
Subject
to the terms and conditions of this Clause 8,
on the Conversion Date each Acquisition Loan shall be converted into
a
term loan (an "Acquisition
Term Loan").
|
|
(b)
|
The
conversion made under paragraph (a) above shall be unconditional
and
irrevocable.
|
|
(c)
|
The
Total Revolving Facility Commitments shall be permanently reduced
by the
amount of the Acquisition Sub-Limit from the Conversion
Date.
|
|
(d)
|
The
first Interest Period for each Acquisition Term Loan shall commence
on the
Conversion Date, and shall be of a duration determined in accordance
with
Clause 16
(Interest).
The period for which Acquisition Term Loans are outstanding will
be
divided into successive Interest Periods each of which shall start
on the
last day of the preceding period.
|
72
|
9.
|
OPTIONAL
CURRENCIES
|
|
9.1
|
Selection
of currency
|
A
Revolving Facility Borrower (or the Company on its behalf) shall select the
currency of a Revolving Facility Utilisation in a Utilisation
Request.
|
9.2
|
Unavailability
of a currency
|
If
before
the Specified Time on any Quotation Day:
|
(a)
|
a
Lender notifies the Facility Agent that the Optional Currency requested
is
not readily available to it in the amount required;
or
|
|
(b)
|
a
Lender notifies the Facility Agent that compliance with its obligation
to
participate in a Loan in the proposed Optional Currency would contravene
a
law or regulation applicable to it,
|
then
the
Facility Agent will give notice to the relevant Revolving Facility Borrower
to
that effect by the Specified Time on that day. In this event, any Lender that
gives notice pursuant to this Clause 9.2
will be
required to participate in the Loan in the Base Currency (in an amount equal
to
that Lender's proportion of the Base Currency Amount, or in respect of a
Rollover Loan, an amount equal to that Lender's proportion of the Base Currency
Amount of the Rollover Loan that is due to be made) and its participation will
be treated as a separate Loan denominated in the Base Currency during that
Interest Period.
|
9.3
|
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).
|
9.4
|
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 Facility A Loans and/or Facility B Loans and/or Facility C Loans
in
an aggregate principal amount (when aggregated with any loans under
the
Mezzanine Facility 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)
|
identify
the relevant Term Facility or, as the case may be, Term Facilities
to be
redenominated;
|
|
(ii)
|
be
delivered at least ten Business Days before the Redenomination
Date;
|
|
(iii)
|
specify
the proposed date (the "Redenomination
Date")
on which such redenomination is to take effect;
and
|
|
(iv)
|
specify
the amount of the relevant Term Facility or, as the case may be,
Term
Facilities to be redenominated (in compliance with the limits set
out in
paragraph (a) above).
|
73
|
(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.
|
|
(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 Facility A, Facility B and/or Facility
C.
|
|
(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 Facility A Loans, Facility B Loans and Facility C Loans
denominated in dollars which are to be
redenominated.
|
|
(g)
|
On
and following the Redenomination Date, each Redenomination Loan shall
be a
Facility A Loan, Facility B Loan or Facility C Loan (as the case
may be)
for all purposes under this
Agreement.
|
|
(h)
|
The
requirements of Clause 4.2
(Conditions
to Utilisation),
Clause 4.3
(Conditions
relating to Optional Currencies),
Clause 4.4
(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 each relevant
Facility.
|
|
(k)
|
Following
the tranching of the Redenomination Loans, any repayment or mandatory
prepayment of the relevant Facilities must be made pro rata to the
outstandings under each euro and dollar
tranche.
|
74
|
10.
|
ANCILLARY
FACILITIES AND FRONTED ANCILLARY
FACILITIES
|
|
10.1
|
Type
of Facility
|
An
Ancillary Facility or a Fronted Ancillary Facility may be by way
of:
|
(a)
|
an
overdraft facility;
|
|
(b)
|
a
guarantee, bonding, documentary or stand-by letter of credit facility
up
to an aggregate amount of
$25,000,000;
|
|
(c)
|
a
short term loan facility;
|
|
(d)
|
a
derivatives facility;
|
|
(e)
|
a
foreign exchange facility; or
|
|
(f)
|
any
other facility or accommodation required in connection with the
business
of the Group and which is agreed by the Company with an Ancillary
Lender
or Fronting Ancillary Lender (as the case may be),
|
up
to an
aggregate amount of $75,000,000.
|
10.2
|
Availability
|
|
(a)
|
An
Ancillary Facility or Fronted Ancillary Facility shall not be made
available unless, not later than 3 Business Days (or such shorter
period
as the Facility Agent may agree) prior to the Ancillary Commencement
Date
for an Ancillary Facility or the Fronted Ancillary Commencement
Date for a
Fronted Ancillary Facility, the Facility Agent has received from
the
Company:
|
|
(i)
|
a
notice in writing requesting the establishment of an Ancillary
Facility or
Fronted Ancillary Facility (as the case may be) and
specifying:
|
|
(A)
|
the
proposed Revolving Facility Borrower(s) (or Affiliate(s) of a Revolving
Facility Borrower) which may use the Ancillary Facility or Fronted
Ancillary Facility (as the case may
be);
|
|
(B)
|
the
proposed Ancillary Commencement Date or Fronted Ancillary Commencement
Date (as the case may be) and expiry date of the Ancillary Facility
or
Fronted Ancillary Facility (as the case may
be);
|
|
(C)
|
the
proposed type of Ancillary Facility or Fronted Ancillary Facility
(as the
case may be) to be provided;
|
|
(D)
|
the
proposed Ancillary Lender or proposed Fronting Ancillary Lender
and each
Fronted Ancillary Lender (as the case may be), in each case being
a Lender
under the Revolving Facility;
|
|
(E)
|
the
Ancillary Commitment to apply to the Ancillary Facility or Fronting
Ancillary Commitment and Fronted Ancillary Commitments to apply
to the
Fronted Ancillary Facility;
|
|
(F)
|
the
maximum amount of the Ancillary Facility or Fronted Ancillary Facility
(if
not denominated in the Base Currency) and, if the Ancillary Facility
or
Fronted Ancillary Facility is an overdraft facility comprising
more than
one account its maximum gross amount (that amount being the "Designated
Gross Amount")
and its maximum net amount (that amount being the "Designated
Net Amount");
and
|
75
|
(G)
|
the
proposed currency of the Ancillary Facility or Fronted Ancillary
Facility;
|
|
(ii)
|
a
copy of the proposed Ancillary Document or Fronted Ancillary Document
(as
the case may be); and
|
|
(iii)
|
any
other information which the Facility Agent may reasonably request
in
connection with the Ancillary Facility or Fronted Ancillary
Facility.
|
|
(b)
|
The
Facility Agent shall promptly notify each Lender under the Revolving
Facility upon receipt of any such
notice.
|
|
(c)
|
Subject
to compliance with paragraph (a) above and the proposed Ancillary
Lender
having notified the Facility Agent prior to the Ancillary Commencement
Date that it agrees to make available that Ancillary Facility,
the
Ancillary Lender identified in the notice delivered pursuant to
paragraph
(a) above shall become an Ancillary Lender and authorised to make
available the proposed Ancillary Facility available with effect
from the
Ancillary Commencement Date.
|
|
(d)
|
Subject
to compliance with paragraph (a) above and the proposed Fronting
Ancillary
Lender and each Fronted Ancillary Lender having notified the Facility
Agent prior to the Fronted Ancillary Commencement Date that they
agree to
make available that Fronted Ancillary Facility, the Fronting Ancillary
Lender identified in the notice delivered pursuant to paragraph
(a) above
shall become a Fronting Ancillary Lender authorised to make available
the
proposed Fronted Ancillary Facility with effect from the Fronted
Ancillary
Commencement Date.
|
|
(e)
|
The
Facility Agent shall promptly notify the Company and the Lenders
of the
establishment of an Ancillary Facility or Fronted Ancillary (as
the case
may be).
|
|
10.3
|
Limitations
|
|
(a)
|
The
Ancillary Commitment applicable to any of the Ancillary Facilities
shall
be the amount specified in or notified under Clause 10.2 (Availability)
but shall not exceed the Available Commitment of that Lender under
the
Revolving Facility.
|
|
(b)
|
The
Fronting Ancillary Commitment and each Fronted Ancillary Commitment
applicable to any of the Fronted Ancillary Facilities shall be
the amount
specified in or notified under Clause 10.2 (Availability)
but shall not exceed the any of the respective Lender's Available
Commitment under the Revolving
Facility.
|
|
10.4
|
Terms
of Ancillary Facilities and Fronted Ancillary
Facilities
|
|
(a)
|
Except
as provided below, the terms of any Ancillary Facility or Fronted
Ancillary Facility will be those agreed by the Ancillary Lender
and the
Company (in the case of an Ancillary Facility) or the Fronting
Ancillary
Lender and the Company (in the case of a Fronted Ancillary
Facility).
|
|
(b)
|
However,
those terms:
|
|
(i)
|
must
be based upon normal commercial terms at that time (except as varied
by
this Agreement);
|
76
|
(ii)
|
may
allow only Revolving Facility Borrowers (or Affiliates of Borrowers
nominated pursuant to Clause 10.10
(Affiliates
of Borrowers))
to use the Ancillary Facility or Fronted Ancillary
Facility;
|
|
(iii)
|
may
not allow the Ancillary Outstandings to exceed the Ancillary Commitment
or
the aggregate of the Fronting Ancillary Commitment and the Fronted
Ancillary Commitment (as
applicable);
|
|
(iv)
|
may
not allow the Ancillary Commitment, Fronting Ancillary Commitment
or
Fronted Ancillary Commitment of a Lender to exceed the Available
Commitment of that Lender with respect to the Revolving Facility;
and
|
|
(v)
|
must
require that the Ancillary Commitment, Fronting Ancillary Commitment
or
Fronted Ancillary Commitment is reduced to nil, and that all Ancillary
Outstandings are repaid (or cash cover provided in respect of all
the
Ancillary Outstandings) not later than the Termination Date for
the
Revolving Facility.
|
|
(c)
|
If
there is any inconsistency between any term of an Ancillary Facility
or a
Fronted Ancillary Facility and any term of this Agreement, this
Agreement
shall prevail except for (i) Clause 39.3
(Day
count convention)
which shall not prevail for the purposes of calculating fees, interest
or
commission relating to an Ancillary Facility or Fronted Ancillary
Facility
and (ii) an Ancillary Facility or Fronted Ancillary Facility comprising
more than one account where the terms of the Ancillary Documents
or
Fronted Ancillary Documents (as the case may be) shall
prevail.
|
|
(d)
|
Subject
to compliance with paragraph (b) above, no amendment or waiver of any
term of any Ancillary Facility or Fronted Ancillary Facility shall
require
the consent of any Finance Party other than the relevant Ancillary
Lender
or Fronting Ancillary Lender and the Fronted Ancillary
Lenders.
|
|
(e)
|
Interest,
commission and fees on Ancillary Facilities or Fronted Ancillary
Facilities are dealt with in Clause 19.5
(Interest,
commission and fees on Ancillary Facilities and Fronted Ancillary
Facilities).
|
|
10.5
|
Repayment
of Ancillary Facility or Fronted Ancillary
Facility
|
|
(a)
|
An
Ancillary Facility or Fronted Ancillary Facility (as the case may
be)
shall cease to be available on the Termination Date in relation
to the
Revolving Facility or such earlier date on which its expiry date
occurs or
on which it is cancelled in accordance with the terms of this
Agreement.
|
|
(b)
|
If
an Ancillary Facility or Fronted Ancillary Facility (as the case
may be)
expires in accordance with its terms the Ancillary Commitment or
Fronted
Ancillary Commitment of the Ancillary Lender or Fronting Ancillary
Lender
(as the case may be) shall be reduced to zero (and its Revolving
Facility
Commitment shall be increased
accordingly).
|
|
(c)
|
No
Ancillary Lender or Fronting Ancillary Lender may demand repayment
or
prepayment of any amounts or demand cash cover for any liabilities
made
available or incurred by it under its Ancillary Facility or Fronted
Ancillary Facility (except where the Ancillary Facility or Fronted
Ancillary Facility is provided on a net limit basis to the extent
required
to bring any gross outstandings down to the net limit)
unless:
|
77
|
(i)
|
the
Total Revolving Facility Commitments have been cancelled in full,
or all
outstanding Utilisations under the Revolving Facility have become
due and
payable in accordance with the terms of this Agreement, or the
Facility
Agent has declared all outstanding Utilisations under the Revolving
Facility immediately due and payable, or the expiry date of the
Ancillary
Facility or Fronted Ancillary Facility occurs;
or
|
|
(ii)
|
it
becomes unlawful in any applicable jurisdiction for the Ancillary
Lender,
Fronting Ancillary Lender or Fronted Ancillary Lender (as the case
may be)
to perform any of its obligations as contemplated by this Agreement
or to
fund, issue or maintain its participation in its Ancillary Facility
or
Fronted Ancillary Facility; or
|
|
(iii)
|
the
Ancillary Outstandings (if any) under that Ancillary Facility or
Fronted
Ancillary Facility can be refinanced by a Revolving Facility Utilisation
under the Revolving Facility and the Ancillary Lender or Fronting
Ancillary Lender gives sufficient notice to enable a Utilisation
of the
Revolving Facility to be made to refinance those Ancillary
Outstandings.
|
|
(d)
|
For
the purposes of determining whether or not the Ancillary Outstandings
under an Ancillary Facility or Fronted Ancillary Facility mentioned
in
sub-paragraph (iii) of paragraph (c) above can be refinanced by
a
Utilisation of the Revolving
Facility:
|
|
(i)
|
the
Revolving Facility Commitment of the Ancillary Lender or Fronting
Ancillary Lender will be increased by the amount of the respective
Ancillary Commitment or Fronted Ancillary Commitment;
and
|
|
(ii)
|
the
Utilisation may (so long as sub-paragraph (i) of paragraph (c)
above does
not apply) be made irrespective of whether a Default is continuing
or any
other applicable condition precedent is not satisfied (but only
to the
extent that the proceeds are applied in refinancing those Ancillary
Outstandings) and irrespective of whether Clause 4.4
(Maximum
number of Utilisations)
or paragraph (iii) of Clause 5.2
(Completion
of a Utilisation Request for Loans)
applies.
|
|
(e)
|
On
the making of a Utilisation of the Revolving Facility to refinance
Ancillary Outstandings:
|
|
(i)
|
each
Lender will participate in that Utilisation in an amount (as determined
by
the Facility Agent) which will result as nearly as possible in
the
aggregate amount of its participation in the Revolving Facility
Utilisations then outstanding bearing the same proportion to the
aggregate
amount of the Revolving Facility Utilisations then outstanding
as its
Revolving Facility Commitment bears to the Total Revolving Facility
Commitments; and
|
|
(ii)
|
the
relevant Ancillary Facility or Fronted Ancillary Facility shall
be
cancelled.
|
|
(f)
|
In
relation to an Ancillary Facility or Fronted Ancillary Facility
which
comprises an overdraft facility where a Designated Net Amount has
been
established, the Ancillary Lender providing that Ancillary Facility
or
Fronting Ancillary Lender providing the Fronted Ancillary Facility
shall
only be obliged to take into account for the purposes of calculating
compliance with the Designated Net Amount those credit balances
which it
is permitted to take into account by the then current law and regulations
in relation to its reporting of exposures to the Financial Services
Authority as netted for capital adequacy
purposes.
|
78
|
10.6
|
Ancillary
Outstandings
|
Each
Revolving Facility Borrower and each Ancillary Lender, Fronting Ancillary
Lender
and Fronted Ancillary Lender agrees with and for the benefit of each Lender
that:
|
(a)
|
the
Ancillary Outstandings under any Ancillary Facility or Fronted
Ancillary
Facility provided by that Ancillary Lender or each relevant Fronting
Ancillary Lender and Fronted Ancillary Lender shall not exceed
the
Ancillary Commitment applicable to that Ancillary Facility or the
aggregate of the Fronting Ancillary Commitment and Fronted Ancillary
Commitments applicable to that Fronted Ancillary Facility and,
where the
Ancillary Facility or Fronted Ancillary Facility is an overdraft
facility
comprising more than one account, Ancillary Outstandings under
that
Ancillary Facility or Fronted Ancillary Facility shall not exceed
the
Designated Net Amount in respect of that Ancillary Facility or
Fronted
Ancillary Facility; and
|
|
(b)
|
where
all or part of the Ancillary Facility or Fronted Ancillary Facility
is an
overdraft facility comprising more than one account, the Ancillary
Outstandings shall not exceed the Designated Gross Amount applicable
to
that Ancillary Facility or Fronted Ancillary
Facility.
|
|
10.7
|
Adjustment
for Ancillary Facilities and Fronted Ancillary Facility upon
acceleration
|
In
this
Clause 10.7:
"Revolving
Outstandings"
means,
in relation to a Lender, the aggregate of the equivalent in the Base Currency
of
(i) its participation in each Revolving Facility Utilisation then outstanding,
and (ii) if the Lender is also an Ancillary Lender, Fronting Ancillary Lender
or
Fronted Ancillary Lender, the Ancillary Outstandings in respect of Ancillary
Facilities or Fronted Ancillary Facilities provided by that Ancillary Lender,
Fronting Ancillary Lender or Fronted Ancillary Lender.
"Total
Revolving Outstandings"
means
the aggregate of all Revolving Outstandings.
|
(a)
|
If
a notice is served under Clause 30.20
(Acceleration)
(other than a notice declaring Utilisations to be due on demand),
each
Lender, each Ancillary Lender and each Fronting Ancillary Lender
and each
Fronted Ancillary Lender shall adjust by corresponding transfers
(to the
extent necessary) their claims in respect of amounts outstanding
to them
under the Revolving Facility and each Ancillary Facility or Fronted
Ancillary Facility to ensure that after such transfers the Revolving
Outstandings of each Lender bears the same proportion to the Total
Revolving Outstandings as such Lender's Revolving Facility Commitment
bears to the Total Revolving Facility Commitments, each as at the
date the
notice is served under Clause 30.20
(Acceleration).
|
|
(b)
|
If
an amount outstanding under an Ancillary Facility or Fronted Ancillary
Facility is a contingent liability and that contingent liability
becomes
an actual liability or is reduced to zero after the original adjustment
is
made under paragraph (a) above, then each Lender, each Ancillary
Lender
and each Fronting Ancillary Lender will make a further adjustment
by
corresponding transfers (to the extent necessary) to put themselves
in the
position they would have been in had the original adjustment been
determined by reference to the actual liability or, as the case
may be,
zero liability and not the contingent
liability.
|
79
|
(c)
|
Prior
to the application of the provisions of paragraph (a) of this Clause
10.7,
an Ancillary Lender or Fronting Ancillary Lender that has provided
an
overdraft comprising more than one account under an Ancillary Facility
or
Fronted Ancillary Facility shall set-off any liabilities owing
to it under
such overdraft facility against credit balances on any account
comprised
in such overdraft facility.
|
|
10.8
|
Information
|
Each
Revolving Facility Borrower and each Ancillary Lender, Fronting Ancillary
Lender
and Fronted Ancillary Lender shall, promptly upon request by the Facility
Agent,
supply the Facility Agent with any information relating to the operation
of an
Ancillary Facility or Fronted Ancillary Facility (including the Ancillary
Outstandings) as the Facility Agent may reasonably request from time to time.
Each Revolving Facility Borrower consents to all such information being released
to the Facility Agent and the other Finance Parties.
|
10.9
|
Affiliates
of Lenders as Ancillary Lenders,
Fronting Ancillary Lenders or Fronted Ancillary
Lenders
|
|
(a)
|
Subject
to the terms of this Agreement, an Affiliate of a Lender may become
an
Ancillary Lender, a Fronting Ancillary Lender or a Fronted Ancillary
Lender. In such case, the Lender and its Affiliate shall be treated
as a
single Lender whose Revolving Facility Commitment is the amount
set out
opposite the relevant Lender's name in Part II of Schedule 1 (The
Original Parties).
For the purposes of calculating the Lender's Available Commitment
with
respect to the Revolving Facility, the Lender's Commitment shall
be
reduced to the extent of the aggregate of the Ancillary Commitments,
Fronting Ancillary Commitments and Fronted Ancillary Commitments
of its
Affiliates.
|
|
(b)
|
The
Company shall specify any relevant Affiliate of a Lender in any
notice
delivered by the Company to the Facility Agent pursuant to paragraph
(b)(i) of Clause 10.2
(Availability).
|
|
(c)
|
An
Affiliate of a Lender which becomes an Ancillary Lender, a Fronting
Ancillary Lender or a Fronted Ancillary Lender shall accede to
this
Agreement and the Intercreditor Agreement by delivery to the Security
Agent of a duly completed accession undertaking in the form scheduled
to
the Intercreditor Agreement.
|
|
(d)
|
If
a Lender assigns all of its rights and benefits or transfers all
of its
rights and obligations to a New Lender (as defined in Clause 31
(Changes
to the Lenders)),
its Affiliate shall cease to have any obligations under this Agreement
or
any Ancillary Document or Fronted Ancillary
Document.
|
|
(e)
|
Where
this Agreement or any other Finance Document imposes an obligation
on an
Ancillary Lender, Fronting Ancillary Lender or Fronted Ancillary
Lender
and the relevant Ancillary Lender or Fronting Ancillary Lender
is an
Affiliate of a Lender which is not a party to that document, the
relevant
Lender shall ensure that the obligation is performed by its
Affiliate.
|
|
10.10
|
Affiliates
of Borrowers
|
|
(a)
|
Subject
to the terms of this Agreement, an Affiliate of a Revolving Facility
Borrower may with the approval of the relevant Lender become a
borrower
with respect to an Ancillary Facility or Fronted Ancillary Facility
(as
the case may be).
|
80
|
(b)
|
The
Company shall specify any relevant Affiliate of a Revolving Facility
Borrower in any notice delivered by the Company to the Facility
Agent
pursuant to paragraph (b)(i) of Clause 10.2
(Availability).
|
|
(c)
|
If
a Revolving Facility Borrower ceases to be a Borrower under this
Agreement
in accordance with Clause 32.3
(Resignation
of a Borrower),
its Affiliate shall cease to have any rights under this Agreement
or any
Ancillary Document or Fronted Ancillary Document (unless that Affiliate
is
also the Affiliate of another
Borrower).
|
|
(d)
|
Where
this Agreement or any other Finance Document imposes an obligation
on a
Borrower under an Ancillary Facility or Fronted Ancillary Facility
and the
relevant Borrower is an Affiliate of a Revolving Facility Borrower
which
is not a party to that document, the relevant Borrower shall ensure
that
the obligation is performed by its
Affiliate.
|
|
(e)
|
Any
reference in this Agreement or any other Finance Document to a
Borrower
being under no obligations (whether actual or contingent) as a
Borrower
under such Finance Document shall be construed to include a reference
to
any Affiliate of a Revolving Facility Borrower being under no obligations
under any Finance Document or Ancillary Document or Fronted Ancillary
Document (unless that Affiliate is also the Affiliate of another
Borrower).
|
|
10.11
|
Fronted
Ancillary Commitment
Indemnities
|
|
(a)
|
A
Revolving Facility Borrower must promptly and in any event not
later than
four Business Days following a written demand indemnify each Fronting
Ancillary Lender and each Fronted Ancillary Lender against any
cost, loss
or liability which that Fronting Ancillary Lender or Fronted Ancillary
Lender incurs in acting as the Fronting Ancillary Lender or Fronted
Ancillary Lender under any Fronted Ancillary Facility requested
by it,
except to the extent that the loss or liability is caused by the
gross
negligence or wilful misconduct of, or material breach of the terms
of
this Agreement by, that Fronting Ancillary Lender or Fronted Ancillary
Lender.
|
|
(b)
|
Each
Fronted Ancillary Lender must promptly on demand indemnify the
Fronting
Ancillary Lender (according to its Fronted Ancillary Commitment)
against
any cost, loss or liability which the Fronting Ancillary Lender
incurs in
acting as the Fronting Ancillary Lender under any Fronted Ancillary
Facility and which at the date of demand has not been paid for
by an
Obligor, except to the extent that the loss or liability is caused
by the
gross negligence or wilful misconduct of, or material breach of
the terms
of this Agreement by, the Fronting Ancillary
Lender.
|
|
(c)
|
The
relevant Revolving Facility Borrower which requested the Fronted
Ancillary
Facility must promptly and in any event not later than four Business
Days
following a written demand reimburse any Fronted Ancillary Lender
for any
payment it makes to the Fronting Ancillary Lender under paragraph
(b)
above except to the extent arising out of the gross negligence
or wilful
misconduct of, or material breach of the terms of this Agreement
by, such
Fronted Ancillary Lender.
|
|
(d)
|
The
obligations of each Revolving Facility Borrower and each Fronted
Ancillary
Lender under this Clause 10.11
are continuing obligations and will extend to the ultimate balance
of all
sums payable by that Revolving Facility Borrower or Fronted Ancillary
Lender in respect of any Fronted Ancillary Facility, regardless
of any
intermediate payment or discharge in whole or in
part.
|
81
|
(e)
|
The
obligations of each Revolving Facility Borrower and each Fronted
Ancillary
Lender under this Clause 10.11
will not be affected by any act, omission or thing which, but for
this
Clause 10.11,
would reduce, release or prejudice any of its obligations under
this
Clause 10.11
(without limitation and whether or not known to it or any other
person)
including:
|
|
(i)
|
any
time or waiver granted to, or composition with, any
person;
|
|
(ii)
|
any
release of any person under the terms of any composition or
arrangement;
|
|
(iii)
|
the
taking, variation, compromise, exchange, renewal or release of,
or refusal
or neglect to perfect, take up or enforce, any rights against,
or security
over assets of, any person;
|
|
(iv)
|
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;
|
|
(v)
|
any
incapacity or lack of power, authority or legal personality of
or
dissolution or change in the members or status of any
person;
|
|
(vi)
|
any
amendment (however fundamental) of a Finance Document or any other
document or security; or
|
|
(vii)
|
any
unenforceability, illegality or invalidity of any obligation of
any person
under any Finance Document or any other document or
security.
|
|
10.12
|
Settlement
Conditional
|
Any
settlement or discharge between a Fronted Ancillary Lender and the Fronting
Ancillary Lender shall be conditional upon no security or payment to the
Fronting Ancillary Lender by a Fronted Ancillary Lender or any other person
on
behalf of the Fronted Ancillary Lender being avoided or reduced by virtue
of any
laws relating to bankruptcy, insolvency, liquidation or similar laws of general
application and, if any such security or payment is so avoided or reduced,
the
Fronting Ancillary Lender shall be entitled to recover the value or amount
of
such security or payment from such Fronted Ancillary Lender subsequently
as if
such settlement or discharge had not occurred.
|
10.13
|
Exercise
of Rights
|
The
Fronting Ancillary Lender shall not be obliged before exercising any of the
rights, powers or remedies conferred upon it in respect of any Fronted Ancillary
Lender by this Agreement or by law:
|
(a)
|
to
take any action or obtain judgment in any court against any
Obligor;
|
|
(b)
|
to
make or file any claim or proof in a winding-up or dissolution
of any
Obligor; or
|
|
(c)
|
to
enforce or seek to enforce any other security taken in respect
of any of
the obligations of any Obligor under this
Agreement.
|
|
10.14
|
Continuation
of Ancillary Facilities or Fronted Ancillary
Facilities
|
A
Borrower and an Ancillary Lender, Fronting Ancillary Lender and Fronted
Ancillary Lender may agree, as between themselves only, that any Ancillary
Facilities or Fronted Ancillary Facilities will continue to remain available
following the Termination Date relating to the Revolving Facility (or on
any
other earlier cancellation of the Revolving Commitments) on a bilateral basis
between such parties and not under (or subject to the terms of) the Finance
Documents (in which case such Ancillary Facilities or Fronted Ancillary
Facilities will be treated as repaid in full for all purposes under the Finance
Documents).
82
|
11.
|
UNCOMMITTED
ACQUISITION FACILITY
|
|
11.1
|
The
Uncommitted Acquisition
Facility
|
|
(a)
|
If
the Company and one or more Lenders agree, except as otherwise
provided in
this Agreement, such Lenders may from time to time make available
Acquisition Facility Commitments to a Borrower in a Base Currency
Amount
up to a maximum aggregate amount of the Uncommitted Acquisition
Facility
Limit during the applicable Availability
Period.
|
|
(b)
|
For
the avoidance of any doubt, no Finance Party shall be obliged to
commit or
underwrite any amounts in respect of the Uncommitted Acquisition
Facility
and shall have no liability to the Company or any other member
of the
Group or other person in respect thereof and any commitment or
agreement
to underwrite any part of the Uncommitted Acquisition Facility
by any
Lender from time to time, shall not oblige any other Lender from
entering
into any similar commitment or agreement
hereunder.
|
|
(c)
|
Each
person which is not already a Lender (a "Further
Acquisition Facility Lender")
shall prior to making available any Acquisition Facility Commitments
become a party to this Agreement as a Lender pursuant to Clause
31.12
(Further
Acquisition Facility Lenders)
with an Acquisition Facility Commitment of the relevant amount
and upon it
becoming a Lender it shall make available its Acquisition Facility
Commitment.
|
|
(d)
|
The
Uncommitted Acquisition Facility shall be available in the Base
Currency
and such other currencies as may be agreed with the Acquisition
Facility
Lenders.
|
|
(e)
|
Where
applicable, the provisions of Clause 4 (Conditions
of Utilisation)
and Clause 5
(Utilisation
- Loans)
will apply to all utilisations of the Uncommitted Acquisition
Facility.
|
|
11.2
|
Utilisation
of the Uncommitted Acquisition
Facility
|
|
(a)
|
If
the conditions set out in this Clause 11
have been met, each Acquisition Facility Lender must make the relevant
Acquisition Facility Loan available on the Utilisation Date through
its
Facility Office in accordance with the provision of
Clause 36.1
(Payments
to the Facility Agent).
|
|
(b)
|
The
amount of each Lender's participation in each Acquisition Facility
Loan
will be equal to the proportion borne by its Available Commitment
under
the Acquisition Facility to the Available Facility under the Acquisition
Facility.
|
|
(c)
|
If
applicable, the Facility Agent shall determine the Base Currency
Amount of
each Acquisition Facility Loan which is to be made in an Optional
Currency
and notify each lender of the amount, currency and Base Currency
Amount of
each Loan and the amount of its participation in that Acquisition
Facility
Loan.
|
|
11.3
|
Notification
of the Utilisation of the Uncommitted Acquisition
Facility
|
The
Facility Agent shall promptly notify the Acquisition Facility Lender(s) of
each
Utilisation of the Uncommitted Acquisition Facility.
83
SECTION
4
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
12.
|
REPAYMENT
|
|
12.1
|
Repayment
of Term Loans
|
|
(a)
|
The
Borrowers under Facility A shall repay the aggregate Facility A
Loans in
semi-annual instalments (pro rata across any tranches under Facility
A) by
repaying on each Facility A Repayment Date an amount which reduces
the
Base Currency Amount of the outstanding aggregate Facility A Loans
by an
amount equal to the relevant percentage of all the Facility A Loans
borrowed by the Borrowers as at the close of business in London
on the
last day of the Availability Period in relation to Facility A as
set out
in the table below:
|
|
Facility A Repayment Date
|
Repayment Instalment
%
|
|||
|
31
December 2009
|
4.50
|
%
|
||
|
30
June 2010
|
5.00
|
%
|
||
|
31
December 2010
|
5.50
|
%
|
||
|
30
June 2011
|
6.00
|
%
|
||
|
31
December 2011
|
6.50
|
%
|
||
|
30
June 2012
|
7.00
|
%
|
||
|
31
December 2012
|
8.00
|
%
|
||
|
30
June 2013
|
8.50
|
%
|
||
|
31
December 2013
|
9.50
|
%
|
||
|
30
June 2014
|
9.50
|
%
|
||
|
31
December 2014
|
10.00
|
%
|
||
|
30
June 2015
|
10.00
|
%
|
||
|
Termination
Date
|
10.00
|
%
|
||
|
(b)
|
If,
in relation to a Facility A Repayment Date, the aggregate amount
of the
Facility A Loans made to the Borrowers exceeds the respective Repayment
Instalment to be repaid by the Borrowers, the Company may, if it
gives the
Facility Agent not less than five Business Days' prior notice,
select
which of those Facility A Loans will be wholly or partially repaid
by
which Borrowers so that the Repayment Instalment is repaid on the
relevant
Repayment Date in full. The Company may further, if it gives the
Facility
Agent not less than five Business Days' prior notice, select the
Facility
A Loans to be divided or merged so that the Repayment Instalment
is repaid
on the relevant Repayment Date in
full.
|
|
(c)
|
In
relation to the Uncommitted Acquisition Facility, the Borrowers
shall
repay each Acquisition Facility Loan in the manner agreed with
the
Acquisition Facility Lenders provided
that
all outstanding Acquisition Facility Loans shall be repaid no later
than
the Termination Date for the Uncommitted Acquisition
Facility.
|
84
|
(d)
|
The
Borrowers under the Acquisition Term Loans shall repay the aggregate
Acquisition Term Loans in semi-annual instalments by repaying on
each
Acquisition Term Loan Repayment Date an amount which reduces the
Base
Currency Amount of the outstanding aggregate Acquisition Term Loans
by an
amount equal to the relevant percentage of all the Acquisition
Term Loans
borrowed by the Borrowers as at the Conversion Date as set out
in the
table below:
|
|
Acquisition Term Loan Repayment Date
(Months from Closing)
|
Repayment
Instalment |
|||
|
42
Months
|
12.5
|
%
|
||
|
48
Months
|
12.5
|
%
|
||
|
54
Months
|
12.5
|
%
|
||
|
60
Months
|
12.5
|
%
|
||
|
66
Months
|
12.5
|
%
|
||
|
72
Months
|
12.5
|
%
|
||
|
78
Months
|
12.5
|
%
|
||
|
Termination
Date
|
12.5
|
%
|
||
|
(e)
|
If,
in relation to an Acquisition Term Loan Repayment Date, the aggregate
amount of the Acquisition Term Loans made to the Borrowers exceeds
the
respective Repayment Instalment to be repaid by the Borrowers,
the Company
may, if it gives the Facility Agent not less than five Business
Days'
prior notice, select which of those Acquisition Term Loans will
be wholly
or partially repaid by the Borrowers so that the Repayment Instalment
is
repaid on the relevant Repayment Date in full. The Company may
further, if
it gives the Facility Agent not less than five Business Days' prior
notice, select the Acquisition Term Loans to be divided or merged
so that
the Repayment Instalment is repaid on the relevant Repayment Date
in
full.
|
|
(f)
|
The
Borrowers under Facility B shall repay the Facility B Loans in
full on the
Termination Date for Facility B.
|
|
(g)
|
The
Borrowers under Facility C shall repay the Facility C Loans in
full on the
Termination Date for Facility C.
|
|
(h)
|
If
the Company fails to deliver a notice to the Facility Agent in
accordance
with paragraphs (b) or (e) above, the Facility Agent shall select the
Facility A Loans, or, as the case may be, the Acquisition Term
Loans to be
wholly or partially repaid.
|
|
(i)
|
The
Borrowers may not reborrow any part of a Term Facility (or any
Term Loan)
which is repaid.
|
|
12.2
|
Repayment
of Revolving Facility
Loans
|
Each
Revolving Facility Borrower which has drawn a Revolving Facility Loan shall
repay that Loan on the last day of its Interest Period.
85
|
12.3
|
Effect
of cancellation and prepayment on scheduled repayments and
reductions
|
|
(a)
|
If
the Company cancels the whole or any part of the Facility A Commitments,
the Acquisition Sub-Limit or the Acquisition Facility Commitments
in
accordance with Clause 13.3
(Voluntary
and mandatory cancellation)
or Clause 13.6
(Right
of cancellation and repayment in relation to a single Lender or
Issuing
Bank)
or if the Facility A Commitment, the Revolving Facility Commitment
or the
Acquisition Facility Commitment of any Lender is reduced under
Clause
13.1
(Illegality)
then the amount of the Repayment Instalment for the relevant Facility
for
each Repayment Date falling after that cancellation will reduce
pro
rata
by
the amount of the Facility A Commitments, the Acquisition Sub-Limit
or the
Acquisition Facility Commitments (as the case may be) so
cancelled.
|
|
(b)
|
If
any of the Facility A Loans, Acquisition Term Loans or Acquisition
Facility Loans are prepaid in accordance with Clause 13.6
(Right
of cancellation and repayment in relation to a single Lender or
Issuing
Bank)
or Clause 13.1
(Illegality)
then the amount of the Repayment Instalment for the relevant Facility
for
each Repayment Date falling after that prepayment will reduce pro
rata
by
the amount of the Facility A Loan, Acquisition Term Loan or the
Acquisition Facility Loan (as the case may be) so
prepaid.
|
|
(c)
|
If,
in relation to a prepayment of a Facility A Repayment Instalment,
the
Facility B Loans, the Facility C Loans, an Acquisition Term Loan
Repayment
Instalment, an Acquisition Facility Loan Repayment Instalment or
the
Revolving Facility Utilisations in accordance with Clause 13.4
(Voluntary
prepayment of Term Loans)
or Clause 13.5
(Voluntary
prepayment of Revolving Facility Utilisations)
the aggregate amount of the Utilisations made to the Borrowers
under the
respective Facility exceeds the amount of the prepayment, the Company
may,
if it gives the Facility Agent not less than five Business Days'
prior
notice, select which of those Utilisations and Repayment Instalments
and/or redenominated tranches will be wholly or partially prepaid.
If the
Company fails to deliver such notice, the Facility Agent shall
select the
Utilisations and Repayment Instalments to be wholly or partially
prepaid
under the respective Facility.
|
|
(d)
|
Any
prepayment of the Utilisations made in accordance with Clause 14.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
shall be applied as set out in Clause 14.3
(Application
of mandatory prepayments).
|
|
13.
|
ILLEGALITY,
VOLUNTARY PREPAYMENT AND
CANCELLATION
|
|
13.1
|
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 Utilisation:
|
(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 31.11
(Replacement
of Lenders);
and
|
86
|
(c)
|
each
Borrower shall repay that Lender's participation in the Utilisations
made
to that Borrower on the last day of the Interest Period for each
Utilisation 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 31.11
(Replacement
of Lenders).
|
|
13.2
|
Illegality
in relation to Issuing
Bank
|
If
it
becomes unlawful for an Issuing Bank to issue or leave outstanding any Letter
of
Credit, then:
|
(a)
|
that
Issuing Bank shall promptly notify the Facility Agent upon becoming
aware
of that event;
|
|
(b)
|
upon
the Facility Agent notifying the Company, the Issuing Bank shall
not be
obliged to issue any Letter of
Credit;
|
|
(c)
|
the
Company shall procure that the relevant Borrower shall use its
best
endeavours to procure that each Letter of Credit issued by that
Issuing
Bank and outstanding at such time is released or that cash cover
is
provided; and
|
|
(d)
|
unless
any other Lender (or other person pursuant to Clause 31.11
(Replacement
of Lenders))
has agreed to be an Issuing Bank pursuant to the terms of this
Agreement,
the Revolving Facility shall cease to be available for the issue
of
Letters of Credit.
|
|
13.3
|
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 13.3
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.
|
|
13.4
|
Voluntary
prepayment of Term Loans
|
|
(a)
|
A
Borrower to which a Term 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 Term Loan (but, if in part, being an
amount that
reduces the Base Currency Amount of that Term Loan by a minimum
amount of
$2,000,000 (or its equivalent) subject to any Break Costs.
|
|
(b)
|
Subject
to paragraph (c) below, a prepayment under this Clause 13.4
may be applied against any Repayment Instalment (under any euro
or dollar
tranche) as the Company may elect.
|
|
(c)
|
A
Term 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).
|
87
|
13.5
|
Voluntary
prepayment of Revolving Facility
Utilisations
|
A
Borrower to which a Revolving Facility Utilisation 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 a Revolving Facility Utilisation (but if in part, being an
amount
that reduces the Base Currency Amount of the Revolving Facility Utilisation
by a
minimum amount of $2,000,000 (or its equivalent)).
|
13.6
|
Right
of cancellation and repayment in relation to a single Lender or
Issuing
Bank
|
|
(a)
|
If:
|
|
(i)
|
any
sum payable to any Lender by an Obligor is required to be increased
under
paragraph (c) of Clause 20.2
(Tax
gross-up);
|
|
(ii)
|
any
Lender or Issuing Bank claims indemnification from the Company
or an
Obligor under Clause 20.3
(Tax
indemnity)
or Clause 21.1
(Increased
costs);
or
|
|
(iii)
|
a
Market Disruption Event occurs pursuant to Clause 18
(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:
|
(i)
|
(if
such circumstances relate to a Lender) 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 31.11
(Replacement
of Lenders);
or
|
|
(ii)
|
(if
such circumstances relate to the Issuing Bank) of repayment of
any
outstanding Letter of Credit issued by it and cancellation of its
appointment as an Issuing Bank under this Agreement in relation
to any
Letters of Credit to be issued in the future or its request to
transfer
that Issuing Bank's rights and obligations pursuant to Clause 31.11
(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 31.11
(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 Utilisation is outstanding shall repay
that
Lender's participation in that Utilisation 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 31.11
(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 Utilisation 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 Utilisation 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 31.11
(Replacement
of Lenders).
|
88
|
14.
|
MANDATORY
PREPAYMENT
|
|
14.1
|
Exit
|
Upon
the
occurrence of an Exit, the Facilities will be cancelled and all outstanding
Utilisations and Ancillary Outstandings, together with accrued interest,
and all
other amounts accrued under the Finance Documents, shall become immediately
due
and payable.
|
14.2
|
Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO
|
|
(a)
|
For
the purposes of this Clause 14.2,
Clause 14.3
(Application
of mandatory prepayments)
and Clause 14.4
(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
|
(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:
89
|
(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 Utilisations in
the
following amounts at the times and in the order of application
contemplated by Clause 14.3
(Application
of mandatory prepayments):
|
|
(i)
|
the
amount of Acquisition Proceeds;
|
|
(ii)
|
the
amount of Disposal Proceeds; and
|
|
(iii)
|
the
amount of Insurance Proceeds,
|
90
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
Facilities. The remaining Net Proceeds may be retained by the Group.
|
(c)
|
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 Utilisations at the time and in the order of application
contemplated by Clause 14.3
(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) if the Senior Debt
Cover
ratio is 2:1 or below be utilised to prepay the Mezzanine 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.
|
(d)
|
IPO
|
Upon
the
occurrence of an IPO not resulting in a Change of Control, the Company shall
ensure that the Borrowers prepay Utilisations in the following amounts at
the
times and in the order of application contemplated by Clause 14.3
(Application
of mandatory prepayments):
|
(i)
|
if
on the immediately preceding Quarter Date the 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
|
91
|
(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) if the Senior Debt
Cover
ratio is 2:1 or below be utilised to prepay the Mezzanine 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 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 Facilities and the remaining proceeds may be
retained by
the Group.
|
|
(f)
|
Amounts
not applied in prepayment of the Facilities pursuant to this
Clause 14.2
and not required, if not applied in prepayment, to be applied for
another
purpose specified in this Clause 14.2
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.
|
|
14.3
|
Application
of mandatory prepayments
|
|
(a)
|
A
prepayment made under Clause 14.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
paragraphs (b) to (e) shall be applied in the following
order:
|
|
(i)
|
first,
in prepayment of Term Loans (provided, in each case, that the relevant
Availability Period has expired) as contemplated
below;
|
|
(ii)
|
secondly,
in cancellation of Available Commitments under the Acquisition
Sub-Limit
and the Uncommitted Acquisition Facility pro rata;
|
|
(iii)
|
thirdly,
in cancellation of Available Commitments under the Revolving Facility
(and
the Available Commitment of each Lender under the Revolving Facility
will
be cancelled rateably);
|
|
(iv)
|
fourthly,
in prepayment and cancellation of Revolving Facility Utilisations
(excluding, for the avoidance of doubt, the Acquisition Term Loans)
and
Revolving Facility Commitments; and
|
|
(v)
|
fifthly,
in repayment and cancellation of the Ancillary Outstandings and
Ancillary
Commitments, Fronting Ancillary Commitments and Fronted Ancillary
Commitments.
|
|
(b)
|
A
prepayment made under paragraphs (b)
to
(e)
of
Clause 14.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
shall, subject to what is set out below, prepay the Term Loans
as
follows:
|
|
(i)
|
in
amounts which reduce the Term Loans (in each case after the end
of the
relevant Availability Period), by the same proportion (pro rata
across any
tranches) unless a Facility B Lender is permitted to and elects
to waive
its share of the prepayment under Clause 15.8
(Prepayment
elections - Facility B)
and/or a Facility C Lender is permitted to and elects to waive
its share
of the prepayment under Clause 15.9
(Prepayment
elections - Facility C);
and
|
92
|
(ii)
|
prepay
the Repayment Instalments in respect of the Facility A Loans, the
Acquisition Term Loans and the Acquisition Facility Loans (after
the end
of the applicable Availability Period) in amounts which reduce
those
instalments by the same proportion and pro
rata
across those instalments (and across any tranches);
or
|
if
the
Company elects by giving the Facility Agent not less than 5 Business Days'
notice:
|
(iii)
|
prepay
first up to 50 per cent. of the next four original Repayment Instalments
of each of Facility A (pro rata across any tranches), the Acquisition
Facility Loans and the Acquisition Term Loans (provided, in each
case,
that the relevant Availability Period has expired);
and
|
|
(iv)
|
prepay
secondly the Facility A Loans, the Facility B Loans, the Facility
C Loans,
the Acquisition Term Loans and the Acquisition Facility Loans pro
rata
and pro
rata
against the Repayment Instalments in respect of the Facility A
Loans, the
Acquisition Term Loans and, after the end of its Availability Period,
the
Uncommitted Acquisition Facility (and pro rata across any tranches).
|
|
(c)
|
Unless
the Company makes an election under paragraph (d) below, the Borrowers
shall prepay Term 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 27.1
(Financial
Statements)
of the Annual Financial Statements of the Parent for the relevant
Financial Year.
|
|
(d)
|
Subject
to paragraph (e)
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 14.2
(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.
|
|
(e)
|
If
the Company makes the election under paragraph (d)
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 14.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and
IPO)
to pay amounts due and payable under Clause 14.3
(Application
of mandatory prepayments)
and otherwise under the Finance
Documents.
|
93
|
(f)
|
If
the Company has made an election under paragraph (d) above but
an Event of
Default under Clause 30.1
(Non-payment) has
occurred and is continuing or a notice has been given by the Facility
Agent pursuant to Clause 30.21 (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).
|
|
14.4
|
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
(d)
of
Clause 14.3
(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 14.3
(Application
of mandatory prepayments)
is paid into a Mandatory Prepayment Account promptly after such
election.
|
|
(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 14.3
(Application
of mandatory prepayments)
to pay amounts due and payable under Clause 14.3
(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.
|
|
14.5
|
General
|
All
prepayments to be made under Clause 14.2
(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
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.
94
|
15.
|
RESTRICTIONS
|
|
15.1
|
Notices
of Cancellation or
Prepayment
|
Any
notice of cancellation or prepayment given by any Party under Clause
13
(Illegality,
voluntary prepayment and cancellation)
or
Clause 14
(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.
|
15.2
|
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.
|
15.3
|
No
reborrowing of Term
Facilities
|
No
Borrower may reborrow any part of a Term Facility (or a Term Loan) which
is
prepaid.
|
15.4
|
Reborrowing
of Revolving Facility
|
Unless
a
contrary indication appears in this Agreement, any part of the Revolving
Facility which is prepaid may be reborrowed in accordance with the terms
of this
Agreement. For the avoidance of doubt, amounts under Acquisition Term Loans
that
are repaid or prepaid may not be reborrowed.
|
15.5
|
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.
|
15.6
|
No
reinstatement of
Commitments
|
No
amount
of the Total Commitments cancelled under this Agreement may be subsequently
reinstated.
|
15.7
|
Facility
Agent's receipt of Notices
|
If
the
Facility Agent receives a notice under Clause 13
(Illegality,
voluntary prepayment and cancellation)
or
Clause 14
(Mandatory
prepayment)
it
shall promptly forward a copy of that notice to either the Company or the
affected Lender, as appropriate.
|
15.8
|
Prepayment
elections
- Facility B
|
The
Facility Agent shall notify the Lenders promptly of any proposed prepayment
of
any Facility B Loan to be made under Clause 13.4
(Voluntary
Prepayment of Term Loans)
or
Clause 14.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO).
Unless
Facility A and/or Facility C have been repaid in full, any Lender under Facility
B (other than a Lender which is subject to Clause 13.6
(Right
of cancellation and repayment in relation to a single Lender or Issuing
Bank))
may,
if it gives the Facility Agent not less than two Business Days prior notice,
elect to waive its share of that prepayment of Facility B and the amount
of any
prepayment so waived shall be applied in prepayment of other Lenders under
Facility B and, if not so applied in voluntary or mandatory, as the case
may be, prepayment of Facility A and/or Facility C (subject to the rights
of
Facility C Lenders to decline prepayment under Clause 15.9
(Prepayment
elections - Facility C)
below),
in the case of a voluntary prepayment in accordance with
Clause 13.4
(Voluntary
Prepayment of Term Loans)
and in
the case of a mandatory prepayment in accordance with Clause 14.3
(Application
of mandatory prepayments).
95
|
15.9
|
Prepayment
elections
- Facility C
|
The
Facility Agent shall notify the Lenders promptly of any proposed prepayment
of
any Facility C Loan to be made under Clause 13.4
(Voluntary
Prepayment of Term Loans)
or
Clause 14.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO).
Unless
Facility A and/or Facility B have been repaid in full, any Lender under Facility
C (other than a Lender which is subject to Clause 13.6
(Right
of cancellation and repayment in relation to a single Lender or Issuing
Bank))
may,
if it gives the Facility Agent not less than two Business Days prior notice,
elect to waive its share of that prepayment of Facility C and the amount
of any
prepayment so waived shall be applied in prepayment of other Lenders under
Facility C and, if not so applied, will be applied in voluntary or mandatory,
as
the case may be, prepayment of Facility A and/or Facility B (subject to the
rights of Facility B Lenders to decline prepayment under
Clause 15.8
(Prepayment
elections - Facility B)
above),
in the case of a voluntary prepayment in accordance with
Clause 13.4
(Voluntary
Prepayment of Term Loans)
and in
the case of a mandatory prepayment in accordance with Clause 14.3
(Application
of mandatory prepayments).
96
SECTION
5
COSTS
OF UTILISATION
|
16.
|
INTEREST
|
|
16.1
|
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.
|
|
16.2
|
Payment
of interest
|
|
(a)
|
The
Borrower to which a Loan has been made shall pay accrued interest
on that
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).
|
|
(b)
|
If
the annual audited financial statements of the Group and related
Compliance Certificate received by the Facility Agent show that
a higher
Margin should have applied during a certain period, then the Company
shall
(or shall ensure the relevant Borrower shall) promptly pay to the
Facility
Agent any amounts necessary to put the Facility Agent and the Lenders
in
the position they would have been in had the appropriate rate of
the
Margin applied during such period, provided
that
additional payments to a Lender will only be made to the extent
it was a
Lender during the relevant period where a higher rate of Margin
should
have applied.
|
|
(c)
|
If
the annual audited financial statements of the Group and related
Compliance Certificate received by the Facility Agent show that
a lower
Margin should have applied during a certain period, then the next
payments
of interest falling due on the Loans shall be reduced to the extent
necessary to put the Obligors in the position they would have been
in had
the appropriate rate of the Margin applied during such period,
provided
that
future payments to a Lender will only be reduced to the extent
it was a
Lender during the relevant period where a lower rate of Margin
should have
applied.
|
|
16.3
|
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 16.3
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:
|
97
|
(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
|
|
(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.
|
|
16.4
|
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.
|
16.5
|
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.
|
16.6
|
Effective
Global Rate
|
To
comply
with the provisions of Articles L313-1, L313-2, R313-1 and R313-2 of the
French
Code
de la Consommation
(Consumer Code) and L313-4 of the French Code
Monétaire et Financier
(French
Monetary and Financial Code), the Borrowers and the Lenders declare that
the
effective global rate for each of the Facilities cannot be calculated for
the
total duration of this Agreement, primarily because of the floating rate
of
interest and adjustable Margin applicable to the Facilities and the relevant
Borrower's selection of the duration of each Interest Period. However, an
example of the effective global rate calculation substantially in the form
set
out in Schedule 14 (Form
of TEG Letter)
shall
be provided to each French Borrower by the Facility Agent on Closing if
relevant, and/or on the date on which a French Borrower accedes to this
Agreement.
|
17.
|
INTEREST
PERIODS
|
|
17.1
|
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
is a Term Loan and has already been borrowed) in a Selection
Notice.
|
|
(b)
|
Each
Selection Notice for a Term 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 Term 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, subject to Clause 17.2
(Changes
to Interest Periods),
be one Month.
|
|
(d)
|
Subject
to this Clause 17,
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
Lenders
whose Commitments with respect to the relevant Facility aggregate
at least
66 2/3 per cent. of all of the Commitments in respect of that Facility
if
such period is less than six Months or acting on the instructions
of all
the Lenders of the relevant Facility if such period is more than
six
Months). In addition a Borrower (or the Company on its behalf)
may select
an Interest Period of:
|
98
|
(i)
|
(in
relation to Facility A or the Uncommitted Acquisition Facility
or
Acquisition Term Loans) a period of less than one Month, if necessary
to
ensure that there are sufficient Facility A Loans or Acquisition
Term
Loans or, as the case may be, Acquisition Facility Loans (with
an
aggregate Base Currency Amount equal to or greater than the Repayment
Instalment) which have an Interest Period ending on a Repayment
Date
relating to the relevant Facility for the Borrowers to make the
Repayment
Instalment due on that date;
|
|
(ii)
|
a
period necessary to ensure that the Loans under the relevant Facility
or
Facilities to be redenominated in accordance with Clause 9.4
(Redenomination)
have an interest period ending on the Redenomination Date for that
Facility; or
|
|
(iii)
|
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 Term Loan shall start on the Utilisation
Date or (if
already made) on the last day of its preceding Interest
Period.
|
|
(f)
|
A
Revolving Facility Loan (other than an Acquisition Term Loan) has
one
Interest Period only.
|
|
(g)
|
An
Interest Period for a Loan shall not extend beyond the Termination
Date
applicable to its Facility.
|
|
(h)
|
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.
|
|
17.2
|
Changes
to Interest Periods
|
|
(a)
|
Prior
to determining the interest rate for a Facility A Loan, Acquisition
Term
Loan or an Acquisition Facility Loan, the Facility Agent may shorten
an
Interest Period for any Facility A Loan, Acquisition Term Loan
or
Acquisition Facility Loan to ensure there are sufficient Facility
A Loans,
Acquisition Term Loans or Acquisition Facility Loans (as the case
may be)
(with an aggregate Base Currency Amount equal to or greater than
the
Repayment Instalment) which have an Interest Period ending on a
Repayment
Date for the Borrowers to make the Repayment Instalment due on
that
date.
|
|
(b)
|
If
the Facility Agent makes any of the changes to an Interest Period
referred
to in this Clause 17.2,
it shall promptly notify the Company and the
Lenders.
|
|
17.3
|
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).
99
|
17.4
|
Consolidation
and division of Term Loans
|
|
(a)
|
Subject
to paragraph (b) below, if two or more Interest
Periods:
|
|
(i)
|
relate
to Term Loans made under the same
Facility;
|
|
(ii)
|
end
on the same date; and
|
|
(iii)
|
are
made to the same Borrower,
|
those
Term 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 Term Loan on the last day of
the
Interest Period.
|
(b)
|
Subject
to Clause 4.4
(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 Term Loan be divided into two or more Term Loans,
that Term
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 Term
Loan
immediately before its division.
|
|
18.
|
CHANGES
TO THE CALCULATION OF
INTEREST
|
|
18.1
|
Absence
of quotations
|
Subject
to Clause 18.2
(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.
|
18.2
|
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
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
|
|
(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.
|
100
|
18.3
|
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.
|
|
18.4
|
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.
|
|
19.
|
FEES
|
|
19.1
|
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:
|
|
(i)
|
0.50
per cent. per annum on that Lender's Available Commitment under
Facility A
from the earlier of Closing and the date falling 30 days after the
date of this Agreement until the end of the Availability Period
applicable
to Facility A;
|
|
(ii)
|
0.50
per cent. per annum on that Lender's Available Commitment under
Facility B
from the earlier of Closing and the date falling 30 days after the
date of this Agreement until the end of the Availability Period
applicable
to Facility B;
|
|
(iii)
|
0.50
per cent. per annum on that Lender's Available Commitment under
Facility C
from the earlier of Closing and the date falling 30 days after the
date of this Agreement until the end of the Availability Period
applicable
to Facility C;
|
|
(iv)
|
such
percentage per annum as agreed between the Facility Agent (acting
on
instructions of the Acquisition Facility Lenders) and the Company
on that
Lender's Available Commitment under the Uncommitted Acquisition
Facility
for the Availability Period applicable to the Uncommitted Acquisition
Facility; and
|
|
(v)
|
0.75
per cent. per annum on that Lender's Available Commitment under
the
Revolving Facility for the Availability Period applicable to the
Revolving
Facility.
|
|
(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.
|
101
|
19.2
|
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.
|
19.3
|
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.
|
19.4
|
Fees
payable in respect of Letters of
Credit
|
|
(a)
|
Each
Borrower shall pay to the Facility Agent for the account of the
Issuing
Bank a fronting fee at the rate of 0.125 per cent. per annum on the
outstanding amount (to the extent it is not cash collateralised)
which is
counter-indemnified by the other Lenders of each Letter of Credit
requested by it for the period from the issue of that Letter of
Credit
until its Expiry Date.
|
|
(b)
|
Each
Borrower shall pay to the Facility Agent (for the account of each
Lender)
a Letter of Credit fee (computed at the rate per annum equal to
the Margin
applicable to a Revolving Facility Loan) on the outstanding amount
of each
Letter of Credit (to the extent it is not cash collateralised)
requested
by it for the period from the issue of that Letter of Credit until
its
Expiry Date. This fee shall be distributed according to each Lender's
L/C
Proportion of that Letter of
Credit.
|
|
(c)
|
The
accrued fronting fee and Letter of Credit fee on a Letter of Credit
set
out in paragraphs (a) and (b) respectively of this Clause 19.4
shall be
payable on the last day of each successive period of three Months
(or such
shorter period as shall end on the Expiry Date for that Letter
of Credit)
starting on the date of issue of that Letter of Credit. The accrued
fronting fee and Letter of Credit fee are also payable to the Facility
Agent on the cancelled amount of any Lender's Revolving Facility
Commitment at the time the cancellation is effective if that Commitment
is
cancelled in full and the Letter of Credit is prepaid or repaid
in
full.
|
|
(d)
|
If
a Borrower cash covers any part of a Letter of Credit
then:
|
|
(i)
|
no
fronting fee or Letter of Credit fee shall be payable in respect
of that
part of the Letter of Credit that is cash covered provided
that
a
management fee of 0.05 per cent. per annum will be payable to the
Issuing
Bank on such cash covered part of the Letter of Credit at the same
time as
the fronting fee and Letter of Credit fee would have been payable;
and
|
|
(ii)
|
each
Borrower will be entitled to withdraw the interest accrued on the
cash
cover to pay the fees set out in sub-paragraph (i)
above.
|
|
19.5
|
Interest,
commission and fees on Ancillary Facilities
and Fronted Ancillary
Facilities
|
The
rate
and time of payment of interest, commission, fees and any other remuneration
(the "Ancillary
Charges")
in
respect of each Ancillary Facility and Fronted Ancillary Facility shall be
determined by agreement between the relevant Ancillary Lender or Fronting
Ancillary Lender (as the case may be) and the Borrower of that Ancillary
Facility or Fronted Ancillary Facility based upon normal market rates and
terms.
102
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
|
20.
|
TAX
GROSS-UP AND
INDEMNITIES
|
|
20.1
|
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
|
103
|
(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 a French Obligor, a Lender
which:
|
|
(A)
|
has
its Facility Office in France; or
|
|
(B)
|
fulfils
the conditions imposed by French law taking into account, as the
case may
be, any double taxation agreement in force on the relevant date
(subject
to the completion of any necessary procedural formalities), in
order for
an interest payment not to be subject to (or as the case may be,
to be
exempt from) an Tax Deduction; or
|
|
(iv)
|
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 20.2
(Tax
gross-up)
or a
payment under Clause 20.3
(Tax
indemnity).
"Treaty
Lender"
means a
Lender (other than a US Qualifying Lender) which:
104
|
(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 or France on interest, subject
to
completion of procedural
formalities.
|
"Treaty
State"
means a
jurisdiction having a double taxation agreement (a "Treaty")
with
the United Kingdom or France which makes provision for full exemption from
tax
imposed by the United Kingdom or France 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 20
a
reference to "determines"
or
"determined"
means a
determination made in the absolute discretion of the person making the
determination.
|
20.2
|
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 or
Issuing Bank shall notify the Facility Agent on becoming so aware
in
respect of a payment payable to that Lender or Issuing Bank. If
the
Facility Agent receives such notification from a Lender or Issuing
Bank 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;
|
105
|
(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
|
|
(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
Lender acting through a Facility Office situated outside France
who is
entitled to receive a payment from an Obligor established in France
shall
cooperate with such Obligor in completing any procedural formalities
necessary for that Obligor (or for its paying agent) to obtain
authorisation to make that payment without a Tax
Deduction.
|
|
(i)
|
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.
|
|
(j)
|
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.
|
106
|
(k)
|
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 (l) 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.
|
|
(l)
|
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.
|
|
(m)
|
A
Lender acting through a Facility Office in France shall, upon request
in
writing from the French Obligors, deliver to such French Obligors
through
the Facility Agent a tax certificate duly issued by the French
Tax
authorities evidencing such Lender's place of taxation in France
for
French Tax purposes. To the extent, as a result of a change in
laws or
regulations, such Lender requires additional information with respect
to
such French Obligors in order for such Lender to comply with applicable
filing requirements to be a Qualifying Lender and to receive the
payments
from such French Obligors without such Obligors or their agent
being
required to make a Tax Deduction, such Lender shall promptly inform
such
Obligor of the additional information required, and such Obligor
shall
provide such additional information upon such Lender's
request.
|
|
20.3
|
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:
|
107
|
(A)
|
is
compensated for by an increased payment under Clause 20.2
(Tax
gross-up);
or
|
|
(B)
|
would
have been compensated for by an increased payment under Clause
20.2
(Tax
gross-up)
but was not so compensated solely because one of the exclusions
in
paragraph (d) or (k) of Clause 20.2
(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 20.3,
notify the Facility Agent.
|
|
20.4
|
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.
|
20.5
|
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 20.5
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).
|
20.6
|
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 20.6
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.
108
|
20.7
|
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.
|
|
21.
|
INCREASED
COSTS
|
|
21.1
|
Increased
costs
|
|
(a)
|
Subject
to Clause 21.3
(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,
|
109
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 an Ancillary Commitment, Fronted Ancillary Commitment, Fronting Ancillary
Commitment or funding or performing its obligations under any Finance Document
or Letter of Credit.
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).
|
21.2
|
Increased
cost claims
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 21.1
(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).
|
|
21.3
|
Exceptions
|
|
(a)
|
Clause
21.1
(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 20.3
(Tax
indemnity)
(or would have been compensated for under Clause 20.3
(Tax
indemnity)
but was not so compensated solely because any of the exclusions
in
paragraph (b) of Clause 20.3
(Tax
indemnity)
applied);
|
|
(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 21.3
reference to a "Tax
Deduction"
has the same meaning given to the term in Clause 20.1
(Definitions).
|
|
22.
|
OTHER
INDEMNITIES
|
|
22.1
|
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.
110
|
(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.
|
|
22.2
|
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
30.18
(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 35
(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);
|
|
(d)
|
issuing
or making arrangements to issue a Letter of Credit requested by
the
Company or a Borrower in a Utilisation Request but not issued by
reason of
the operation of any one or more of the provisions of this Agreement;
or
|
|
(e)
|
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.
|
22.3
|
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 36.9
(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.
|
111
|
23.
|
MITIGATION
BY THE LENDERS
|
|
23.1
|
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 13.1
(Illegality)
(or, in respect of the Issuing Bank, Clause 13.2
(Illegality
in relation to Issuing Bank)),
Clause 20
(Tax
gross-up and indemnities)
or Clause 21
(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.
|
|
23.2
|
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 23.1
(Mitigation).
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 23.1
(Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to
do so
might be prejudicial to it in any material
respect.
|
|
24.
|
COSTS
AND EXPENSES
|
|
24.1
|
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, the Issuing Bank 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:
|
(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.
|
|
24.2
|
Amendment
costs
|
If
(a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 36.9
(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.
|
24.3
|
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.
112
SECTION
7
GUARANTEE
|
25.
|
GUARANTEE
AND INDEMNITY
|
|
25.1
|
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.
|
|
25.2
|
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.
|
25.3
|
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.
|
|
25.4
|
Waiver
of defences
|
The
obligations of each Guarantor under this Clause 25
will not
be affected by an act, omission, matter or thing which, but for this Clause
25,
would
reduce, release or prejudice any of its obligations under this Clause
25
(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;
|
113
|
(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.
|
|
25.5
|
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 25.
This
waiver applies irrespective of any law or any provision of a Finance Document
to
the contrary.
|
25.6
|
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
25.
|
|
25.7
|
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
|
114
|
(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.
|
|
25.8
|
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.
|
|
25.9
|
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.
|
25.10
|
Guarantee
Limitations - France
|
|
(a)
|
The
obligations and liabilities of each French Guarantor under Clause
25.1
(Guarantee
and indemnity)
shall apply only insofar as required
to:
|
| (i) |
guarantee
the payment obligations under this Agreement of its direct or indirect
Subsidiaries which are or become Obligors from time to time under
this
Agreement; and
|
| (ii) |
guarantee
the payment obligations of other Obligors which are not direct
or indirect
Subsidiaries of that French Guarantor, provided that in such case
such
guarantee shall be limited: (A) to the payment obligations of all
such
Obligors under the Revolving Facility or the Uncommitted Acquisition
Facility or, if the French Guarantor is not a Borrower, to the
payment
obligations of such Obligors which have made available intra-group
loans
(directly or indirectly) to the French Guarantor and (B) up to
the amount
directly (as Borrower under the Revolving Facility or the Uncommitted
Acquisition Facility) or indirectly (by way of intra-group loans
directly
or indirectly from any other Borrower) made available to that French
Guarantor and outstanding from time to time provided that the amount
payable by the French Guarantor under the guarantee hereunder shall
not
have an effect to place the French Guarantor into an insolvency
situation
as defined under article L621-1 of the French Code
de Commerce
(Commercial Code) (the "Maximum
Guaranteed Amount").
|
|
(b)
|
For
the avoidance of doubt, any payment made by a French Guarantor
under
paragraph (a)(ii) of this Clause 25.10 shall reduce the Maximum
Guaranteed
Amount.
|
115
|
(c)
|
Notwithstanding
any other provision of this Clause 25.10, no French Guarantor shall
secure
liabilities under the Agreement which would result in such French
Guarantor not complying with French financial assistance rules
as set out
in Article L. 225-216 of the French Code
de Commerce
(Commercial Code).
|
|
(d)
|
It
is acknowledged that such French Guarantor is not acting jointly
and
severally with the other Guarantors and shall not be considered
as
"co-débiteur
solidaire"
as to their obligations pursuant to the guarantee given in accordance
with
this Clause 25.10.
|
|
25.11
|
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.
|
25.12
|
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 25
in
respect of such obligations only applies to the extent permitted by the above
mentioned provisions of the Companies Act.
|
25.13
|
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:
|
|
(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.
|
116
|
(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 Clause 25 (Guarantee
and indemnity)
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.
|
117
SECTION
8
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
|
26.
|
REPRESENTATIONS
|
|
26.1
|
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 26
on
the dates set out in Clause 26.24
(Times
when representations are made)
to each Finance Party.
|
|
(b)
|
The
representations and warranties set out in this Clause 26
are made with reference to the circumstances existing at that
time.
|
Status,
authorisations and governing law
|
26.2
|
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.
|
|
26.3
|
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.
|
|
26.4
|
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.
|
|
26.5
|
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.
|
|
(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.
|
118
|
26.6
|
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.
|
26.7
|
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.
|
|
26.8
|
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
|
26.9
|
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.
|
|
26.10
|
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
119
|
26.11
|
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.
|
26.12
|
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
27.1
(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).
|
|
26.13
|
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.
|
26.14
|
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.
|
120
No
proceedings or breach of laws
|
26.15
|
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.
|
26.16
|
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.
|
26.17
|
Environmental
laws
|
|
(a)
|
Each
member of the Group is in compliance with Clause 29.3
(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
|
26.18
|
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).
|
26.19
|
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.
|
|
(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.
|
121
Provision
of information - Group
|
26.20
|
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
|
26.21
|
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.
|
26.22
|
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.
|
26.23
|
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.
|
26.24
|
Times
when representations are
made
|
|
(a)
|
The
representations and warranties in this Clause 26
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 26.18
(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 26.11
(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
|
122
|
(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
26.12
(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 26
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 26,
other than in Clause 26.2
(Status)
to Clause 26.5
(Power
and authority),
Clause 26.7
(Validity
and admissibility in evidence),
Clause 26.11
(No
misleading information)
and paragraph (b)
of
Clause 26.12
(Original
Financial Statements)
are also made in relation to the
Group.
|
|
27.
|
INFORMATION
UNDERTAKINGS
|
The
undertakings in this Clause 27
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 27:
"Annual
Financial Statements"
means
the financial statements for a Financial Year delivered pursuant to paragraph
(a) of Clause 27.1
(Financial
statements).
"Monthly
Financial Statements"
means
the financial statements delivered pursuant to paragraph (c) of Clause
27.1
(Financial
statements).
"Quarterly
Financial Statements"
means
the financial statements delivered pursuant to paragraph (b) of Clause
27.1
(Financial
statements).
|
27.1
|
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);
|
123
|
(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).
|
27.2
|
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 28
(Financial
Covenants)
and explanations as to how the figures included were derived (provided
that
compliance with Clause 28.2(a)
shall not be addressed in Compliance Certificates delivered before
30 September 2009) and prepayments to be made from Excess
Cashflow under Clause 14.2
(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 29.32
(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).
|
|
27.3
|
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.
|
125
|
(b)
|
Each
set of financial statements delivered by the Parent pursuant to
Clause
27.1
(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
28
(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 14.2
(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
|
126
|
(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 28
(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 28.2
(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 14.2
(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.
|
27.4
|
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 27.1
(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.
|
127
|
27.5
|
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.
|
27.6
|
Year-end
|
The
Parent shall notify the Facility Agent of a change of its Financial
Year-end.
|
27.7
|
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).
|
|
27.8
|
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.
|
27.9
|
"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;
|
128
|
(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 32
(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.
|
|
27.10
|
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;
|
129
| (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.
|
|
28.
|
FINANCIAL
COVENANTS
|
|
28.1
|
Financial
definitions
|
In
this
Clause 28:
"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);
|
130
|
(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 for Facility
C,
|
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;
|
131
|
(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
Facilities;
|
|
(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 Facilities) 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);
|
132
|
(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 28.3
(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
Facilities;
|
|
(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;
|
133
|
(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);
|
134
|
(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;
|
135
|
(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;
|
136
|
(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:
137
|
(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 Facilities and the Mezzanine 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;
|
138
|
(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 28.3
(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 Mezzanine 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 28.2
(Financial
condition).
"Working
Capital"
means
on any date Current Assets less Current Liabilities.
139
|
28.2
|
Financial
condition
|
The
Parent shall ensure that:
|
(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
|
140
|
(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
|
1.45:1
|
|
Relevant
Period expiring 30 September 2009
|
1.60:1
|
|
Relevant
Period expiring 31 December 2009
|
1.65:1
|
|
Relevant
Period expiring 31 March 2010
|
1.70:1
|
|
Relevant
Period expiring 30 June 2010
|
1.70:1
|
|
Relevant
Period expiring 30 September 2010
|
1.85:1
|
|
Relevant
Period expiring 31 December 2010
|
1.90:1
|
|
Relevant
Period expiring 31 March 2011
|
1.95:1
|
|
Relevant
Period expiring 30 June 2011
|
2.00:1
|
|
Relevant
Period expiring 30 September 2011
|
2.15:1
|
|
Relevant
Period expiring 31 December 2011
|
2.20:1
|
|
Relevant
Period expiring 31 March 2012
|
2.25:1
|
|
Relevant
Period expiring 30 June 2012
|
2.30:1
|
|
Relevant
Period expiring 30 September 2012
|
2.30:1
|
|
Relevant
Period expiring 31 December 2012
|
2.40:1
|
|
Relevant
Period expiring 31 March 2013
|
2.45:1
|
|
Relevant
Period expiring 30 June 2013
|
2.55:1
|
|
Relevant
Period expiring 30 September 2013
|
2.65:1
|
|
Relevant
Period expiring 31 December 2013
|
2.75:1
|
|
Relevant
Period expiring 31 March 2014
|
2.80:1
|
|
Relevant
Period expiring 30 June 2014
|
2.90:1
|
|
Relevant
Period expiring 30 September 2014
|
3.00:1
|
|
Relevant
Period expiring 31 December 2014
|
3.00:1
|
|
Relevant
Period expiring 31 March 2015
|
3.00:1
|
|
Relevant
Period expiring 30 June 2015
|
3.00:1
|
|
Relevant
Period expiring 30 September 2015
|
3.00:1
|
|
Relevant
Period expiring 31 December 2015
|
3.00:1
|
141
|
(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
|
6.85:1
|
|
Relevant
Period expiring 30 September 2009
|
6.70:1
|
|
Relevant
Period expiring 31 December 2009
|
6.25:1
|
|
Relevant
Period expiring 31 March 2010
|
6.00:1
|
|
Relevant
Period expiring 30 June 2010
|
5.95:1
|
|
Relevant
Period expiring 30 September 2010
|
5.30:1
|
|
Relevant
Period expiring 31 December 2010
|
5.15:1
|
|
Relevant
Period expiring 31 March 2011
|
4.95:1
|
|
Relevant
Period expiring 30 June 2011
|
4.80:1
|
|
Relevant
Period expiring 30 September 2011
|
4.40:1
|
|
Relevant
Period expiring 31 December 2011
|
4.35:1
|
|
Relevant
Period expiring 31 March 2012
|
4.15:1
|
|
Relevant
Period expiring 30 June 2012
|
3.95:1
|
|
Relevant
Period expiring 30 September 2012
|
3.55:1
|
|
Relevant
Period expiring 31 December 2012
|
3.40:1
|
|
Relevant
Period expiring 31 March 2013
|
3.20:1
|
|
Relevant
Period expiring 30 June 2013
|
3.00:1
|
|
Relevant
Period expiring 30 September 2013
|
3.00:1
|
|
Relevant
Period expiring 31 December 2013
|
3.00:1
|
|
Relevant
Period expiring 31 March 2014
|
3.00:1
|
|
Relevant
Period expiring 30 June 2014
|
3.00:1
|
|
Relevant
Period expiring 30 September 2014
|
3.00:1
|
|
Relevant
Period expiring 31 December 2014
|
3.00:1
|
|
Relevant
Period expiring 31 March 2015
|
3.00:1
|
|
Relevant
Period expiring 30 June 2015
|
3.00:1
|
|
Relevant
Period expiring 30 September 2015
|
3.00:1
|
|
Relevant
Period expiring 31 December 2015
|
3.00:1
|
142
|
(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.
|
28.3
|
Financial
testing
|
|
(a)
|
Subject
to paragraphs (c) and (d) below, the financial covenants set out
in Clause
28.2
(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
27.2
(Provision
and contents of Compliance Certificate).
No item shall be taken into account more than once in any
calculation.
|
143
|
(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");
|
144
|
(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 28.3
"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 28.2(a)
(Cashflow
Cover),
Clause 28.2(b)
(Interest
Cover)
or Clause 28.2(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 Facilities in accordance with Clause 14.3 (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 28.2(a)
above and not for any other purpose, by an amount equal to the
amount of
Company New Equity and/or Company Subordinated
Debt;
|
|
(ii)
|
Consolidated
Total Net Debt under this Agreement shall be decreased for the
purpose of
measuring the financial covenant set out in Clause 28.2(c)
above by an amount equal to the Company New Equity and/or Company
Subordinated Debt; and
|
145
|
(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 28.2(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
Facilities, and may not be used in consecutive Financial Quarters.
|
29.
|
GENERAL
UNDERTAKINGS
|
The
undertakings in this Clause 29
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
|
29.1
|
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.
|
|
29.2
|
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.
|
29.3
|
Environmental
compliance
|
Each
Obligor shall (and the Company
shall ensure that each member of the Group will):
|
(a)
|
comply
with all Environmental Laws;
|
146
|
(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.
|
29.4
|
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 27.1
(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
|
29.5
|
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.
|
29.6
|
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.
|
29.7
|
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.
|
|
29.8
|
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
|
147
|
(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.
|
|
29.9
|
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.
|
|
29.10
|
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
|
29.11
|
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.
|
29.12
|
Negative
pledge
|
In
this
Clause 29.12,
"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.
|
|
(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;
|
148
|
(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.
|
|
29.13
|
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.
|
|
29.14
|
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.
|
29.15
|
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 29.15:
|
|
(i)
|
intra-Group
loans permitted under Clause 29.16
(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.
|
Restrictions
on movement of cash - cash out
|
29.16
|
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.
|
149
|
29.17
|
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.
|
|
29.18
|
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.
|
|
29.19
|
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 Mezzanine 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
Mezzanine
Facility, the Vendor Documents, the Company Subordinated Debt or
the
Parent Subordinated Debt;
|
|
(iii)
|
purchase,
redeem, defease or discharge, exchange or enter into any sub-participation
arrangements in respect of any amount outstanding with respect
to the
Mezzanine 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:
|
150
|
(i)
|
a
Permitted Payment; or
|
|
(ii)
|
a
Permitted Transaction.
|
Restrictions
on movement of cash - cash in
|
29.20
|
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.
|
|
29.21
|
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
|
29.22
|
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.
|
|
29.23
|
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.
|
29.24
|
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.
|
29.25
|
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;
|
151
|
(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.
|
29.26
|
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.
|
29.27
|
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.
|
29.28
|
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;
|
|
(iii)
|
any
Treasury Transaction that the Group elects to enter into in respect
of the
euro denominated portions of the Facilities
and/or euro denominated portions of the Mezzanine 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.
|
152
|
29.29
|
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.
|
|
29.30
|
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.
|
29.31
|
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.
|
29.32
|
Guarantors
|
The
Company shall ensure that any member of the Group which is a Material Company
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
|
153
|
(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 (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.
|
29.33
|
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.
|
29.34
|
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;
|
154
|
(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;
|
|
(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.
|
155
|
29.35
|
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.
|
|
29.36
|
Conditions
subsequent
|
|
(a)
|
For
each Guarantor listed in paragraph 5
of
Schedule
13
(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)).
|
156
|
(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;
|
|
(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 29.36 (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;
|
157
|
(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.
|
|
29.37
|
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.
|
|
29.38
|
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
Facilities 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.
|
| (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.
|
|
29.39
|
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.
|
158
|
29.40
|
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.
|
|
29.41
|
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.
|
|
29.42
|
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.
|
29.43
|
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.
|
29.44
|
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.
|
30.
|
EVENTS
OF DEFAULT
|
Each
of
the events or circumstances set out in this
Clause 30
is an
Event of Default.
|
30.1
|
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
|
159
|
(b)
|
in
the case of any other amount, payment is made within five Business
Days of
its due date.
|
|
30.2
|
Financial
covenants
|
Subject
to paragraph (e) of Clause 1.2
(Construction),
any
requirement of Clause 28
(Financial
Covenants)
is not
satisfied.
|
30.3
|
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 30.1
(Non-payment)
and Clause 30.2
(Financial
covenants)).
|
|
(b)
|
No
Event of Default under paragraph (a) above (other than with respect
to
non-compliance with Clause 29.36
(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.
|
|
30.4
|
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.
|
|
30.5
|
Cross
default
|
|
(a)
|
Any
Financial Indebtedness of any member of the Group is not paid when
due nor
within any originally applicable grace
period.
|
|
(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 30.5
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).
|
For
the
purpose of this Clause 30.5
(Cross
default)
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, 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.
160
|
30.6
|
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 (including cessation
des paiements
within
the meaning of the French Code
de Commerce
(Commercial Code)), 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.
|
30.7
|
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;
|
|
(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;
|
161
|
(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.
|
|
30.8
|
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.
|
30.9
|
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.
|
|
(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.
|
|
30.10
|
Intercreditor
Agreement
|
|
(a)
|
Any
party (other than a Finance Party,
as defined in this Agreement and the Mezzanine Facility 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,
|
162
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.
|
30.11
|
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.
|
30.12
|
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.
|
30.13
|
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.
|
30.14
|
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.
|
30.15
|
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.
|
30.16
|
Judgments
|
An
Obligor has an unsatisfied judgment against
it which would have a Material Adverse Effect.
|
30.17
|
Material
adverse change
|
Any
event
or circumstance occurs which has a Material Adverse Effect.
|
30.18
|
Scheme
not effective
|
The
Scheme does not become effective on or before the day falling 14 days after
Closing.
|
30.19
|
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
|
163
|
(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.
|
|
30.20
|
Ownership
of the Company
|
The
Company is not or ceases to be a direct and wholly-owned Subsidiary of the
Parent.
|
30.21
|
Acceleration
|
|
(a)
|
Subject
to Clause 4.5
(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 Ancillary Commitments and/or Fronted
Ancillary 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;
|
|
(iv)
|
declare
that cash cover in respect of each Letter of Credit is immediately
due and
payable at which time it shall become immediately due and
payable;
|
|
(v)
|
declare
that cash cover in respect of each Letter of Credit is payable
on demand
at which time it shall immediately become due and payable on demand
by the
Facility Agent on the instructions of the Majority
Lenders;
|
|
(vi)
|
declare
all or any part of the amounts (or cash cover in relation to those
amounts) outstanding under the Ancillary Facilities and/or Fronted
Ancillary Facilities to be immediately due and payable at which
time they
shall become immediately due and
payable;
|
|
(vii)
|
declare
that all or any part of the amounts (or cash cover in relation
to those
amounts) outstanding under the Ancillary Facilities and/or Fronted
Ancillary Facilities 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
|
|
(viii)
|
exercise
or direct the Security Agent to exercise any or all of its rights,
remedies, powers or discretions under the Finance
Documents.
|
|
(b)
|
If
an Event of Default occurs under Clause 30.7 (Insolvency
proceedings)
in relation to any US Borrower:
|
|
(i)
|
the
Total Commitments shall immediately be cancelled; and
|
164
|
(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.
|
|
30.22
|
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 29.36
(Conditions
subsequent).
|
|
30.23
|
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 28
(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.
165
SECTION
9
CHANGES
TO PARTIES
|
31.
|
CHANGES
TO THE LENDERS
|
|
31.1
|
Assignments
and transfers by the
Lenders
|
Subject
to this Clause 31,
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 31
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.
|
31.2
|
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.
|
166
|
(e)
|
The
consent of the Issuing Bank is required for any assignment or transfer
by
an Existing Lender of any of its rights and/or obligations under
the
Revolving Facility.
|
|
(f)
|
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.
|
|
(g)
|
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 31.5
(Procedure
for transfer)
is complied with.
|
|
(h)
|
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
20
(Tax
gross-up and indemnities)
or Clause 21
(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.
|
31.3
|
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.
|
31.4
|
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;
|
167
|
(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
|
|
(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 31;
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.
|
|
31.5
|
Procedure
for transfer
|
|
(a)
|
Subject
to the conditions set out in Clause 31.2
(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");
|
168
|
(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,
the
other Lenders, the Issuing Bank and any relevant Ancillary Lender,
Fronted
Ancillary Lender or Fronting Ancillary Lender 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, the Security Agent, the Issuing
Bank,
and any relevant Ancillary Lender, Fronted Ancillary Lender and
Fronting
Ancillary Lender and the Existing Lender 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".
|
|
(d)
|
For
the avoidance of doubt, the Parties agree that any transfer effected
in
accordance with this Clause 31 shall constitute a novation within
the
meaning of Articles 1271 et seq. of the French Code
Civil
(Civil Code), provided that, notwithstanding any such novation,
all the
rights (including in relation to Security) of the Secured Parties
against
the Obligors shall be maintained.
|
|
31.6
|
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.
|
31.7
|
Transfer
to Group Company
|
No
member
of the Group may buy, purchase, repurchase or defease any amount of any of
the
Facilities or otherwise enter into any other arrangements having a similar
effect including (for the avoidance of doubt) sub-participations, derivative
arrangements or synthetic arrangements.
|
31.8
|
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;
|
169
|
(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 31.10
(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,
|
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.
Any
Confidentiality Undertaking signed by a Finance Party pursuant to this Clause
31.8
shall
supersede any prior confidentiality undertaking signed by such Finance Party
for
the benefit of any member of the Group.
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.
|
31.9
|
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.
|
|
31.10
|
Security
Interests over Lenders'
rights
|
In
addition to the other rights provided to Lenders under this Clause 31,
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.
|
170
|
31.11
|
Replacement
of Lenders
|
If
at any
time any Lender or the Issuing Bank 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 or Issuing Bank (as the case may be and unless the
Company
and the Facility Agent agree to a longer time period in relation to any request)
replace that Lender or Issuing Bank by causing it to (and that Lender or
Issuing
Bank 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 or Issuing
Bank's participations in the Utilisations then outstanding, in either case
with
all accrued interests, fees and other amounts payable to that Lender or Issuing
Bank under this Agreement or any Ancillary Document or Fronted Ancillary
Document.
For
the
purposes of this Clause 31.11:
"Affected
Lender"
means a
Lender or Issuing Bank in respect of which a Borrower or the Company is at
that
time entitled to serve a notice under Clause 13.6
(Right
of cancellation and prepayment in relation to a single Lender or Issuing
Bank)
or
whose rights and obligations under this Agreement would, but for this Clause
31.11
(Replacement
of Lenders)
be
cancelled pursuant to Clauses 13.1
(Illegality)
or
13.2
(Illegality
in relation to Issuing Bank);
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.
|
31.12
|
Further
Acquisition Facility
Lenders
|
A
bank or
financial institution which is to be Further Acquisition
Facility Lender shall only become a party to this Agreement as a Lender if
it
has executed and delivered to the Facility Agent a Further Acquisition Facility
Lender Accession Undertaking and the Facility Agent has counter-signed the
same
(which the Facility Agent agrees to do promptly upon its receipt of the relevant
Further Acquisition Facility Lender Accession Undertaking) and it has acceded
to
the terms of the Intercreditor Agreement as a Senior Lender (as defined therein)
in accordance with the terms thereof.
|
32.
|
CHANGES
TO THE OBLIGORS
|
|
32.1
|
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.
|
32.2
|
Additional
Borrowers
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (c) and (d) of
Clause
27.9
("Know
your customer" checks),
the Company may request that any of its Subsidiaries becomes an
Additional
Borrower under the Revolving Facility. That Subsidiary shall become
an
Additional Borrower under the Revolving Facility
if:
|
171
|
(i)
|
Either
(A) that Subsidiary is incorporated in the same jurisdiction as
another
Borrower under the same Facility (other than solely under an Ancillary
Facility
or
Fronted Ancillary Facility) or in another Pre-Approved Jurisdiction
or
that Subsidiary will be a Borrower in respect of an Ancillary Facility
or
Fronted Ancillary Facility only or (B) the Lenders under the respective
Facility to which the respective Borrower wishes to accede (acting
reasonably) approve the addition of that Subsidiary for the purposes
of
the relevant 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).
|
|
32.3
|
Resignation
of a Borrower
|
|
(a)
|
In
this Clause 32.3,
Clause 32.5
(Resignation
of a Guarantor)
and Clause 32.7
(Resignation
and release of Security on disposal),
"Third
Party Disposal"
means the disposal (including by way of 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 29.13
(Disposals)
or made with the approval of the Majority Lenders.
|
|
(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 14.3
(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.
|
172
|
(e)
|
The
consent of all Lenders will be required for any resignation of
the
Company.
|
|
32.4
|
Additional
Guarantors
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (c) and (d) of
Clause
27.9
("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).
|
|
32.5
|
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:
|
|
(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 25.1
(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 32.3
(Resignation
of a Borrower);
and
|
173
|
(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 14.3 (Application
of mandatory prepayments).
|
|
(c)
|
The
consent of all the Lenders will be required for any resignation
by the
Parent or the Company.
|
|
32.6
|
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
26.24
(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.
|
32.7
|
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
|
|
(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.
|
174
SECTION
10
THE
FINANCE PARTIES
|
33.
|
ROLE
OF THE FACILITY AGENT, THE ARRANGER, THE ISSUING BANK AND
OTHERS
|
|
33.1
|
Appointment
of the Facility Agent
|
|
(a)
|
Each
of the Arranger, the Lenders and the Issuing Bank appoints the
Facility
Agent to act as its agent under and in connection with the Finance
Documents.
|
|
(b)
|
Each
of the Arranger, the Lenders and the Issuing Bank 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.
|
|
33.2
|
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.
|
|
33.3
|
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.
|
33.4
|
No
fiduciary duties
|
|
(a)
|
Nothing
in this Agreement constitutes the Facility Agent, the Arranger
and/or the
Issuing Bank as a trustee or fiduciary of any other
person.
|
175
|
(b)
|
None
of the Facility Agent, the Security
Agent, the Arranger, the Issuing Bank or any Ancillary Lender,
Fronting
Ancillary Lender or Fronted Ancillary Lender 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.
|
|
33.5
|
Business
with the Group
|
The
Facility Agent, the Security
Agent, the Arranger, the Issuing Bank and each Ancillary Lender, Fronting
Ancillary Lender or Fronted Ancillary Lender may accept deposits from, lend
money to and generally engage in any kind of banking or other business with
any
member of the Group.
|
33.6
|
Rights
and discretions
|
|
(a)
|
The
Facility Agent, and the Issuing Bank 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 30.1
(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, the Arranger or the Issuing Bank 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).
|
|
33.7
|
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.
|
176
|
(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.
|
|
33.8
|
Responsibility
for documentation
|
None
of
the Facility Agent, the Arranger, the Issuing
Bank
or any Ancillary Lender, Fronting Ancillary Lender or Fronted Ancillary
Lender:
|
(a)
|
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Facility
Agent, the
Arranger, the Issuing
Bank, an Ancillary Lender, Fronting Ancillary Lender or Fronted
Ancillary
Lender, 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.
|
|
33.9
|
Exclusion
of liability
|
|
(a)
|
Without
limiting paragraph (b) below, none of the Facility Agent, the Issuing
Bank, or any Ancillary
Lender, Fronting Ancillary Lender or Fronted Ancillary Lender will
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.
|
177
|
(b)
|
No
Party (other than the Facility Agent, the Issuing Bank, or an Ancillary
Lender, Fronting Ancillary Lender or Fronted Ancillary Lender (as
applicable)) may take any proceedings against any officer, employee
or
agent of the Facility Agent, the Issuing Bank, any Ancillary Lender,
any
Fronting Ancillary Lender or Fronted Ancillary Lender in respect
of any
claim it might have against the Facility Agent, the Issuing Bank,
an
Ancillary Lender, a Fronting Ancillary Lender or Fronted Ancillary
Lender
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, the Issuing
Bank, any Ancillary Lender, Fronting Ancillary Lender or Fronted
Ancillary
Lender may rely on this Clause subject to Clause 1.6
(Third
party rights)
and the provisions of the Third Parties
Act.
|
|
(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.
|
|
33.10
|
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 9.4
(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).
|
33.11
|
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).
|
178
|
(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 33.11.
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.
|
|
(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.
|
|
33.12
|
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.
|
|
33.13
|
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.
|
179
|
33.14
|
Credit
appraisal by the Lenders, Issuing Bank and Ancillary Lenders and
Fronting
Ancillary 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, Issuing Bank, Ancillary Lender, Fronting Ancillary Lender and
Fronted Ancillary Lender confirms to the Facility Agent, the Arranger, the
Issuing Bank and each Ancillary Lender, Fronting Ancillary Lender and Fronted
Ancillary Lender 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;
|
|
(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.
|
|
33.15
|
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.
|
33.16
|
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.
180
|
33.17
|
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.
|
33.18
|
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
|
|
(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 33.18
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.
|
|
34.
|
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
Xxx.
|
000
|
00.
|
SHARING
AMONG THE FINANCE
PARTIES
|
|
35.1
|
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 36
(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 36
(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 36.5
(Partial
payments).
|
|
35.2
|
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 36.5
(Partial
payments).
|
35.3
|
Recovering
Finance Party's rights
|
|
(a)
|
On
a distribution by the Facility Agent under Clause 35.2
(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.
|
|
35.4
|
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 35.2
(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
|
182
|
(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.
|
|
35.5
|
Exceptions
|
|
(a)
|
This
Clause 35
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.
|
|
35.6
|
Ancillary
Lender and Fronting Ancillary
Lender
|
|
(a)
|
This
Clause 35
shall not apply to any receipt or recovery by a Lender in its capacity
as
an Ancillary Lender, Fronting Ancillary Lender or Fronted Ancillary
Lender
at any time prior to service of notice under Clause 30.20
(Acceleration).
|
|
(b)
|
Following
service of notice under Clause 30.21
(Acceleration),
this Clause 35
shall apply to all receipts or recoveries by Ancillary Lenders,
Fronting
Ancillary Lenders or Fronted Ancillary Lenders except to the extent
that
the receipt or recovery represents a reduction from the Designated
Gross
Amount for an Ancillary Facility or Fronted Ancillary Facility
to its
Designated Net Amount.
|
183
SECTION
11
ADMINISTRATION
|
36.
|
PAYMENT
MECHANICS
|
|
36.1
|
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, excluding a payment under the terms of
an
Ancillary Document or Fronted Ancillary 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.
|
|
36.2
|
Distributions
by the Facility Agent
|
|
(a)
|
Each
payment received by the Facility Agent under the Finance Documents
for
another Party shall, subject to Clause 36.3
(Distributions
to an Obligor)
and Clause 36.4
(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 under the relevant Facilities and each Party
authorises
the Facility Agent to make such payment
accordingly.
|
|
36.3
|
Distributions
to an Obligor
|
The
Facility Agent may (with the consent of the Obligor or in accordance with
Clause
37
(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.
|
36.4
|
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 4.5
(Certain
Funds).
|
184
|
36.5
|
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,
the Issuing Bank 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
any amount
due but unpaid under Clause 7.2
(Claims
under a Letter of Credit)
and Clause 7.3
(Indemnities);
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.
|
|
36.6
|
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.
|
36.7
|
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.
|
|
36.8
|
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.
|
185
|
(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.
|
|
(e)
|
Any
amount expressed to be payable in a currency other than the Base
Currency
shall be paid in that other
currency.
|
|
36.9
|
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.
|
|
37.
|
SET-OFF
|
|
(a)
|
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.
|
|
(b)
|
Any
credit balances taken into account by an Ancillary Lender, Fronting
Ancillary Lender or Fronted Ancillary Lender when operating a net
limit in
respect of any overdraft under an Ancillary Facility or Fronted
Ancillary
Facility shall on enforcement of the Finance Documents be applied
first in
reduction of the overdraft provided under that Ancillary Facility
or
Fronted Ancillary Facility (as appropriate) in accordance with
its
terms.
|
|
38.
|
NOTICES
|
|
38.1
|
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.
|
38.2
|
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:
186
|
(a)
|
in
the case of the Company, that identified with its
name below;
|
|
(b)
|
in
the case of each Lender, the Issuing Bank, each Ancillary Lender,
each
Fronting Ancillary Lender, each Fronted Ancillary 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,
|
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.
|
38.3
|
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 38.2
(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 38.3
will be deemed to have been made or delivered to each of the
Obligors.
|
|
38.4
|
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 38.2
(Addresses)
or
changing its own address or fax number, the Facility Agent shall notify the
other Parties.
|
38.5
|
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
|
187
|
(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.
|
|
38.6
|
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.
|
188
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.
|
|
38.7
|
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.
|
|
39.
|
CALCULATIONS
AND CERTIFICATES
|
|
39.1
|
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.
|
39.2
|
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.
|
39.3
|
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.
|
40.
|
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.
|
41.
|
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.
189
|
42.
|
AMENDMENTS
AND WAIVERS
|
|
42.1
|
Required
consents
|
|
(a)
|
Subject
to Clause 42.2
(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.
|
|
(b)
|
The
Facility Agent may effect, on behalf of any Finance Party, any
amendment
or waiver permitted by this Clause 42.
|
|
(c)
|
Each
Obligor agrees to any such amendment or waiver permitted by this
Clause
42
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.
|
|
42.2
|
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 31
(Changes
to the Lenders)
or Clause 35
(Sharing
among the Finance Parties)
(other than changes consequential on or required to implement a
Structural
Adjustment);
|
|
(iv)
|
the
provisions of this Clause 42
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 Utilisation, Loan, Facility or class of Lenders,
and which
does not materially and adversely affect the rights or interests
of
Lenders in respect of other Utilisations, Loans, Facilities or
another
class of Lender, 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 Utilisation, Loan, Facility or forming part of that affected
class. For the avoidance of doubt, the prepayment of the Mezzanine
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.
|
190
|
(d)
|
An
amendment or waiver which relates to the rights or obligations
of the
Facility Agent, the Arranger, the Issuing Bank, any Hedge Counterparty,
the Security Agent or any Ancillary Lender or a Fronting Ancillary
Lender
or a Fronted Ancillary Lender may not be effected without the consent
of
the Facility Agent, the Arranger, the Issuing Bank, that Hedge
Counterparty, the Security Agent, that Ancillary Lender, that Fronting
Ancillary Lender or that Fronted Ancillary
Lender.
|
|
(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 Facility 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).
|
|
(f)
|
For
the purposes of this Clause 42
"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.
|
191
|
(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.
|
|
43.
|
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.
|
44.
|
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.
192
SECTION
12
GOVERNING
LAW AND ENFORCEMENT
|
45.
|
GOVERNING
LAW
|
This
Agreement is governed by English law.
|
46.
|
ENFORCEMENT
|
|
46.1
|
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 46.1
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.
|
|
46.2
|
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.
193
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
|
194
PART
II
The
Original Lenders
|
Name of Original
Lender
|
Facility A
Commitment
|
Facility B
Commitment
|
Facility C
Commitment
|
Revolving
Facility
Commitment
|
|||||||||
|
JPMorgan
Chase Bank, N.A., London Branch
|
$
|
150,000,000
|
$
|
147,500,000
|
$
|
147,500,000
|
$
|
75,000,000
|
|||||
|
Xxxxxx
Xxxxxxx Bank
|
$
|
150,000,000
|
$
|
147,500,000
|
$
|
147,500,000
|
-
|
||||||
|
Xxxxxx
Xxxxxxx Bank International Limited
|
-
|
-
|
-
|
$
|
75,000,000
|
||||||||
|
Total
|
$
|
300,000,000
|
$
|
295,000,000
|
$
|
295,000,000
|
$
|
150,000,000
|
|||||
195
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.
|
|
(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.
|
196
|
(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 Mezzanine
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 Mezzanine
Facility 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 Mezzanine
Facility 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 13
(Security
Principles).*
|
|
(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.*
|
197
|
(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
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.
|
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.
|
198
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 and in relation to each French Guarantor, a copy
of the
Extrait
K-bis,
Certificat
de non-faillite
and Etat
des inscriptions,
not more than 10 days old.
|
|
(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.
|
199
|
(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
Mezzanine Facility and the Intercreditor
Agreement.
|
|
(b)
|
In
relation to any French Borrower, a copy of a TEG letter substantially
in
the form set out in Schedule 14 (TEG
Letter).
|
|
(c)
|
Each
Transaction Security Document (and any documents agreed to be provided
thereunder) executed by each Guarantor specified below opposite
the
relevant Transaction Security Document and, in the case of the
share
pledge over NDS Holdings B.V., also executed by NDS Holdings
B.V.:
|
|
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
Technologies France
SAS
|
Pledge
over Bank Accounts
Pledge
over Intercompany Receivables, if any
Pledge
over Trading Receivables (or Dailly assignment) without notification
to
the relevant debtor
Pledge
over IP, if any
Pledge
over insurance proceeds (if
applicable)
|
200
|
Name of Guarantor
|
Transaction Security Document
|
|
|
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)
|
|
|
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)
|
|
(d)
|
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.
|
|
(e)
|
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.
|
201
|
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(d)
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(d) 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 46.2
(Service
of process),
if not an Obligor, has accepted its appointment in relation to
the
proposed Guarantor.
|
|
(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(c)
above).
|
202
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, and for each French Obligor a copy of the Extrait
K-bis,
Certificat
de non-faillite
and Etat
des inscriptions,
not more than 10 days old.
|
|
(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.
|
203
|
(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 (if any) 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 and the Mezzanine
Facility and the Intercreditor
Agreement.
|
|
(b)
|
With
respect to any French Borrower, a copy of a TEG letter substantially
in
the form set out in Schedule 14 (TEG
Letter).
|
|
(c)
|
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.
|
|
(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
|
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 46.2
(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.
|
204
SCHEDULE
3
Requests
PART
IA
Utilisation
Request Loans
|
From:
|
[Borrower]
[Company]*
|
|
[Facility
Agent]
|
|
|
Dated:
|
[ ]
|
Dear
Sirs
NDS
Finance Limited –
$1,115,000,000 Senior Facilities Agreement
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Utilisation Request.
Terms
defined in the Facilities 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)
|
Facility
to be utilised:
|
[Facility
A]/[Facility B]/[Facility C]/ [Uncommitted Acquisition
Facility]/[Revolving Facility]**
|
|
|
(d)
|
Designation:
|
The
Loan [is/is not] an Acquisition Loan***
|
|
|
(e)
|
Currency
of Loan:
|
[ ]
|
|
|
(f)
|
Amount:
|
[ ]
or, if less, the Available Facility
|
|
|
(g)
|
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.
|
|
***
|
To
be completed only for Revolving Facility
Loans.
|
205
PART
IB
Utilisation
Request Letters of Credit
|
From:
|
[Borrower]
[Company]*
|
|
[Facility
Agent]
|
|
|
Dated:
|
[ ]
|
Dear
Sirs
NDS
Finance Limited –
$1,115,000,000 Senior Facilities Agreement
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Utilisation Request.
Terms
defined in the Facilities Agreement have the same meaning in this
Utilisation Request unless given a different meaning in this Utilisation
Request.
|
|
2.
|
We
wish to arrange for a Letter of Credit to be [issued]/[renewed]
by the
Issuing Bank specified below (which has agreed to do so) on the
following
terms:
|
|
(a)
|
Borrower:
|
[ ]
|
|
|
(b)
|
Issuing
Bank:
|
[ ]
|
|
|
(c)
|
Proposed
Utilisation Date:
|
[ ]
(or, if that is not a Business Day, the next Business Day)
|
|
|
(d)
|
Facility
to be utilised:
|
Revolving
Facility
|
|
|
(e)
|
Currency
of Letter of Credit:
|
[ ]
|
|
|
(f)
|
Amount
|
[ ]
or, if less, the Available Facility in relation to the Revolving
Facility:
|
|
|
(g)
|
Term:
|
[ ]
|
|
3.
|
We
confirm that each condition specified in paragraph (b) of Clause
6.5
(Issue
of Letters of Credit)
is satisfied on the date of this Utilisation
Request.
|
|
4.
|
We
attach a copy of the proposed Letter of
Credit.
|
|
5.
|
[The
purpose of this proposed Letter of Credit is [ ].]1
|
|
6.
|
This
Utilisation Request is irrevocable.
|
authorised
signatory for
[the
Company on behalf of] [insert
name of relevant Borrower]]/[insert
name of Relevant Borrower]*
NOTES:
| * |
Amend
as appropriate. The Utilisation Request can be given by the Borrower
or by
the Company.
|
|
1
|
Not
required for a renewal.
|
206
PART
II
Selection
Notice
Applicable
to a Term Loan
|
From:
|
[Borrower]
[Company]*
|
|
[Facility
Agent]
|
|
|
Dated:
|
[ ]
|
Dear
Sirs
NDS
Finance Limited –
$1,115,000,000 Senior Facilities Agreement
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Selection Notice.
Terms
defined in the Facilities Agreement have the same meaning in this
Selection Notice unless given a different meaning in this Selection
Notice.
|
|
2.
|
We
refer to the following Facility [A]/[B]/[C]/[Acquisition
Facility]/[Acquisition Term] 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 Facility
[A]/[B]/[C]/[Acquisition Facility]/[Acquisition Term] 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.
|
207
PART
III
Redenomination
Notice
|
From:
|
[Facility
Agent]
|
|
[Company]
|
|
|
Dated:
|
[ ]
|
Dear
Sirs
NDS
Finance Limited
- $1,115,000,000 Senior Facilities Agreement
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Redenomination Notice.
Terms
defined in the Facilities Agreement have the same meaning in this
Redenomination Notice unless given a different meaning in this
Redenomination Notice.
|
|
2.
|
We
refer to Facility [A]/[B]/[C].
|
|
3.
|
We
request [that $[ ]
of the above Term Facility be redenominated into euros [and] that
$[ ]
of the above Term Facility be redenominated into
euros.
|
|
4.
|
We
request that the above redenomination should occur and be effective
on
[ ].
|
|
5.
|
This
Redenomination Notice is
irrevocable.
|
Yours
faithfully
[Facility
Agent]
208
PART
IV
Withdrawal
Notice
|
From:
|
[Company]
on behalf of the Parent
|
|
[Security
Agent]
|
|
|
Dated:
|
[ ]
|
Dear
Sirs
NDS
Finance Limited
- $1,115,000,000 Senior Facilities Agreement
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Withdrawal Notice.
Terms
defined in the Facilities 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
209
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:
|
|
(a)
|
in
relation to a sterling Loan:
|
|
(b)
|
in
relation to a Loan in any currency other than
sterling:
|
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 16.3
(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.
|
210
| 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.
|
|
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.
|
211
|
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.
|
|
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.
|
212
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 –$1,115,000,000
Senior Facilities Agreement
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement and to the Intercreditor Agreement
(as
defined in the Facilities Agreement). This agreement (the "Agreement")
shall take effect as a Transfer Certificate and Lender Accession
Undertaking for the purpose of the Facilities Agreement and as
a Lender
Accession Undertaking for the purposes of the Intercreditor Agreement
(and
as defined therein). Terms defined in the Facilities Agreement
have the
same meaning in this Agreement unless given a different meaning
in this
Agreement.
|
|
2.
|
We
refer to Clause 31.5
(Procedure
for transfer)
of the Facilities 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 31.5
(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 38.2
(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 31.4
(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.]*
|
213
|
(d)
|
[a
Treaty Lender].
|
|
5.
|
The
Parties agree that this transfer shall constitute a novation within
the
meaning of Article 1271 et seq. of the French Code
Civil
(Civil Code) and that all rights relating to Security against the
Obligors
shall be transferred.
|
|
6.
|
The
New Lender confirms that it is [a Qualifying Lender (other than
a Treaty
Lender)] [a Treaty Lender]**.
|
|
7.
|
We
refer to Clause [ ]
(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.
|
|
8.
|
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.
|
|
9.
|
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.
|
214
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:
215
SCHEDULE
6
Form
of Accession letter
To:
[ ]
as
Facility Agent
From:
[Subsidiary]
and
[Company]
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$1,115,000,000 Senior Facilities
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is an Accession Letter.
Terms
defined in the Facilities 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 Facilities Agreement, the Intercreditor Agreement
and the
other Finance Documents as an Additional [Borrower]/[Guarantor]
pursuant
to Clause [32.2
(Additional
Borrowers)]*/[Clause
32.4
(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.
|
216
SCHEDULE
7
Form
of Resignation Letter
To:
[ ]
as
Facility Agent
From:
[resigning
Obligor]
and
[Company]
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$1,115,000,000 Senior Facilities Agreement
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Resignation Letter.
Terms
defined in the Facilities Agreement have the same meaning in this
Resignation Letter unless given a different meaning in this Resignation
Letter.
|
|
2.
|
Pursuant
to [Clause 32.3
(Resignation
of a Borrower)]/Clause
32.5
(Resignation
of a Guarantor),
we request that [resigning
Obligor]
be released from its obligations as a [Borrower]/[Guarantor] under
the
Facilities 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
14.2
(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.
|
217
SCHEDULE
8
Form
of Compliance Certificate
To:
[ ]
as
Facility Agent
From:
Parent
Dated: [ ]
Dear
Sirs
NDS
Finance Limited –
$1,115,000,000 Senior Facilities
dated
[ ]
(the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Compliance Certificate.
Terms
defined in the Facilities 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 28.2
(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 28.2
(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 28.2
(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 28.2
(Financial
condition)
[has/has not] been complied with;
|
218
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 14.2
(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.
|
219
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;
|
220
|
(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).
221
|
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.
|
222
|
(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]
223
SCHEDULE
10
Timetables
PART
I
Loans
|
Loans in euro
|
Loans in
sterling
|
Loans in other
currencies
|
||||
|
Approval
as an Optional Currency, if required (Clause 4.3
(Conditions
relating to Optional Currencies)).
|
||||||
|
Facility
Agent notifies the Company
if a currency is approved as an Optional Currency in accordance
with
Clause 4.3
(Conditions
relating to Optional Currencies).
|
-
|
-
|
U-4
|
|||
|
Delivery
of a duly completed Utilisation Request (Clause 5.1
(Delivery
of a Utilisation Request)
or a Selection Notice (Clause 17.1
(Selection
of Interest Periods and Terms)).
|
U-3
9.30
am
|
U-1
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-1
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-1
3.00pm
|
U-3
3.00pm
|
|||
|
Facility
Agent receives a notification from a Lender under Clause 9.2
(Unavailability
of a currency).
|
U-1
5.00pm
|
U-1
5.00pm
|
U-1
5.00pm
|
|||
|
Facility
Agent gives notice in accordance with Clause 9.2
(Unavailability
of a currency).
|
U-
2
9.30am
|
U
9.30am
|
U-2
9.30am
|
|||
|
Facility
Agent determines amount of the Loan in Optional Currency in accordance
with Clause 36.9
(Change
of currency).
|
U-3
11.00am
|
U
11.00am
|
U-3
11.00am
|
|||
|
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
|
Quotation
Day as of 11.00am
|
| "U" |
= date
of Utilisation
|
| "U - X" = |
X
Business Days prior to date of
Utilisation
|
224
PART
II
Letters
of Credit
|
Letters
of Credit
|
||
|
Delivery
of a duly completed Utilisation Request (Clause 6.2
(Delivery
of a Utilisation Request for Letters of Credit)).
|
U-3
9.30am
|
|
|
Facility
Agent determines (in relation to a Utilisation) the Base Currency
Amount
of the Letter of Credit if required under paragraph (d) of Clause
6.5
(Issue
of Letters of Credit)
and notifies the Issuing Bank and Lenders of the Letter of Credit
in
accordance with paragraph (d) of Clause 6.5
(Issue
of Letters of Credit).
|
U-1
Noon
|
|
|
Delivery
of duly completed Renewal Request.
|
U-3
9.30am
|
"U"
=
date
of
utilisation
"U-X"
=
Business
Days prior to date of utilisation
225
SCHEDULE
11
Form
of Letter of Credit
To:
[Beneficiary]
(the
"Beneficiary")
[Date]
Irrevocable
Standby Letter of Credit no. [ ]
At
the
request of [ ],
[Issuing
Bank]
(the
"Issuing
Bank")
issues
this irrevocable standby Letter of Credit ("Letter
of Credit")
in
your favour on the following terms and conditions:
|
1.
|
Definitions
|
In
this
Letter of Credit:
"Business
Day"
means a
day (other than a Saturday or a Sunday) on which banks are open for general
business in [London].*
"Demand"
means a
demand for a payment under this Letter of Credit in the form of the schedule
to
this Letter of Credit.
"Expiry
Date"
means
[ ].
"Total
L/C Amount" means [ ].
|
2.
|
Issuing
Bank's agreement
|
|
(a)
|
The
Beneficiary may request a drawing or drawings under this Letter
of Credit
by giving to the Issuing Bank a duly completed
Demand. A Demand must be received by the Issuing Bank by [ ]
p.m. ([London] time) on the Expiry
Date.
|
|
(b)
|
Subject
to the terms of this Letter of Credit, the Issuing Bank unconditionally
and irrevocably undertakes to the Beneficiary that, within [ten]
Business
Days of receipt by it of a Demand, it must pay to the Beneficiary
the
amount demanded in that Demand.
|
|
(c)
|
The
Issuing Bank will not be obliged to make a payment under this Letter
of
Credit if as a result the aggregate of all payments made by it
under this
Letter of Credit would exceed the Total L/C
Amount.
|
|
3.
|
Expiry
|
|
(a)
|
The
Issuing Bank will be released from its obligations under this Letter
of
Credit on the date (if any) notified by the Beneficiary to the
Issuing
Bank as the date upon which the obligations of the Issuing Bank
under this
Letter of Credit are released.
|
|
(b)
|
Unless
previously released under paragraph (a) above, on [ ]
p.m.([London] time) on the Expiry Date the obligations of the Issuing
Bank
under this Letter of Credit will cease with no further liability
on the
part of the Issuing Bank except for any Demand validly presented
under the
Letter of Credit that remains
unpaid.
|
|
(c)
|
When
the Issuing Bank is no longer under any further obligations under
this
Letter of Credit, the Beneficiary must return the original of this
Letter
of Credit to the Issuing Bank.
|
226
|
4.
|
Payments
|
All
payments under this Letter of Credit shall be made in [ ]
and for
value on the due date to the account of the Beneficiary specified in the
Demand.
|
5.
|
Delivery
of Demand
|
Each
Demand shall be in writing, and, unless otherwise stated, may be made by
letter,
fax or telex and must be received in legible form by the Issuing Bank at
its
address and by the particular department or office (if any) as
follows:
[ ]
|
6.
|
Assignment
|
The
Beneficiary's rights under this Letter of Credit may not be assigned or
transferred.
|
7.
|
ISP
|
Except
to
the extent it is inconsistent with the express terms of this Letter of Credit,
this Letter of Credit is subject to the International Standby Practices (ISP
98), International Chamber of Commerce Publication No. 590.
|
8.
|
Governing
Law
|
This
Letter of Credit is governed by English law.
|
9.
|
Jurisdiction
|
The
courts of England have exclusive jurisdiction to settle any dispute arising
out
of or in connection with this Letter of Credit.
Yours
faithfully
[Issuing
Bank]
By:
NOTES:
|
*
|
This
may need to be amended depending on the currency of payment under
the
Letter of Credit.
|
227
SCHEDULE
[ ]
Form
of Demand
To:
[ISSUING
BANK]
[Date]
Dear
Sirs
Standby
Letter of Credit no. [ ]
issued in favour of [BENEFICIARY] (the "Letter of Credit")
We
refer
to
the Letter of Credit. Terms defined in the Letter of Credit have the same
meaning when used in this Demand.
|
1.
|
We
certify that the sum of [ ]
is due [and has remained unpaid for at least [ ]
Business Days] [under [set out underlying contract or agreement]].
We
therefore demand payment of the sum of [ ].
|
|
2.
|
Payment
should be made to the following
account:
|
Name:
Account
Number:
Bank:
|
3.
|
The
date of this Demand is not later than the Expiry
Date.
|
Yours
faithfully
|
(Authorised
Signatory)
|
(Authorised
Signatory)
|
For
[BENEFICIARY]
228
SCHEDULE
12
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.
229
SCHEDULE
13
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 13.
This Schedule 13 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;
|
230
|
(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.
|
231
|
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;
|
232
|
(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
Technologies France SAS
NDS
Americas Inc.
NDS
Holdings B.V. (to the extent not wound up within 180 days of
Closing).
233
|
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.
234
|
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
14.2
(Disposal,
Insurance and Acquisition Proceeds, Excess Cashflow and IPO).
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.
235
|
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.
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.
236
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.
|
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.
237
SCHEDULE
14
Form
of TEG Letter
|
To:
|
[ ]
|
|
From:
|
[ ]
as Facility Agent
|
|
Dated:
|
[ ]
|
Dear
Sirs
NDS
Finance Limited - $1,115,000,000 Senior Facilities Agreement dated
[ ]
(the
"Facilities
Agreement")
We
refer
to the Facilities Agreement.
Terms
defined in the Facilities Agreement shall bear the same meaning in this letter
unless otherwise defined in this letter. References to Clauses in this letter
are references to Clauses in the Facilities Agreement.
We
confirm that:
|
1.
|
this
is the letter referred to in Clause 16.6 (Effective
global rate)
of the Facilities Agreement;
|
|
2.
|
you
acknowledge that, due to the fact that interest payable under the
Facilities Agreement is to be calculated on a floating rate basis
by
references to LIBOR or EURIBOR for Interest Periods selected by
a
Borrower, it is not possible to compute the effective global rate
("taux
effectif global")
for the lifetime of the Facilities;
and
|
|
3.
|
in
order to comply with the provisions of Articles L313-1, L313-2,
R313-1 and
R313-2 of the French Code
de la Consommation
(Consumer Code) and L313-4 of the French Code
Monétaire et Financier
(French Monetary and Financial Code), and only as an indication
based on
the assumptions described below, an example of calculation of the
effective global rate would result in a rate for the Facilities
(taux
de période)
of [ ]%.
|
|
4.
|
The
above rate is given on an indicative basis and on the basis (a)
that
drawdown for the full amount of the Facilities in the relative
Base
Currency has been made, (b) [for the US Dollar denominated Facilities
an
Interest Period of three months in US Dollars has been chosen and
that the
US$ LIBOR rate of [ ]% per annum is applicable,] (c) [for the euro
denominated Facilities an Interest Period of three months in euro
has been
chosen and that the EURIBOR rate of [ ]% per annum is applicable,]
(d)
that the LIBOR/EURIBOR rate, expressed as an annual rate, is as
fixed on
[date],
(e) repayments occur at contractual maturity and not earlier, (f)
no term
out option has been exercised, (g) [that the US$/€ exchange rate is 1€ =
0.[ ]US$,]
(h) of the various fees payable by you under the terms of the Facilities
Agreement. Such rates shall not be binding on the Finance
Parties.]
|
238
|
5.
|
We
should be grateful if you would confirm your acceptance of the
terms of
this letter by signing and returning to us the enclosed
copy.
|
[place],
[date]
|
Title
|
We
acknowledge of the above
[date]
SCHEDULE
15
Further
Acquisition Facility Lender Accession Undertaking
|
From:
|
[Further
Acquisition Facility Lender]
|
|
To:
|
[ ]
as Facility Agent
|
|
Dated:
|
Dear
Sirs
NDS
Finance Limited - $1,115,000,000
Senior
Facilities Agreement dated [ ]
(the
"Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This undertaking (the "Agreement")
shall take effect as a Further Acquisition Facility Lender Accession
Undertaking for the purpose of the Facilities Agreement. Terms
defined in
the Facilities Agreement have the same meaning in this Agreement
unless
given a different meaning in this
Agreement.
|
|
2.
|
We
hereby agree to become a Lender and to assume an Acquisition Facility
Commitment in an amount of $[ ].
|
|
3.
|
Our
Facility Office address and related details are as
follows:
|
[Facility
Office address, fax number and attention details for notices and accounts
details for payments]
|
4.
|
The
provisions of Clause 31.4 (Limitation
of responsibility of Existing Lenders)
shall apply to the Further Acquisition Facility Lenders as if references
in that Clause to New Lenders were instead references to Further
Acquisition Facility Lenders.
|
|
5.
|
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.
|
|
6.
|
We
refer to the Intercreditor
Agreement:
|
|
(a)
|
In
consideration of the Further Acquisition
Facility Lender being accepted as a Senior Lender for the purposes
of the
Intercreditor Agreement (and as defined therein), the Further Acquisition
Facility Lender confirms that, as from date of this Agreement,
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 is governed by English
law.
|
240
Note:
The
execution of this Agreement may not entitle the Further Acquisition Facility
Lender to a proportionate share of the Transaction Security in all
jurisdictions. It is the responsibility of the Further Lender to ascertain
whether any other documents or other formalities are required in any
jurisdiction and, if so, to arrange for execution of those documents and
completion of those formalities.
SIGNED
for and on behalf of
[FURTHER
ACQUISITION FACILITY LENDER]
By:
[ ]
This
Agreement is accepted by the Facility Agent.
[FACILITY
AGENT]
By:
[ ]
241
SIGNATURES
THE
COMPANY
NDS
FINANCE LIMITED
By:
|
Address:
|
0
Xxxxxxxx Xxxxxxxxx
|
|
000
Xxxx Xxxx
|
|
|
Xxxx
Xxxxxxx, Xxxxxxxxx, XX0 0XX
|
|
|
Fax:
|
x00
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:
|
x00
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:
|
x00
000 000 0000
|
|
Attention:
|
Xxxxxx
Xxxxxxxx
|
242
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
|
000
XXX
XXXXXXX XXXX
XXXXXXXX
XXXXX XXXX, X.X., XXXXXX BRANCH
By:
|
Address:
|
000
Xxxxxx Xxxx
|
|
Xxxxxx
XX0X 0XX
|
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Xxxxxx
Xxxxxxxxx
|
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:
|
Address:
|
000
Xxxxx Xxxx Xxxxxx
|
|
0xx
Xxxxx
|
|
|
Xxxx
Xxxx Xxxx
|
|
|
XX
00000-0000
|
|
|
XXX
|
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Senior
Lending Group
|
XXXXXX
XXXXXXX BANK INTERNATIONAL LIMITED
|
By:
|
|
|
Address:
|
00
Xxxxx Xxxxxx
|
|
Xxxxxx
Xxxxx
|
|
|
Xxxxxx
X00 0XX
|
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Senior
Lending Group
|
244
