SUPPLEMENTAL MEZZANINE FACILITY AGREEMENT Dated 24th September 2002 between SPORTECH PLC as Borrower and THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as Agent and Arranger and THE LENDERS LISTED HEREIN Dickson Minto W.S. Edinburgh
EXHIBIT 4
SUPPLEMENTAL MEZZANINE FACILITY AGREEMENT
Dated 24th September 2002
between
SPORTECH PLC
as Borrower
and
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
as Agent and Arranger
and
THE LENDERS LISTED HEREIN
![[f14450601001.jpg]](https://www.sec.gov/Archives/edgar/data/703914/000121522003000098/f14450601001.jpg){kind=small}
Xxxxxxx Xxxxx W.S.
Edinburgh
THIS SUPPLEMENTAL MEZZANINE FACILITY AGREEMENT is made the 24th day of September 2002 between:
(1)
SPORTECH PLC (formerly known as Rodime plc) (Registered Number 69140), a company incorporated in Scotland with limited liability with its registered office situated at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx X0 0XX (the “Borrower”);
(2)
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of Xxx Xxxxx, Xxxxxxxxx XX0 0XX as agent (the “Agent”) for and on behalf of the Lenders;
(3)
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of the address aforesaid as arranger (“the Arranger”); and
(4)
THE LENDERS named in Schedule 1 (as hereinafter defined).
WHEREAS:
(A)
The Borrower, the Agent, the Arranger and the Lenders entered into a facility agreement dated 10th August 2000 (as supplemented by a supplemental facility agreement dated 15th October 2001 between the parties thereto and as supplemented, varied, novated, restated or amended from time to time the “Mezzanine Facility Agreement”) in terms of which a term loan facility was made available to the Borrower;
(B)
the parties wish to make certain amendments to the Mezzanine Facility Agreement.
NOW IT IS AGREED AND DECLARED as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1
In this Supplemental Mezzanine Facility Agreement a term defined in the Mezzanine Facility Agreement has the same meaning when used in this Supplemental Mezzanine Facility Agreement unless otherwise defined herein and Schedule 10 of the Mezzanine Facility Agreement shall apply hereto.
1.2
This Supplemental Mezzanine Facility Agreement is a Financing Document in terms of the Mezzanine Facility Agreement.
2.
CONDITIONS PRECEDENT
2.1
This Supplemental Mezzanine Facility Agreement and the amendments to the Mezzanine Facility Agreement referred to herein shall only come into effect if:-
(i)
the Agent has received all of the documents listed in Schedule 2 of this Supplemental Mezzanine Facility Agreement and each is, in form and substance, satisfactory to it;
(ii)
the Agent has determined to its reasonable satisfaction that no Event of Default or Potential Event of Default has occurred and is continuing;
(iii)
the Agent is satisfied that the representations and warranties given by the Borrower in terms of Clause 17.01 of the Mezzanine Facility Agreement which are repeated in accordance with the provisions of Clause 17.02 of the Mezzanine Facility Agreement are true and correct in all material respects on the date hereof; and
(iv)
the supplemental facility agreement entered into of even date herewith between the Borrower and certain of the parties hereto in relation to a senior facility has become unconditional.
2.2
If the Agent confirms that conditions referred to in Clause 2.1 have not been satisfied on or prior to the date falling one month after the date of this Supplemental Mezzanine Facility Agreement then this Supplemental Mezzanine Facility Agreement will lapse and the amendments to be made in terms hereof will be of no effect.
3.
EXISTING ADVANCES
3.1
On the date of execution of this Supplemental Mezzanine Facility Agreement by the Arranger, the parties acknowledge and confirm that the amount outstanding under Tranche A is £24,000,000.
4.
AMENDMENTS TO THE FACILITY AGREEMENT
4.1
Subject to the terms of this Supplemental Mezzanine Facility Agreement, the Mezzanine Facility Agreement shall be amended and restated in the form set out as Schedule 3 to this Supplemental Mezzanine Facility Agreement.
4.2
Subject to the terms of this Supplemental Mezzanine Facility Agreement, the Mezzanine Facility Agreement shall remain in full force and effect. This Supplemental Mezzanine Facility Agreement and the Mezzanine Facility Agreement shall be treated as one document so that, upon the Mezzanine Facility Agreement being amended and restated as mentioned above, all references to the Mezzanine Facility Agreement shall be treated as references to the Mezzanine Facility Agreement set out as Schedule 3 to this Supplemental Mezzanine Facility Agreement.
5.
REPRESENTATIONS AND WARRANTIES
5.1
The Borrower represents and warrants to the Agent, the Arranger and the Lenders on the date hereof in terms of Clause 17.01 of the Mezzanine Facility Agreement in accordance with the provisions of Clause 17.02 of the Mezzanine Facility Agreement.
5.2
The Borrower represents and warrants to the Agent, the Arranger and the Lenders on the date hereof that:-
(i)
the Supplemental Mezzanine Facility Agreement constitutes a legal, valid and binding obligation of it and (subject to the Reservations) is enforceable in accordance with its terms;
(ii)
the execution and delivery of the Supplemental Mezzanine Facility Agreement and the performance by each member of the Group of its respective obligations thereunder will not contravene any existing law, statute, rule, regulation, judgement, decree or permit to which it is subject or its memorandum or articles of association or equivalent constitutional documents;
(iii)
no Event of Default has occurred and is continuing;
(iv)
the execution of the Supplemental Mezzanine Facility Agreement and the exercise by it and each of its subsidiaries of their respective rights and performance of their respective obligations thereunder will not result in the existence of or have the immediate effect as at the date hereof of obliging any member of the Group to create any encumbrance over all or any of its subsidiaries' present or future revenues or assets other than as permitted by the Financing Documents;
(v)
the execution of the Supplemental Mezzanine Facility Agreement and the exercise by it and each of its subsidiaries of their respective rights and performance of their respective obligations thereunder do not constitute and will not result in any material breach in respect of any member of the Group of any agreement to which any of them is a party, the breach of which will cause a Material Adverse Effect;
(vi)
the structure and ownership of the Group is as set out in Schedule 6 of the Mezzanine Facility Agreement;
(vii)
all written information provided by the Borrower and its agents and advisers to the Agent or the Lenders in connection with the ITV Head of Terms was true in all material respects as at the date it was provided and all projections and statements of belief made by or on behalf of the Borrower were based on reasonable assumptions and were made in good faith;
(viii)
no encumbrance exists over all or any of the present or future revenues, assets or share capital of any member of the Group other than Permitted Encumbrances;
(ix)
no member of the Group has any indebtedness other than Permitted Indebtedness;
(x)
the execution of the ITV Heads of Terms and exercise by it and each of its Subsidiaries of their respective rights and performance of their respective obligations thereunder do not constitute and will not result in any material breach in respect of any member of the Group of any agreement to which any of them is a party which breach would have a material adverse effect.
6.
GENERAL
Clauses 35, 36, 37, 38, 40 and 41 of the Mezzanine Facility Agreement shall be deemed to be incorporated in this Supplemental Mezzanine Facility Agreement as if set out herein.
7.
FEES AND EXPENSES
7.1
On the date of first drawdown of Tranche B in accordance with the terms of the Mezzanine Facility Agreement, the Borrower shall pay to the Agent an arrangement fee of £15,000 which shall be debited to the current account of the Borrower with the Agent.
7.2
The Borrower will make payment to the Agent of all costs and expenses (including VAT, legal fees and reasonable out of pocket expenses) incurred by it in connection with the negotiation, preparation and execution of this Supplemental Mezzanine Facility Agreement.
8.
COUNTERPARTS
This Supplemental Mezzanine Facility Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement.
9.
GOVERNING LAW AND JURISDICTION
This Supplemental Mezzanine Facility Agreement is governed by the laws of England and Wales and the parties hereto hereby submit to the non-exclusive jurisdiction of the Courts of England.
IN WITNESS WHEREOF this Agreement has been signed by a duly authorised representative of each of the parties hereto on the date first above written.
SCHEDULE 1
The Lenders
The Governor and Company of the Bank of Scotland.
SCHEDULE 2
Conditions Precedent Documents
1.
Constitutional Documents
(i)
confirmation from the Borrower that the constitutional documents for each member of the Group have not been amended since 15 October 2001;
(ii)
a copy, certified a true copy by a duly authorised officer of the Borrower of a board resolution of the Borrower and each other relevant member of the Group, approving execution, delivery and performance of the Financing Documents to be entered into on or around the date hereof to which it is a party and the terms and conditions thereof and authorising a named person or persons to execute the Financing Documents to be entered into on or around the date hereof to which it is a party and any documents to be delivered by the Borrower, and others pursuant hereto or thereto; and
(iv)
a certificate of a duly authorised officer of the Borrower setting out the names and signatures of the persons authorised to execute, on behalf of each of the Borrower and each other relevant member of the Group, the Financing Documents to be entered into on or around the date hereof and any documents to be delivered by the Borrower and each other relevant member of the Group pursuant hereto or thereto.
2.
Senior Debt
A copy of the supplemental senior facility agreement entered into on or around the date hereof in relation to the Senior Facility Agreement incorporating a consent to the provision of the increased Facility in accordance with the terms of this Supplemental Mezzanine Facility Agreement.
3.
ITV Arrangements
3.1
The projections dated 4th February 2002 and provided by the Borrower in a form acceptable to the Agent in relation to the proposed ITV venture.
3.2
Copies, certified as a true copy by a duly authorised officer of the Borrower of the ITV Heads of Terms together with all related appendices and documents referred to therein.
4.
Miscellaneous
4.1
A legal opinion from Simcocks in a form acceptable to the Agent and the Lenders.
4.2
A copy of the supplemental intercreditor deed entered into on or around the date hereof in relation to the Intercreditor Deed.
5.
Others
A copy of the supplemental overdraft facility letter entered into or around the date hereof in relation to the Overdraft Facility Letter.
SCHEDULE 3
FORM OF MEZZANINE FACILITY AGREEMENT
Dated 10th August 2000
(as amended on 15th October 2001 and 24th September 2002)
between
SPORTECH PLC
as Borrower
and
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
as Agent and Arranger
and
THE LENDERS LISTED HEREIN
![[f14450601002.jpg]](https://www.sec.gov/Archives/edgar/data/703914/000121522003000098/f14450601002.jpg){kind=small}
Xxxxxxx Xxxxx W.S.
Edinburgh
#
CONTENTS
Clause | Page No. |
Part 1
THE FACILITY
1.
The Facility
14
2.
Purpose and Application of Advances
14
3.
Conditions Precedent
14
4.
Nature of Lenders' Obligations
15
5.
Rights of Borrower
15
Part 2
AVAILABILITY OF THE FACILITY
6.
Availability of the Facility
16
Part 3
INTEREST
7.
Interest Periods
18
8.
Interest
18
9.
Alternative Interest Rates
19
Part 4
REPAYMENT, CANCELLATION AND PREPAYMENT
10.
Repayment and Re-Utilisation
21
11.
Cancellation and prepayment
22
Part 5
CHANGES IN CIRCUMSTANCES
12.
Taxes
24
13.
Tax Receipts
25
14.
Increased Costs
26
15.
Illegality
27
16.
Mitigation
28
Part 6
REPRESENTATIONS AND WARRANTIES, COVENANTS
AND EVENTS OF DEFAULT
17.
Representations and Warranties
29
18.
Financial Information and Board Representation
32
19.
Covenants
35
20.
Financial Covenants
40
21.
Events of Xxxxxxx
00
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Xxxxxx | Page No |
.
Part 7
DEFAULT INTEREST AND INDEMNITY
22.
Default Interest and Indemnity
45
Part 8
PAYMENTS
23.
Currency of Account and Payment
47
24.
Payments
47
25.
Set-off
49
26.
Re-distribution of Payments
49
Part 9
FEES, COSTS AND EXPENSES
27.
Fees
50
28.
Costs and Expenses
50
Part 10
AGENCY PROVISIONS
29.
The Agent, the Arranger and the Lenders
52
Part 11
ASSIGNMENTS AND TRANSFERS
30.
Benefit of Agreement
57
31.
Assignments and Transfers by Borrower
57
32.
Assignments and Transfers by Lenders
57
33.
Disclosure of Information
58
34.
Syndication
59
Part 12
MISCELLANEOUS
35.
Calculation and Evidence of Debt
60
36.
Remedies and Waivers
60
37.
Partial Invalidity
61
38.
Amendments
61
39.
Further Security
61
40.
Notices
61
41.
Interpretation
62
42.
Counterparts
62
43.
Xxxxxxxxxxxxx
00
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Xxxxxx | Page No |
Part 13
LAW AND JURISDICTION
44.
Law and Jurisdiction
63
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THE SCHEDULES
Page No.
Schedule 1
:
The Lenders
65
Schedule 2
:
Condition Precedent Documents
66
Schedule 3
:
Form of Drawdown Notice
67
Schedule 4
:
Mandatory Costs Formula
69
Schedule 5
:
Permitted Encumbrances
72
Schedule 6
:
Group Organisation Chart
73
Schedule 7
:
Initial Securities
74
Schedule 8
:
Permitted Indebtedness
75
Schedule 9
:
Transfer Certificate
76
Schedule 10
:
Interpretation
80
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THIS MEZZANINE FACILITY AGREEMENT is the amended and restated form of a mezzanine facility agreement originally made the 10th day of August 2000 and in its amended and restated form is made
BETWEEN
(1)
SPORTECH PLC (formerly known as Rodime plc) a company incorporated in Scotland with limited liability (registered number 69140) with its registered office situated at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx X0 0XX (the “Borrower”);
(2)
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of The Mound, Xxxxxxxxx XX0 lYZ as agent (the “Agent”) for and on behalf of the Lenders (as hereinafter defined);
(3)
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as arranger of the address aforesaid (in this capacity the “Arranger”);
(4)
THE LENDERS named in Schedule 2.
WHEREAS the Borrower has requested the Lenders to afford the Facility upon the terms and conditions of this Agreement and the Lenders have agreed to do so.
NOW IT IS HEREBY AGREED as follows:
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