EXECUTION VERSION Dated 12 August 2016 PICTURE HOLDCO

Transcription

EXECUTION VERSION
Dated 12 August 2016
PICTURE HOLDCO LIMITED
as Company
FINANCIAL INSTITUTIONS REFERRED TO HEREIN
as Mandated Lead Arrangers
FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 HERETO
as Original Lenders
and
as Agent
______________________________________
TERM FACILITY AGREEMENT
______________________________________
Paul Hastings (Europe) LLP
Ten Bishops Square, Eighth Floor
London E1 6EG
Tel.: +44 (0) 20 3023 5100
Fax: +44 (0) 203 023 5109
Ref.: JAT1/94941.00004
LEGAL_EU # 17337328.7
TABLE OF CONTENTS
Page
1.
DEFINITIONS AND INTERPRETATION ................................................................. 1 2.
THE FACILITIES ...................................................................................................... 40 3.
PURPOSE ................................................................................................................... 42 4.
CONDITIONS OF UTILISATION ............................................................................ 42 5.
UTILISATION ........................................................................................................... 48 6.
REPAYMENT ............................................................................................................ 50 7.
PREPAYMENT AND CANCELLATION ................................................................ 51 8.
INTEREST.................................................................................................................. 57 9.
INTEREST PERIODS ................................................................................................ 58 10.
FEES ........................................................................................................................... 59 11.
TAX GROSS UP AND INDEMNITIES .................................................................... 60 12.
INCREASED COSTS................................................................................................. 67 13.
OTHER INDEMNITIES ............................................................................................ 69 14.
MITIGATION BY THE LENDERS .......................................................................... 71 15.
COSTS AND EXPENSES.......................................................................................... 72 16.
BANK ACCOUNTS................................................................................................... 73 17.
REPRESENTATIONS ............................................................................................... 81 18.
INFORMATION UNDERTAKINGS ........................................................................ 86 19.
FINANCIAL COVENANTS ...................................................................................... 90 20.
GENERAL UNDERTAKINGS................................................................................ 103 21.
EVENTS OF DEFAULT .......................................................................................... 120 22.
CHANGES TO THE LENDERS.............................................................................. 127 23.
CHANGES TO THE TRANSACTION OBLIGORS .............................................. 131 24.
ROLE OF THE AGENT AND THE ARRANGER ................................................. 132 25.
CONDUCT OF BUSINESS BY THE FINANCE PARTIES .................................. 140 26.
SHARING AMONG THE FINANCE PARTIES .................................................... 140 27.
PAYMENT MECHANICS....................................................................................... 143 28.
RESTRICTION ON DEBT PURCHASE TRANSACTIONS ................................. 145 29.
SET-OFF ................................................................................................................... 147 30.
NOTICES .................................................................................................................. 147 31.
CALCULATIONS AND CERTIFICATES ............................................................. 149 32.
PARTIAL INVALIDITY ......................................................................................... 149 33.
REMEDIES AND WAIVERS.................................................................................. 150 -i-
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TABLE OF CONTENTS
(continued)
Page
34.
AMENDMENTS AND WAIVERS ......................................................................... 150 35.
CONFIDENTIAL INFORMATION ........................................................................ 152 36.
COUNTERPARTS ................................................................................................... 156 37.
SECURITY ............................................................................................................... 157 38.
GOVERNING LAW................................................................................................. 159 39.
JURISDICTION ....................................................................................................... 159 SCHEDULE 1 THE ORIGINAL LENDERS....................................................................... 160 SCHEDULE 2 CONDITIONS PRECEDENT ..................................................................... 161 SCHEDULE 3 UTILISATION REQUEST.......................................................................... 165 SCHEDULE 4 FORM OF TRANSFER CERTIFICATE .................................................... 166 SCHEDULE 5 FORM OF COMPLIANCE CERTIFICATE............................................... 169 SCHEDULE 6 FORM OF CONFIDENTIALITY UNDERTAKING ................................. 170 SCHEDULE 7 APPROVED INVESTOR LIST .................................................................. 175 SCHEDULE 8 FORM OF CURE FACILITY NOTICE ...................................................... 176 SCHEDULE 9 FORMS OF NOTIFIABLE DEBT PURCHASE TRANSACTION
NOTICE .................................................................................................................... 177 -iiLEGAL_EU # 17337328.7
THIS AGREEMENT is dated 12 August 2016 and made between:
(1)
PICTURE HOLDCO LIMITED (the "Company");
(2)
EUROPEAN REAL ESTATE DEBT II S.ÀR.L. and DRC EUROPEAN REAL
ESTATE DEBT III NO. 2 S.À R.L. as mandated lead arrangers (the "Arranger");
(3)
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as
original lenders (the "Original Lenders"); and
(4)
as agent of the other
Finance Parties (the "Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"Acceptable Bank" means:
(a)
a bank or financial institution which has a rating for its long-term unsecured
and non-credit enhanced debt obligations of A- or higher by Standard & Poor's
Rating Services or Fitch Ratings Ltd or A3 or higher by Moody's Investor
Services Limited or a comparable rating from an internationally recognised
credit rating agency; or
(b)
in relation to any bank with whom a Replacement Account is, or is to be, held,
a bank or financial institution which has a rating for its long-term unsecured
and non-credit enhanced debt obligations of BBB or higher by Standard &
Poor's Rating Services or Fitch Ratings Ltd or Baa2 or higher by Moody's
Investor Services Limited or BBB+ or higher by Fitch or a comparable rating
from an internationally recognised credit rating agency; or
(c)
any other bank or financial institution approved by the Agent or, if the Agent
is an Impaired Agent, the Majority Lenders.
"Account" means the Debt Service Account, the Prepayment Account, the Equity
Release Account, the Cure Account, the General Account and any replacement
account which is opened in accordance with the provisions of this Agreement.
"Acquisition" means the acquisition by the Company of the Target Shares on the
terms of the relevant Acquisition Document.
"Acquisition Change of Control Waiver Letter" means the letter dated 2 August
2016 addressed to the Target and PWREF III Holding S.à r.l. from the Senior Lenders
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and the Senior Agent, pursuant to which the change of control provisions in the Initial
Senior Facility Agreement have been waived in respect of the Acquisition.
"Acquisition Document" means:
(a)
in relation to an Offer, the Offer Document; and
(b)
in relation to a Scheme, the Scheme Document.
"Adjusted MI Consolidated EBITDA" means in relation to any Test Period,
Consolidated EBITDA save that, for the purposes of this calculation of Consolidated
EBITDA only, there will be:
(a)
no deduction of the amount of any profit of any member of the Target Group
which is attributable to minority interests; and
(b)
no adding back of the amount of any loss of any member of the Target Group
which is attributable to minority interests.
"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.
"Aggregate Total Debt" means, at any time, the aggregate of:
(a)
the Senior Principal;
(b)
the maximum committed amount of any Relevant Overdraft Facility; and
(c)
the aggregate amount of all obligations of the Company in respect of
Borrowings.
"Approved Change of Control" has the meaning given to such term in the
Acquisition Change of Control Waiver Letter.
"Approved Investor List" means the list set out in Schedule 7 (Approved Investor
List).
"Authorisation" means an authorisation, consent, approval, resolution, licence,
exemption, filing, notarisation or registration.
"Authority" means any of the United Nations Security Council, the Commission of
the European Union, Her Majesty's Treasury, the Hong Kong Monetary Authority, the
Office of Foreign Assets Control of the United States Department of the Treasury and
any other government entity of the United Kingdom, the United States and Hong
Kong, and Authority shall be construed so as to include any assignee, transferee or
successor in title of that Authority and any other person which takes over the
administration, enforcement and/or supervising functions of that Authority.
"Availability Period" means:
(a)
in relation to the Term Facility, the period from the date of this Agreement to
the earliest to occur of:
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(i)
(ii)
if the Acquisition proceeds by way of a Scheme, the earliest to occur
of:
(A)
the date falling 14 days after the Scheme Effective Date; and
(B)
the date on which the Scheme lapses in accordance with its
terms or is withdrawn unless, within 10 Business Days of such
date, the Company notifies the Agent that it intends that the
Acquisition should proceed by way of an Offer; and
if the Acquisition proceeds by way of Offer, the earliest to occur of:
(A)
(B)
(iii)
(b)
the date which is the later of:
(I)
the date falling 140 days after the date on which the
Offer Document is posted (the "Offer Limit Date");
and
(II)
if, on or prior to the Offer Limit Date, the Company
becomes entitled to initiate the Squeeze Out and the
Company has notified the Agent within 5 Business
Days of the Squeeze Out Trigger Date (or on the
Squeeze Out Trigger Election Date itself if such date is
the Offer Limit Date), the date falling 8 weeks after
(and including) the Squeeze Out Trigger Election Date
(or such longer period as is necessary to complete the
Squeeze Out; and
the date on which the Offer lapses in accordance with its terms
or is withdrawn unless within 10 Business Days of such date
the Company has notified the Agent that it intends to switch
from an Offer to a Scheme; and
the date falling 180 days from (and including) the date of this
Agreement; and
in relation to any Cure Facility, the period set out in the applicable Cure
Facility Notice in respect of that Cure Facility.
"Available Commitment" means, in relation to a Facility, a Lender's Commitment
under that Facility minus:
(a)
the amount of its participation in any outstanding Loan under that Facility; and
(b)
in relation to the proposed Utilisation of the Term Facility, the amount of its
participation in the Term Loan that is due to be made under the Term Facility
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.
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"Bilateral Letters of Credit" has the same meaning as in the original form of the
Initial Senior Facility Agreement or any Refinancing Equivalent.
"Business Day" means a day (other than a Saturday or Sunday) on which banks are
open for general business in London.
"Business Plan" means the Initial Business Plan or any other business plan supplied
to the Agent by the Company pursuant to Clause 18.1 (Financial Statements and
Business Plan).
"Cash Coupon Amount" means, in respect of any Interest Payment Date, either:
(a)
if the Coupon Conditions in respect of that Interest Payment Date are all
satisfied, the Full Cash Coupon Amount; or
(b)
if any of Coupon Conditions are not satisfied, the Minimum Cash Coupon
Amount or the Discretionary Cash Coupon Amount,
provided that if, on any Interest Payment Date, the PIK Coupon Aggregate Balance
Amount immediately prior to any payments on that Interest Payment Date (when
aggregated with any PIK Coupon Amount which the Company is proposing to add to
the PIK Coupon Aggregate Balance Amount on that Interest Payment Date) exceeds
or would exceed (as applicable) the Maximum PIK Coupon Aggregate Balance
Amount, the Cash Coupon Amount on such Interest Payment Date will be the Full
Cash Coupon Amount (or the Discretionary Cash Coupon Amount to the extent that
PIK Coupon Amounts could still be added to the PIK Coupon Aggregate Balance
Amount on that Interest Payment Date without exceeding the Maximum PIK Coupon
Aggregate Balance Amount).
"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 Acceptable 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 which has a rating for its long-term unsecured and non-credit enhanced
debt obligations of A or higher by Standard and Poors Rating Services or Fitch
Ratings Ltd or A2 or higher by Moody's Investor Services Limited or a
comparable rating from an internationally recognised credit rating agency or
by an instrumentality or agency of any of them having an equivalent credit
rating, maturing within one year after the relevant date of calculation and not
convertible or exchangeable to any other security;
(c)
commercial paper not convertible or exchangeable to any other security:
(i)
for which a recognised trading market exists;
(ii)
issued by an issuer incorporated or established in the United States of
America, the United Kingdom, any member state of the European
Economic Area or any Participating Member State;
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(iii)
which matures within one year after the relevant date of calculation;
and
(iv)
which has a credit rating of either A or higher by Standard & Poor's
Rating Services or Fitch Ratings Ltd or A2 or higher by Moody's
Investor Services 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;
(d)
sterling bills of exchange issued in the United Kingdom, eligible for
rediscount at the Bank of England and accepted by an Acceptable Bank (or
their dematerialised equivalent);
(e)
any investment accessible within 30 days in money market funds which have a
credit rating of either A-1 or higher by Standard & Poor's Rating Services or
F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investor
Services Limited and which invest substantially all their assets in securities of
the types described in paragraphs (a) to (c) (inclusive) above; or
(f)
any other debt security approved by the Majority Lenders (whose approval is
not to be unreasonably withheld or delayed),
in each case, to which any member of the Target Group is beneficially entitled at that
time and which is not issued or guaranteed by any member of the Target Group or
subject to any Security (other than any Security arising under the Senior Finance
Documents).
"Certain Funds Period" means the period commencing on the date of this
Agreement and ending on the last day of the Availability Period applicable to the
Term Facility.
"Change of Control" means PW Real Estate Fund III L.P. or any other funds solely
managed or advised by, or which are under the sole control of, Aermont Capital LLP
cease indirectly to:
(a)
(b)
have the power (whether by way of ownership of shares, proxy, contract, ,
agency or otherwise) to:
(i)
cast, or control the casting of, more than 50 per cent of the maximum
number of votes that might be cast at a general meeting of the Target;
(ii)
appoint or remove all, or the majority, of the directors or other
equivalent officers of the Target; or
(iii)
give directions with respect to the operating and financial policies of
the Target with which the directors or other equivalent officers of the
Target are obliged to comply; or
hold beneficially more than 50 per cent of the issued share capital in the
Target (excluding any part of that issued share capital that carries no right to
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participate beyond a specified amount in a distribution of either profits or
capital).
"Clean-up Period" means:
(a)
if the amendment in respect of the Initial Senior Facility Agreement in the
form appended to the Acquisition Change of Control Waiver Letter has
become unconditionally effective by the date falling not later than 10 Business
Days after (and including) the Control Date, the period commencing on the
Control Date until the last day of the "Clean-up Period" (as such term is
defined in the Initial Senior Facility Agreement in the form appended to the
Acquisition Change of Control Waiver Letter); or
(b)
if the amendment in respect of the Initial Senior Facility Agreement in the
form appended to the Acquisition Change of Control Waiver Letter has not
become unconditionally effective by the date falling not later than 10 Business
Days after (and including) the Control Date, the period of 60 days
commencing on the Control Date.
"Code" means the US Internal Revenue Code of 1986.
"Confidential Information" means all information relating to the Company, any
member of the Group, any Project 77 Trustee, the Finance Documents, or a Facility of
which a Finance Party becomes aware in its capacity as, or for the purpose of
becoming, a Finance Party or which is received by a Finance Party in relation to, or
for the purpose of becoming a Finance Party under, the Finance Documents or a
Facility from either:
(a)
any member of the Group or any of its advisers; or
(b)
another Finance Party, if the information was obtained by that Finance Party
directly or indirectly from any member of the Group or any of its 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:
(i)
is or becomes public information other than as a direct or indirect
result of any breach by that Finance Party of Clause 35 (Confidential
Information); or
(ii)
is identified in writing at the time of delivery as non-confidential by
any member of the Group or any of its advisers; or
(iii)
is known by that Finance Party before the date the information is
disclosed to it in accordance with paragraphs (a) or (b) above or is
lawfully obtained by that Finance Party after that date, from a source
which is, as far as that Finance Party is aware, unconnected with the
Group and which, in either case, as far as that Finance Party is aware,
has not been obtained in breach of, and is not otherwise subject to, any
obligation of confidentiality.
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"Consolidated EBITDA" has the meaning given to such term in Clause 19
(Financial Covenants).
"Consolidated PBIT" has the meaning given to such term in Clause 19 (Financial
Covenants).
"Contractor's Report" means the contractor's report produced by Sir Robert
McAlpine Limited in relation to the development of the PSDF Site and addressed to
Pinewood Studios Limited as updated from time to time.
"Commitment" means a Term Facility Commitment or a Cure Facility Commitment.
"Company Account Security Agreement" means a Luxembourg law account pledge
entered into on or prior to the date of this Agreement between the Agent and the
Company.
"Company Security Agreement" means an English law security agreement entered
into on or prior to the date of this Agreement between, amongst others, the Agent and
the Company.
"Compensation Proceeds" means the proceeds of all compensation and damages
received as a result of the compulsory purchase of all or any part of, or any blight or
disturbance affecting, any Property, except for Excluded Compensation Proceeds and
after deducting any reasonable expenses in relation to the negotiation and receipt of
those proceeds which are incurred by any member of the Group to persons who are
not members of the Group.
"Completion Date" means the date on which the Company becomes the legal and
beneficial owner of all of the Target Shares.
"Compliance Certificate" means a certificate substantially in the form set out in
Schedule 5 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking addressed to the
relevant potential Lender and copied to the Company substantially in the form set out
in Schedule 6 (Form of Confidentiality Undertaking) or in any other form agreed
between the Company and the Agent.
"Control Date" means:
(a)
if the Acquisition is being pursued by way of a Scheme, the Completion Date;
or
(b)
if the Acquisition is being pursued by way of an Offer, the date on which the
Company becomes the legal and beneficial owner of at least 90 per cent. of the
Target Shares, but less than 100 per cent. of the Target Shares.
"Cost Consultant" means Gleeds Costs Management Limited.
"Coupon" has the meaning given to that term in the Coupon Letter.
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"Coupon Conditions" means, in respect of any Interest Payment Date, each of the
following conditions:
(a)
sufficient cash is available within the Target Group for upstreaming to the
Company to enable the Company to discharge the Full Cash Coupon Amount
on that Interest Payment Date;
(b)
no provision in the Senior Facility Agreement is preventing the upstreaming of
such available cash to the Company in respect of that Interest Payment Date;
and
(c)
the Target Group either:
(i)
has sufficient cash available to it (as at the date falling immediately
prior to that Interest Payment Date) to cover its Forecast Initial
Business Plan Expansionary Capital Expenditure were it to pay the
Full Cash Coupon Amount; or
(ii)
has determined that, despite not having sufficient cash available to it
(as at the date falling immediately prior to that Interest Payment Date)
to cover its Forecast Initial Business Plan Expansionary Capital
Expenditure, it does not need to retain sufficient cash for such Forecast
Initial Business Plan Expansionary Capital Expenditure as at that
Interest Payment Date.
"Coupon Letter" means the letter specifying the Coupon dated on prior to the date of
this Agreement between the Company and the Agent.
"CTA" means the Corporation Tax Act 2009.
"Cure Account" means the account designated as such under Clause 16.1
(Designation of Accounts) and includes any replacement of that account.
"Cure Facility" means a term loan facility made available under this Agreement in
accordance with Clause 2.2 (Cure Facility).
"Cure Facility Commitment" means, in relation to a Cure Facility and one or more
Lenders who have agreed to provide that Cure Facility, the amount of that Cure
Facility to the extent not cancelled, reduced or transferred by it under this Agreement.
"Cure Facility Commencement Date" means, in respect of a Cure Facility, the date
specified as the "Commencement Date" in the Cure Facility Notice relating to that
Cure Facility.
"Cure Facility Notice" means the notice substantially in the form set out in Schedule
8 (Form of Cure Facility Notice).
"Cure Loan" means the loan made or to be made under a Cure Facility or the
principal amount outstanding for the time being of that loan.
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"Debt Purchase Transaction" means, in relation to a person, a transaction where
such person:
(a)
purchases by way of assignment or transfer;
(b)
enters into any sub-participation in respect of; or
(c)
enters into any other agreement or arrangement having an economic effect
substantially similar to a sub-participation in respect of,
part of any Commitment or any amount (which is less than the whole amount)
outstanding under this Agreement.
"Debt Metric" means an amount of debt or a cost of servicing debt as defined in the
Relevant Senior Financial Covenant.
"Debt Service Account" means the account designated as such under Clause 16.1
"Debt Service Amount" means, in respect of any Interest Payment Date, the amount
which is required on that Interest Payment Date to discharge all amounts which are
required to be applied in accordance with paragraphs (d)(i) to (d)(iv) of Clause 16.3
(Debt Service Account), provided that such amount can be provided from any one or
more of the following sources:
(a)
cash which has been provided to the Company by way of New Equity and/or
New Loans; and
(b)
cash which has been provided to the Company by the Target, either by way of
dividend or upstream loan.
"Default" means an Event of Default or any event or circumstance specified in Clause
21 (Events of Default) which would (with the expiry of a grace period, the giving of
notice, the meeting of a threshold, the making of any determination under the Finance
Documents or any combination of any of the foregoing) be an Event of Default.
"Defaulting Lender" means any Lender:
(a)
which has failed to make its participation in the Loan available or has notified
the Agent that it will not make its participation in the Loan available by the
Utilisation Date in accordance with Clause 5.4 (Lenders' Participation);
(b)
which has otherwise rescinded or repudiated a Finance Document; or
(c)
with respect to which an Insolvency Event has occurred and is continuing,
unless, in the case of paragraph (a) above:
(i)
its failure to pay is caused by:
(A)
administrative or technical error; or
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(B)
a Disruption Event; and
payment is made within 5 Business Days of its due date; or
(ii)
the Lender is disputing in good faith whether it is contractually obliged
to make the payment in question; or
(iii)
the Agent is an Impaired Agent, and the Company has provided the
Lender with details of an account into which the Lender is required to
make the payment in question directly to the required recipient in
accordance with Clause 27.5 (Impaired Agent) and payment is made
within 5 Business Days of that notification.
"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Agent.
"Design and Build Contract" means the design and build contract dated 19 May
2015 between Pinewood Studios Limited and Sir Robert McAlpine Limited in
relation to the development of the PSDF Site.
"Development Cash Flow" means the projected cash flow produced by Sir Robert
McAlpine Limited under the supervision of the Cost Consultant in relation to the
development of the PSDF Site and addressed to Pinewood Studios Limited as updated
from time to time.
"Discretionary Cash Coupon Amount" means, in respect of any Interest Payment
Date, the aggregate of:
(a)
the Minimum Cash Coupon Amount; and
(b)
an amount in cash which is equal to the amount of the Coupon which has
accrued on the Loans during the Interest Period ending on that Interest
Payment Date and which the Company elects to pay in cash,
provided that the Discretionary Cash Coupon Amount in respect of an Interest
Payment Date will not exceed the Full Cash Coupon Amount in respect of that
"Disposal Proceeds" means the net disposal proceeds derived from the disposal of
any Property or the shares in any member of the Target Group which holds any
interest in any Property, where for these purposes net disposal proceeds means the
gross proceeds of such disposal less an amount determined by the Agent as the
reasonable costs and expenses associated with that disposal (which amount must
include any costs of upstreaming such Disposal Proceeds from the Target Group to
the Company (including, for the avoidance of doubt, any tax liabilities incurred by the
Group which are associated with such upstreaming)).
"Disruption Event" means either or both of:
(a)
a material disruption to those payment or communications systems or to those
financial markets which are, in each case, required to operate in order for
payments to be made in connection with the Facilities (or otherwise in order
for the transactions contemplated by the Finance Documents to be carried out)
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which disruption is not caused by, and is beyond the control of, any of the
Parties; or
(b)
the occurrence of any other event which results in a disruption (of a technical
or systems-related nature) to the treasury or payments operations of a Party
preventing that, or any other Party:
(i)
from performing its payment obligations under the Finance
Documents; or
(ii)
from communicating with other Parties in accordance with the terms of
the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the
Party whose operations are disrupted.
"Employer's Agent and Cost Consultant's Report" means the employer's agent and
cost consultant report to be produced by the Cost Consultant in relation to the
development of the PSDF Site and addressed to Pinewood Studios Limited and any
update thereto.
"Environment" means living organisms including the ecological systems of which
they form part and the following media:
(a)
air (including air within natural or man-made structures, whether above or
below ground);
(b)
water (including territorial, coastal and inland waters, water under or within
land and water in drains and sewers); and
(c)
land (including land under water).
"Environmental Claim" means any claim by any person in connection with:
(a)
a breach, or alleged breach, of an Environmental Law;
(b)
any accident, fire, explosion or other event of any type involving an emission
or substance which is capable of causing harm to any living organism or the
environment; or
(c)
any other environmental contamination.
"Environmental Law" means all laws and regulations of any jurisdiction in which
any member of the Group conducts business which:
(a)
have as a purpose or effect the protection of, and/or prevention of harm or
damage to, the Environment;
(b)
provide remedies or compensation for harm or damage to the Environment; or
(c)
relate to Hazardous Substances or health or safety matters.
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"Environmental Licence" means any Authorisations required at any time 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 the relevant member of the
Group.
"Equity Release Account" means the account designated as such under Clause 16.1
"Event of Default" means any event or circumstance specified as such in Clause 21
(Events of Default).
"Excluded Compensation Proceeds" means any Compensation Proceeds which the
Company notifies the Agent are:
(a)
to satisfy any liability, charge or claim upon any member of the Group by a
person who is not a member of the Group; or
(b)
in the substitution, replacement, reinstatement and/or rectification of any part
of a Property which has been subject to compulsory purchase and/or blight or
disturbance,
in each case as a result of events giving rise to the receipt of those Compensation
Proceeds.
"Excluded Insurance Proceeds" means any proceeds of an insurance claim which
are less than £1,000,000 per claim or which the Company notifies the Agent are, or
are to be, applied by any member of the Target Group:
(a)
to meet a third party claim;
(b)
to cover operating losses in respect of which the relevant insurance claim was
made; or
(c)
in the replacement, reinstatement and/or repair of the assets or in amelioration
of the loss in respect of which the relevant insurance claim was made,
provided that in each case, such proceeds are committed to be applied within twelve
months of receipt and are applied within eighteen months of receipt (or such longer
period as the Majority Lenders may agree).
"Existing Hedging Agreement" means each of:
(a)
the interest rate hedging agreement entered into by the Target with Lloyds
Bank PLC as hedge counterparty dated 1 July 2012;
(b)
Bank PLC as hedge counterparty dated 1 July 2014;
(c)
Bank PLC as hedge counterparty dated 1 July 2016; and
- 12 LEGAL_EU # 17337328.7
(d)
the interest rate hedging agreement entered into by the Target with HSBC
Bank PLC as hedge counterparty dated 1 January 2016,
in each case as amended or restated in accordance with the terms of this Agreement.
"Facility" means the Term Facility or a Cure Facility and "Facilities" means all of
them.
"Facility Office" means the office or offices notified by a Lender to the Agent in
writing on or before the date it becomes a Lender (or, following that date, by not less
than 5 Business Days' written notice) as the office or offices through which it will
perform its obligations under this Agreement.
"FATCA" means:
(a)
sections 1471 to 1474 of the Code or any associated regulations;
(b)
any treaty, law or regulation of any other jurisdiction, or relating to an
intergovernmental agreement between the US and any other jurisdiction,
which (in either case) facilitates the implementation of any law or regulation
referred to in paragraph (a) above; or
(c)
any agreement pursuant to the implementation of any treaty, law or regulation
referred to in paragraphs (a) or (b) above with the US Internal Revenue
Service, the US government or any governmental or taxation authority in any
other jurisdiction.
"FATCA Application Date" means:
(a)
in relation to a "withholdable payment" described in section 1473(l)(A)(i) of
the Code (which relates to payments of interest and certain other payments
from sources within the US), 1 July 2014;
(b)
in relation to a "withholdable payment" described in section 1473(l)(A)(ii) of
the Code (which relates to "gross proceeds" from the disposition of property of
a type that can produce interest from sources within the US), 1 January 2019;
or
(c)
in relation to a "passthru payment" described in section 1471(d)(7) of the Code
not falling within paragraphs (a) or (b) above, 1 January 2019,
or, in each case, such other date from which such payment may become subject to a
deduction or withholding required by FATCA as a result of any change in FATCA
after the date of this Agreement.
"FATCA Deduction" means a deduction or withholding from a payment under a
Finance Document required by FATCA.
"FATCA Exempt Party" means a Party that is entitled to receive payments free from
any FATCA Deduction.
- 13 LEGAL_EU # 17337328.7
"Fee Letter" means any letter or letters dated on or prior to the date of this
Agreement between, amongst others, the Arranger and the Company or the Agent and
the Company setting out any of the fees referred to in Clause 10 (Fees).
"Finance Document" means this Agreement, any Security Document, any Fee Letter,
the Subordination Agreement and any other document designated as such by the
Agent and the Company.
"Finance Party" means the Agent, an Arranger or a Lender.
"Financial Covenant" means all, or any of, the financial covenants set out in Clause
19.1 (Financial Covenants) as such financial covenants may be amended,
supplemented or varied from time to time in accordance with the terms of this
Agreement.
"Financial Due Diligence Report" means the financial due diligence report prepared
by PricewaterhouseCoopers LLP addressed to the Company and dated 11 August
2016.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a)
moneys borrowed;
(b)
any amount raised by acceptance under any acceptance credit facility
(including any dematerialised equivalent);
(c)
any amount raised pursuant to any note purchase facility or the issue of bonds,
notes, debentures, loan stock or any similar instrument;
(d)
the amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with GAAP, be treated as a finance or capital
lease;
(e)
receivables sold or discounted (other than any receivables to the extent they
are sold on a non-recourse basis) which would, in accordance with GAAP, be
treated as a borrowing;
(f)
any amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a borrowing and which
would, in accordance with GAAP, be treated as a borrowing;
(g)
the amount of 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 other than any such
counter-indemnity obligation which is being disputed in good faith on
reasonable grounds;
(h)
any derivative transaction entered into in connection with protection against or
benefit from fluctuation in any rate or price (and, when calculating the value
of any derivative transaction, only the marked to market value shall be taken
into account); and
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LEGAL_EU # 17337328.7
(i)
the amount of any liability in respect of any guarantee or indemnity for any of
the items referred to in paragraphs (a) to (h) above.
"Financial Year" means a financial year of the Company.
"Fixtures" means all fixtures and fittings and fixed plant and machinery on a
Property.
"Forecast Initial Business Plan Expansionary Capital Expenditure" means, as at
any Interest Payment Date, "Investment Capex" (as referred to in the Initial Business
Plan) which is scheduled to fall due in the 12 month period immediately following
(and including) such Interest Payment Date as set out in the Initial Business Plan.
"FSMA" means the Financial Services and Markets Act 2000.
"Full Cash Coupon Amount" means, in respect of any Interest Payment Date, an
amount in cash which is equal to the amount of the Coupon which has accrued on the
Loans during the Interest Period ending on that Interest Payment Date.
"Funds Flow Statement" means the funds flow statement in relation to the
Utilisation which is to be provided in accordance with the terms of this Agreement.
"GAAP" means generally accepted accounting principles in the United Kingdom,
including IFRS.
"General Account" means the account designated as such under Clause 16.1
"Group" means the Company and its Subsidiaries for the time being.
"Hazardous Substance" means any waste, pollutant, contaminant or other substance
(including any liquid, solid, gas, ion, living organism or noise) that gives rise to actual
risk of causing harm to human health or other life or the Environment.
"Holdco" means Venus Grafton S.à r.l..
"Holdco Security Agreement" means an English law security agreement entered into
on or prior to the date of this Agreement between the Agent and Holdco.
"Holding Company" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
"IFRS" means International Financial Reporting Standards adopted by the
International Accounting Standards Board and for the time being in effect.
"Impaired Agent" means the Agent at any time when:
(a)
it has failed to make (or has notified a Party that it will not make) a payment
required to be made by it under the Finance Documents by the due date for
payment provided that such payment has been received by the Agent in
accordance with the Finance Documents or, where such payment is not
received by the Agent but held by a third party to the order of the Agent, only
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LEGAL_EU # 17337328.7
to the extent that the Agent has control over such sums and has failed to issue
relevant payment instructions;
(b)
the Agent otherwise rescinds or repudiates a Finance Document;
(c)
(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or
(b) of the definition of "Defaulting Lender" and, in the case of the events or
circumstances referred to in paragraph (a) of the definition of "Defaulting
Lender", none of the exceptions apply to that paragraph; or
(d)
an Insolvency Event has occurred and is continuing with respect to the Agent;
unless, in the case of paragraph (a) above:
(i)
its failure to pay is caused by:
(A)
administrative or technical error; or
(B)
a Disruption Event; and
payment is made within 5 Business Days of its due date; or
(ii)
the Agent is disputing in good faith whether it is contractually obliged
to make the payment in question.
"Initial Business Plan" means the business plan in the agreed form delivered to the
Original Lenders as a condition precedent in accordance with Clause 4.1 (Initial
Conditions Precedent).
"Initial Senior Facility Agreement" means the facility agreement dated 6 March
2015 between, amongst others, the Target and Lloyds Bank PLC as agent as amended
from time to time up to and including the date of this Agreement, as amended in the
form annexed to the Acquisition Change of Control Waiver Letter promptly following
the Control Date and as further amended from time to time in accordance with the
provisions set out in this Agreement.
"Initial Senior Facility" means any "Facility" as defined in the original form of the
Initial Senior Facility Agreement.
"Initial Senior Finance Documents" means any "Finance Document" as defined in
the original form of the Initial Senior Facility Agreement.
"Initial Termination Date" means 31 March 2018.
"Initial Valuation" means the valuation report dated 2 June 2016 prepared by the
Initial Valuer in relation to each Property and delivered as a condition precedent to the
Utilisation Date in accordance with Clause 4.1 (Initial Conditions Precedent).
"Initial Valuer" means CBRE Limited.
- 16 LEGAL_EU # 17337328.7
"Insolvency Event" means, in relation to a Finance Party:
(a)
any receiver, administrative receiver, administrator, liquidator, compulsory
manager or other similar officer is appointed in respect of that Finance Party
or all or substantially all of its assets;
(b)
that Finance Party is subject to any event which has an analogous effect to any
of the events specified in paragraph (a) under the applicable laws of any
jurisdiction; or
(c)
that Finance Party suspends making payments on all or substantially all of its
debts or publicly announces an intention to do so.
"Insurance Due Diligence Report" means the insurance due diligence report
prepared by AON addressed to the Company and dated 27 July 2016.
"Insurance Proceeds" means the proceeds of any insurance claim under any
insurance maintained by any member of the Target Group except for Excluded
Insurance Proceeds and after deducting any reasonable expenses in relation to that
claim which are incurred by any member of the Group to persons who are not
members of the Group.
"Insured Property Assets" means the Premises and all other assets of an insurable
nature in the Premises.
"Interest Payment Date" means 20 January, 20 April, 20 July and 20 October in
each year and the Termination Date.
"Interest Period" means, in relation to a Loan, each period determined in accordance
with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period
determined in accordance with Clause 8.4 (Default interest).
"ITA" means the Income Tax Act 2007.
"Lender" means:
(a)
any Original Lender; and
(b)
any bank, financial institution, trust, fund or other entity which has become a
Party in accordance with Clause 22 (Changes to the Lenders); and
which in each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"Legal Due Diligence Report" means the legal due diligence report prepared by
Jones Day addressed to the Company and dated 26 July 2016.
"LMA" means the Loan Market Association.
"Loan" means the Term Loan and any Cure Loan.
- 17 LEGAL_EU # 17337328.7
"Majority Lenders" means:
(a)
until the Total Commitments have been reduced to zero, Lenders whose
Commitments together aggregate 66⅔ per cent. or more of the Total
Commitments (or, if the Total Commitments have been reduced to zero and
there are no Loans then outstanding, aggregated 66⅔ per cent. or more of the
Total Commitments immediately prior to the reduction); or
(b)
at any other time, Lenders whose participations in the Loans then outstanding
aggregate 66⅔ per cent. or more of the Loans then outstanding.
"Management Charge" has the meaning given to that term in Clause 19.5
(Definitions).
"Margin" means the "Margin" under and as defined in the Initial Senior Facility
Agreement or any Refinancing Equivalent.
"Market Report" means the market review prepared by PricewaterhouseCoopers
LLP addressed to the Company and dated 11 August 2016.
"Market Value" means the market value as that term is defined in the then current
Statements of Asset Valuation Practice and Guidance Notes issued by the Royal
Institution of Chartered Surveyors.
"Material Adverse Effect" means a material adverse effect on:
(a)
the business, property or financial condition of the Group;
(b)
the ability of the Company to perform its payment obligations and ability to
comply with the Financial Covenants; or
(c)
subject to the Reservations, the validity or enforceability, or the effectiveness
or ranking of any Security granted or purporting to be granted pursuant to any
of, the Finance Documents or the rights or remedies of any Finance Party
under any of the Finance Documents.
"Maximum Permitted Aggregate Total Debt" means, at any time, the lower of:
(a)
£235,000,000; and
(b)
an amount equal to the product of (7.5 x Adjusted MI Consolidated EBTIDA),
where Adjusted MI Consolidated EBITDA is calculated in respect of the most
recently completed Senior Test Period.
"Maximum PIK Coupon Aggregate Balance Amount" means £3,600,000.
"Minimum Cash Coupon Amount" means, in respect of any Interest Payment Date
in relation to which one or more of the Coupon Conditions cannot be satisfied, an
amount in cash which is equal to the amount of the Coupon which has accrued on the
Loans during the Interest Period ending on that Interest Payment Date where, for
these purposes only, the Coupon is deemed to be 8 per cent. per annum.
- 18 LEGAL_EU # 17337328.7
"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.
"New Equity" means, following the Utilisation Date, fully paid ordinary shares in the
Company which are issued to Holdco for cash and where such shares are the subject
of Security pursuant to the Holdco Security Agreement.
"New Loans" means, following the Utilisation Date, all credit arrangements granted
to the Company by Holdco, which are subordinated pursuant to the Subordination
Agreement and where such credit arrangements are the subject of Security pursuant to
the Holdco Security Agreement.
"Notifiable Debt Purchase Transaction" has the meaning given to that term in
paragraph (b) of Clause 28.2 (Disenfranchisement on Debt Purchase Transactions
entered into by Sponsor Affiliates).
"Occupational Lease" means any lease, licence to occupy or agreement for the same
relating to any property granted by a member of the Target Group to a tenant pursuant
to the terms of Clause 20.5 (Disposals).
"Offer" means a cash offer made by the Company to acquire the Target Shares on the
terms and subject to the conditions of the Offer Document.
"Offer Announcement" means an announcement made in accordance with Rule 2.7
of the Takeover Code of a firm intention to make an offer for the Target Shares by the
Company.
"Offer Document" means a document containing the terms and conditions of the
Offer sent to the shareholders of the Target.
"Original Financial Statements" means, in relation to each Transaction Obligor,
their respective opening balance sheets dated on or about the date of this Agreement.
"Original Jurisdiction" means, in relation to a member of the Group, the jurisdiction
under whose laws that member of the Group is incorporated as at the date of this
Agreement.
- 19 LEGAL_EU # 17337328.7
"Overdraft Facility" means a facility letter dated 28 May 2012 (as amended from
time to time) provided to the Target and certain of its Subsidiaries regarding the
provision by The Royal Bank of Scotland plc of a maximum £5,000,000 net and
£10,000,000 gross secured overdraft facility.
"Participating Member State" means any member state of the European
Communities that has the euro as its lawful currency in accordance with legislation of
the European Community relating to Economic and Monetary Union.
"Partnership Agreement" means the partnership deed relating to SSPP dated 12
September 2006 between SS(GP)L, the Limited Partners (as defined therein) and the
Company as amended on or about 2 December 2014 and includes any relevant
resolutions and amending documents.
"Party" means a party to this Agreement.
"Paying Agent" means the receiving agent or paying agent for the purposes of the
Scheme or Offer.
"Permitted Financial Covenant Variation" has the meaning given to that term in
Clause 20.23 (Permitted Variations).
"Permitted Refinancing" means a refinancing of the Senior Facility:
(a)
which does not provide for any separate ranking or layering of debt and which
is borrowed by all of the members of the Group which are party to such
refinancing on a pari passu basis, provided that a Permitted Structural Change
shall constituted a Permitted Refinancing; and
(b)
the proceeds of which discharge in full all amounts owing by the members of
the Group in respect of the Senior Finance Documents the subject of that
refinancing.
"Permitted Senior Facility Increase Amendment" means an amendment, variation
or waiver to the terms of the Senior Finance Documents which (as at the date such
amendment, variation or waiver becomes unconditionally effective):
(a)
does not provide for any separate ranking or layering of debt and which is
borrowed by all the members of the Target Group which are party to it on a
pari passu basis, except to the extent that such amendment, variation or waiver
constitutes a Permitted Structural Change;
(b)
results in an increase in the Senior Principal incurred pursuant to any Senior
Finance Document, which increase constitutes a Permitted Senior Principal
Increase;
(c)
if it relates to any increase in the Margin (or the inclusion of an additional
margin) and/or any regular periodic fees and charges in each case relating to
the Senior Facility, does not result in a breach of the Pro Forma Mezzanine
ICR and the Pro Forma Mezzanine DSCR (as if each such Financial Covenant
were tested on the Reference Date falling immediately prior to that date);
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LEGAL_EU # 17337328.7
(d)
if it relates to amortisation under the Senior Finance Documents, constitutes a
change in the scheduled amortisation of the relevant Senior Facility, which
does not result in a breach of the Pro Forma Mezzanine ICR and the Pro
Forma Mezzanine DSCR (as if each such Financial Covenant were tested on
the Reference Date falling immediately prior to that date);
(e)
constitutes a Permitted Financial Covenant Variation;
(f)
does not have the effect of making:
(i)
any Senior Obligor which owns a Property; and/or
(ii)
the Senior Obligors as a whole,
subject to materially more onerous obligations or additional obligations under
the representations, warranties, undertakings (excluding any Senior Financial
Covenant and any provisions relating to any fees and typical costs and
expenses), mandatory prepayment events and events of default than those
applying under the Initial Senior Finance Documents unless the same terms
have been offered to the Lenders;
(g)
has the effect of making the Senior Obligors subject to less onerous
obligations than those applying under the Initial Senior Finance Documents
(including, but not limited to, any obligations pursuant to any Financial
Covenant); and
(h)
constitutes consequential changes in relation to any other change which is
permitted in relation to such Permitted Senior Facility Increase Amendment or
constitutes changes which are of a minor, procedural or administrative nature
and which are not prejudicial to the interests of the Lenders under the Finance
Documents.
"Permitted Senior Facility Extension" means an amendment, variation or waiver to
the terms of the Senior Finance Documents a Permitted Refinancing of the Senior
Finance Documents which (as at the date such amendment, variation or waiver or
Permitted Refinancing becomes unconditionally effective):
(a)
does not provide for any separate ranking or layering of debt and which is
borrowed by all the members of the Target Group which are party to it on a
pari passu basis, except to the extent that such amendment, variation or waiver
constitutes a Permitted Structural Change;
(b)
does not result in an increase in the Senior Principal above the Senior
Principal as at the date of this Agreement, provided that such amount of Senior
Principal can be freely designated and utilised as a revolving facility, term
facility and or capex facility at the election of the Company;
(c)
if it relates to any increase in the Margin (or the inclusion of an additional
margin) and/or any regular periodic fees and charges in each case relating to
the Senior Facility, does not result in a breach of the Pro Forma Mezzanine
ICR and the Pro Forma Mezzanine DSCR (as if each such Financial Covenant
were tested on the Reference Date falling immediately prior to that date);
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LEGAL_EU # 17337328.7
(d)
if it relates to amortisation under the Senior Finance Document, constitutes a
change in the scheduled amortisation of the relevant Senior Facility, does not
result in a breach of the Pro Forma Mezzanine ICR and the Pro Forma
Mezzanine DSCR (as if each such Financial Covenant were tested on the
Reference Date falling immediately prior to that date);
(e)
constitutes a Permitted Financial Covenant Variation;
(f)
does not have the effect of making:
(i)
any Senior Obligor which owns a Property; and/or
(ii)
subject to materially more onerous obligations or additional obligations under
the representations, warranties, undertakings (excluding any Senior Financial
Covenant and any provisions relating to any fees and typical costs and
expenses), mandatory prepayment events and events of default than those
(g)
has the effect of making the Senior Obligors subject to less onerous
obligations than those applying under the Initial Senior Finance Documents
(including, but not limited to, any obligations pursuant to any Financial
Covenant); and
(h)
constitutes consequential changes in relation to any other change which is
permitted in relation to such Permitted Senior Facility Extension or constitutes
changes which are or changes of a minor, procedural or administrative nature
which are not prejudicial to the interests of the Lenders.
"Permitted Senior Principal Increase" means, in relation to a relevant Permitted
Variation, a Senior Principal Increase which:
(a)
does not result in the Aggregate Total Debt of the Group (which amount will
include the total amount of the Senior Principal resulting from that relevant
Permitted Variation) as at the date on which that relevant Permitted Variation
becomes (or is proposed to become) unconditionally effective exceeding the
Maximum Permitted Aggregate Total Debt of the Group at that time; and
(b)
does not result in a breach of the Pro Forma Mezzanine ICR and the Pro
Forma Mezzanine DSCR (as if each such Financial Covenant were tested on
the Reference Date falling immediately prior to the date on which that relevant
Permitted Variation becomes (or is proposed to become) unconditionally
effective).
"Permitted Senior Principal Increase Amount" means, in relation to a Permitted
Senior Principal Increase:
(a)
where the Permitted Senior Principal Increase is effected pursuant to a
Permitted Senior Facility Increase Amendment, the amount by which the
Senior Principal under the relevant Senior Finance Documents immediately
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LEGAL_EU # 17337328.7
following such Permitted Senior Facility Increase Amendment becoming (or
being proposed to become) unconditionally effective exceeds the Senior
Principal immediately prior to such Permitted Senior Facility Increase
Amendment becoming unconditionally effective; and
(b)
where the Permitted Senior Principal Increase is effected pursuant to a
Qualifying Senior Facility Refinancing, the amount by which the Senior
Principal under the relevant Refinancing Senior Finance Documents as at the
relevant Qualifying Senior Facility Refinancing Date exceeds the Senior
Principal in the Senior Finance Documents the subject of that Qualifying
Senior Facility Refinancing.
"Permitted Structural Change" means:
(a)
any super senior revolving credit facility and/or any capex facility and/or any
term facility which are entered into in connection with a senior or unitranche
facility (on a super senior or first/second loss basis); and
(b)
the issue by any member of the Target Group of any private placement bonds
(which may be listed and/or rated).
"Permitted Variation" means either:
(a)
a Permitted Senior Facility Increase Amendment;
(b)
a Permitted Senior Facility Extension;
(c)
a Qualifying Senior Refinancing; or
(d)
any amendment, variation or waiver of the Senior Finance Documents or
Permitted Refinancing of the Senior Facility entered into with the consent of
the Agent (acting on the instructions of all Lenders).
"PIK Coupon Aggregate Balance Amount" means, as at the date immediately
following an Interest Payment Date, the aggregate of all PIK Coupon Amounts which
have been accrued in accordance with the terms of this Agreement as at that Interest
Payment Date (including, for the avoidance of doubt, any accrued PIK Coupon
Amount from any previous Interest Payment Date which has not yet been discharged),
which amount must not at any time exceed the Maximum PIK Coupon Aggregate
Balance Amount.
"PIK Coupon Amount" means, in respect of any Interest Payment Date in relation to
which one or more of the Coupon Conditions cannot be satisfied, an amount which is
equal to the lesser of:
(a)
the amount calculated by deducting the Minimum Cash Coupon Amount in
respect of that Interest Payment Date from the Full Cash Coupon Amount in
respect of that Interest Payment Date; and
(b)
to the extent that the Company has elected to pay the Discretionary Cash
Coupon Amount in respect of that Interest Payment Date, the amount
calculated by deducting the Discretionary Cash Coupon Amount in respect of
- 23 -
LEGAL_EU # 17337328.7
that Interest Payment Date from the Full Cash Coupon Amount in respect of
that Interest Payment Date.
"Pinewood Films Group" means Pinewood Films Limited and its Subsidiaries.
"Pinewood Studios Property" means the freehold land owned by Pinewood Studios
Limited at Pinewood Studios, Pinewood Road, Iver Heath, Buckinghamshire, SL0
0NH registered at the Land Registry under title number BM168450 with title
absolute.
"Planning Report" means the planning status report dated March 2015 prepared by
Turley and addressed to Pinewood Studios Limited.
"Premises" means all buildings and erections relating to a Property.
"Prepayment Account" means the account designated as such under Clause 16.1
"Pro Forma Adjusted" means, in relation to a Relevant Change which is to be taken
into account in calculating the Pro Forma Mezzanine ICR and the Pro Forma
Mezzanine DSCR (as applicable) and in respect of the relevant Reference Date (as
referred to in the definition of Pro Forma Mezzanine ICR and Pro Forma Mezzanine
DSCR respectively):
(a)
where the Relevant Change is a proposed Senior Principal Increase, the Tax
Adjusted Aggregate Consolidated Debt Service component and the Tax
Adjusted Aggregate Consolidated Net Interest component (as applicable)
being pro forma adjusted by deeming the outstanding amount of the Senior
Loans as at the start of the Test Period ending on that Reference Date to be
increased by the applicable Permitted Senior Principal Increase Amount;
(b)
where the Relevant Change is a proposed increase in the Margin or inclusion
of an additional margin) and/or any regular periodic fees and charges, the
amount of the proposed increase in the Margin or additional margin and/or any
regular periodic fees and charges (using the highest possible Margin (or
additional margin) and/or any regular periodic fees and charges that can apply
under the relevant Permitted Variation) being added to the Tax Adjusted
Aggregate Consolidated Net Interest component as if such increase applied in
the Test Period ending on that Reference Date; and
(c)
where the Relevant Change is a proposed change to the amounts of any
proposed amortisation, the highest amount of projected amortisation in any
single year falling during the term of the Senior Facility Agreement following
the relevant Permitted Variation (excluding any amounts payable on the
applicable maturity date or termination date (howsoever described)) being
added to the Tax Adjusted Aggregate Consolidated Debt Service component
as if such amortisation applied in the Test Period ending on that Reference
Date.
"Pro Forma Mezzanine ICR" means, in relation to one or more Relevant Changes in
connection with any Permitted Variation, as at the date such Permitted Variation
- 24 LEGAL_EU # 17337328.7
becomes unconditionally effective (or is proposed to become unconditionally
effective) the Mezzanine ICR calculated as at the most recent Reference Date falling
prior to such date, where the Mezzanine ICR is Pro Forma Adjusted to include the
effect of all such Relevant Change(s) relating to such Permitted Variation and,
without prejudice to the manner in which any Permitted Senior Principal Increase is,
or is to be, Pro Forma Adjusted in connection with such Permitted Variation, on the
basis that the Tax Adjusted Aggregate Consolidated Net Interest component is pro
forma adjusted by deeming the outstanding amount of the Loans as at the start of the
Test Period ending on that Reference Date to be the amount outstanding as at such
date and the amount of the Senior Loans outstanding to be the maximum amount
drawn during the Test Period ending on that Reference Date.
"Pro Forma Mezzanine DSCR" means, in relation to one or more Relevant Changes
in connection with any Permitted Variation, as at the date such Permitted Variation
becomes unconditionally effective (or is proposed to become unconditionally
effective), the Mezzanine DSCR calculated as at the most recent Reference Date
falling prior to such date, where the Mezzanine DSCR is Pro Forma Adjusted to
include the effect of all such Relevant Change(s) relating to such Permitted Variation
and, without prejudice to the manner in which any Permitted Senior Principal Increase
is, or is to be, Pro Forma Adjusted in connection with such Permitted Variation, on
the basis that the Tax Adjusted Aggregate Consolidated Debt Service component pro
forma adjusted by deeming the outstanding amount of the Loans as at the start of the
Test Period ending on that Reference Date to be the amount outstanding as at such
date and the amount of the Senior Loans outstanding to be the maximum amount
drawn during the Test Period ending on that Reference Date
"Prohibited Person" means any person listed on a list of prohibited persons which is
designated by the Agent and the Company as the "Prohibited Person List".
"Project 77 Acquisition Agreements" means the Project 77 Acquisition Agreement
(GP) and the Project 77 Acquisition Agreement (Units).
"Project 77 Acquisition Agreement (GP)" means the sale and purchase agreement
dated on or about 2 December 2014 relating to the acquisition by PSSL of the entire
issued share capital of SS(GP)L.
"Project 77 Acquisition Agreement (Units)" means the sale and purchase agreement
dated on or about 2 December 2014 and made between the Project 77 Purchasers and
the Project 77 Vendors relating to the acquisition by the Project 77 Purchasers of all
of the Units in the Project 77 Target owned by the Project 77 Vendors.
"Project 77 Nominee" means Pinewood Shepperton Limited (company registration
number 09083961).
"Project 77 Property" means each of:
(a)
the leasehold land on the Shepperton Studios site being the Headlease as
defined in the relevant Report on Title, legal title to which is held by SS(GP)L
and Project 77 Nominee, registered at the Land Registry under title number
SY754252 with title absolute;
- 25 LEGAL_EU # 17337328.7
(b)
the freehold land on the Shepperton Studios site known as the Studio Site and
Backlot, legal title to which is held by Shepperton Studios Limited, registered
at the Land Registry under title numbers SY650866, SY663740 and
SY535606 with title absolute;
(c)
the leasehold land on the Shepperton Studios site being the Underlease as
defined in the relevant Report on Title, legal title to which is held by
Shepperton Studios Limited, registered at the Land Registry under title
number SSY754255 with title absolute;
(d)
the unregistered leasehold land on the Shepperton Studios site derived by the
Alternative Backlot Lease as defined in the relevant Report on Title dated 7
June 2013 between Tarmac Limited and Shepperton Studios Limited, legal
title to which is held by Shepperton Studios Limited;
(e)
the freehold land on the Shepperton Studios site described in the relevant
Report on Title as the Queen Mary Reservoir Land, legal title to which is held
by Shepperton Studios Limited, registered at the Land Registry under title
number SY819703 with title absolute;
(f)
the leasehold land on the Shepperton Studios site being a lease of an electricity
substation, legal title to which is held by Shepperton Studios Limited,
registered at the Land Registry under title number SY569982 with title
absolute; and
(g)
the freehold land known as 15 Magdalene Road, Shepperton, legal title to
which is held by Shepperton Studios Limited, registered at the Land Registry
under title number SY495696 with title absolute.
"Project 77 Purchasers" means each of Baltray No.1 Limited (company registration
number 05776674) and Baltray No.2 Limited (company registration number
05778635).
"Project 77 Target" means the unit trust scheme constituted by the Unit Trust
Instrument and known as The Studios Unit Trust and established under Jersey law.
"Project 77 Trustees" means each of Studio Trustee No.1 Limited (incorporated in
Jersey with company registration number 117162) and Studio Trustee No.2 Limited
(incorporated in Jersey with company registration number 117163), in each case in its
capacity as trustee of Project 77 Target.
"Project 77 Vendors" has the meaning given to the term "Sellers" in the Project 77
Acquisition Agreement (Units).
"Project Manager's Report" means each monthly report produced by Pinewood
Studios Limited in relation to the development of the PSDF Site and addressed to the
Pinewood Studios Limited board.
"Project Seventy-Seven" means (i) the acquisition by PSSL of the entire issued share
capital of SS(GP)L and (ii) the acquisition by the Project 77 Purchasers of all of the
Units in Project 77 Target owned by the Project 77 Vendors and the refinancing of
- 26 LEGAL_EU # 17337328.7
certain Financial Indebtedness owed by SSPP to the Project 77 Vendors, in each case
under the terms of the respective Project 77 Acquisition Agreements.
"Properties" means Pinewood Studios Property, the Project 77 Property and the
PSDF Site.
"PSDF Site" means the land adjacent to Pinewood Studios, Iver Heath,
Buckinghamshire, comprising land and premises registered at the Land Registry with
title numbers BM60711, BM241497, BM366764, BM73620, BM74947 and
BM232959.
"PSSL" means Pinewood-Shepperton Studios Limited (company registration number
2985190).
"Qualifying Lender" has the meaning given to it in Clause 11 (Tax Gross-up and
Indemnities).
"Qualifying Senior Facility Refinancing" means a Permitted Refinancing of the
Senior Finance Documents where the terms of the original form of the documents
relating to the indebtedness created by, or the terms of, that refinancing comply with
the following conditions:
(a)
as at the relevant Qualifying Senior Facility Refinancing Date, any Senior
Principal Increase constitutes a Permitted Senior Principal Increase;
(b)
as at the relevant Qualifying Senior Facility Refinancing Date, any increase in
the Margin (or the inclusion of an additional margin) and/or any regular
periodic fees and charges in each case relating to the Senior Facility does not
result in a breach of the Pro Forma Mezzanine ICR and the Pro Forma
Mezzanine DSCR (as if each such Financial Covenant were tested on the
Reference Date falling immediately prior to that date);
(c)
as at the relevant Qualifying Senior Facility Refinancing Date, any increase in
the scheduled amortisation (or the inclusion of a different schedule of
amortisation) does not result in a breach of the Pro Forma Mezzanine ICR and
the Pro Forma Mezzanine DSCR (as if each such Financial Covenant were
tested on the Reference Date falling immediately prior to that date);
(d)
is a Permitted Financial Covenant Variation;
(e)
the terms of the refinancing in the original form of those documents do not
result in:
(i)
a Senior Obligor which owns a Property; and/or
(ii)
being subject to materially more onerous obligations or additional obligations
under the representations, warranties, undertakings (excluding any Senior
Financial Covenants and any provisions relating to any fees and typical costs
and expenses), mandatory prepayment events and events of default than those
- 27 LEGAL_EU # 17337328.7
(f)
the terms of the refinancing result in the Senior Obligors being subject to less
onerous obligations than those applying under the Initial Senior Finance
Documents (including, but not limited to, any obligations pursuant to any
Senior Financial Covenant); and
(g)
the terms of the refinancing in the original form of those documents constitute
consequential changes in relation to any other change which is permitted in
relation to such Qualifying Senior Facility Refinancing or constitute changes
of a minor, procedural or administrative nature which are not prejudicial to the
interests of the Lenders.
"Qualifying Senior Facility Refinancing Date" means the date on which any
Qualifying Senior Facility Refinancing becomes (or is proposed to become)
unconditionally effective in accordance with its terms.
"Recovery Proceeds" means the proceeds of a claim (a "Recovery Claim") against
the provider of any Report (in its capacity as provider of the same) and after
deducting any reasonable expenses in relation to that Recovery Claim which are
incurred by any member of the Group to persons who are not members of the Group.
"Refinancing Equivalent" means, on and after the completion of a Qualifying Senior
Facility Refinancing and in relation to a provision or term of the Initial Senior Facility
Agreement, any equivalent provision or term in the Refinancing Senior Facility
Agreement which is similar in meaning and effect.
"Refinancing Senior Facility" means, in relation to a Qualifying Senior Facility
Refinancing, any facility or other accommodation made available under the relevant
Refinancing Senior Finance Documents.
"Refinancing Senior Facility Agreement" means, in relation to a Qualifying Senior
Facility Refinancing, any facility agreement entered into pursuant to that Qualifying
Senior Facility Refinancing.
"Refinancing Senior Finance Documents" means, in relation to a Qualifying Senior
Facility Refinancing, any documents relating to the indebtedness created by, or the
terms of, that Qualifying Senior Facility Refinancing or Permitted Refinancing.
"Related Fund" means, in relation to a fund (the "first fund"), a fund which is
managed or advised by the same investment manager or investment adviser as the
first fund or, if it is managed by a different investment manager or investment adviser,
a fund whose investment manager or investment adviser is an Affiliate of the
investment manager or investment adviser of the first fund.
"Relevant Change" means, in relation to one or more proposed changes in
connection with any Permitted Variation, one or more of the following:
(a)
a proposed Senior Principal Increase;
- 28 LEGAL_EU # 17337328.7
(b)
a proposed increase in the Margin or additional margin and/or any regular
periodic fees and charges; and/or
(c)
a proposed change to the amount and/or timing of any amortisation.
"Relevant Date" means the first day following the Utilisation Date on which the
Control Date occurs (which date can also be the Utilisation Date, if applicable).
"Relevant Financial Covenant Benchmark" means the figure against which the
Relevant Ratio is tested.
"Relevant Senior Financial Covenant Benchmark" means the figure against which
the Relevant Senior Ratio is tested.
"Relevant PIK Coupon Aggregate Balance Amount" means, on any Interest
Payment Date, the lower of:
(a)
the amount which, when added to the Full Cash Coupon Amount payable on
that Interest Payment Date, will not result in one or more of the Coupon
Conditions in respect of that Interest Payment Date being breached; and
(b)
the PIK Coupon Aggregate Balance Amount.
"Relevant Overdraft Facility" means:
(a)
the Overdraft Facility (as may be amended in accordance with the terms set
out in Clause 20.23 (Permitted Variations); or
(b)
any replacement overdraft facility which replaces the Overdraft Facility and
which satisfies the terms set out in Clause 20.23 (Permitted Variations).
"Relevant Ratio" means, in respect of a Financial Covenant, the result of any test of
that Financial Covenant expressed as a ratio.
"Relevant Senior Ratio" means, in respect of a Senior Financial Covenant, the result
of any test of that Senior Financial Covenant expressed as a ratio.
"Repeating Representations" means each of the representations set out in Clause 17
(Representations) other than those set out in Clauses 17.9 (No Misleading
Information) and 17.10 (Financial Statements).
"Reports" means each of:
(a)
the Financial Due Diligence Report;
(b)
the Market Report;
(c)
the Technical Due Diligence Report;
(d)
the Insurance Due Diligence Report;
(e)
the Tax Due Diligence Report;
- 29 -
LEGAL_EU # 17337328.7
(f)
the Legal Due Diligence Report;
(g)
the Structuring Report; and
(h)
the Report on Title.
"Report on Title" means each of:
(a)
the report on title relating to the Pinewood Studios Property and the PSDF
Site; and
(b)
the report on title relating to the Project 77 Property,
each provided as a condition precedent to the Utilisation Date prepared by Travers
Smith LLP and addressed to, and capable of being relied upon by, the Finance Parties.
"Reservations" means:
(a)
the principle that equitable remedies are remedies which may be granted or
refused at the discretion of the court, 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, the time barring of claims under any applicable law, the possibility
that an undertaking to assume liability for or to indemnify against nonpayment of any stamp duty or other tax may be void, defences of set-off or
counterclaim, the risk that a fixed charge may be recharacterised as a floating
charge and similar principles; and
(b)
the reservations in or anything disclosed by any of the legal opinions delivered
as a condition precedent to the Utilisation Date.
"Restricted Senior Leverage" has the meaning given to such term in Clause 19
"Sanctioned Territory" means any country or other territory subject to a general
export, import, financial or investment embargo under Sanctions Law.
"Sanctions Law" means the economic or financial sanctions laws, regulations and/or
embargo imposed by an Authority.
"Scheme" means a scheme of arrangement pursuant to Part 26 of the Companies Act
2006 entered into with the shareholders of the Target for the purposes of the Company
acquiring the Target Shares.
"Scheme Announcement" means an announcement made in accordance with Rule
2.7 of the Takeover Code of a firm intention to make an offer for the Target Shares by
the Company by way of a scheme of arrangement.
"Scheme Document" means a document containing the terms and conditions of the
Scheme sent to the shareholders of the Target.
- 30 LEGAL_EU # 17337328.7
"Scheme Effective Date" means the date on which the Scheme has been approved at
a court hearing and an office copy of the court order sanctioning the Scheme has been
delivered to the Registrar of Companies.
"SDN List" means the Specially Designated Nationals List maintained by the Office
of Foreign Assets Control of the US Department of the Treasury, or any similar list
maintained by any Authority.
"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 Agreement" means each of:
(a)
the Company Account Security Agreement;
(b)
Company Security Agreement; and
(c)
the Holdco Security Agreement.
"Security Documents" means:
(a)
each Security Agreement; and
(b)
any other document designated as such by the Agent and the Company.
"Senior Agent" means the "Agent" under and as defined in the Initial Senior Facility
Agreement or any Refinancing Equivalent
"Senior Debt Purchase Transaction" means, in relation to a person, a transaction
where such person:
(a)
purchases by way of assignment or transfer;
(b)
enters into any sub-participation in respect of; or
(c)
enters into any other agreement or arrangement having an economic effect
substantially similar to a sub-participation in respect of,
any commitment (howsoever described) or any amount outstanding under any Senior
Finance Document.
"Senior Default" means:
(a)
any event or circumstance specified as such in the Initial Senior Facility
Agreement; and
(b)
any Refinancing Equivalent.
"Senior Event of Default" means:
(a)
any event or circumstance specified as such in the Initial Senior Facility
Agreement; and
- 31 -
LEGAL_EU # 17337328.7
(b)
any Refinancing Equivalent.
"Senior Facility" means:
(a)
prior to the completion of the first Qualifying Senior Facility Refinancing, an
Initial Senior Facility; and
(b)
on and after the completion of a Qualifying Senior Facility Refinancing, any
relevant Refinancing Senior Facility.
"Senior Facility Agreement" means:
(a)
prior to the completion of the first Qualifying Senior Facility Refinancing, the
Initial Senior Facility Agreement; and
(b)
on and after the completion of a Qualifying Senior Facility Refinancing, the
relevant Refinancing Senior Facility Agreement.
"Senior Finance Documents" means:
(a)
prior to the completion of the first Qualifying Senior Facility Refinancing, the
Initial Senior Finance Documents; and
(b)
on or after the completion of a Qualifying Senior Facility Refinancing, the
relevant Refinancing Senior Finance Documents.
"Senior Financial Covenant" means any financial covenant (howsoever described)
from time to time set out in the Senior Finance Documents.
"Senior Lenders" means each Lender (as defined in the Initial Senior Facility
Agreement), or, if it becomes a senior lender in respect of a Qualifying Senior Facility
Refinancing, each Refinancing Equivalent.
"Senior Loans" means any "Loan" under and as defined in the Initial Senior Facility
Agreement or any Refinancing Equivalent.
"Senior Obligor" means an "Obligor" under and as defined in the Initial Senior
Facility Agreement or any Refinancing Equivalent.
"Senior Principal" means at any time, and in relation to the Senior Finance
Documents, the then aggregate (without double counting) amount of:
(a)
any amounts borrowed including any amount utilised by way of letter of credit
or ancillary facility or overdraft facility (howsoever described)) and not repaid
or prepaid; and
(b)
the committed financial accommodation available (or potentially available),
under those Senior Finance Documents.
"Senior Principal Increase" means in relation to a relevant Permitted Variation (or to
a proposed relevant Permitted Variation), the extent to which the Senior Principal
- 32 LEGAL_EU # 17337328.7
immediately upon that relevant Permitted Variation becoming unconditionally
effective, would (as a result of that relevant Permitted Variation (and after taking
account of any repayment or cancellation to be effected at the same time as, or
immediately after, that relevant Permitted Variation)), incrementally exceed the
Senior Principal as at the date of this Agreement.
"Sponsor Affiliate" means Aermont Capital LLP ("Aermont"), each of its Affiliates,
any trust of which Aermont or any of its Affiliates is a trustee, any partnership of
which Aermont or any of its Affiliates is a partner and any trust, fund or other entity
which is managed by, or is under the control of, Aermont or any of its Affiliates
provided that any such trust, fund or other entity which has been established for at
least 6 months solely for the purpose of making, purchasing or investing in loans or
debt securities and which is managed or controlled independently from all other
trusts, funds or other entities managed or controlled by Aermont or any of its
Affiliates which have been established for the primary or main purpose of investing in
the share capital of companies shall not constitute a Sponsor Affiliate
"Squeeze Out" means the procedure set out under Section 979 of the Companies Act
2006.
"Squeeze Out Trigger Date" means, if the Acquisition is being pursued by way of an
Offer, the first date on which the Company is entitled to exercise the Squeeze Out.
"Squeeze Out Trigger Election Date" means, if the Acquisition is being pursued by
way of an Offer and to the extent that the Company is required to exercise its Squeeze
Out rights, the date on which the Company actually exercises its Squeeze Out rights
in relation to the Offer.
"SSPP" means Shepperton Studios Property Partnership, a limited partnership
established in England and Wales with registered number LP011523.
"SS(GP)L" means Shepperton Studios (General Partner) Limited (company
registration number 05913009).
"Structuring
Report"
means
the
structuring
report
prepared
by
PricewaterhouseCoopers LLP addressed to the Company and dated 11 August 2016.
"Subordination Agreement" means the subordination agreement entered into on or
prior to the date of this Agreement between the Company, Holdco and the Agent.
"Subsidiary" means a subsidiary within the meaning of section 1159 of the
Companies Act 2006.
"Takeover Code" means the City Code on Takeovers and Mergers issued by the
Takeover Panel, as amended from time to time.
"Takeover Panel" means the Panel on Takeovers and Mergers.
"Target" means Pinewood Group Plc.
"Target Group" means the Target and its Subsidiaries for the time being.
- 33 LEGAL_EU # 17337328.7
"Target Shares" means 100 per cent. of the issued share capital of the Target.
"Tax" means any tax, levy, impost, duty, stamp 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).
"Tax Due Diligence Report" means the tax due diligence report prepared by
PricewaterhouseCoopers LLP addressed to the Company and dated 11 August 2016.
"Technical Due Diligence Report" means the technical due diligence reports
prepared by CBRE Limited addressed to the Company and dated August 2016.
"Term Facility" means the term loan facility made available under this Agreement as
described in Clause 2.1 (Term Facility).
"Term Facility Commitment" means:
(a)
in relation to an Original Lender, the amount set opposite its name under the
heading "Term Facility Commitment" in Schedule 1 (The Original Lenders)
and the amount of any other Term Facility Commitment transferred to it under
this Agreement; and
(b)
in relation to any other Lender, the amount of any Term Facility Commitment
transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Term Loan" means a loan made or to be made under the Term Facility or the
principal amount outstanding for the time being of that loan.
"Termination Date" means, subject to Clause 6.2 (Extension of Termination Date),
the Initial Termination Date.
"Test Period" means a period of 12 months ending on a Reference Date.
"Third Party Option Agreement" means the option of Shepperton Studios Limited
to acquire certain property interests including the Alternative Backlot (as defined in
the Report on Title) contained in a lease dated 7 June 2013 between (1) Tarmac
Limited and (2) Shepperton Studios Limited.
"Threshold Condition" means, where the Acquisition is being pursued by way of an
Offer, the Squeeze Out Trigger Date has occurred.
"Total Commitments" means the aggregate of the Total Term Facility Commitments
and the Total Cure Facility Commitments, being £60,000,000 as at the date of this
Agreement.
"Total Cure Facility Commitments" means the aggregate of the Cure Facility
Commitments from time to time, being zero as at the date of this Agreement.
"Total Term Facility Commitments" means the aggregate of the Term Facility
Commitments, being £60,000,000 as at the date of this Agreement.
- 34 LEGAL_EU # 17337328.7
"Transaction Security" means the Security created or expressed to be created in
favour of the Agent pursuant to the Security Documents.
"Transaction Obligor" means the Company and Holdco.
"Transfer Certificate" means a certificate substantially in the form set out in
Schedule 4 (Form of Transfer Certificate) or any other form agreed between the
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
(b)
the date on which the Agent executes the Transfer Certificate.
"Treasury Transaction" means any derivative transaction entered into in connection
with protection against or benefit from fluctuation in any rate or price.
"Unconditional Date" means, in respect of an Offer, the date on which the Offer
becomes or is declared unconditional in all respects.
"Unit" has the meaning given to it in the Unit Trust Instrument.
"Unit Trust Fund" means all cash and other assets for the time being held, or which
are intended or deemed to be held, by the Project 77 Trustees under the terms of the
Unit Trust Instrument.
"Unit Trust Instrument" means the trust instrument dated 7 September 2006
constituting the Project 77 Target as amended pursuant to an instrument of retirement
and appointment of trustees dated 3 December 2014 and a supplemental trust
instrument made by the Project 77 Trustees on 3 December 2014.
"Unpaid Sum" means any sum due and payable but unpaid by the Company under
the Finance Documents.
"US" means the United States of America.
"US Tax Subsidiary" means:
(a)
any member of the Group which is resident for tax purposes in the US; or
(b)
any member of the Group some or all of whose payments under the Finance
Documents are from sources within the US for US federal income tax
purposes.
"Utilisation" means the utilisation of the Term Facility.
"Utilisation Date" means the date of the Utilisation, being the date on which the
Term Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out in Schedule 3
(Utilisation Request).
- 35 LEGAL_EU # 17337328.7
"Vacant Possession Value" has the meaning given to such term in Clause 19
"Valuation" means:
(a)
the Initial Valuation; and
(b)
any subsequent valuation of the Group’s interest in the Properties by the
Valuer, addressed to the Finance Parties and prepared:
(i)
on the basis of the Market Value and Vacant Possession Value; and
(ii)
on the basis of the same methodology and same assumptions as the
Initial Valuation.
"Valuer" means:
(a)
in respect of any Valuation undertaken in the first 24 months following the
date of this Agreement, the Initial Valuer; and
(b)
thereafter, any of:
(i)
the Initial Valuer;
(ii)
Cushman & Wakefield;
(iii)
Montagu Evans; or
(iv)
any other firm of surveyors or valuers as may be agreed from time to
time between the Company and the Agent (each acting reasonably),
in each case as appointed by the Agent to act as valuer for the purposes of this
Agreement.
"VAT" means value added tax as provided for in the Value Added Tax Act 1994 and
any other tax of a similar nature.
1.2
Construction
(a)
Unless a contrary indication appears, any reference in this Agreement to:
(i)
the "Agent", an "Arranger", any "Finance Party", any "Lender" or
any "Party" shall be construed so as to include its successors in title,
permitted assigns and permitted transferees;
(ii)
"assets" includes present and future properties, revenues and rights of
every description;
(iii)
a "Finance Document" or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument
as amended, novated, supplemented, extended or restated;
- 36 LEGAL_EU # 17337328.7
(iv)
"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;
(v)
the "original form" of a Senior Finance Document or any other
agreement or instrument is a reference to that Senior Finance
Document, agreement or instrument as originally entered into,
provided that the original form of the Initial Senior Facility Agreement
is a reference to that agreement in the form annexed to the Acquisition
Change of Control Waiver Letter as implemented promptly following
the Control Date;
(vi)
a "person" includes any individual, firm, company, corporation,
government, state or agency of a state or any association, trust, joint
venture, consortium or partnership (whether or not having separate
legal personality);
(vii)
a "regulation" includes any regulation, rule, official directive, request
or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency,
department or of any regulatory, self-regulatory or other authority or
organisation;
(viii) a provision of law is a reference to that provision as amended or reenacted;
(ix)
a time of day is a reference to London time; and
(x)
"agreed form" in relation to any document means a form which is
substantially the same as a document initialled by or on behalf of the
Agent and the Company for the purposes of identification on or around
the date of this Agreement or which is otherwise agreed between the
Agent and the Company (each acting reasonably).
(b)
The determination of the extent to which a rate is "for a period equal in
length" to an Interest Period shall disregard any inconsistency arising from the
last day of that Interest Period being determined pursuant to the terms of this
Agreement.
(c)
Section, Clause and Schedule headings are for ease of reference only.
(d)
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.
(e)
A Default or an Event of Default is "continuing" if it has not been remedied
or waived in writing.
(f)
Any reference in a Finance Document to the Agent providing approval or
consent or making a request or direction, or to an item or a person being
acceptable to, satisfactory to, to the satisfaction or approved by or specified by
- 37 -
LEGAL_EU # 17337328.7
the Agent or requiring certain steps or actions to be taken, or the Agent
exercising its discretion to permit or waive any action, or the Agent
disagreeing with any calculation, are to be construed, unless otherwise
specified, as references to the Agent taking such action or refraining from
acting on the instructions of the Majority Lenders, and reference in the
Finance Documents to (i) the Agent acting reasonably, (ii) a matter being in
the reasonable opinion of the Agent, (iii) the Agent's approval or consent not
being unreasonably withheld or delayed or (iv) any document, report,
confirmation or evidence being required to be reasonably satisfactory to the
Agent, are to be construed, unless otherwise specified in the relevant Finance
Document, as the Agent acting on the instructions of the Majority Lenders
(and the Lenders hereby agree to act reasonably in circumstances where the
Agent would otherwise be required to act reasonably if this Clause 1.2(f) did
not apply). Where the Agent is obliged to consult under the terms of the
Finance Documents, unless otherwise specified, the Majority Lenders must
instruct the Agent to consult in accordance with the terms of the relevant
Finance Document and the Agent must carry out that consultation in
accordance with the instructions it receives from the Majority Lenders or the
Lenders, as the case may be. The Agent should be under no obligation to
determine the reasonableness of such circumstances or whether in giving such
instructions the Lenders or Majority Lenders (as applicable) are acting in a
reasonable manner.
1.3
Luxembourg Terms
In this Agreement, a reference to:
(a)
a "liquidator", "receiver", "administrative receiver", "administrator",
"compulsory manager" or similar officer includes any commissaire, jugecommissaire, liquidateur, curateur, juge délégué or similar officer pursuant to
any insolvency or similar proceedings;
(b)
a "winding-up", "administration", "bankruptcy", "suspension of
payments" or "dissolution" includes, without limitation, bankruptcy (faillite),
liquidation, composition with creditors (concordat préventif de faillite),
moratorium or reprieve from payment (sursis de paiement) and controlled
management (gestion contrôlée), court ordered liquidation (liquidation
judiciaire) or reorganisation and voluntary dissolution or liquidation
(dissolution ou liquidation volontaire);
(c)
a "security interest" includes any hypothèque, nantissement, gage, privilège,
sûreté réelle, droit de rétention and any type of real security (sûreté réelle) or
security interest or agreement or arrangement having a similar effect and any
transfer of title by way of security;
(d)
a person being "unable to pay its debts" includes that person being in a state
of cessation of payments (cessation de paiements);
(e)
a person being "insolvent" includes that person being in a state of cessation of
payments (cessation de paiements) and having lost its creditworthiness
(ébranlement de credit).
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LEGAL_EU # 17337328.7
1.4
Currency Symbols and Definitions
"£", "GBP" and "sterling" denote the lawful currency of the United Kingdom.
1.5
Third Party Rights
(a)
Unless expressly provided to the contrary in a Finance Document a person
who is not a party to the relevant Finance Document has no right under the
Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to
enforce or to enjoy the benefit of any term of the Finance Documents.
(b)
Notwithstanding any term of any Finance Document, the consent of any
person who is not a party to the relevant Finance Document is not required to
rescind or vary any Finance Document at any time.
- 39 LEGAL_EU # 17337328.7
SECTION 2
THE FACILITIES
2.
THE FACILITIES
2.1
Term Facility
2.2
(a)
Subject to the terms of this Agreement, the Lenders make available a sterling
term loan facility in an aggregate amount equal to the Total Term Facility
Commitments.
(b)
The Term Facility will only be available to the Company.
Cure Facility
(a)
Following a breach of:
(i)
any Senior Financial Covenant which is continuing and where the time
period available to the Target to cure such breach in accordance with
the terms of the Senior Facility Agreement (as reduced by one
Business Day) has expired or where the Company has notified the
Agent that the Target is not intending to cure such breach in
accordance with the terms of the Senior Facility Agreement; or
(ii)
the Restricted Senior Leverage covenant and where the time period
available for the Company to cure such breach in accordance with
Clause 19.2 (Company Equity Cure) has expired,
a Lender or Lenders may instruct the Agent to deliver to the Company a Cure
Facility Notice which states that the relevant Lender(s) intend to provide a
Cure Loan in order to remedy such breach.
(b)
No consent of any Lender is required to establish a Cure Facility (other than
any Lender which is to provide that Cure Facility) provided that:
(i)
the maximum amount of each Cure Facility may not exceed the
minimum amount required to cure the relevant breach of the Restricted
Senior Leverage covenant in accordance with the terms of this
Agreement and/or the relevant breach of any Senior Financial
Covenant in accordance with the terms of the Senior Finance
Documents, in each case in respect of which such Cure Facility is
provided, provided further that the total amount of all Cure Facilities
so provided does not exceed £175,000,000 at any time;
(ii)
any previously committed Cure Facility must have been utilised in full;
(iii)
the Coupon for any Cure Loan provided pursuant to a Cure Facility is
at all times equal to the Coupon applicable to the Term Facility; and
(iv)
the Termination Date for any Cure Facility is the same as that for the
Term Facility.
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(c)
2.3
No Cure Facility Notice will be regarded as having been duly completed
unless it specifies the following matters in respect of the applicable Cure
Facility:
(i)
the Lender or Lenders who will provide the applicable Cure Facility;
and
(ii)
the Cure Facility Commencement Date for the applicable Cure
Facility.
(d)
Subject to the conditions set out in paragraph (b) above being satisfied,
following receipt by the Agent of a duly completed Cure Facility Notice and
with effect from the relevant Cure Facility Commencement Date the relevant
Lender(s) in respect of the relevant Cure Facility shall provide a Cure Loan in
an amount equal to that Cure Facility.
(e)
The Company irrevocably acknowledges and accepts any Cure Facility which
is provided in accordance with the terms of this Clause. No utilisation request
need be provided and no other formalities followed in relation to the provision
of any Cure Loan in accordance with this Clause 2.2.
(f)
Each Lender that is participating in a Cure Facility shall make its participation
in the relevant Cure Loan available by paying its pro rata share in that Cure
Loan on the applicable Cure Facility Commencement Date in the manner
specified in the applicable Cure Facility Notice.
(g)
For the avoidance of doubt, no Lender will have any obligation to participate
in a Cure Facility (unless it has executed and delivered a Cure Facility Notice
in respect of that Cure Facility).
(h)
The Agent is authorised (but not obliged) to disclose the terms of any Cure
Facility Notice to any other Finance Parties.
(i)
A copy of any Cure Facility Notice will be provided to the Company by the
Agent promptly upon receipt of such notice by the Agent.
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 the Company is a separate and
independent debt in respect of which a Finance Party shall be entitled to
enforce its rights in accordance with paragraph (c) below. The rights of each
Finance Party include any debt owing to that Finance Party under the Finance
Documents and, for the avoidance of doubt, any part of the Loans or any other
amount owed by the Company which relates to a Finance Party's participation
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in a Facility or its role under a Finance Document (including any such amount
payable to the Agent on its behalf) is a debt owing to that Finance Party by the
Company.
(c)
A Finance Party may, except as specifically provided in the Finance
Documents, separately enforce its rights under or in connection with the
Finance Documents.
3.
PURPOSE
3.1
Purpose
(a)
(b)
3.2
The Company shall apply all amounts borrowed by it under the Term Facility
in or towards:
(i)
financing the cash consideration payable by the Company (by way of
payment to the Paying Agent) to the holders of the Target Shares either
pursuant to the Scheme or pursuant to the Offer (including pursuant to
the operation of any Squeeze Out in relation to the Offer);
(ii)
financing any fees, costs and expenses, stamp, registration and other
Taxes incurred by the Company in connection with the transaction
referred to in sub-paragraph (i) above and the Finance Documents; and
(iii)
refinancing the payment of any amounts referred to in paragraphs (i)
and (ii) above to the extent that such amounts have already been paid
on behalf of the Company.
The Company shall apply all amounts advanced to it under any Cure Facility
in accordance with the terms of this Agreement in or towards curing any
breach of the Restricted Senior Leverage covenant or any Senior Financial
Covenant (as applicable).
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 the Utilisation if, on or before the date of this Agreement, the Agent has
received confirmation from the Original Lenders that all of the documents and other
evidence listed in Schedule 2 (Conditions Precedent) have been received in form and
substance satisfactory to the Original Lenders. The Agent shall notify the Company
promptly upon receiving confirmation from the Original Lenders of such satisfaction
and the Agent shall promptly issue a conditions precedent satisfaction letter to the
Company confirming the satisfaction of each such condition precedent. Such
confirmation shall be binding and irrevocable.
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4.2
Additional Conditions Precedent
(a)
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
Participation) in relation to the Utilisation if, prior to the delivery of the
Utilisation Request, the Agent has received confirmation from the Original
Lenders that all of the documents and other evidence set out in paragraph (b)
below have in each case been received in form and substance satisfactory to
the Original Lenders (acting reasonably), save where otherwise indicated in
paragraph (b) below (or the Agent has received confirmation from the Original
Lenders waiving the requirement to receive all of the documents and other
evidence set out in paragraph (b) below). The Agent must give this
notification to the Company promptly upon receiving confirmation from the
Original Lenders of such satisfaction.
(b)
The documents and evidence referred to in paragraph (a) above are as follows:
(i)
a copy of the Offer Announcement or Scheme Announcement (as
applicable) in the form that matches the draft Offer Announcement or
draft Scheme Announcement (as applicable) (save for any
consequential changes to reflect the change from an Offer to a Scheme
or vice versa or any changes permitted pursuant to paragraph (a) of
Clause 20.21 (Acquisition Undertakings)) (not required to be in form
and substance satisfactory to the Original Lenders);
(ii)
a copy of the Offer Document or the Scheme Document (as applicable)
in a form which complies with the relevant provisions of paragraph (b)
of Clause 20.21 (Acquisition Undertakings) (not required to be in form
and substance satisfactory to the Original Lenders);
(iii)
a copy of any amendment or waiver (if applicable) related to the Offer
Document or the Scheme Document (as applicable) (not required to be
in form and substance satisfactory to the Original Lenders);
(iv)
a certificate from the Company confirming:
(A)
if the Acquisition is being pursued by way of a Scheme , that
the Scheme Effective Date has occurred in accordance with the
Scheme Document and/or the Companies Act 2006;
(B)
if the Acquisition is being pursued by way of an Offer:
(I)
that the Squeeze Out Trigger Date has occurred and that
the Squeeze Out Trigger Election Date will occur within
10 Business Days of the Utilisation Date; and
(II)
the actual level of acceptances in respect of the Offer as
at the date of such certificate;
(C)
the amount of cash consideration per Target Share;
(D)
that the Company is in compliance with sub-paragraphs (a), (b)
and (e) of Clause 20.21 (Acquisition Undertakings) provided
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that, in the case of paragraphs (b) and/or (e) of Clause 20.21
(Acquisition Undertakings), the Company will only be unable
to give this confirmation if it has failed to comply with
paragraphs (b) and/or (e) to the extent that such failure to
comply is materially adversely prejudicial to the interests of the
Finance Parties; and
(E)
(v)
(c)
if the Acquisition is being pursued pursuant to an Offer, that the
Unconditional Date has occurred; and
an updated Funds Flow Statement (not required to be in form and
substance satisfactory to the Original Lenders) which demonstrates that
all fees, costs and expenses of the Finance Parties (including legal fees
previously advised in writing before the date referred to in Clause
4.2(a)) due and payable on, or in relation to, the Utilisation Date will
be paid from the proceeds of the Utilisation.
Without prejudice to paragraph (b) above, the Company will only be entitled
to deliver the Utilisation Request if, no earlier than 15 Business Days before
and no later than 10 Business Days before:
(i)
if the Acquisition is being pursued by way of a Scheme, the date
anticipated to be Scheme Effective Date; or
(ii)
if the Acquisition is being pursued by way of an Offer, the date
anticipated to be the Unconditional Date,
the Company has delivered to the Agent a notice in writing (a "Pre-Notice")
certifying that it is intending to deliver the Utilisation Request not later than
the Scheme Effective Date or the Unconditional Date (as applicable) and that
there is a realistic possibility that the Scheme Effective Date or the
Unconditional Date (as applicable) will occur within the time frame set out
above, notwithstanding that not all conditions under this Clause 4 have been,
at that time, satisfied. The Agent shall promptly deliver any Pre-Notice to the
Lenders.
(d)
If, following the delivery of a Pre-Notice, the Company suspects that it will be
unable to deliver the Utilisation Request and satisfy the remaining conditions
under this Clause 4 that remain, at that time, unsatisfied, it may (in its absolute
discretion) revoke that Pre-Notice by notifying the Agent in writing of such
revocation. The Agent shall promptly deliver any such notice to the Lenders.
(e)
The Company may serve up to four Pre-Notices, provided that only two such
notices may be served if the Acquisition is being pursued by way of an Offer.
(f)
The Company is not liable for any costs incurred by the Lenders in connection
with the serving of any Pre-Notice and the Lenders acknowledge that any PreNotice is served purely for information purposes and does not obligate the
Company to submit the Utilisation Request.
- 44 LEGAL_EU # 17337328.7
4.3
4.4
Maximum Number of Loans
(a)
The Company may only borrow one Term Loan on the Utilisation Date. No
other drawings may be made under the Term Facility.
(b)
There is no limit on the number of Cure Loans that may be advanced.
(c)
The Company may not request that any Loan be divided.
Utilisation During the Certain Funds Period
(a)
In this Clause 4.4:
"Major Event of Default" means, in respect of any Transaction Obligor, any
circumstances constituting an Event of Default (insofar as applicable to that
Transaction Obligor) under any of (i) Clause 21.1 (Non-payment) (but only
insofar as it relates to a non-payment of principal or interest by the Company),
(ii) paragraph (a) of Clause 21.3 (Other Obligations) (but only insofar as it
relates to a Major Obligation and, for the avoidance of doubt, that it
constitutes an Event of Default on the basis that any applicable grace period
under paragraph (b) of Clause 21.3 (Other Obligations) has expired), (iii)
Clause 21.4 (Misrepresentation) (but only insofar as it relates to a Major
Representation), (iv) Clause 21.7 (Insolvency), (v) Clause 21.8 (Insolvency
Proceedings), (vi) Clause 21.9 (Creditors’ Process), paragraph (a) of Clause
21.10 (Ownership of the Company and the Target), Clause 21.11
(Unlawfulness) or Clause 21.12 (Repudiation).
"Major Obligation" means, in respect of any Transaction Obligor, any of the
undertakings of that Transaction Obligor set out in (i) Clause 20.3 (Negative
Pledge), (ii) Clause 20.4 (Further Indebtedness), (iii) Clause 20.5 (Disposals),
(iv) Clause 20.6 (Merger), (v) paragraph (a) of Clause 20.7 (Change of
Business), (vi) paragraphs (a), (b) and (e) of Clause 20.21 (Acquisition
Undertakings) (and, in the case of paragraphs (b) and/or (e) of Clause 20.21
(Acquisition Undertakings), only insofar as the Company has failed to comply
with paragraphs (b) and/or (e) to the extent that such failure to comply is
materially adversely prejudicial to the interests of the Finance Parties), (vii)
clause 4.3 (Change of Business), clause 4.4 (Preservation of Security Assets),
clause 4.5 (Negative Pledge), clause 4.6 (Financial Indebtedness), clause 4.7
(Loans or Credit), and clause 4.8 (No Guarantees or Indemnities) of the
Holdco Security Agreement.
"Major Representation" means, in respect of any Transaction Obligor, any of
the representations insofar as they relate to that Transaction Obligor set out in
(i) Clause 17.1 (Status), (ii) Clause 17.2 (Binding Obligations), (iii) Clause
17.3 (Non-conflict with other Obligations) (where, for these purposes only, the
representations in paragraphs (a) and (b) will be qualified so as to constitute a
misrepresentation only insofar as they are incorrect as made in any material
respect), (iv) Clause 17.4 (Power and authority), (v) Clause 17.5 (Validity and
Admissibility in Evidence) (where, for these purposes only, the representations
in this paragraph will be qualified so as to constitute a misrepresentation only
insofar as they are materially adversely prejudicial to the interests of the
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Lenders), (vi) clause 3.1 (Status), clause 3.2 (Binding Obligations), clause 3.3
(Non-conflict with Other Obligations) (where, for these purposes only, the
representations in paragraphs (a) and (b) will be qualified so as to constitute a
misrepresentation only insofar as they are incorrect as made in any material
respect), clause 3.4 (Power and Authority) and clause 3.5 (Validity and
Admissibility in Evidence) (where, for these purposes only, the representations
in this paragraph will be qualified so as to constitute a misrepresentation only
insofar as they are materially adversely prejudicial to the interests of the
Lenders) of the Holdco Security Agreement.
(b)
(c)
Subject to Clause 4.1 (Initial Conditions Precedent) and to paragraphs (a) and
(b) of Clause 4.2 (Additional Conditions Precedent), during the Certain Funds
Period the Lenders will be obliged to comply with Clause 5.4 (Lenders'
Participation) in relation to the Utilisation if:
(i)
on the date of the Utilisation Request and/or on the proposed
Utilisation Date, no Major Event of Default is continuing or would
result from the proposed Utilisation;
(ii)
on the date of the Utilisation Request and/or on the proposed
Utilisation Date, no Major Representation is untrue or would not be
true immediately after the Utilisation is made in respect of any
Transaction Obligor;
(iii)
to the extent that the Company is pursuing the Acquisition by way of
an Offer, the Threshold Condition has been satisfied on or prior to the
Utilisation Date; and
(iv)
the purchase price for the Target Shares is not less than £321,495,585.
During the Certain Funds Period (save in circumstances where, pursuant to
paragraph (b) above, a Lender is not obliged to comply with Clause 5.4
(Lenders' Participation) or it is otherwise illegal for the Lender to comply
with Clause 5.4 (Lenders' Participation) as a result of the operation of Clause
7.1 (Illegality)), none of the Finance Parties will be entitled to:
(i)
cancel any of its Commitments;
(ii)
rescind, terminate or cancel this Agreement or any of the Term Facility
or exercise any similar right or remedy or make or enforce any claim
under the Finance Documents it may have;
(iii)
refuse to participate in, or prevent or limit, the making of the
Utilisation;
(iv)
exercise any right of set off or counterclaim in respect of the
Utilisation or other amounts owing under the Finance Documents;
(v)
make or enforce any claims (including without limitation, in respect of
any indemnity) they may have under any Finance Document; or
- 46 LEGAL_EU # 17337328.7
(vi)
cancel, accelerate or cause repayment or prepayment of, any amounts
owing under the Finance Documents,
provided that, subject only to Clause 21.21 (Clean-Up Period), immediately
upon the expiry of the Certain Funds Period all such rights, remedies and
entitlements shall be available for the Finance Parties notwithstanding that
they may not have been used or been available for use during the Certain
Funds Period.
(d)
If the Acquisition is being pursued by way of an Offer and, as at the
Utilisation Date, the Company has received irrevocable acceptances from less
than 100 per cent. of the holders of the Target Shares (provided always that
the Threshold Condition has been satisfied on or prior to the Utilisation Date),
the Company is hereby obliged to draw the Term Facility in full and any
surplus funds not required immediately to discharge the consideration payable
for the Target Shares (or to refinance any payments that have already been
paid on behalf of the Company (as per sub-paragraph (a)(iii) of Clause 3.1
(Purpose), shall be held by the Paying Agent pending payment to the
remaining holders of the Target Shares (whether pursuant to a Squeeze Out in
relation to the Offer or otherwise).
- 47 LEGAL_EU # 17337328.7
SECTION 3
UTILISATION
5.
UTILISATION
5.1
Delivery of the Utilisation Request
The Company may utilise the Term Facility by delivery to the Agent of the duly
completed Utilisation Request not later than 9 days prior to the proposed Utilisation
Date.
5.2
Completion of the Utilisation Request
(a)
(b)
5.3
5.4
The Utilisation Request is irrevocable and will not be regarded as having been
duly completed unless:
(i)
the proposed Utilisation Date is a Business Day within the Availability
Period for the Term Facility; and
(ii)
the currency and amount of the Utilisation comply with Clause 5.3
(Currency and Amount).
Only one Utilisation Request may be delivered under this Agreement.
Currency and Amount
(a)
The currency specified in the Utilisation Request must be sterling.
(b)
In the case of the Utilisation of the Term Facility, the amount of the proposed
Term Loan must be an amount which does not exceed the Total Term Facility
Commitments.
Lenders' Participation
(a)
If the conditions set out in this Agreement have been met, each Lender shall
make its participation in the Term Loan available by the Utilisation Date
through its Facility Office.
(b)
The amount of each Lender's participation in the Term Loan will be equal to
the proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Term Loan.
(c)
No Lender is obliged to participate in the Term Loan if, as a result:
(i)
its participation in the Term Loan would exceed its Term Facility
Commitment; or
(ii)
the Term Loan would exceed the amount determined in accordance
with paragraph (b) of Clause 5.3 (Currency and Amount) above.
- 48 LEGAL_EU # 17337328.7
5.5
Maximum Number of Term Loans
The Company may only borrow one Term Loan under this Agreement.
- 49 LEGAL_EU # 17337328.7
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6.
REPAYMENT
6.1
Repayment of Loans
The Company shall repay the Loans in full on the Termination Date.
6.2
Extension of Termination Date
(a)
Subject to the satisfaction of the conditions set out in paragraph (c) below, the
Company may request a single extension of the Initial Termination Date to a
date falling up to 6 years after (and including) the date of this Agreement
(such date the "Extended Termination Date") by giving notice to the Agent
(the "Extension Notice") not earlier than 50 Business Days, and not later than
15 Business Days, prior to the Initial Termination Date.
(b)
The Agent must forward a copy of the Extension Notice to each of the Lenders
then participating in a Facility as soon as reasonably practicable after receipt
thereof.
(c)
The Initial Termination Date will be automatically extended to the Extended
Termination Date if:
(d)
(i)
the term of the Senior Facility Agreement then in place already extends
to a date falling not earlier than the proposed Extended Termination
Date;
(ii)
the Company certifies in the Extension Notice that, as at the date of the
Extension Notice no Event of Default is continuing; and
(iii)
on the date of the Initial Termination Date:
(A)
the Enforcement Change of Control Waiver has been granted in
accordance with Clause 7.10 (Enforcement Change of Control
Waiver);
(B)
no Event of Default is continuing;
(C)
no Senior Event of Default is continuing; and
(D)
the payment of any extension fee in the amount and at the times
agreed in a Fee Letter.
If the Initial Termination Date cannot be automatically extended to the
Extended Termination Date in accordance with paragraph (c) above because
any of the conditions set out in paragraph (c) cannot be satisfied, the Company
shall still be entitled to serve the Extension Notice on the Agent and request
the extension of the Initial Termination Date to the Extended Termination
Date. In this event, any extension of the Initial Termination Date to the
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Extended Termination Date will be granted or rejected in the absolute
discretion of the Lenders (and, if granted, subject to any conditions imposed
by the Lenders).
(e)
No increase in Coupon will be applied in connection with any extension of the
Initial Termination Date pursuant to this Clause 6.2.
7.
PREPAYMENT AND CANCELLATION
7.1
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 or maintain its participation
in the Loans:
7.2
(a)
that Lender shall promptly notify the Agent upon becoming aware of that
event;
(b)
upon the Agent notifying the Company, the Commitment of that Lender will
be immediately cancelled; and
(c)
the Company shall repay that Lender's participation in the Loans on the last
day of the Interest Period for the Loans occurring after the Agent has notified
the Company or, if earlier, the date specified by the Lender in the notice
delivered to the Agent (being no earlier than the last day of any applicable
grace period permitted by law) and that Lender’s corresponding Commitment
shall be cancelled in the amount of the participation repaid.
Change of Control
Upon the occurrence of a Change of Control the Agent may, and shall if so directed
by the Majority Lenders, by notice to the Company, cancel the Total Commitments, at
which time they shall immediately be cancelled, and declare that all or part of the
outstanding Loans, 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. The Company shall promptly
notify the Agent of the occurrence of any such event.
7.3
Sale of Assets
Upon the sale of all, or substantially all, of the assets of the Group whether in a single
transaction or a series of related transactions the Agent may, and shall if so directed
by the Majority Lenders, by notice to the Company, cancel the Total Commitments, at
which time they shall immediately be cancelled, and declare that all or part of the
outstanding Loans, 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. The Company shall promptly
notify the Agent of the occurrence of any such sale event.
- 51 LEGAL_EU # 17337328.7
7.4
Voluntary Cancellation
The Company may, if it gives the Agent not less than 5 Business Days' (or such
shorter period as the Majority Lenders may agree) prior notice, cancel the whole (but
not part only) of any Available Facility.
7.5
Voluntary Prepayment of Loans
Subject to paragraph (b) below, the Company may, if it gives the Agent not less than
3 Business Days' (or such shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of the Loans (but if in part by a minimum amount
of £1,000,000 and a multiple of £500,000) on any Interest Payment Date.
7.6
Automatic Cancellation
The unutilised Commitment of each Lender under a Facility will be automatically
cancelled at the close of business on the last day of the applicable Availability Period. For the avoidance of doubt, the Availability Period (and, therefore, the Certain Funds
Period) will end immediately following the making of the Utilisation.
7.7
Right of Repayment and Cancellation in relation to a Single Lender
(a)
If:
(i)
any sum payable to any Lender by the Company is required to be
increased under Clause 11.2(c) (Tax Gross-up); or
(ii)
any Lender claims indemnification from the Company under Clause
11.3 (Tax Indemnity) or Clause 12 (Increased Costs),
the Company may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender's participation in the Loans.
7.8
(b)
On receipt of a notice referred to in Clause 7.7(a) above, the Commitment of
that Lender shall immediately be reduced to zero.
(c)
On the last day of each Interest Period which ends after the Company has
given notice under Clause 7.7(a) (or, if earlier, the date specified by the
Company in that notice), the Company shall repay that Lender's participation
in that Loan.
Insurance Proceeds, Disposal Proceeds, Compensation Proceeds and Recovery
Proceeds
(a)
On and from the Completion Date, the Company shall prepay the Loans in an
amount equal to the amount of:
(i)
any Insurance Proceeds received (for the avoidance of doubt, only
where such amounts have already taken account of the Excluded
Insurance Proceeds and only to the extent that those proceeds or any
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part thereof are not required to be utilised to discharge the outstanding
liabilities under the Senior Facility Agreement);
(ii)
any Compensation Proceeds received (for the avoidance of doubt, only
where such amounts have already taken account of the Excluded
Compensation Proceeds and only to the extent that those proceeds or
any part thereof are not required to be utilised to discharge the
outstanding liabilities under the Senior Facility Agreement);
(iii)
any Recovery Proceeds received; and
(iv)
any Disposal Proceeds received (for the avoidance of doubt, only to the
extent that those proceeds or any part thereof are not required to be
utilised to discharge the outstanding liabilities under the Senior Facility
Agreement),
in each case in accordance with paragraph (b) below.
(b)
7.9
A prepayment of the Loans made in accordance with this Clause 7.8 shall be
made on the Interest Payment Date immediately following the receipt of the
relevant proceeds referred to in paragraph (a) above.
Non-Permitted Variation Request
If the Company requests the consent of the Lenders to:
(a)
an amendment, waiver or variation of, or to, the terms of the Senior Facility
Agreement; or
(b)
refinance the terms of the Senior Facility Agreement,
in either case, on terms which are prohibited by the terms of this Agreement (a "NonPermitted Variation Request") and the Lenders refuse to grant consent, the
Company will have the option to prepay the Loans in full.
7.10
Enforcement Change of Control Waiver
(a)
Subject to paragraph (b) below, following the Completion Date, the Company
must procure that, or shall ensure that a member of the Target Group procures
that, an Enforcement Change of Control Waiver has been granted in favour of
each Original Lenders on or before the Initial Termination Date.
(b)
The Company shall only be required to procure an Enforcement Change of
Control Waiver if:
(i)
it is intending to serve an Extension Notice and request an extension to
the Initial Termination Date; and
(ii)
one or both of the Original Lenders are the only Lender(s) under the
Facilities at the time that such Enforcement Change of Control Waiver
is procured.
- 53 LEGAL_EU # 17337328.7
(c)
For the purposes of this Clause 7.10:
"Approved Investor" means:
(a)
any Affiliate of an Original Lender; or
(b)
any person, being a fund or a subsidiary of such fund, that is solely
managed or advised by DRC Capital LLP as investment manager or
investment adviser.
"Enforcement Change of Control Waiver" means a waiver, granted by the
Senior Lenders, of any mandatory prepayment event contained in the Senior
Facility Agreement and any Relevant Overdraft Facility which relates to a
change of control in the ownership of the Target in the event that the Original
Lenders or an Approved Investor appropriate or otherwise acquire all of the
shares in the Target and/or the Company pursuant to an exercise of its rights
under a Security Document (or in any other manner which may be agreed
between the relevant Transaction Obligor and the Agent from time to time).
(d)
If the Enforcement Change of Control Waiver is being obtained as part of the
first Qualifying Senior Facility Refinancing, the Company shall procure that
the Enforcement Change of Control Waiver is obtained in the Refinancing
Senior Facility Agreement the subject of that Qualifying Senior Facility
Refinancing. The Company shall use, or procure that any relevant member of
the Target Group uses, reasonable endeavours to procure that the definition of
Approved Investor in any such Refinancing Senior Facility Agreement will be
supplemented by an additional paragraph (c) which includes all the entities
included in the Approved Investor List (as such list may be amended and
supplemented from time to time by notice from the Original Lenders to the
Company).
(e)
If the Enforcement Change of Control Waiver is being obtained pursuant to
the terms of the Initial Senior Facility Agreement, the Company shall conduct,
or procure that any member of the Target Group conducts, its approach to
obtain the Enforcement Change of Control Waiver as follows:
(i)
an approach will be made to the relevant Senior Lenders (or any agent
on their behalf) with a request to approve the Enforcement Change of
Control Waiver, provided that for the purposes of such initial
approach, the definition of Approved Investor will be supplemented by
an additional paragraph (c) which includes all the entities included in
the Approved Investor List (as such list may be amended and
supplemented from time to time by notice from the Original Lenders to
the Company);
(ii)
the approach made in accordance with sub-paragraph (i) above must be
accompanied by a request for a response from the relevant Senior
Lenders (or any agent on their behalf) within 5 Business Days of such
approach;
- 54 LEGAL_EU # 17337328.7
7.11
7.12
(iii)
if the relevant Senior Lenders (or any agent on their behalf) respond
with any queries or requests for further information in relation to the
Enforcement Change of Control Waiver request, the Company shall
communicate such response to the Original Lenders and revert to the
relevant proposed Senior Lenders with any response from the Original
Lenders;
(iv)
if the relevant Senior Lenders (or any agent on their behalf) do not
accept all of the entities on the Approved Investor List, the Company
shall be obliged (or shall procure that a member of the Target Group
will be obliged) to make one further approach to the relevant Senior
Lenders and request that the definition of Approved Investor contain
an additional paragraph (c) which references ‘such other person or
entity as may be approved by the {insert definition of relevant Senior
Lenders}’.
(f)
Failure by the Company (or any relevant member of the Target Group) to
obtain the additional paragraph (c) in the definition of Approved Investor
referred to in paragraphs (d) and (e) above as part of the Enforcement Change
of Control Waiver will not result in a failure to obtain the Enforcement
Change of Control Waiver, provided that the Enforcement Change of Control
Waiver which is obtained contains a definition of Approved Investor which is
the same as that set out in paragraph (c) above.
(g)
If the Enforcement Change of Control Waiver is not obtained by the Group by
the Initial Termination Date such failure will not be considered to be a breach
of this Agreement but the Initial Termination Date cannot be automatically
extended to the Extended Termination Date.
Right of Cancellation in relation to a Defaulting Lender
(a)
If any Lender becomes a Defaulting Lender, the Company may, at any time
whilst the Lender continues to be a Defaulting Lender, give the Agent 2
Business Days' notice of cancellation of each Available Commitment of that
Lender.
(b)
On the notice referred to in Clause 7.11(a) above becoming effective, each
Available Commitment of the Defaulting Lender shall immediately be reduced
to zero or immediately reduced by the amount cancelled or prepaid.
(c)
The Agent shall as soon as practicable after receipt of a notice referred to in
Clause 7.11(a) above, notify all the Lenders.
Restrictions
(a)
Any notice of cancellation or prepayment given by any Party under this Clause
7 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.
- 55 LEGAL_EU # 17337328.7
7.13
(b)
Any prepayment under this Agreement shall be made together with accrued
interest and, where applicable, any amount referred to in a Fee Letter.
(c)
The Company shall not repay or prepay all or any part of the Loans or cancel
all or any part of the Commitments except at the times and in the manner
expressly provided for in this Agreement.
(d)
No amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
(e)
If the Agent receives a notice under this Clause 7 it shall promptly forward a
copy of that notice to either the Company or the affected Lender, as
appropriate.
Application of Prepayments
Any prepayment of a Loan shall be applied pro rata to each Lender's participation in
that Loan.
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SECTION 5
COSTS OF UTILISATIONS
8.
INTEREST
8.1
Calculation of Interest
The rate of interest on the Loans for each Interest Period is the Coupon.
8.2
Accrual and Payment of Cash Pay Interest
On each Interest Payment Date, the Company shall pay either:
(a)
the Full Cash Coupon Amount;
(b)
the Minimum Cash Coupon Amount; or
(c)
the Discretionary Cash Coupon Amount,
in each case as determined by reference to the definition of Debt Service Amount in
relation to that Interest Payment Date.
8.3
Accrual and Payment of PIK Interest
(a)
If, on any Interest Payment Date, the Company is entitled to pay a Cash
Coupon Amount which is less than the Full Cash Coupon Amount in respect
of that Interest Payment Date, the PIK Coupon Amount in respect of that
Interest Payment Date will not be required to be paid in cash and, instead, such
amount shall accrue and shall, subject to paragraph (b) below, be compounded
with the principal amount of the Loans on that Interest Payment Date and shall
accrue at a rate equal to the Coupon.
(b)
Notwithstanding that the PIK Coupon Aggregate Balance Amount is
compounded with the Loans and accrues Coupon in accordance with
paragraph (a) above, the Company and the Agent shall each maintain a record
of the PIK Coupon Aggregate Balance Amount from time to time for the
purposes of determining:
(c)
(i)
whether or not the PIK Coupon Aggregate Balance Amount exceeds,
or will exceed, the Maximum PIK Coupon Aggregate Balance Amount
from time to time; and
(ii)
the PIK Coupon Aggregate Balance Amount which is to be taken into
account in the calculation of the Debt Service Amount in respect of
each Interest Payment Date.
On each Interest Payment Date, the Company shall pay any amount of the PIK
Coupon Aggregate Balance Amount which is determined by reference to the
definition of Debt Service Amount in relation to that Interest Payment Date.
- 57 LEGAL_EU # 17337328.7
8.4
Default Interest
(a)
If the Company 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 Clause 8.4(b) below, is two 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
Agent (acting reasonably). Any interest accruing under this Clause 8.4 shall
be immediately payable by the Company on demand by the 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:
(c)
(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 two per cent. higher than the rate which would
have applied if the overdue amount had not become due.
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.
9.
INTEREST PERIODS
9.1
Length of Interest Periods
9.2
(a)
Each Interest Period for the Term Loan will start on the Utilisation Date or (if
already made) on the last day of its preceding Interest Period and will end on
the next Interest Payment Date.
(b)
Each Interest Period for a Cure Loan will start on the applicable Cure Facility
Commencement Date or (if already made) on the last day of its preceding
Interest Period and will end on the next Interest Payment Date.
(c)
An Interest Period for a Loan shall not extend beyond the Termination Date.
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).
- 58 LEGAL_EU # 17337328.7
10.
FEES
10.1
Commitment Fee
(a)
The Company shall pay to the Agent (for the account of each Lender):
(i)
a fee computed at the rate expressed as a percentage per annum
calculated as two per cent. (2 per cent.) per annum of the Available
Facility for the period from the first day of the fourth Month following
the date of this Agreement until the last day of the fifth Month
following the date of this Agreement; and
(ii)
a fee computed at the rate expressed as a percentage per annum
calculated as four per cent. (4 per cent.) per annum of the Available
Facility for the period from the first day of the sixth Month following
the date of this Agreement,
in each case until the earlier to occur of (A) the Utilisation Date and (B) the
end of the Availability Period.
10.2
(b)
The accrued commitment fee is payable on the last day of the Availability
Period and, if cancelled in full, on the cancelled amount of the relevant
Lender's Commitment at the time the cancellation is effective.
(c)
No commitment fee is payable to the Agent (for the account of a Lender) on
any Available Commitment of that Lender for any day on which that Lender is
a Defaulting Lender.
Arrangement Fee
The Company shall pay to the Agent (for the account of the Arranger) arrangement
and other fees in the amount and at the times agreed in a Fee Letter.
10.3
Prepayment Fee
The Company must pay to the Agent (for the account of the Lenders) a prepayment
fee in the amount and manner agreed in a Fee Letter.
10.4
Abort Fee
The Company must pay to the Agent (for the account of the Lenders) an abort fee in
the amount and manner agreed in a Fee Letter.
10.5
Agency Fee
The Company shall pay to the Agent (for its own account) an agency fee in the
amount and at the times agreed in a Fee Letter.
- 59 LEGAL_EU # 17337328.7
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
11.
TAX GROSS UP AND INDEMNITIES
11.1
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 a Lender which is beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document
and is:
(a)
(b)
Lender:
(i)
which is a bank (as defined for the purpose of section 879 of
the ITA) making an advance under a Finance Document and is
within the charge to United Kingdom corporation tax as
respects any payments of interest made in respect of that
advance or would be within such charge as respects such
payments apart from section 18A of the CTA; or
(ii)
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 the 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; or
a Lender which is:
(i)
a company resident in the United Kingdom for United
Kingdom tax purposes;
(ii)
a partnership each member of which is:
A.
a company resident in the United Kingdom for United
Kingdom tax purposes; or
B.
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 (within the
meaning of section 19 of the CTA) the whole of any
share of interest payable in respect of that advance that
falls to it by reason of Part 17 of the CTA; or
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(iii)
(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 its chargeable profits
(within the meaning of section 19 of the CTA); or
a Treaty 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:
(a)
a company resident in the United Kingdom for United Kingdom tax
purposes;
(b)
(c)
(i)
a company resident in the United Kingdom, for United
Kingdom tax purposes; 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 which brings into account in computing its
chargeable profits (within the meaning of section 19 of the
CTA) the whole of any share of interest payable in respect of
that advance that falls to it by reason of Part 17 of the CTA; or
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 its chargeable profits (within the meaning of section 19 of
the CTA).
"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 other than a FATCA Deduction.
"Tax Payment" means either the increase in a payment made by the Company
to a Finance Party under Clause 11.2 (Tax Gross-up) or a payment under
Clause 11.3 (Tax Indemnity).
"Treaty Lender" means a Lender which:
(a)
is treated as a resident of a Treaty State for the purposes of the Treaty;
and
(b)
does not carry on a business in the United Kingdom through a
permanent establishment with which that Lender's participation in the
Loans is effectively connected.
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"Treaty State" means a jurisdiction having a double taxation agreement (a
"Treaty") with the United Kingdom which makes provision for full exemption
from tax imposed by the United Kingdom on interest.
"UK Non-Bank Lender" means a Lender which gives a Tax Confirmation in
the Transfer Certificate which it executes on becoming a Party to this
Agreement.
(b)
11.2
Unless a contrary indication appears, in this Clause 11 a reference to
"determines" or "determined" means a determination made in the absolute
discretion of the person making the determination.
Tax Gross-up
(a)
The Company 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 it must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the
Agent on becoming so aware in respect of a payment payable to that Lender.
If the Agent receives such notification from a Lender it shall notify the
Company.
(c)
If a Tax Deduction is required by law to be made by the Company, the amount
of the payment due from the Company 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)
The Company is not required to make an increased payment to a Lender under
Clause 11.2(c) above for a Tax Deduction in respect of tax imposed by the
United Kingdom from a payment of interest on a Loan, 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)
the relevant Lender is a Qualifying Lender solely by virtue of
paragraph (b) of the definition of Qualifying Lender and:
(A)
an officer of HM Revenue & Customs has given (and not
revoked) a direction (a "Direction") under section 931 of the
ITA which relates to the payment and that Lender has received
from the Company a certified copy of that Direction; and
(B)
the payment could have been made to the Lender without any
Tax Deduction if that Direction had not been made; or
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(iii)
(iv)
the relevant Lender is a Qualifying Lender solely by virtue of
paragraph (b) of the definition of Qualifying Lender and:
(A)
the relevant Lender has not given a Tax Confirmation to the
Company; and
(B)
the payment could have been made to the Lender without any
Tax Deduction if the Lender had given a Tax Confirmation to
the Company, on the basis that the Tax Confirmation would
have enabled the Company to have formed a reasonable belief
that the payment was an "excepted payment" for the purpose of
section 930 of the ITA; or
the relevant Lender is a Treaty Lender and the Company is able to
demonstrate that the payment could have been made to the Lender
without the Tax Deduction had that Lender complied with its
obligations under Clause 11.2(g).
(e)
If the Company is required to make a Tax Deduction, the Company 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 Company shall deliver to the
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)
Subject to Clause 11.2(h) below, a Treaty Lender and the Company (to the
extent to which it makes a payment to which that Treaty Lender is entitled)
shall co-operate in completing any procedural formalities necessary for the
Company to obtain authorisation to make that payment without a Tax
Deduction.
(h)
Nothing in Clause 11.2(g) above requires a Treaty Lender to:
(i)
register under the HM Revenue & Customs DT Treaty Passport
scheme;
(ii)
apply the HM Revenue & Customs DT Treaty Passport scheme to any
Loan if it has registered under the scheme; or
(iii)
file Treaty forms if the Company has not complied with its obligations
under Clause 11.2(k) below or Clause 11.5(b).
(i)
A UK Non-Bank Lender shall promptly notify the Company and the Agent if
there is any change in the position from that set out in the Tax Confirmation.
(j)
If a Treaty Lender which is an Original Lender holds a passport under the HM
Revenue & Customs DT Treaty Passport scheme, and that Treaty Lender
wants the scheme to apply to this Agreement, it must include an indication to
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that effect (for the benefit of the Agent and without liability to the Company)
by including its scheme reference number and its jurisdiction of tax residence
opposite its name in Schedule 1 (The Original Lenders).
11.3
(k)
If a Lender includes the indication referred to in Clause 11.2(j) above, the
Company must file a duly completed form DTTP 2 in respect of that Lender
with HM Revenue & Customs within 30 days of the date of this Agreement
and must promptly provide the Lender with a copy of that filing.
(l)
If a Lender does not include the indication referred to in Clause 11.2(k) above
or Clause 11.5(a), the Company may not file any form relating to the HM
Revenue & Customs DT Treaty Passport scheme in respect of that Lender
with HM Revenue & Customs.
Tax Indemnity
(a)
The Company shall (within 3 Business Days of demand by the 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)
Clause 11.3(a) shall not apply:
(i)
with respect to any Tax assessed on a Finance Party:
(A)
under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or jurisdictions) in
which that Finance Party is treated as resident for tax purposes;
or
(B)
under the law of the jurisdiction in which that Finance Party's
Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party; or
(ii)
to the extent a loss, liability or cost:
(A)
is compensated for by an increased payment under Clause 11.2
(Tax Gross-up);
(B)
would have been compensated for by an increased payment
under Clause 11.2 (Tax Gross-up) but was not so compensated
solely because one of the exclusions in Clause 11.2(d) (Tax
Gross-up) applied; or
(C)
relates to a FATCA Deduction required to be made by a Party.
- 64 LEGAL_EU # 17337328.7
11.4
(c)
A Protected Party making, or intending to make a claim under Clause 11.3(a)
shall promptly notify the Agent of the event which will give, or has given, rise
to the claim, following which the Agent shall notify the Company.
(d)
A Protected Party shall, on receiving a payment from the Company under this
Clause 11.3, notify the Agent.
Tax Credit
If the Company 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 Company which that Finance Party
determines will leave if (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 Company.
11.5
11.6
HM Revenue & Customs DT Treaty Passport Scheme Confirmation
(a)
If a New Lender that is a Treaty Lender holds a passport under the HM
Revenue & Customs DT Treaty Passport scheme and that New Lender wants
the scheme to apply to this Agreement, it must include an indication to that
effect (for the benefit of the Agent and without liability to the Company) in the
Transfer Certificate which it executes by including its scheme reference
number and its jurisdiction of tax residence in that Transfer Certificate.
(b)
If a New Lender includes the indication referred to in Clause 11.5(a) above the
Company must file a duly completed form DTTP 2 in respect of that Lender
with HM Revenue & Customs within 30 days of the date of that Transfer Date
and must promptly provide the Lender with a copy of that filing.
Stamp Taxes
The Company shall pay and, within 3 Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party incurs in relation to
all stamp duty, registration and other similar Taxes payable in respect of any Finance
Document.
11.7
Value Added Tax
(a)
All amounts set out in, 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 any supply for VAT purposes are deemed to be exclusive of
any VAT which is or becomes chargeable on that supply, and accordingly,
subject to clause 11.7(b) below, if VAT is chargeable on any supply made by
any Finance Party to any Party under a Finance Document and that Finance
Party is required to account for the VAT, that Party must pay to the Finance
Party (in addition to and at the same time as paying the consideration for such
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supply) an amount equal to the amount of the VAT (and such Finance Party
must promptly provide an appropriate VAT invoice to that Party).
11.8
(b)
If VAT is or becomes 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 other than the Recipient (the "Relevant Party") is
required by the terms of any Finance Document to pay an amount equal to the
consideration for that supply to the Supplier (rather than being required to
reimburse or indemnify the Recipient in respect of that consideration), the
Relevant Party must also pay to the Supplier (if that Supplier is required to
account for the VAT) or the Recipient (if the Recipient is required to account
for VAT) (in addition to and at the same time as paying that amount) an
amount equal to the amount of VAT. The Recipient must promptly pay to the
Relevant Party an amount equal to any credit or repayment from the relevant
tax authority which the Recipient reasonably determines relates to the VAT
chargeable on that supply.
(c)
Where a Finance Document requires any Party to reimburse or indemnify a
Finance Party for any costs or expenses, that Party must also at the same time
reimburse or indemnify (as the case may be) indemnify the Finance Party
against all VAT incurred by the Finance Party in respect of such costs or
expenses but only to the extent that the Finance Party reasonably determines
that it is not entitled to credit or repayment from the relevant tax authority in
respect of the VAT.
(d)
Any reference in this Clause 11.7 to any Party will, at any time when that
Party is treated as a member of a group for VAT purposes, include (where
appropriate and unless the context otherwise requires) a reference to a person
who is treated as making the supply, or (as appropriate) receiving the supply,
under the grouping rules (as provided for in Article 11 of Council Directive
2006/112/EC (or as implemented by a Member State).
(e)
If VAT is chargeable on any supply made by a Finance Party to any Party
under a Finance Document and if reasonably requested by the Finance Party,
the Party must promptly give the Finance Party details of its VAT registration
number and any other information as is reasonably requested in connection
with the Finance Party's reporting requirements for the supply.
FATCA Information
(a)
Subject to Clause 11.8(c) below, each Party shall, within 10 Business Days of
a reasonable request by another Party:
(i)
(ii)
confirm to that other Party whether it is:
(A)
a FATCA Exempt Party; or
(B)
not a FATCA Exempt Party;
supply to that other Party such forms, documentation and other
information relating to its status under FATCA as that other Party
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reasonably requests for the purposes of that other Party's compliance
with FATCA; and
(iii)
(b)
If a Party confirms to another Party pursuant to Clause 11.8(a)(i) above that it
is a FATCA Exempt Party and it subsequently becomes aware that it is not or
has ceased to be a FATCA Exempt Party, that Party shall notify that other
Party reasonably promptly.
(c)
Clause 11.8(a) above shall not oblige any Finance Party to do anything, and
Clause 11.8(a)(iii) above shall not oblige any other Party to do anything,
which would or might in its reasonable opinion constitute a breach of:
(d)
11.9
supply to that other Party such forms, documentation and other
information relating to its status as that other Party reasonably requests
for the purposes of that other Party's compliance with any other law,
regulation, or exchange of information regime.
(i)
any law or regulation;
(ii)
any fiduciary duty; or
(iii)
any duty of confidentiality.
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to
supply forms, documentation or other information requested in accordance
with Clause 11.8(a)(i) or 11.8(a)(ii) above (including, for the avoidance of
doubt, where Clause 11.8(c) above applies), then such Party shall be treated
for the purposes of the Finance Documents (and payments under them) as if it
is not a FATCA Exempt Party until such time as the Party in question provides
the requested confirmation, forms, documentation or other information.
FATCA Deduction
(a)
Each Party may make any FATCA Deduction it is required to make by
FATCA, and any payment required in connection with that FATCA
Deduction, and no Party shall be required to increase any payment in respect
of which it makes such a FATCA Deduction or otherwise compensate the
recipient of the payment for that FATCA Deduction.
(b)
Each Party shall, promptly upon becoming aware that it must make a FATCA
Deduction (or that there is any change in the rate or the basis of such FATCA
Deduction), notify the Party to whom it is making the payment and, in
addition, shall notify the Company and the Agent and the Agent shall notify
the other Finance Parties.
12.
INCREASED COSTS
12.1
Increased Costs
(a)
Subject to Clause 12.3 (Exceptions) the Company shall, within 3 Business
Days of a demand by the Agent, pay for the account of a Finance Party the
amount of any Increased Costs incurred by that Finance Party or any of its
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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; (ii)
compliance with any law or regulation made after the date of this Agreement
or (iii) the implementation or application of, or compliance with, Basel III or
CRD IV or any other law or regulation which implements Basel III or CRD IV
(whether such implementation, application or compliance is by a government,
regulator, Finance Party or any of its Affiliates).
(b)
In this Agreement:
"Increased Costs" means:
(a)
a reduction in the rate of return from a Facility or on a Finance Party's
(or its Affiliate's) overall capital;
(b)
an additional or increased cost; or
(c)
a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the
extent that it is attributable to that Finance Party having entered into its
Commitment or funding or performing its obligations under any Finance
Document.
"Basel III" means:
(a)
the agreements on capital requirements, a leverage ratio and liquidity
standards contained in "Basel III: A global regulatory framework for
more resilient banks and banking systems", "Basel III: International
framework for liquidity risk measurement, standards and monitoring"
and "Guidance for national authorities operating the countercyclical
capital buffer" published by the Basel Committee on Banking
Supervision in December 2010, each as amended, supplemented or
restated; or
(b)
the rules for global systemically important banks contained in "Global
systemically important banks: assessment methodology and the
additional loss absorbency requirement - Rules text" published by the
Basel Committee on Banking Supervision in November 2011, as
amended, supplemented or restated; and
(c)
any further guidance or standards published by the Basel Committee
on Banking Supervision relating to "Basel III"; and
"CRD IV" means:
(a)
Regulation (EU) No 575/2013 of the European Parliament and of the
Council of 26 June 2013 on prudential requirements for credit
institutions and investment firms; and
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(b)
12.2
12.3
Directive 2013/36/EU of the European Parliament and of the Council
of 26 June 2013 on access to the activity of credit institutions and the
prudential supervision of credit institutions and investment firms.
Increased Cost Claims
(a)
A Finance Party intending to make a claim pursuant to Clause 12.1 (Increased
Costs) shall notify the Agent of the event giving rise to the claim, following
which the Agent shall promptly notify the Company.
(b)
Each Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased Costs.
Exceptions
(a)
(b)
Clause 12.1 (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 the
Company;
(ii)
attributable to a FATCA Deduction required to be made by a Party;
(iii)
compensated for by Clause 11.3 (Tax Indemnity) (or would have been
compensated for under Clause 11.3 (Tax Indemnity) but was not so
compensated solely because any of the exclusions in Clause 11.3(b)
(Tax indemnity) applied);
(iv)
attributable to the wilful breach by the relevant Finance Party or its
Affiliates of any law or regulation; or
(v)
attributable to the implementation or application of or compliance with
the "International Convergence of Capital Measurement and Capital
Standards, a Revised Framework" published by the Basel Committee
on Banking Supervision in June 2004 in the form existing on the date
of this Agreement (but excluding any amendment arising out of or
incorporating any measure from Basel III and/or CRD IV) ("Basel II")
or any other law or regulation which implements Basel II (whether
such implementation, application or compliance is by a government,
regulator, Finance Party or any of its Affiliates).
In this Clause 12.3, a reference to a "Tax Deduction" has the same meaning
given to the term in Clause 11.1 (Definitions).
13.
OTHER INDEMNITIES
13.1
Currency Indemnity
(a)
If any sum due from the Company 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:
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(i)
making or filing a claim or proof against the Company; or
(ii)
obtaining or enforcing an order, judgment or award in relation to any
litigation or arbitration proceedings,
the Company shall as an independent obligation, within 3 Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any
cost, loss or liability arising out of or as a result of the conversion including
any discrepancy between (A) the rate of exchange used to convert that Sum
from the First Currency into the Second Currency and (B) the rate or rates of
exchange available to that person at the time of its receipt of that Sum.
(b)
13.2
The Company 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.
Other Indemnities
The Company shall, within 3 Business Days of demand, indemnify each Finance
Party against any cost, loss or liability incurred by that Finance Party as a result of:
13.3
(a)
the occurrence of any Event of Default;
(b)
a failure by the Company 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 26 (Sharing among the Finance Parties);
(c)
funding, or making arrangements to fund, its participation in the Term Loan
requested in the Utilisation Request but not made by reason of the operation of
any one or more of the provisions of this Agreement (other than by reason of
default or negligence by that Finance Party alone); or
(d)
the Loans (or part of the Loans) not being prepaid in accordance with a notice
of prepayment given by the Company.
Indemnity to the Agent
The Company shall promptly indemnify the Agent and every Delegate against:
(a)
any cost, loss or liability incurred by the Agent (in the case of sub-paragraphs
(i), (ii) and (iii) below only, acting reasonably) as a result of:
(i)
investigating any event which it reasonably believes is a Default;
(ii)
acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised;
(iii)
instructing lawyers, accountants, tax advisers, surveyors, insurance
advisers or other professional advisers or experts as permitted under
this Agreement;
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(b)
(iv)
any default by any Transaction Obligor in the performance of any of
the obligations expressed to be assumed by it in the Finance
Documents (including, without limitation, Clause 15 (Costs and
Expenses));
(v)
the taking, holding, protection or enforcement of the Transaction
Security; and
any cost, loss or liability (including, without limitation, for negligence or any
other category of liability whatsoever) incurred by the Agent (otherwise than
by reason of the Agent's fraud, gross negligence or wilful misconduct) in
acting as Agent under the Finance Documents, or which otherwise relates to
the taking, holding, perfection or enforcement of any of the Transaction
Security (including, without limitation, any cost, loss or liability incurred in
connection with the appointment of any receiver appointed in connection with
the Transaction Security or by such receiver).
The Agent, any Delegate and any receiver may, in priority to any payment to the
Finance Parties, indemnify themselves out of the Transaction Security in respect of,
and pay and retain, all sums necessary to give effect to the indemnity in this Clause
13.3 and shall have a lien on the Transaction Security and the proceeds of the
enforcement of the Transaction Security for all moneys payable to it.
14.
MITIGATION BY THE LENDERS
14.1
Mitigation
14.2
(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 7.1 (Illegality), Clause 11 (Tax Gross-up and
Indemnities) or Clause 12 (Increased Costs) including (but not limited to)
transferring its rights and obligations under the Finance Documents to another
Affiliate or Facility Office.
(b)
Clause 14.1(a) does not in any way limit the obligations of the Company under
the Finance Documents.
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 14.1 (Mitigation).
(b)
A Finance Party is not obliged to take any steps under Clause 14.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do
so might be prejudicial to it.
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15.
COSTS AND EXPENSES
15.1
Transaction Expenses
The Company shall promptly on demand pay the Agent and the Lenders the amount
of all costs and expenses (including legal fees, subject to any separate agreement as to
amount) reasonably incurred by them in connection with the negotiation, preparation,
printing and execution of:
15.2
(a)
this Agreement and any other documents referred to in this Agreement; and
(b)
any other Finance Documents executed after the date of this Agreement.
Amendment Costs
If the Company requests an amendment, waiver or consent, release or discharge in
relation to any Finance Documents, the Company shall, within 3 Business Days of
demand, reimburse the Agent for the amount of all costs and expenses (including
legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating
or complying with that request or requirement.
15.3
Enforcement Costs
The Company shall, within 3 Business Days of demand, pay to each Finance Party the
amount of all costs and expenses (including legal fees) incurred by that Finance Party
in connection with the enforcement of, or the preservation of any rights under, any
Finance Document and the Transaction Security and any proceedings instituted by or
against the Agent as a consequence of taking or holding the Transaction Security or
enforcing these rights.
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SECTION 7
BANK ACCOUNTS
16.
BANK ACCOUNTS
16.1
Designation of Accounts
(a)
(b)
16.2
The Company must maintain the following bank accounts in its name:
(i)
a sterling current account designated the "Debt Service Account"
(ii)
a sterling deposit account designated the "Prepayment Account";
(iii)
a sterling deposit account designated the "Equity Release Account";
(iv)
a sterling deposit account designated the "Cure Account"; and
(v)
a sterling current account designated the "General Account".
The Company may not, without the prior consent of the Agent, maintain any
other bank account.
Account Bank
(a)
Subject to paragraphs (b), (c) and (e) below, each Account must be held with
Société Générale Bank & Trust (a public company limited by shares (société
anonyme) incorporated under the laws of the Grand Duchy of Luxembourg,
whose registered office is at 11 avenue Emile Reuter, L-2420 Luxembourg,
Grand Duchy of Luxembourg and registered with the RCS under number
B6061) in Luxembourg.
(b)
An Account must be replaced with a bank account at the same or another bank
at any time if the Agent so requests (acting reasonably) provided that the
replacement of such bank account does not create any tax liabilities or tax
inefficiencies for the Company which are greater than those which arise as a
result of the Company holding each Account with Société Générale in
Luxembourg.
(c)
The replacement of an Account only becomes effective when the relevant
bank agrees with the Agent and the Company, in a manner satisfactory to the
Agent, to fulfil the role of the bank holding that Account (including agreeing
to and acknowledging, to the extent such agreement and acknowledgement is
required by law for the perfection of the relevant Security Interest, any
Security Interest granted by the Company over that Account in favour of the
Finance Parties).
To the extent that any such agreement and
acknowledgement is not required by law for the perfection of the relevant
Security Interest, the Company shall use reasonable endeavours to obtain such
agreement and acknowledgement as soon as reasonably practicable.
(d)
The Company must do all such things as the Agent reasonably requests in
order to facilitate any closure or opening of an Account in accordance with
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paragraphs (b) and (c) above (including, without limitation, the execution of
appropriate bank mandate forms and the granting of any Security Interests in
favour of the Agent).
(e)
16.3
The Company may, at any time, hold any additional account in replacement of
an Account (a "Replacement Account") provided that:
(i)
any such Replacement Account is held with an Acceptable Bank in
England;
(ii)
any such Replacement Account is given the same name as the Account
it replaces;
(iii)
any such Replacement Account is or becomes the subject of a Security
in favour of the Agent granted on substantially the same terms as the
Security granted by the Company in favour of the Agent over each
Account pursuant to Clause 4.1 (Initial Conditions Precedent);
(iv)
no cash payments are made into any such Replacement Account until
the relevant Security Interest referred to in sub-paragraph (iii) above
has been perfected to the satisfaction of the Agent;
(v)
if required by the Agent, appropriate corporate authorisations and legal
opinions in respect of any such new Security are provided to the
Agent; and
(vi)
all the balances standing to the credit of each Account to be replaced
must be transferred to the relevant Replacement Account in a single
amount such that no two Accounts of the same name are in credit at the
same time and the Account to be replaced must be closed as soon as
reasonably practicable following the transfer contemplated by this
sub-paragraph (vi).
Debt Service Account
(a)
The Agent has sole signing rights in relation to the Debt Service Account.
(b)
The Company must ensure that, prior to each Interest Payment Date, the Debt
Service Amount relating to that Interest Payment Date is paid into the Debt
Service Account.
(c)
If all or any part of the Debt Service Amount is paid into an Account other
than the Debt Service Account, that payment must be paid immediately into
the Debt Service Account.
(d)
Except as provided in Clause 27.6 (Partial Payments) and paragraph (e)
below, on each Interest Payment Date, the Agent shall (and is irrevocably
authorised by the Company to) withdraw from, and apply amounts standing to
the credit of, the Debt Service Account in the following order:
(i)
first, in or towards payment pro rata of any unpaid amounts owing to
the Agent, any Delegate or the Arranger under the Finance Documents;
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(e)
16.4
(ii)
secondly, in or towards payment pro rata to the Agent for the relevant
Lenders of the Cash Coupon Amount payable in respect of that Interest
Payment Date;
(iii)
thirdly, if on that Interest Payment Date there is an outstanding PIK
Coupon Aggregate Balance Amount and all the Coupon Conditions in
respect of that Interest Payment Date are satisfied, in or towards
payment pro rata to the Agent for the relevant Lenders of the Relevant
PIK Coupon Aggregate Balance Amount; and
(iv)
fourthly, in or towards payment pro rata of any other sum due but
unpaid to the Finance Parties under the Finance Documents.
The Agent is obliged to make a withdrawal from the Debt Service Account in
accordance with paragraph (d) above only if no Event of Default is continuing.
Prepayment Account
(a)
The Agent has sole signing rights in relation to the Prepayment Account.
(b)
On and from the Completion Date, the Company must ensure (and shall
procure that any necessary payments are made by the Target to enable the
Company to ensure) that:
(i)
the Disposal Proceeds received by the Company are paid into the
Prepayment Account in accordance with Clause 20.5 (Disposals);
(ii)
any Insurance Proceeds required to be applied in prepayment of the
Facilities pursuant to Clause 7.8 (Insurance Proceeds, Disposal
Proceeds, Compensation Proceeds and Recovery Proceeds) are paid
into the Prepayment Account promptly upon receipt;
(iii)
any Compensation Proceeds required to be applied in prepayment of
the Facilities pursuant to Clause 7.8 (Insurance Proceeds, Disposal
Proceeds, Compensation Proceeds and Recovery Proceeds) are paid
into the Prepayment Account promptly upon receipt; and
(iv)
any Recovery Proceeds are paid into the Prepayment Account
promptly upon receipt.
(c)
If any payment of any Disposal Proceeds, Insurance Proceeds, Compensation
Proceeds or Recovery Proceeds required to be paid into the Prepayment
Account in accordance with paragraph (b) above is paid into an Account other
than the Prepayment Account, that payment must be paid immediately into the
Prepayment Account.
(d)
Except as provided in Clause 27.6 (Partial Payments) and paragraph (e)
below, on each Interest Payment Date, the Agent shall (and is irrevocably
authorised by the Company to) withdraw from, and apply amounts standing to
the credit of, the Prepayment Account, in accordance with the relevant
provisions of Clause 7 (Prepayment and Cancellation).
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(e)
16.5
The Agent is obliged to make a withdrawal from the Prepayment Account in
accordance with paragraph (d) above only if no Event of Default is continuing.
Equity Release Account
(a)
The Agent has sole signing rights in relation to the Equity Release Account.
(b)
The Company must ensure that any amount received by it from any member
of the Target Group, other than:
(i)
the amount of any Management Charge;
(ii)
any Permitted Senior Principal Increase Amount which is raised by the
Target Group pursuant to any Permitted Senior Principal Increase and
which the Company designates as being for the purposes of
distribution to Holdco; and
(iii)
any amount specifically required under this Agreement to be paid into
any other Account,
is paid into the Equity Release Account.
(c)
Subject to paragraph (d) below, the Company will be permitted to request the
Agent to release to the General Account any amounts (in whole or part)
standing to the credit of the Equity Release Account in respect of any
Reference Date (a "Relevant Reference Date") if:
(i)
(ii)
(d)
the Compliance Certificate (a "Relevant Compliance Certificate")
delivered in accordance with the terms of this Agreement in respect of
the Test Period ending on that Relevant Reference Date confirms that:
(A)
Interest Cover in respect of such Test Period is at least 1.80:1;
and
(B)
Aggregate Total Net Debt to EBITDA in respect of such Test
Period is less than 5.00:1; and
at the time of any release to the General Account, the balance of the
PIK Coupon Aggregate Balance Amount is zero.
For the purposes of making the calculations set out in paragraph (c)(i) above
only, any amount which has been paid into the Prepayment Account (a
"Relevant Prepayment Account Amount") since the Test Period ending on
the Relevant Reference Date (and prior to the delivery of the Relevant
Compliance Certificate) shall be taken into account in calculating Interest
Cover and Aggregate Total Net Debt to EBITDA on a pro forma basis as
follows:
(i)
Interest Cover will be calculated such that paragraph (b) of Aggregate
Consolidated Net Interest (as such component is utilised in the
calculation of such Financial Covenant) will be adjusted by deeming
the outstanding amount of the Loans to be reduced by the Relevant
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Prepayment Account Amount as at the start of the Test Period ending
on the Relevant Reference Date; and
(ii)
(e)
(f)
16.6
Aggregate Total Net Debt to EBITDA will be calculated such that the
Relevant Prepayment Account Amount is deducted from the Aggregate
Total Net Debt component of such ratio as at the Relevant Reference
Date.
If the conditions referred to in paragraph (c) in relation to a Relevant
Reference Date above are satisfied, amounts will only be permitted to be
released from the Equity Release Account to the General Account in relation
to that Relevant Reference Date if:
(i)
such amounts are released prior to the Reference Date falling
immediately after the Relevant Reference Date;
(ii)
no Default is continuing as at the date on which such amounts are so
released; and
(iii)
the amount released is limited to such amount as will ensure that the
conditions in paragraph (c) above will continue to be met following
such release.
Without prejudice to any of the foregoing provisions of this Clause 16.5, the
Company is permitted to request the Agent to apply any amounts standing to
the credit of the Equity Release Account in prepayment of the Loans at any
time and, if the Company so requests and provided at that time no Default is
continuing, the Agent shall comply with the Company’s request on the next
Cure Account
(a)
The Agent has sole signing rights in relation to the Cure Account.
(b)
If the Company elects to cure any breach of a Financial Covenant (in
accordance with the provisions of Clause 19.2 (Company Equity Cure)), the
Company shall be entitled to deposit funds into the Cure Account in
accordance with the provisions of Clause 19.2 (Company Equity Cure).
(c)
Subject to paragraph (d) below, if any funds have been deposited into the Cure
Account following a Reference Date in respect of which a breach of a
Financial Covenant occurred (each such Reference Date being the relevant
"Breach RD"), the Company may only request the Agent to release such
funds to the General Account if:
(i)
the Compliance Certificate delivered in respect of the first Reference
Date immediately following the relevant Breach RD; and
(ii)
the Compliance Certificate delivered in respect of the second
Reference Date immediately following that relevant Breach RD,
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each confirm that all Financial Covenants are satisfied in respect of each such
Reference Date provided that, for the purposes of determining compliance
with the Financial Covenants in this instance, any amounts credited to the
Cure Account in respect of such Breach RD (together with any amounts
standing to the credit of the Prepayment Account, to the extent relevant) will
not be taken into account.
16.7
(d)
If the provisions of paragraph (c) above prevent the Company from requesting
the Agent to release funds from the Cure Account to the General Account,
then on the Interest Payment Date immediately following the fourth Reference
Date immediately following the relevant Breach RD, the Agent is hereby
irrevocably instructed to apply all amounts credited to the Cure Account in
respect of such Breach RD in prepayment of the Loans.
(e)
If the Company is permitted to request the release of funds to the General
Account in accordance with paragraph (c) above, the Agent is hereby
irrevocably instructed to release such funds unless a Default is continuing at
the time that the Agent is requested to release such funds.
(f)
Without prejudice to any of the foregoing provisions of this Clause 16.6, the
Company is permitted to request the Agent to apply any amounts standing to
the credit of the Cure Account in prepayment of the Loans at any time and, if
the Company so requests and provided at that time no Default is continuing,
the Agent shall comply with the Company’s request on the Interest Payment
Date immediately following the Company's request.
General Account
(a)
Except as provided in paragraph (d) below, the Company has signing rights in
relation to the General Account.
(b)
The Company must ensure that:
(i)
the amount of any Management Charge;
(ii)
any Permitted Senior Principal Increase Amount which is raised by the
Target Group pursuant to any Permitted Senior Principal Increase and
which the Company designates as being for the purposes of
distribution to Holdco;
(iii)
any amounts which the Company is permitted to request the Agent to
release from the Equity Release Account in accordance with Clause
16.5 (Equity Release Account); and
(iv)
any amounts which the Company is permitted to request the Agent to
release from the Cure Account in accordance with Clause 16.6 (Cure
Account),
are paid into the General Account.
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(c)
Except as provided in paragraph (d) below and subject to:
(i)
any restriction in the Subordination Agreement; and
(ii)
the requirement that amounts paid into the General Account for a
particular purpose must be used for that purpose,
the Company may withdraw any amount from the General Account for any
purpose.
(d)
16.8
At any time when a Default is continuing, the Agent may:
(i)
operate the General Account;
(ii)
notify the Company that its rights to operate the General Account are
suspended, such notice to take effect in accordance with its terms; and
(iii)
withdraw from, and apply amounts standing to the credit of, the
General Account in or towards any purpose for which moneys in the
Debt Service Account may be applied or otherwise in payment of any
amounts due but unpaid to a Finance Party under the Finance
Documents.
Miscellaneous Accounts Provisions
(a)
The Company must ensure that no Account goes into overdraft.
(b)
Any amount received or recovered by the Company otherwise than by credit
to an Account must be held subject to the security created by the Finance
Documents and immediately be paid to the relevant Account or to the Agent in
the same funds as received or recovered.
(c)
If any payment is made into an Account in relation to which the Agent has
sole signing rights which should have been paid into another Account, then,
unless a Default is continuing, the Agent must, at the request of the Company
and on receipt of evidence satisfactory to the Agent that the payment should
have been made to that other Account, pay that amount to that other Account.
(d)
The moneys standing to the credit of an Account may be applied by the Agent
in payment of any amount due but unpaid to a Finance Party under the Finance
Documents.
(e)
No Finance Party is responsible or liable to the Company for:
(f)
(i)
any non-payment of any liability of the Company which could be paid
out of moneys standing to the credit of an Account; or
(ii)
any withdrawal wrongly made, if made in good faith.
The Company must, within 5 Business Days of any request by the Agent,
supply the Agent with the following information in relation to any payment
received in an Account:
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(i)
the date of payment or receipt;
(ii)
the payer; and
(iii)
the purpose of the payment or receipt.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
17.
REPRESENTATIONS
The Company makes, to each Finance Party, the representations and warranties set
out in this Clause 17 in respect of itself and, where expressly stated, on and from the
Control Date or the Relevant Date (as applicable) in respect of each Senior Obligor
and any other member of the Target Group.
17.1
17.2
17.3
Status
(a)
Save in respect of SSPP and the Project 77 Target, the Company is, and on
and from the Relevant Date each Senior Obligor is, a limited liability
corporation, duly incorporated and validly existing under the law of its
jurisdiction of incorporation.
(b)
On and from the Relevant Date, SSPP is a limited partnership, duly formed
and validly existing under the laws of England and Wales and registered under
the Limited Partnership Act 1907.
(c)
In the case of the Company and, on and from the Relevant Date, each Senior
Obligor, it and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
(d)
The Company represents and warrants that, on and from the Relevant Date,
the Project 77 Target is duly established and validly existing in all respects
under the laws of Jersey in accordance with the terms of the Unit Trust
Instrument.
Binding Obligations
(a)
The obligations expressed to be assumed by the Company in each Finance
Document to which it is a party are, subject to the Reservations, legal, valid,
binding and enforceable obligations.
(b)
Each Security Document to which the Company is a party creates, subject to
the Reservations, the security interests which that Security Document purports
to create and such security interests are valid and effective.
Non-conflict with Other Obligations
The entry into and performance by the Company of, and the transactions
contemplated by, the Finance Documents do not and will not conflict with:
(a)
any law or regulation applicable to it;
(b)
its and, on and from the Relevant Date, any of its Subsidiaries' constitutional
documents (including, as applicable, the Unit Trust Instrument or Partnership
Agreement); or
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(c)
17.4
17.5
any agreement or instrument binding upon it, and, on and from the Relevant
Date, any of its Subsidiaries or, on and from the Relevant Date, any of its or
any of its Subsidiaries' assets in a manner which is reasonably likely to have a
Material Adverse Effect.
Power and Authority
(a)
The Company has the power to enter into, perform and deliver, and has taken
all necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
(b)
On and from the Relevant Date, all Authorisations required by law for the
establishment of the Project 77 Target, the issue of any units by the Project 77
Target and the carrying on of the business of the Project 77 Target have been
obtained and complied with.
Validity and Admissibility in Evidence
All Authorisations required or desirable:
(a)
to enable the Company lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a party; and
(b)
to make the Finance Documents to which it is a party admissible in evidence
in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect and save for the matters
set out in Clause 17.7(a).
17.6
17.7
Governing Law and Enforcement
(a)
The choice of governing law of the Finance Documents to which it is a party
will (subject to the Reservations) be recognised and enforced in the
Company’s jurisdiction of incorporation.
(b)
Any judgment obtained in relation to a Finance Document in the jurisdiction
of the governing law of that Finance Document will (subject to the
Reservations) be recognised and enforced in the Company’s jurisdiction of
incorporation.
No Filing or Stamp Taxes
Under the law of the Company’s jurisdiction of incorporation it is not necessary,
subject to the Reservations, that the Finance Documents be filed, recorded or enrolled
with any court or other authority in that jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to the Finance Documents or the transactions
contemplated by the Finance Documents save for:
(a)
the registration of particulars of the Company Security Agreement and the
Company Account Security Agreement at the Companies Registration Office
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in England and Wales under section 860 of the Companies Act 2006 and
payment of associated fees; and
(b)
17.8
17.9
the registration of any transfer of shares and payment of any stamp duty in
relation thereto.
No Default
(a)
No Event of Default is continuing or might reasonably be expected to result
from the making of the Utilisation.
(b)
No other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or, on and
from the Control Date, any of its Subsidiaries or to which its (or any of its
Subsidiaries') assets are subject which might have a Material Adverse Effect.
No Misleading Information
(a)
Any factual information provided by the Company or on its behalf for the
purposes of the Initial Business Plan was true and accurate in all material
respects as at the date it was provided or as at the date (if any) at which it is
stated save as otherwise described by the Company to all the Lenders in
writing before the date of this Agreement.
(b)
All written and factual information supplied by the Company or on its behalf
to the lawyers or other professionals who prepared any Report (excluding the
Report on Title) for the purpose of that Report was true and accurate in all
material respects as at its date or (if appropriate) as at the date (if any) at
which it is stated to be given.
(c)
All information provided by the Company or on its behalf to the Initial Valuer
for the purposes of the Initial Valuation was true and accurate in all material
respects as at the date it was provided or as at the date (if any) at which it is
stated, save as otherwise described by the Company to the Original Lenders in
writing before the date of this Agreement where, if such information were not
true and accurate in all material respects it would materially adversely affect
the Initial Valuation.
(d)
The Company has not omitted to supply any information to the Initial Valuer
which, if disclosed, would materially adversely affect the Initial Valuation
(e)
The financial projections contained in the Initial Business Plan were arrived at
after careful consideration and were prepared in good faith on the basis of
recent historical information and on the basis of assumptions which were
reasonable as at the date they were prepared and supplied.
(f)
Nothing has occurred or been omitted from the Initial Business Plan and no
information has been given or withheld that results in the information
contained in the Initial Business Plan being untrue or misleading in any
respect which is materially adversely prejudicial to the interests of the
Lenders.
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17.10 Financial Statements
The Company’s Original Financial Statements were prepared in accordance with
GAAP consistently applied.
17.11 Pari Passu Ranking
The Company’s payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated creditors, except
for obligations mandatorily preferred by law applying to companies generally.
17.12 No Proceedings Pending or Threatened
No litigation, arbitration or administrative proceedings of or before any court, arbitral
body or agency which are reasonably likely to be adversely determined and, if
adversely determined, would reasonably be expected to have a Material Adverse
Effect have (to the best of its knowledge and belief after due enquiry) been started or
threatened against the Company or, on and from the Control Date, any of its
Subsidiaries or in respect of the Project 77 Trustees.
17.13 Environmental, Planning and other matters
The Company is and, on and from the Control Date the Group, is in compliance in all
material respects with:
(a)
all applicable Environmental Laws and Environmental Licences; and
(b)
all statutes currently in force affecting the Properties,
in each case, save as disclosed to the Original Lenders in: (i) a Report on Title, (ii) the
Legal Due Diligence Report or (iii) the Technical Due Diligence Report.
17.14 Partnership and Unit Trust matters
The Company represents and warrants that on, and from the Control Date (and so far
as it is aware (having made due and careful inquiry)):
(a)
the arrangements with respect to the assets of the Project 77 Target constitute
a collective investment scheme within the meaning of section 235 of FSMA
and there has been no breach of the requirements of FSMA or other applicable
law relevant to the establishment and operation of that collective investment
scheme;
(b)
the Project 77 Target is not an authorised unit trust scheme within the meaning
of section 243 of FSMA;
(c)
subject to the Reservations, the Partnership Agreement constitutes the legally
binding, valid and enforceable obligations of each party thereto and contains
all material terms of the partnership agreement between those persons in
relation to SSPP; and
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(d)
subject to clause 29 (Termination and Liquidation) of the Partnership
Agreement, the contractual term of the Partnership Agreement extends beyond
the Termination Date.
17.15 Sanctions
Neither the Company nor, on and from the Control Date, any Senior Obligor nor any
of its Subsidiaries or any of their respective directors, officers and, to the best of its
knowledge after due and careful inquiry, its employees and agents are:
(a)
listed, or owned or controlled, directly or, to the best of its knowledge after
due and careful inquiry indirectly, by any person which is listed, on an SDN
List;
(b)
organised or resident in a Sanctioned Territory; or
(c)
a governmental agency, authority, or body or state-owned enterprise of any
Sanctioned Territory.
17.16 Anti-corruption Law
The Company has, and on and from the Control Date each member of the Group has,
conducted its businesses in compliance with applicable anti-corruption laws and has
instituted and maintained policies and procedures designed to promote and achieve
compliance with such laws.
17.17 Loans to the Group
(a)
The Company represents that no loans or other financial accomodation have
been made to the Company from any Sponsor Affiliate other than from
Holdco or the Target.
(b)
On and from the Control Date, the Company represents (for itself and on
behalf of each other member of the Group) that no loans or other financial
accommodation have been made to any member of the Target Group from any
Sponsor Affiliate other than from the Company to the Target.
17.18 Property Representations
On and from the Control Date, the Company represents and warrants that, save as
disclosed in a Report on Title and/or the Legal Due Diligence Report:
(a)
each member of the Group which owns a Property is the legal and beneficial
owner of its Property;
(b)
no breach of any law or regulation is outstanding which affects the value of
any Property where such breach would be reasonably likely to result in a
Material Adverse Effect;
(c)
there are no covenants, agreements, stipulations, reservations, conditions,
interest, rights or other matters whatsoever affecting any Property in each case
which would be reasonably likely to result in a Material Adverse Effect;
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(d)
nothing has arisen or has been created or is subsisting which would be an
overriding interest, or an unregistered interest which overrides first registration
or registered dispositions, over any Property;
(e)
no facilities necessary for the enjoyment and use of any Property are enjoyed
by that Property on terms entitling any person to terminate or curtail its use
where such termination or curtailment would have a Material Adverse Effect;
(f)
the Company has not and, so far as it is aware, no member of the Group which
owns a Property has:
(i)
received notice of any adverse claims by any person in respect of the
ownership of a Property or any interest in it; or
(ii)
given any acknowledgement of any adverse claim to any person in
respect of its Property,
in each case which would be reasonably likely to result in a Material Adverse
Effect; and
(g)
each Property is held by the relevant member of the Group free from any
Security Interest, save as permitted by this Agreement and the Senior Finance
Documents.
17.19 Times when Representations Made
18.
(a)
All the representations and warranties in this Clause 17 are made by the
Company (in respect of itself) on the date of this Agreement.
(b)
The Repeating Representations are deemed to be made by the Company on
behalf of (i) itself, (ii) each Senior Obligor, (iii) each other member of the
Group (as applicable) and (iv) each Project 77 Trustee (by reference to the
facts and circumstances then existing) on the first day of each Interest Period.
INFORMATION UNDERTAKINGS
The undertakings in this Clause 18 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.
18.1
Financial Statements and Business Plan
The Company shall supply to the Agent in sufficient copies for all the Lenders:
(a)
its audited consolidated financial statements for each Financial Year, as soon
as the same become available, but in any event within 120 days after the end
of that Financial Year,
(b)
its unaudited consolidated financial statements for each half of each Financial
Year, as soon as the same become available, but in any event within 90 days
after the end of that half of the Financial Year;
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18.2
18.3
(c)
the quarterly consolidated management accounts, within 35 days of the end of
the quarter to which they relate;
(d)
its Business Plan for the next twelve months within 45 days after the
commencement of each Financial Year (including, but not limited to, details
of profit and loss, cash flow and balance sheet information), and the Company
represents (as at the date of delivery of such Business Plan) that such Business
Plan has been prepared by the Company (acting reasonably) on the basis of
recent historical information and on the basis of assumptions which were
reasonable as at the date such Business Plan was prepared and supplied; and
(e)
any business plan agreed with the Senior Lenders (or any Senior Agent) at the
same time as such business plan is delivered to such Senior Lenders (or any
Senior Agent).
Compliance Certificate
(a)
The Company shall supply to the Agent with each set of financial statements
or, as applicable, quarterly consolidated management accounts delivered
pursuant to Clauses 18.1(a), 18.1(b) or 18.1(c) a Compliance Certificate
setting out (in reasonable detail) computations as to compliance with Clause
19.1 (Financial covenants) as at the date at which those financial statements
were drawn up or as at the relevant Reference Date.
(b)
Each Compliance Certificate shall be signed by two directors of the Company.
(c)
The Company shall procure that the auditors of the Group verify the
computations set out in each Compliance Certificate relating to its audited
consolidated financial statements for each Financial Year.
(d)
The Company may supply the Agent with any of the information set out in this
Clause 18.2 and Clause 18.1 above electronically to such e-mail address as the
Agent may specify from time to time.
Requirements as to Financial Statements
(a)
Each set of financial statements delivered by the Company pursuant to Clause
18.1 (Financial statements and Business Plan) shall be certified by a director
of the relevant company as fairly representing its financial condition as at the
date as at which those financial statements were drawn up.
(b)
The Company shall procure that each set of financial statements delivered
pursuant to Clause 18.1 (Financial statements and Business Plan) is prepared
using GAAP, accounting practices and quarterly financial reference periods
consistent with those applied in the preparation of the Original Financial
Statements and the Initial Business Plan unless, in relation to any set of
financial statements, it notifies the Agent that there has been a change in
GAAP, the accounting practices or quarterly financial reference periods and
the Company or its auditors deliver to the Agent:
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(i)
a description of any change necessary for those financial statements to
reflect the GAAP, accounting practices and reference periods upon
which the Original Financial Statements were prepared; and
(ii)
sufficient information, in form and substance as may be reasonably
required by the Agent, to enable the Lenders to determine whether
Clause 19.1 (Financial covenants) has been complied with and make
an accurate comparison between the financial position indicated in
those financial statements and the Original Financial Statements.
Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to reflect the
basis upon which the Original Financial Statements were prepared.
18.4
Relevant Senior Facility Agreement Reporting
On and from the Control Date the Company must:
(a)
together with each Compliance Certificate, supply to the Agent a copy of each
corresponding compliance certificate (howsoever defined) delivered in
accordance with the Senior Finance Documents (and any other compliance
certificate howsoever defined) delivered in accordance with the Senior
Finance Documents;
(b)
supply to the Agent copies of all financial statements of the Senior Obligors
that are delivered pursuant to the Senior Finance Documents together with the
corresponding financial statements of the Company delivered pursuant to
Clause 18.1 (Financial Statements and Business Plan);
(c)
provide any other information which it receives from the Target in relation to
the Senior Finance Documents promptly upon receipt; and
(d)
any business plan delivered pursuant to the Senior Facility Agreement.
The provision of the above information is subject to any legal restrictions which apply
to prevent the distribution of such information by the Company and/or any member of
the Target Group.
18.5
Information: Miscellaneous
The Company shall supply to the Agent (in sufficient copies for all the Lenders, if the
Agent (acting on the instructions of one or more Lenders) so requests):
(a)
all documents:
(i)
relating to the Senior Finance Documents (to the extent not already
provided pursuant to this Clause 18 (Information Undertakings)); and
(ii)
otherwise as required by law,
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which are dispatched by the Company to its shareholders (or any class of
them) in their capacity as such or its creditors generally at the same time as
they are dispatched;
18.6
(b)
promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current, threatened or
pending against it or, on and from the Control Date, any member of the Group
or any Project 77 Trustee (save for those which are frivolous, or vexatious
and, in either case, unlikely to succeed), and which might, if adversely
determined, have a Material Adverse Effect; and
(c)
promptly, such further information regarding the financial condition, business
and operations of any member of the Group or the Project 77 Target as any
Finance Party (through the Agent) may reasonably request.
Quarterly Report
Within 35 days of the end of each financial quarter ending after the Control Date, the
Company shall deliver to the Agent a quarterly report which reports on the following
items in respect of that most recently completed financial quarter:
18.7
18.8
(a)
a reconciliation to Operating Group Cash Flow (as against the Operating
Group Cash Flow set out in the then current Business Plan) in respect of that
financial quarter;
(b)
a draft tax calculation in respect of that financial quarter;
(c)
a schedule of current lettings and pencilled lettings of stage space; and
(d)
a tenancy schedule for the "Media Hub" at each Property.
Notification of Default
(a)
The Company shall notify the Agent in each case of any Default and, on and
from the Control Date, any Senior Default (and the steps, if any, being taken
to remedy it) promptly upon becoming aware of its occurrence.
(b)
Promptly upon a request by the Agent, the Company shall supply to the Agent
a certificate signed by two of its directors certifying that no Default or, on and
from the Control Date, Senior Default is continuing (or if a Default (or Senior
Default, as the case may be) is continuing, specifying the Default (or Senior
Default, as the case may be) and the steps, if any, being taken to remedy it).
"Know your customer" Checks
(a)
If:
(i)
the introduction of any change in (or in the interpretation,
administration or application of) any law or regulation made after the
date of this Agreement;
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(ii)
any change in the status of the Company after the date of this
Agreement; or
(iii)
a proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to
such assignment or transfer,
obliges the 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, the Company shall promptly upon the request of the
Agent or any Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the 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 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 it has
complied with 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)
18.9
Each Lender shall promptly upon the request of the Agent supply, or procure
the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry out and be
satisfied it has complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations pursuant to the
transactions contemplated in the Finance Documents.
Information: PSDF Site
On and from the Control Date, the Company shall supply to the Agent, promptly after
receipt from any member of the Target Group (and the Company shall request the
Target to provide to the extent available and required under the Senior Facility
Agreement):
(a)
any update to the Development Cash Flow;
(b)
copies of all professional team professional indemnity insurance and
contractor's all risk insurance policies;
(c)
the monthly Employer's Agent and Cost Consultant's Report;
(d)
the monthly Contractor's Report; and
(e)
the monthly Project Manager's Report.
19.
FINANCIAL COVENANTS
19.1
Financial Covenants
(a)
Subject to paragraph (c) below, in respect of any Reference Date falling after
the Utilisation Date, at any time while any Loan or other amount is
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outstanding under this Agreement or any Commitment is in force, the
Company shall comply with the following financial covenants:
(i)
"Interest Cover": the ratio of Consolidated PBIT for each Test Period
to Aggregate Consolidated Net Interest during that Test Period shall
not be less than:
Test Period Expiring
Ratio
30 September 2016
1.25:1
31 December 2016
1.35:1
31 March 2017
1.45:1
30 June 2017, 30 September 2017, 1.50:1
31 December 2017, 31 March
2018 and 30 June 2018
30 September 2018, 31 December 1.60:1
2018, 31 March 2019 and 30 June
2019
2019, 31 March 2020 and 30 June
2020
2020, 31 March 2021 and 30 June
2021
2021, 31 March 2022, 30 June
2022 and 30 September 2022
(b)
(ii)
"Restricted Senior Leverage": the ratio of Restricted Total Net Debt
to Adjusted Consolidated EBITDA shall not, as at any Reference Date,
exceed the ratio for Senior Leverage for the Senior Test Period ending
on the Senior Reference Date immediately following that Reference
Date (as such ratio for Senior Leverage is set out in the original form
of the Initial Senior Facility Agreement);
(iii)
"Aggregate Total Net Debt to Market Value": Aggregate Total Net
Debt shall not, as at any Reference Date, exceed seventy per cent. (70
per cent.) of the Relevant Market Value; and
(iv)
"Aggregate Total Net Debt to Vacant Possession Value": Aggregate
Total Net Debt shall not, as at any Reference Date, exceed ninety-five
per cent. (95 per cent.) of the Vacant Possession Value.
At any time following the earlier to occur of the Initial Termination Date
being extended to the Extended Termination Date and a Permitted Variation,
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at any time while the Loans or other amount are outstanding under this
Agreement or any Commitment is in force, the Company shall comply with
the following financial covenants:
(i)
"Mezzanine ICR": the ratio of Operating Group Cash Flow for each
Test Period to Tax Adjusted Aggregate Consolidated Net Interest
during that Test Period shall not be less than 1.50:1; and
(ii)
"Mezzanine DSCR": the ratio of Operating Group Cash Flow for each
Test Period to Tax Adjusted Aggregate Consolidated Debt Service
during that Test Period shall not be less than 1.25:1.
provided that if, as a result of a Permitted Senior Facility Extension becoming
unconditionally effective which includes an amortisation profile which is
equal to at least 85 per cent. of the amortisation profile for 2018 as set out in
the original form of the Initial Senior Facility Agreement, there shall be no
obligation on the Company to comply with the Mezzanine DSCR for the Test
Period ending on 31 December 2018 or 31 March 2019.
(c)
19.2
At any time following the occurrence of a Permitted Variation, the following
Financial Covenants will cease to apply (and the Company shall no longer be
required to comply with such Financial Covenants):
(i)
Interest Cover; and
(ii)
Restricted Senior Leverage.
Company Equity Cure
(a)
If a Compliance Certificate delivered in accordance with Clause 18.2
(Compliance Certificate) shows, for any Test Period or as at a Reference Date,
that there has been a breach of Clause 19.1 (Financial Covenants):
(i)
if such breach is a breach of a Financial Covenant other than the
Restricted Senior Leverage covenant, the Company may (at its
election) either deposit an amount equal to the relevant Equity Cure
Amount into the Equity Cure Account or apply an amount equal to the
Equity Cure Amount in prepayment of the Loans (such right being an
"Equity Cure Right"), provided thatif the Company elects that its
Equity Cure Right is to be effected by way of a prepayment of the
Loans, the relevant Equity Cure Amount which is to be so applied in
prepayment must first be paid into the Equity Cure Account following
the relevant Reference Date in respect of which it applies and then
applied in prepayment of the Loans on the Interest Payment Date
immediately following that Reference Date; or
(ii)
if such breach is a breach of the Restricted Senior Leverage covenant,
the Company must promptly apply an amount equal to the applicable
Equity Cure Amount in prepayment of the Senior Loans.
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(b)
"Equity Cure Amount" means an amount equal to:
(i)
in respect of a breach of Interest Cover, Mezzanine ICR and/or
Mezzanine DSCR, the amount by which the Loans are required to be
reduced at the start of the relevant Test Period in order to satisfy
Interest Cover, Mezzanine ICR and/or Mezzanine DSCR if such
Financial Covenant(s) were re-tested;
(ii)
in respect of a breach of Aggregate Total Net Debt to Market Value
and/or Aggregate Net Debt to Vacant Possession Value, the amount by
which the Loans are required to be reduced on the date falling
immediately prior to the relevant Reference Date in order to satisfy
Aggregate Total Net Debt to Market Value and/or Aggregate Total Net
Debt to Vacant Possession Value if such Financial Covenant(s) were
re-tested; and
(iii)
in respect of a breach of Restricted Senior Leverage, the amount by
which the Senior Loans are required to be reduced on the relevant
Reference Date in order to satisfy Restricted Senior Leverage if such
Financial Covenant were re-tested.
(c)
Any Equity Cure Amount paid into the Cure Account shall be released from
the Cure Account only in accordance with the provisions of Clause 16.6 (Cure
Account).
(d)
Any Equity Cure Amount must be funded by the proceeds of New Equity
and/or New Loans and applied:
(i)
in respect of a breach of a Financial Covenant other than the Restricted
Senior Leverage covenant, at the election of the Company, in
prepayment of the Loans in the amount set out in paragraph (a)(i)
above or in payment into the Cure Account on or prior to the date
falling 10 Business Days after the date upon which the relevant
Compliance Certificate was delivered or was required to be delivered;
and
(ii)
in respect of a breach of the Restricted Senior Leverage covenant, in
prepayment of the Senior Loans on or prior to the date falling 15
Business Days after the date upon which the relevant Compliance
Certificate was delivered or was required to be delivered,
in each case provided that the Company has notified the Agent of the
intended exercise of an Equity Cure Right on or prior to the date upon which
the relevant Compliance Certificate was delivered or was required to be
delivered.
(e)
If the Company notifies the Agent of its intention to exercise an Equity Cure
Right in respect of a Financial Covenant in accordance with paragraph (d)
above, then the Lenders and the Agent shall not be entitled to take any
enforcement action in respect of the Loans:
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(f)
(i)
Senior Leverage covenant, during the 10 Business Day period referred
to in paragraph (d) above; and
(ii)
in respect of a breach of the Restricted Senior Leverage covenant,
during the 15 Business Day period referred to in paragraph (d) above.
Following provision of any Equity Cure Amount by the Company in
accordance with this Clause 19.2, the Company must immediately deliver a
new Compliance Certificate (the "New Compliance Certificate") to the
Agent setting out the recalculated financial ratios for the relevant Test Period
or as at the relevant Reference Date, so as to reflect:
(i)
Senior Leverage covenant, the application of the Equity Cure Amount
in prepayment of the Loans in the amount set out in paragraph (a)(i)
above or in payment into the Cure Account as applicable; and
(ii)
in respect of a breach of the Restricted Senior Leverage covenant, the
prepayment of the Senior Loans.
(g)
If a New Compliance Certificate shows that the breach of the Financial
Covenant(s) in respect of which it was delivered has been cured, such
Financial Covenant(s) shall be deemed to have been satisfied on the date of
the original Compliance Certificate (showing the failure to comply) as though
no breach has ever occurred and any related Default or Event of Default shall
be deemed never to have occurred.
(h)
If:
(i)
more than one Financial Covenant is breached in respect of the same
Reference Date (but where the multiple Financial Covenants breached
do not include the Restricted Senior Leverage covenant), all such
Financial Covenant breaches will be cured by a single Equity Cure
Amount being applied in prepayment of the Loans in the manner set
out in paragraph (a)(i) above or in payment into the Cure Account in
respect of such Reference Date, provided that such Equity Cure
Amount is sufficient to cure the Financial Covenant breach which
requires the greatest Equity Cure Amount; and
(ii)
more than one Financial Covenant is breached in respect of the same
Reference Date (but where the multiple Financial Covenants breached
do include the Restricted Senior Leverage covenant):
(A)
the amount of the Equity Cure Amount required to cure the
breach of the Restricted Senior Leverage covenant will be
determined first (and the Financial Covenants will be nominally
re-tested, taking into account the amount of the Equity Cure
Amount which is to be applied towards curing the breach of the
Restricted Senior Leverage covenant in the manner set out in
paragraph (b)(iii) above); and
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(B)
(i)
to the extent that, following the nominal re-testing of the
Financial Covenants taking into account the Equity Cure
Amount referred to in sub-paragraph (A) above, one or more
Financial Covenants (other than the Restricted Senior Leverage
covenant) continue to be breached on that Reference Date, such
remaining Financial Covenant breach(es) will be cured by a
further single Equity Cure Amount being applied in
prepayment of the Loans in the manner set out in paragraph
(a)(i) above or in payment into the Cure Account in respect of
such Reference Date, provided that such Equity Cure Amount
is sufficient to cure the remaining Financial Covenant breach
which requires the greatest Equity Cure Amount.
An Equity Cure Right may not be exercised:
(i)
in respect of more than two successive Reference Dates; and
(ii)
on more than four occasions during the term of the Facilities,
provided that the above will not apply to any Equity Cure Right in respect of
any breach of the Restricted Senior Leverage Covenant (which covenant may
be cured by the Company on an unlimited basis).
19.3
Lender Equity Cure
(a)
If a Compliance Certificate delivered in accordance with Clause 18.2
(Compliance Certificate) shows, at a Reference Date, that there has been a
breach of the Restricted Senior Leverage covenant and the Company fails to
cure such breach within the time period set out in Clause 19.2 (Company
Equity Cure), the Lenders shall have the right to procure that the Company
borrows a Cure Loan in an amount equal to the applicable Equity Cure
Amount in order to prepay the Senior Loans and ensure compliance with the
Restricted Senior Leverage covenant in respect of that Reference Date.
(b)
If a compliance certificate (howsoever described) delivered in accordance with
Clause 18.4 (Relevant Senior Facility Agreement reporting) shows, at a Senior
Reference Date, that there has been a breach of a Senior Financial Covenant,
the Company must immediately notify the Agent whether or not it is
proposing to procure that the Target cure such breach in accordance with the
provisions of the Senior Finance Documents.
(c)
If the Company notifies the Agent that it is proposing to procure that the
Target cure the relevant breach, it must immediately procure that the Target
give a notice under the Senior Finance Documents that it intends to cure the
breach. If the Company subsequently fails to procure that the Target cure such
breach prior to the last day of the time period permitted in the Senior Facility
Agreement, the Lenders shall have the right to procure that the Company
borrows a Cure Loan in an amount equal to the amount required by Target in
order to prepay the Senior Loans and ensure compliance with such Senior
Financial Covenant in respect of that Senior Reference Date. The Company
shall ensure that, if a Senior Financial Covenant breach occurs and the
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Company elects to cure such breach, during the applicable cure period
(howsoever defined or referenced in the Senior Facility Agreement), it shall
keep the Agent informed on a daily basis as to its intentions to cure and the
progress it is making with respect to any injection of New Loans and/or New
Equity in order to enable the Target to cure such Senior Financial Covenant
breach.
19.4
(d)
If the Company notifies the Agent that it will not procure that the Target will
give a notice under the Senior Finance Documents indicating that it intends to
cure, then the Company will, if so directed by the Agent that the Lenders are
considering a cure, give a notice under the Senior Finance Documents that it
intends to cure.
(e)
If any Cure Loan is advanced in accordance with the paragraphs above,
notwithstanding that the Cure Loan is applied towards curing the relevant
Restricted Senior Leverage breach or Senior Financial Covenant breach, the
breach will be treated as having occurred and any related Default or Event of
Default shall be deemed to be continuing and, notwithstanding paragraph (e)
of Clause 1.2 (Construction), such Default or Event of Default may only be
waived by the Agent in writing.
(f)
If any Lender elects to procure the cure of any breach of a Senior Financial
Covenant in accordance with the above paragraphs, the Company shall use all
reasonable endeavours to procure that a senior compliance certificate is
delivered which demonstrates compliance with the Senior Financial Covenants
following the relevant cure.
Interpretation
(a)
If there is any dispute as to the interpretation or computation of the financial
information referred to in this Clause 19, the matter shall be referred to the
Company's auditors for determination, whose costs shall be borne by the
Lenders in the event that such determination shall substantiate the relevant
Compliance Certificate, and otherwise by the Company.
(b)
For the purposes of testing compliance, on any Reference Date, with each of
the Financial Covenants set out in paragraphs (a) and (b) of Clause 19.1
above, the aggregate amount standing to the credit of the Prepayment Account
and the Cure Account (if any) from time to time (the "Relevant Balance")
will be taken into account in the relevant calculations as follows:
(i)
in calculating Interest Cover, Mezzanine ICR and Mezzanine DSCR,
paragraph (b) of the definition of Aggregate Consolidated Net Interest
(as such component is utilised in the calculation of such Financial
Covenants) will be adjusted by deeming the outstanding amount of the
Loans to be reduced by the Relevant Balance as at the start of the Test
Period ending on that Reference Date; and
(ii)
in the calculation of Aggregate Total Net Debt to Market Value and
Aggregate Total Net Debt to Vacant Possession Value, paragraph (b)
of the definition of Aggregate Total Net Debt (as such component is
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utilised in the calculation of such Financial Covenants) will be adjusted
by deeming the amount of the Loans to be reduced by the Relevant
Balance as at the date immediately prior to that Reference Date.
The adjustments made in this paragraph (b) for the purposes of calculating the
relevant Financial Covenants in respect of any Reference Date will only
include funds standing to the credit of the Cure Account which are not
proposed to be released on the Interest Payment Date immediately following
the relevant Reference Date when the Financial Covenants are being tested for
the purposes of any release of funds standing to the credit of the Cure
Account.
(c)
In respect of any testing of the Mezzanine ICR and Mezzanine DSCR
occuring within the 12 month period following a Permitted Variation
becoming unconditionally effective:
(i)
if such Permitted Variation resulted in a Permitted Senior Principal
Increase, paragraph (a) of the definition of Tax Adjusted Aggregate
Consolidated Net Interest and Tax Adjusted Aggregate Debt Service
(as such components are utilised in the calculation of such Financial
Covenants) shall be adjusted by deeming the amount of the Senior
Facility to be increased by the Permitted Senior Principal Increase as at
the first day of such relevant 12 month period; and
(ii)
any scheduled amortisation associated with such Permitted Variation
shall deemed to be retrospectively adjusted so as to apply as of the
beginning of such 12 month period (if applicable),
and, in the case of a Permitted Senior Facility Extension on the basis that the
Tax Adjusted Aggregate Consolidated Net Interest and Tax Adjusted
Aggregate Consolidated Debt service (as applicable) component being pro
forma adjusted by deeming the outstanding amount of the Loans as at the start
of the Test Period ending on that Reference Date to be the amount outstanding
as at the relevant Reference Date and the amount of the Senior Loans
outstanding to be the maximum amount drawn during the Test Period ending
on that Reference Date.
(d)
19.5
In respect of any financial covenant testing date occurring less than 12 months
after the Utilisation Date, Aggregate Consolidated Net Interest shall be
adjusted by deeming the amount of the Loans to have been borrowed as at the
first day of such relevant 12 month period.
Definitions
"Adjusted Consolidated EBITDA" means, as at each Reference Date, Consolidated
EBITDA, but adjusted so that it is calculated as the aggregate of:
(a)
Consolidated EBITDA calculated on the basis of the period of 9 Months
ending on that Reference Date; and
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(b)
Consolidated EBITDA calculated on the basis of the period of 3 Months
commencing on that Reference Date, such calculation being made on the basis
of management estimates as at that Reference Date.
"Aggregate Consolidated Debt Service" means, in relation to any to any Test
Period, the aggregate of:
(a)
Aggregate Consolidated Net Interest for that Test Period; and
(b)
the aggregate of all scheduled repayments of Senior Loans falling due during
that Test Period, but, for the avoidance of doubt, excluding any amounts
falling due under the Senior Revolving Facility which were available for
simultaneous redrawing according to the terms of that facility,
and so that no amount shall be counted more than once.
"Aggregate Consolidated Net Interest" means, in relation to any Test Period, the
aggregate of:
(a)
Senior Consolidated Net Interest in respect of that Test Period; and
(b)
the amount of the Coupon due under this Agreement in respect of that Test
Period.
"Aggregate Total Net Debt" means, as at any Reference Date, the aggregate of:
(a)
Total Senior Net Debt as at that Reference Date; and
(b)
the aggregate amount of Borrowings as at that Reference Date.
"Borrowings" means, at any time, the aggregate outstanding principal, capital or
nominal amount of any indebtedness of the Company falling within the definition of
Financial Indebtedness (excluding paragraph (h) of that definition) provided that
"Borrowings" shall exclude indebtedness owed by the Company to the Target and
Holdco.
"Consolidated EBITDA" means in relation to any Test Period the consolidated net
pre- taxation profits of the Target Group:
(a)
including the net pre-taxation profits of a member of the Target Group or
business or assets acquired during that Test Period for the part of that Test
Period when it was not a member of the Target Group and/or the business or
assets were not owned by a member of the Target Group (including, for the
avoidance of doubt, the Project 77 Property and SSPP); and
(b)
excluding the net pre-taxation profits attributable to any member of the Target
Group or to any business or assets sold during that Test Period,
unless in each case the effect is de minimis, and all as adjusted as follows:
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(i)
adding back financing costs, including interest and commitment
commission payable hereunder (excluding the fees referred to
subparagraphs (viii) and (ix) below);
(ii)
adding back any transaction costs associated with Project
Seventy-Seven and the Senior Facility Agreement, including, but not
limited to any fees payable under any fee letter as referred to in the
Senior Facility Agreement (excluding the fees referred to
subparagraphs (viii) and (ix) below);
(iii)
taking no account of any exceptional or extraordinary item, or items of
an exceptional or extraordinary and (in both cases) non-recurring
nature;
(iv)
taking no account of any profit and loss items relating to the
revaluation or movement in value, whether actual or imputed, of the
Target's pension funds;
(v)
adding back depreciation and amortisation and other non-cash items
including option charges;
(vi)
deducting the amount of any profits (or adding back the amount of any
loss) of any member of the Target Group which is attributable to
minority interests;
(vii)
taking no account of any revaluation of an asset or any loss or gain
over book value arising on the disposal of an asset (otherwise than in
the ordinary course of trading) by a member of the Target Group
during that Test Period;
(viii) adding back, in the case of any Test Period, amortisation of (A) any
professional fees (including, without limitation, legal and valuation
fees) relating to the preparation and execution of the Senior Facility
Agreement and related Senior Finance Documents and (B) upfront or
extension fees (excluding costs referred to in subparagraphs (i) (and
(ii) above) payable pursuant to any fee letters referred to in the Senior
Facility Agreement and the Relevant Overdraft Facility on or before
the date of the first utilisation of the Senior Facility Agreement;
(ix)
adding back, in the case of any Test Period, any fees (excluding costs
referred to in subparagraphs (i) and (ii) above) payable pursuant to any
fee letters referred to in the Senior Facility Agreement and the
Relevant Overdraft Facility for that Test Period; and
(x)
adding back losses attributable to the Pinewood Films Group to the
extent a corresponding tax credit is receivable by the Pinewood Films
Group.
"Consolidated PBIT" means, for any Test Period, Consolidated EBITDA for that
Test Period disregarding the adjustments made in paragraphs (a) and (b) of that
definition and after deducting any amounts added back to Consolidated EBITDA
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within subparagraph (v) of the definition thereof during that Test Period in relation to
the determination of Consolidated EBITDA.
"Group Cash Flow" means in relation to any Test Period, Consolidated EBITDA for
that period:
(a)
less the aggregate amount of all corporation tax paid by any member of the
Target Group during that period;
(b)
plus the amount of any tax rebates received by any member of the Target
Group during that period;
(c)
plus the amount of dividends and other profit distributions received in cash by
any member of the Target Group from a person who is not a member of the
Target Group, other than where any such amount is already included within
Consolidated EBITDA for such period;
(d)
less the amount of any dividends and other profit distributions paid in cash by
the Target to any of its shareholders;
(e)
less the pro rata amount of the Management Charge paid for the relevant
period;
(f)
less Maintenance Capital Expenditure for the relevant period; and
(g)
plus any decrease or minus any increase in Net Working Capital during that
period.
In relation to this definition, "Net Working Capital" means the aggregate of current
assets (excluding all cash at bank and cash in hand, all assets in relation to corporation
tax or similar tax on profits of the Target Group and accrued interest receivable) less
the aggregate of current liabilities (excluding monies due in relation to the Senior
Facilities and other Financial Indebtedness and liabilities in relation to corporation tax
or similar tax on profits of the Target Group, exceptional items, extraordinary items
and dividends payable) determined and according with GAAP.
"Maintenance Capital Expenditure" means general life cycle capital expenditure (as
described in each Business Plan) incurred during the relevant Test Period for the
purpose of maintenance and updating in the usual course of the business the assets of
the Target Group.
"Management Charge" means the annual management charge paid by the Target
subject to a cap of £300,000 (or its equivalent in any other currencies) increased in
line with the Rental Price Index (to the extent that such increase is permitted under the
Senior Facility Agreement).
"Operating Group Cash Flow" means in relation to any Test Period, Group Cash
Flow for that period:
(a)
plus the aggregate amount of all corporation tax paid by any member of the
Group during that period;
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(b)
less the amount of any tax rebates received by any member of the Group
during that period; and
(c)
plus the amount of any dividends and other profit distributions paid in cash by
the Target to any of its shareholders.
"Permitted Incremental Senior Amount" means, as at each Reference Date, an
amount equal to 80 per cent. of the difference between:
(a)
the maximum amount of Total Senior Net Debt which the Target Group could
have outstanding as at the Senior Reference Date immediately following that
Reference Date which would not result in the Target Group breaching the
Senior Leverage covenant on that Senior Reference Date (and, for these
purposes, the Consolidated EBITDA component of the Senior Leverage
covenant shall be replaced with Adjusted Consolidated EBITDA (in each case
for the relevant Senior Test Period)); and
(b)
Total Senior Net Debt which is actually outstanding as at that Reference Date,
provided that if any calculation of the Permitted Incremental Senior Amount results in
a negative number, the Permitted Incremental Senior Amount in respect of that
Reference Date will be deemed to be zero.
"Reference Date" means the last day of each financial year, each financial half-year
and each financial quarter-year of the Company.
"Relevant Market Value" means:
(a)
prior to the Agent obtaining a valuation in accordance with Clause 20.12
(Property Valuation) following the date of this Agreement, the Market Value
of the Properties as set out in the Initial Valuation; and
(b)
thereafter, the Market Value as set out in the most recent Valuation obtained
by the Lender in accordance with Clause 20.12 (Property Valuation).
"Restricted Total Net Debt" means, as at each Reference Date, the aggregate of:
(a)
Total Senior Net Debt as at that Reference Date; and
(b)
the Permitted Incremental Senior Amount as at that Reference Date.
"Senior Borrowings" means, at any time, the aggregate outstanding principal, capital
or nominal amount of any indebtedness of members of the Target Group falling
within the definition of Financial Indebtedness (excluding paragraph (h) of that
definition) provided that Senior Borrowings shall exclude indebtedness owed:
(a)
by one member of the Target Group to another; and
(b)
by the Target to the Company.
"Senior Consolidated Net Interest" means, in relation to any Test Period, all
interest, commission and other regular periodic fees and charges paid or payable by
- 101 LEGAL_EU # 17337328.7
the Target Group during that period and arising (taking account of any net payments
made or received under any swap or interest rate hedging payments), in each case net
of all interest received by the Target Group (excluding any capitalised interest).
"Senior Leverage" means the ratio of Total Senior Net Debt as at each Senior
Reference Date to Consolidated EBITDA for the Senior Test Period ending on that
Senior Reference Date.
"Senior Reference Date" means the last day of each financial year, each financial
half-year and each financial quarter-year of the Target commencing on and from 31
March 2015.
"Senior Revolving Facility" means the "Revolving Facility" under the Initial Senior
Facility Agreement or any Refinancing Equivalent.
"Senior Test Period" means a period of 12 months ending on a Senior Reference
Date.
"Tax Adjusted Aggregate Consolidated Debt Service" means, in relation to any
Test Period, the aggregate of:
(a)
Aggregate Consolidated Debt Service in relation to that Test Period; and
(b)
the aggregate amount of all corporation tax paid or payable by any member of
the Group during that period.
"Tax Adjusted Aggregate Consolidated Net Interest" means, in relation to any Test
Period, the aggregate of:
(a)
Aggregate Consolidated Net Interest in relation to that Test Period; and
(b)
the aggregate amount of all corporation tax paid or payable by any member of
the Group during that Test Period.
"Total Senior Net Debt" means, as at any Reference Date, the aggregate amount of
all obligations of members of the Target Group in respect of Senior Borrowings at
that time less the then value of cash balances held by members of the Target Group
which are readily available to be applied to repay Senior Borrowings without any
recourse to any member of the Target Group.
Vacant Possession Value means the value obtained on the same calculation basis as
the “Market Value (Distressed Sale – Existing Use)” value that was ascertained by the
Initial Valuer in the Initial Valuation.
19.6
Management Estimates
The Company shall ensure that any estimates which are made in calculating Adjusted
Consolidated EBITDA in respect of any Reference Date are made in good faith on the
basis of recent historical information and on the basis of assumptions which were
reasonable as at the date they were prepared and supplied.
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20.
GENERAL UNDERTAKINGS
The undertakings in this Clause 20 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. The undertakings in this Clause 20 shall only apply in
respect of the Senior Obligors and each other member of the Target Group (where
applicable) on and from the Control Date or the Relevant Date (as applicable).
20.1
Authorisations
(a)
The Company shall promptly:
(i)
obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(ii)
supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its jurisdiction of
incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or admissibility
in evidence in its jurisdiction of incorporation of any Finance Document.
(b)
20.2
On and from the Control Date, the Company shall procure that each Senior
Obligor will promptly obtain, comply with and do all that is necessary to
maintain in full force and effect any Authorisation required under any law or
regulation of its jurisdiction of incorporation to enable the Group to carry out
the development of the PSDF Site.
Compliance with Laws
The Company will comply in all respects with all laws to which it may be subject, if
failure so to comply would impair its ability to perform its obligations under the
Finance Documents.
20.3
Negative Pledge
(a)
The Company shall not (and, on and from the Relevant Date, 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)
shall ensure that no other member of the Group will):
(i)
sell, transfer or otherwise dispose of any of its assets on terms whereby
they are or may be leased to or re-acquired by any other member of the
Group;
(ii)
sell, transfer or otherwise dispose of any of its receivables on recourse
terms;
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(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)
Clauses 20.3(a) and 20.3(b) do not apply to:
(i)
any netting or set-off arrangement entered into by the Company or any
member of the Target Group in the ordinary course of its banking
arrangements (including, without limitation in relation to the relevant
members of the Target Group, any Relevant Overdraft Facility) for the
purpose of netting debit and credit balances;
(ii)
in the case of the Target Group, any lien arising by operation of law or
in the ordinary course of trading, including suppliers' reservation of
title;
(iii)
during the six months after acquisition, any Security over or affecting
any asset acquired by a member of the Target Group after the date of
this Agreement if:
(iv)
(A)
the Security was not created in contemplation of the acquisition
of that asset by a member of the Target Group; and
(B)
the principal amount secured has not been increased in
contemplation of, or since the acquisition of that asset by a
member of the Target Group;
during the six months after becoming a member of the Target Group,
any Security over or affecting any asset of any company which
becomes a member of the Target Group after the date of this
Agreement, where the Security is created prior to the date on which
that company becomes a member of the Target Group, if:
(A)
the Security was not created in contemplation of the acquisition
of that company; and
(B)
the principal amount secured has not been increased in
contemplation of or since the acquisition of that company;
(v)
any Security entered into pursuant to, in the case of the Company, any
Finance Document and, in the case of any member of the Target
Group, any Senior Finance Document;
(vi)
any Security granted by the Pinewood Films Group in the ordinary
course of its film financing business and in respect of liabilities
incurred to finance the production of films;
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(vii)
any application of Income (as defined in the Unit Trust Instrument) or
other amounts from the Unit Trust Fund by the Project 77 Trustees in
favour of the Project 77 Purchasers;
(viii) in respect of the Target Group only, any Security other than Security
over assets subject to Security expressed to be fixed security in the
Senior Finance Documents securing indebtedness the principal amount
of which (when aggregated with the principal amount of any other
indebtedness which has the benefit of Security given by any member
of the Target Group other than any permitted under paragraphs (i) to
(vii) above) does not exceed £3,000,000 (or its equivalent in another
currency or currencies); or
(ix)
20.4
any Security created with the prior written consent of the Majority
Lenders.
Further Indebtedness
The Company shall not and, on and from the Relevant Date shall ensure that no
Senior Obligor will, without the prior written consent of the Agent (acting on the
instructions of the Majority Lenders, which must include for this purpose all Original
Lenders (to the extent that they continue to be Lenders under this Agreement)), incur
any Financial Indebtedness other than as otherwise permitted or incurred under the
Finance Documents and the Senior Finance Documents as follows:
(a)
in the case of the Target Group only, overdraft facilities not exceeding
£5,000,000 at any time;
(b)
in the case of the Target Group only, finance leases where the capital amount
the subject thereof shall not exceed £12,000,000 in aggregate at any time;
(c)
in the case of the Target Group only, operating leases where the payments for
any Financial Year shall not exceed £500,000 at any time (but excluding, for
the purposes of determining such limit, all operating leases in place as at the
date of this Agreement);
(d)
in the case of the Target Group only, arising in respect of any Bilateral Letters
of Credit where the aggregate liability of the Target Group (without double
counting) in relation to such Bilateral Letters of Credit shall not exceed
£3,000,000 at any time;
(e)
any Financial Indebtedness of the Company which is incurred by the
Company from Holdco and which is subject to the terms of the Subordination
Agreement;
(f)
any Financial Indebtedness of the Company which is incurred by the
Company from Target; and
(g)
any Financial Indebtedness of the Target which is incurred by the Target from
the Company.
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20.5
Disposals
(a)
shall ensure that no other 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 (including, without limitation, the Properties).
(b)
Paragraph (a) above does not apply to any sale, lease, transfer or other
disposal:
(i)
in respect of the Target Group, of assets (other than assets which are
subject to fixed security in a Senior Finance Document) from one
Senior Obligor to another Senior Obligor or a company that
simultaneously becomes a Senior Obligor;
(ii)
of plant, fixtures and fittings that are obsolete or redundant;
(iii)
of assets (other than assets which are subject to fixed security in a
Finance Document or any Senior Finance Document) in exchange for
other assets comparable or superior as to type, value and quality;
(iv)
in respect of the Target Group, made on an arms' length basis in the
ordinary course of trading, excluding Occupational Leases;
(v)
in respect of a dividend, distribution, payment or repayment of any
intercompany debt or the advance of an upstream loan which:
(A)
in the case of the Target, is paid in accordance with the terms of
the Senior Facility Agreement; and
(B)
in the case of the Company, is paid in accordance with
Clause 20.10 (Dividends and other Upstream Payments).
(vi)
which has the prior written consent of the Majority Lenders;
(vii)
in the case of any member of the Target Group, of Cash Equivalent
Investments for cash or in exchange for other Cash Equivalent
Investments and any expenditure of cash which does not breach any
other provision of the Senior Finance Documents;
(viii) in the case of any member of the Target Group, where the proceeds of
any disposal (after deducting any fees, costs or expenses incurred by
any member of the Target Group with respect to that disposal or any
Tax incurred (or to be incurred) and required to be paid or provided (or
provider for) by the seller in connection with that disposal (as
determined by the seller)) are reinvested by the Target Group within 6
months of receipt, provided that the aggregate of such net proceeds
pending reinvestment does not exceed £2,000,000 at any time;
(ix)
in the case of any member of the Target Group, the granting of:
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(A)
new Occupational Leases, provided the Occupational Lease is
granted with a net rent of less than or equal to £250,000 per
annum; or
(B)
any replacement or renewal of an existing Occupational Lease
with the same tenant,
in each case made on an arms' length basis in the ordinary course of
business;
(x)
in the case of any member of the Target Group, the acceptance of the
surrender of any Occupational Lease granted with a net rent of less
than or equal to £250,000 per annum;
(xi)
in the case of any member of the Target Group, where it is a disposal
of a Property for cash made on arm's length terms for full market
value, where no Default is continuing at that time and where the
Disposal Proceeds resulting from such sale:
(xii)
(A)
are sufficient to permanently prepay and cancel all outstanding
amounts under the Finance Documents at that time, the Senior
Principal at that time and the Relevant Overdraft Facility at that
time; and
(B)
where the amount of such Disposal Proceeds required to
permanently prepay and cancel all outstanding amounts under
the Finance Documents at that time are promptly paid into the
Prepayment Account following receipt;
in the case of any member of the Target Group, any disposal of cash
constituted by payment of consideration made under or in connection
with Project Seventy-Seven;
(xiii) any application of Income (as defined in the Unit Trust Instrument) or
other amounts from the Unit Trust Fund by the Project 77 Trustees in
favour of the Project 77 Purchasers; or
(xiv)
20.6
in the case of any member of the Target Group (other than in respect of
assets which are subject to fixed security in a Senior Facility Finance
Document), where the higher of the market value or consideration
receivable (when aggregated with the higher of the market value or
consideration receivable for any other sale, lease, transfer or other
disposal, other than any permitted under paragraphs (i) to (xiii) above)
does not exceed £6,000,000 (or its equivalent in another currency or
currencies) in any Financial Year or £20,000,000 in aggregate during
the term of the Facility.
Merger
(a)
The Company shall not, and shall ensure that, on and from the Relevant Date,
no other member of the Group will, enter into any amalgamation, demerger,
merger or corporate reconstruction.
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(b)
20.7
Paragraph (a) above does not apply, on and from the Relevant Date, to any
amalgamation, demerger, merger or corporate reconstruction in relation to any
member of the Target Group arising under or pursuant to any sale, lease,
transfer or other disposal permitted pursuant to Clause 20.5 (Disposals).
Change of Business
The Company shall procure that:
(a)
no change is made to the general nature of its business; and
(b)
on and from the Control Date, no substantial change is made to the general
nature of the business of the Target Group,
in each case from that carried on at the date of this Agreement.
For the avoidance of doubt Project Seventy-Seven and the transactions undertaken in
relation thereto, shall not constitute a breach of this Clause.
20.8
Insurances
The Company shall ensure and, on and from the Control Date, shall ensure that each
other member of the Group will:
20.9
(a)
maintain insurances on and in relation to its business and assets with reputable
independent underwriters or insurance companies against those risks, and to
the extent usually insured against by prudent companies carrying on the same
or similar business including, for the avoidance of doubt in the case of the
Target Group, three years loss of rent; and
(b)
promptly following a request by the Agent, supply the Agent with copies of
the policies and evidence of payment of the current premium.
No Loans or Credit, Guarantees or Indemnities
(a)
(b)
The Company shall not be a creditor in respect of any Financial Indebtedness,
other than:
(i)
in respect of any loan or other financial accommodation made in
favour of Holdco which is permitted under Clause 20.10 (Dividends
and upstream payments) this Agreement; and
(ii)
on and from the Control Date, in respect of any loan or other financial
accommodation made in favour of the Target.
The Company shall not incur or allow to remain outstanding any guarantee in
respect of any obligation of any person.
20.10 Dividends and other Upstream Payments
The Company shall not declare or pay any dividend or otherwise upstream any cash to
Holdco except to the extent that it is entitled to release such amounts from the General
- 108 LEGAL_EU # 17337328.7
Account (where such amounts are not required to be applied in or towards any other
specified purpose).
20.11 No Acquisitions
(a)
Except as permitted under Clause 20.11(b) below, the Company shall not and,
on and from the Control Date 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 them).
(b)
Clause 20.11(a) above does not apply:
(i)
in the case of the Company, to the Acquisition;
(ii)
where, with respect to the Target Group, the total consideration
payable (including, for the avoidance of doubt, any deferred
consideration) for such acquisition or investment does not exceed
£7,500,000 and the total consideration payable for such acquisition or
investment, together with all other such acquisitions or investments by
the Target Group in any Financial Year, does not exceed £15,000,000;
or
(iii)
the prior written consent of the Agent (acting on the instructions of the
Majority Lenders) has been obtained.
20.12 Property Valuation
(a)
The Agent may instruct a Valuation at any time.
(b)
The Company must, within 5 Business Days of demand by the Agent, pay the
costs of:
(c)
(i)
a Valuation obtained by the Agent on an annual basis; and
(ii)
a Valuation obtained in connection with (A) the compulsory purchase
or the making of an order of compulsory purchase of all or part of a
Property or (B) any damage or destruction of all or part of a Property;
and
(iii)
a Valuation obtained by the Agent at any time when a Default is
continuing or occurs as a result of obtaining that Valuation.
Any Valuation not referred to in paragraph (b) above will be at the cost of the
Lenders.
20.13 Centre of Main Interests and Establishments
For the purposes of The Council of the European Union Regulation No. 1346/2000 on
Insolvency Proceedings (the "Regulation"), the Company shall and, on and from the
Control Date, shall ensure that each member of the Group shall, ensure that its centre
of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its
- 109 LEGAL_EU # 17337328.7
Original Jurisdiction and it has no "establishment" (as that term is used in Article 2(h)
of the Regulation) in any other jurisdiction.
20.14 Sanctions
The Company shall, and on and from the Control Date shall ensure that each Senior
Obligor will, ensure that none of the proceeds of the Loans nor any advance made
under any Senior Facility Agreement will, directly or to the best of its knowledge
after due and careful inquiry indirectly, be used or paid to either:
(a)
any person which is listed on an SDN List or is owned or controlled directly,
or to the best of its knowledge after due and careful inquiry indirectly, by any
person listed on an SDN List;
(b)
any Sanctioned Territory in breach of Sanctions Law; or
(c)
in any other manner that would result in a violation of Sanctions Law by a
member of the Group or a Finance Party.
20.15 Anti-corruption Law
The Company shall ensure, and on and from the Control Date shall ensure that each
(a)
conduct its businesses in compliance with applicable anti-corruption laws;
(b)
maintain policies and procedures designed to promote and achieve compliance
with such laws.
20.16 Environmental Compliance
The Company shall ensure, and on and from the Control Date shall ensure that each
(a)
comply with all Environmental Law;
(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 has or is reasonably likely to have a Material Adverse Effect.
20.17 Preservation of Assets
The Company shall, and on and from the Control Date shall ensure that each other
member of the Group will, maintain in good working order and condition (ordinary
wear and tear excepted) all of its assets necessary or desirable in the conduct of its
business.
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20.18 Project 77 Undertakings
(a)
On and from the Control Date, the Company shall procure that the legal title to
the property listed in paragraph (a) of the definition of Project 77 Property is,
at all times, held by not less than two wholly-owned Subsidiaries.
(b)
On and from the Control Date, the Company shall procure that no Senior
Obligor may terminate any Third Party Option Agreement without the prior
written consent of the Agent.
20.19 Taxation
The Company shall, and on and from the Control Date shall ensure that each other
member of the Group will, pay and discharge all Taxes imposed upon it or its assets
within the time period allowed without incurring penalties unless and only to the
extent that:
(a)
such payment is being contested in good faith;
(b)
adequate reserves are being maintained for those Taxes and the costs required
to contest them which have been disclosed in its latest financial statements
delivered to the Agent under Clause 18.1 (Financial Statements and Business
Plan) or will be disclosed in the next set of financial statements delivered to
the Agent under Clause 18.1 (Financial statements and Business Plan); and
(c)
such payment can be lawfully withheld (or withheld without incurring any
material penalty),
where failure to pay those Taxes does not have a Material Adverse Effect.
20.20 US-source Income
On and from the Control Date, the Company shall ensure that the Target will at no
time be in receipt of any US-source income.
20.21 Acquisition Undertakings
(a)
(b)
The Company must ensure that any publication of the Offer Announcement
and/or the Scheme Announcement (as applicable) shall:
(i)
only be made in the agreed form between the Company and the
Original Lenders (with such minor changes to the agreed form draft
Offer Announcement or Scheme Announcement which are either
required by the Takeover Code or which could not reasonably be
expected to be materially adversely prejudicial to the interests of the
Finance Parties in the context of the Offer or the Scheme (as
applicable); and
(ii)
be made within 2 Business Days of the date of this Agreement.
The Company shall ensure that the Offer Document and/or Scheme Document
(as applicable and, in each case, including any drafts) contain all the material
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terms and conditions of the Offer or Scheme (as applicable) which were
included in the Offer Announcement or the Scheme Announcement (as
applicable), other than any new material terms and conditions which are either
required by the Takeover Code or which could not reasonably be expected to
be materially adversely prejudicial to the interests of the Finance Parties in the
context of the Offer or the Scheme (as applicable). The Company will be free
to declare the Scheme or the Offer (as applicable) unconditional in accordance
with its terms at any time, provided that the prior written consent of the
Lenders is required before the Company may waive a condition which the
Takeover Panel is for the purposes of Rule 13.5 of the Takeover Code required
to give and has given its consent to being invoked.
(c)
Promptly upon request by the Agent, and in any event within 1 Business Day
of such request, the Company shall deliver to the Agent a copy of any
document in connection with the Offer or Scheme (as applicable) which is
delivered to the Takeover Panel.
(d)
To the extent permitted by law and regulation, the Company shall, upon
reasonable request and reasonable notice from the Agent, provide the Agent
with any relevant information in respect of the Scheme or Offer (as
applicable).
(e)
The Company shall ensure that:
(i)
the Offer Announcement or the Scheme Announcement (as
applicable), the Offer Document or the Scheme Document (as
applicable) and all other documents issued by it or on its behalf in
connection with the Offer or the Scheme (as applicable); and
(ii)
the conduct of the Offer or the Scheme (as applicable),
in each case comply in all material respects with all applicable laws, except to
the extent that such compliance has been waived by the Takeover Panel or
remedied within such period as is approved by the Takeover Panel.
(f)
Unless required by applicable law or regulation (including the Takeover
Panel), the Company shall not make any public statement or announcement
containing any reference to the Finance Parties or the Facilities without the
prior written consent of the Lenders.
(g)
The Company must ensure that:
(i)
if the Acquisition is being pursued by way of an Offer and the
Company at any time becomes the legal and beneficial owner of at
least 90 per cent. of the Target Shares, but less than 100 per cent. of the
Target Shares, it initiates the Squeeze Out on the Squeeze Out Trigger
Election Date promptly upon (and, in any event within 10 Business
Days of) the Utilisation Date;
(ii)
the Target is converted into a private limited company as soon as
reasonably practicable and in any event within 10 Business Days of:
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(A)
if the Acquisition is being pursued by way of an Offer and the
Company at any time becomes the legal and beneficial owner
of at least 90 per cent. of the Target Shares, but less than 100
per cent. of the Target Shares, the Control Date; or
(B)
where sub-paragraph (A) above does not apply, the Company
obtaining legal ownership of the last Target Share resulting in
100 per cent. ownership by the Company of the Target Shares;
(iii)
it promptly adopts private company constitutional documents for the
Target which are consistent with those of the Company;
(iv)
within 10 Business Days of the date on which the Target is converted
into a private limited company, all perfection requirements under the
Company Security Agreement have been completed with respect to the
relevant Security Assets insofar as they relate to the Target;
(v)
any credit arrangements entered into between the Company and the
Target are in substantially the same form as those entered into between
Holdco and the Company or in such other form as is approved by the
Agent (acting reasonably),
provided that the actions set out in sub-paragraphs (i) to (v) above must have
all been completed by a date falling no later than 60 Business Days after the
Utilisation Date.
(h)
The Company shall not enter into any subordination agreement with the
Senior Lenders in respect of any loans made from the Company to the Target
without obtaining the prior written consent of the Agent (acting on the
instructions of the Lenders (acting reasonably)).
20.22 Distress Discussions with Senior Lenders
If the Company is aware (having made all due and careful enquiries following any
indication of any anticipated Senior Default) that any discussions relating to any
restructuring or rescheduling (other than any restructuring or rescheduling which is
not prohibited by the provisions of Clause 20.23 (Permitted Variations)) of the Senior
Facility are entered into in connection with, or in anticipation of, any Senior Default
and any Sponsor Affiliate is involved in such discussions, the Company will notify
the Agent of the existence of such discussions and ensure that the Lenders are
involved in such discussions (to the extent that the Lenders are not already involved in
such discussions).
20.23 Permitted Variations
(a)
The Company shall procure, on and from the Control Date, that the Overdraft
Facility can only be amended, varied or replaced if:
(i)
it remains on demand;
(ii)
the limit does not exceed a maximum of £5,000,000 net and
£10,000,000 gross; and
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(iii)
(b)
the all-in pricing does not exceed 2.75 per cent. per annum.
On and from the Control Date, the Company must ensure that:
(i)
(ii)
no amendment, variation or waiver to the terms of the Senior Finance
Documents is requested or agreed to by any member of Group other
than an amendment, variation or waiver which constitutes either:
(A)
a Permitted Senior Facility Increase Amendment; or
(B)
a Permitted Senior Facility Extension; and
no member of the Group enters into any Senior Finance Documents in
relation to any refinancing of the Senior Facility other than a
refinancing which constitutes either:
(A)
a Permitted Senior Facility Extension; or
(B)
a Qualifying Senior Facility Refinancing,
provided that, at all times on and from the Control Date, the Company must
ensure that the Group only has, in addition to the Relevant Overdraft Facility,
one senior financing in place (whether provided pursuant to the Initial Senior
Facility Agreement or a Refinancing Senior Facility Agreement). For the
avoidance of doubt, this clause shall not prevent any member of the Group
entering into any documentation in respect of a Permitted Variation (except to
the extent such Permitted Variation requires the consent of the Agent (acting
on the instructions of all Lenders) or a refinancing of the Senior Facility
and/or the Facility which only becomes effective on the date on which the
amounts outstanding under the Finance Documents are discharged in full.
(c)
Notwithstanding any other provision of this Agreement, the Lenders will not
have the right to require that any Senior Financial Covenant which is included
in the original form of Initial Senior Facility Agreement, and which is not
reflected in this Agreement as at the date of this Agreement, be included in
this Agreement.
(d)
The Company shall promptly provide to the Agent, for distribution to the
Lenders, a copy of:
(e)
(i)
any Refinancing Senior Finance Document;
(ii)
any amendment, waiver or variation which is entered into by a member
of the Target Group in relation to any Senior Finance Document; and
(iii)
any Relevant Overdraft Facility (or any amendment, variation or
waiver which is entered into in respect of any Relevant Overdraft
Facility).
If any offer is made by the Company to the Lenders to make an amendment to
the Finance Documents in relation to any Permitted Variation (other than a
Permitted Variation which is one which requires the consent of the Agent
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(acting on the instructions of all Lenders)), such offer must be made in writing
and provide the Lenders with an acceptance period of not less than 10
Business Days (an "Acceptance Period") in order that the Lenders may accept
such offer. If the Lenders do not accept the offer during the Acceptance
Period, the offer is deemed to have been withdrawn on the last day of the
Acceptance Period. During any Acceptance Period, the Company must ensure
that the relevant Permitted Variation does not become unconditionally
effective. If all the documentation relating to the acceptance of the offer by
the Lenders and any relevant amendments, variations or waivers to the
Finance Documents has not become unconditionally effective within that
Acceptance Period, the Company shall be permitted, or procure that the
relevant members of the Group are permitted, to finalise all relevant
documentation to ensure that the relevant Permitted Variation becomes
unconditionally effective immediately following the expiry of that Acceptance
Period. The Company and the Lenders will work in good faith to agree the
relevant amendments to the Finance Documents in relation to any offer in
relation to a Permitted Variation as soon as reasonably practicable, both during
any Acceptance Period and subject to any other reasonable timeframe as is
agreed to execute such documents.
(f)
If a Permitted Variation includes any change, or proposed change, to a Senior
Financial Covenant or the inclusion, or proposed inclusion, of a new financial
covenant in the Senior Finance Documents (each a "Relevant Senior
Financial Covenant"), that Relevant Senior Financial Covenant will be
permitted (a "Permitted Financial Covenant Variation") on the basis that:
(i)
if a Financial Covenant already included under this Agreement
corresponds with that Relevant Senior Financial Covenant, that
Financial Covenant is (on the date the relevant Permitted Variation
becomes unconditionally effective) automatically re-set by reference to
that Relevant Senior Financial Covenant in accordance with paragraph
(g) below;
(ii)
if that Relevant Senior Financial Covenant does not correspond with
any Financial Covenant under this Agreement, that Relevant Senior
Financial Covenant is (on the date the relevant Permitted Variation
becomes unconditionally effective) automatically included in this
Agreement as a Financial Covenant (with such relevant adjustments to
reflect the nature of the Debt Metric as an "aggregate" Debt Metric
(taking into account both the Senior Facility and the Borrowings)) and
that new Financial Covenant is set by reference to to that Relevant
Senior Financial Covenant in accordance with paragraph (g) below;
and
(iii)
notice is given in writing to the Lenders of the proposed automatic
adjustments to the Finance Documents. The Lenders shall have the
right, in their sole discretion, to reject any such amendment to the
Financial Covenants by giving written notice to the Company, in
which case the automatic changes to the Financial Covenants
contemplated in this Clause 20.23 will have no further effect. For the
avoidance of doubt, notwithstanding any such rejection by the Lenders,
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the change, or proposed change, to a Senior Financial Covenant or the
inclusion, or proposed inclusion, of a new financial covenant in the
Senior Finance Documents shall still constitute a Permitted Financial
Covenant Variation.
(g)
With respect to any Relevant Senior Financial Covenant and Financial
Covenant referred to in paragraphs (f) above, the following will apply with
respect to setting the Relevant Financial Covenant Benchmark for such
financial covenants in this Agreement:
(i)
where such financial covenants involve a Debt Metric which is the
denominator, the Relevant Financial Covenant Benchmark shall be
automatically set in accordance with the following formula:
Relevant Financial Covenant Benchmark = the higher of 1 and 2
where:
"1" = Relevant Ratio x ((Relevant Senior Financial Covenant
Benchmark / Relevant Senior Ratio) + 15%); and
"2" = Relevant Ratio x (1 – 20%),
for so long as the Company remains in compliance, and is projected to
remain in compliance, with such reset Relevant Financial Covenant
Benchmark over the remaining term of the Loans by reference to the
business plan agreed with the Senior Lender pursuant to the relevant
Permitted Variation; and
(ii)
where such financial covenants involve a Debt Metric which is the
numerator, the Relevant Financial Covenant Benchmark shall be
automatically set in accordance with the following formula:
Relevant Financial Covenant Benchmark = the lower of 1 and 2
where:
"1" = Relevant Ratio / (15% + (Relevant Senior Ratio) / (Relevant
Senior Financial Covenant Benchmark)); and
"2" =
Mezzanine Ratio / (1 – 20%),
for so long as the Company remains in compliance, and is projected to
remain in compliance, with such reset Relevant Financial Covenant
Benchmark over the remaining term of the Loans by reference to the
business plan agreed with the Senior Lender pursuant to the relevant
Permitted Variation.
- 116 LEGAL_EU # 17337328.7
20.24 Property Undertakings
(a)
Environmental Matters
(i)
The Company will, on and from the Control Date, procure that each
member of the Group which owns a Property will:
(A)
obtain all requisite Environmental Licences applicable to it or
to its Property:
(B)
comply in all material respects with any Environmental Licence
or Environmental Law applicable to it;
(C)
ensure that no Finance Party incurs any liability by reason of
any breach by it of any Environmental Law or Environmental
Licence,
where failure to do so would be reasonably likely to have a Material
Adverse Effect or result in any liability for a Finance Party which is
not fully compensated for by the Company.
(ii)
(b)
The Company will, promptly upon becoming aware, notify the Agent
of:
(A)
any Environmental Claim current or to its knowledge, pending
or threatened; or
(B)
any circumstances reasonably
Environmental Claim.
likely
to
result
in
an
Repair
The Company will, on and from the Control Date, procure that each member
of the Group which owns a Property will keep:
(i)
its Premises in good and substantial repair and condition and
adequately and properly painted and decorated; and
(ii)
its Fixtures and all plant, machinery, implements and other effects
owned by it and which are in or on its Premises or elsewhere in a good
state of repair and in good working order and condition,
in each case fair wear and tear excepted.
(c)
Insurance
(i)
relevant member of the Group will insure its Insured Property Assets
against:
(A)
loss or damage by fire;
- 117 LEGAL_EU # 17337328.7
(B)
other risks normally insured against by persons carrying on the
same class of business as that carried on by it; and
(C)
any other risks which the Original Lenders may reasonably
require and which have been notified to the Company prior to
the date of this Agreement.
(ii)
The Company must ensure, on and from the Control Date, that any
insurance must be in a sum or sums not less than the replacement value
of the Insured Property Assets. For this purpose, "replacement value"
means the total cost of entirely rebuilding, reinstating or replacing
those Insured Property Assets in the event of their being completely
destroyed, together with architects' and surveyors' fees.
(iii)
The Company must ensure, on and from the Control Date, that any
insurance required under this Clause must be with a reputable
independent insurance company or underwriters.
(iv)
The Company must ensure, on and from the Control Date, that all
moneys received or receivable under any insurance in respect of the
Insured Property Assets must be applied:
(A)
in replacing, restoring or reinstating the Insured Property
Assets destroyed or damaged or in any other manner which the
Agent may (acting reasonably) agree; or
(B)
after the Security constituted by the Senior Finance Documents
has become enforceable, if the Senior Agent so directs and the
terms of the relevant insurances allow, in or towards
satisfaction of the amounts owing under the Senior Facility.
(v)
On and from the Control Date, the Company will procure that each
relevant member of the Group will not, do or permit anything to be
done which is reasonably likely to make void or voidable any policy of
insurance in connection with any Insured Property Asset.
(vi)
relevant member of the Group will, promptly pay all premiums and do
all other things necessary to keep each policy of insurance in respect of
its Insured Property Assets in force.
(vii)
The Company will, on and from the Control Date, as soon as
reasonably practicable following demand by the Agent, produce to the
Agent the policy, certificate or cover note relating to any insurance
policy and the receipt for the payment of any premium for any
insurance policy as the Agent may request.
(viii) If evidence of compliance with sub-paragraph (vii) above cannot be
provided, the Agent may (at the Company's expense) arrange insurance
in respect of the Insured Property Assets of that relevant member of the
Group.
- 118 LEGAL_EU # 17337328.7
(d)
Compliance with Leases
The Company will, on and from the Control Date, procure that each member
of the Group which owns a Property will:
(i)
perform all the terms on its part contained in any lease comprised in
each applicable Property in all material respects; and
(ii)
not do or allow to be done any act as a result of which any lease (where
the relevant member of the Group is the lessee) comprised in its
Property may become liable to forfeiture or otherwise be terminated.
provided that this covenant shall only apply in respect of the leases referred to
in paragraphs (d) and (f) of the definition of Project 77 Property.
(e)
Compliance with applicable laws and regulations
The Company will, on and from the Control Date, procure that each each
member of the Group which owns a Property will perform all its obligations
under any law or regulation in any way related to or affecting its Property
where failure to do so has or would be reasonably likely to have a Material
Adverse Effect.
(f)
Notices
member of the Group which owns a Property will, promptly after the receipt
by it of any application, requirement, order or notice served or given by any
public or local or any other authority with respect to a Property (or any part of
it):
(g)
(i)
deliver a copy to the Agent; and
(ii)
inform the Agent of the steps (if any) taken or proposed to be taken to
comply with the relevant requirement.
Access
member of the Group which owns a Property will permit the Agent and any
person nominated by it at all reasonable times and on reasonable notice to
enter any part of its Property and view the state of it, subject to any restrictions
contained in any occupational lease in relation to any Property.
20.25 Hedging
(a)
The Company shall not enter into any Treasury Transaction.
(b)
On and from the Control Date, the Company shall ensure that no member of
the Group has any Treasury Transactions in place (other than the Existing
Hedging Agreements) and that no member of the Group enters into any
Treasury Transaction.
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LEGAL_EU # 17337328.7
(c)
Notwithstanding paragraph (b) above, the Target will be permitted to enter
into any Treasury Transaction which is entered into in relation to the Senior
Facility from time to time, provided that:
(i)
the final maturity date of any such Treasury Transaction does not, at
any time, extend beyond the maturity date of the then applicable Senior
Facility Agreement; and
(ii)
the notional amount which is hedged under such hedging arrangements
at all times equals 100 per cent. of the principal amount of the Senior
Facility from time to time,
each such arrangement a "New Hedging Agreement".
(d)
21.
With respect to the Existing Hedging Agreements, on and from the Control
Date the Company may procure that the Target maintains the Existing
Hedging Agreements, provided that the Company shall procure that no
amendment is made to the Existing Hedging Agreements by the Target except
where:
(i)
such amendment does not result in the maturity date of any such
Existing Hedging Agreement extending beyond the maturity date of
such Existing Hedging Agreement as at 2 August 2016; and
(ii)
such amendment would not, as at the time it is entered into, result in a
breach of the Mezzanine ICR and the Mezzanine DSCR where, for
these purposes, the Mezzanine ICR and the Mezzanine DSCR set out
in paragraph (b) of Clause 19.1 (Financial Covenants) shall be tested
on a pro forma basis by reference to the most recent Reference Date,
so that the amount of the Senior Facility which is the subject of such
amendment has the effect of such amendment (and, therefore, the
effect of the relevant swap or cap arrangement) applied to it as if such
amendment had been effective for the whole of the Test Period ending
on that Reference Date.
(e)
If any New Hedging Agreement or Existing Hedging Agreement is closed out
or terminated following the Completion Date and such close-out or
termination results in a liability of any member of the Group, the Company
shall procure that such liability is funded from the proceeds of New Equity
and/or New Loans.
(f)
The Company shall promptly notify the Agent of any New Hedging
Agreements that are entered into and of any amendment to any Existing
Hedging Agreement.
EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 21 is an Event of Default (save
for Clause 21.19 (Acceleration)).
- 120 LEGAL_EU # 17337328.7
21.1
Non-payment
The Company 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:
21.2
(a)
its failure to pay is caused by administrative or technical error; and
(b)
payment is made within 5 Business Days of its due date.
Financial Covenants
Any requirement of Clause 19.1 (Financial Covenants) or paragraph Error!
Reference source not found. of Clause Error! Reference source not found. (Major
Damage / Compulsory Purchase in relation to the Properties) is not satisfied.
21.3
21.4
Other Obligations
(a)
A Transaction Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clauses 21.1 (Non-payment) and
21.2 (Financial Covenants)).
(b)
No Event of Default under Clause 21.3(a) will occur if the failure to comply is
capable of remedy and is remedied within 14 Business Days of the earlier of
the Agent giving notice to the Company or the Company becoming aware of
the failure to comply.
(c)
Any amendment, variation or waiver of a Senior Facility Finance Document is
made or any refinancing is undertaken, in each case which is prohibited by the
provisions of this Agreement, provided that no Event of Default under this
paragraph (c) will occur if the failure to comply is capable of remedy and is
remedied within 10 Business Days of the earlier of the Agent giving notice to
the Company or the Company becoming aware of the failure to comply.
Misrepresentation
(a)
Any representation or statement made or deemed to be made by any
Transaction Obligor in the Finance Documents, or any other document
delivered by or on behalf of a Transaction Obligor under or in connection with
any Finance Document, is or proves to have been incorrect or misleading in
any material respect when made or deemed to be made.
(b)
No Event of Default under Clause 21.4(a) will occur if the circumstances
giving rise to the misrepresentation are capable of remedy and are remedied
within 14 Business Days of the earlier of the Agent giving notice to the
Company or the Company becoming aware of the misrepresentation.
- 121 LEGAL_EU # 17337328.7
21.5
Cross Default
In respect of Financial Indebtedness:
(a)
Any such Financial Indebtedness of the Company or, on and from the Control
Date, any member of the Group or Project 77 Trustee is not paid when due nor
within any originally applicable grace period.
(b)
Any such Financial Indebtedness of the Company or, on and from the Control
Date, any member of the Group or Project 77 Trustee 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 such Financial Indebtedness of the Company or, on
and from the Control Date, any member of the Group or Project 77 Trustee is
cancelled or suspended by a creditor of that member of the Company or, on
and from the Control Date, any member of the Group or Project 77 Trustee as
a result of an event of default (however described).
(d)
Any creditor of the Company or, on and from the Control Date, any member
of the Group or Project 77 Trustee becomes entitled to declare any such
Financial Indebtedness of the Company or that member of the Group or
Project 77 Trustee due and payable prior to its specified maturity as a result of
an event of default (however described) and, in respect of a finance lease with
a Senior Lender or Affiliate of a Senior Lender only, such event of default
remains unremedied and unwaived for a period of at least 15 days from the
earlier of the Agent giving notice to the Company or the Company becoming
aware of such event of default.
No Event of Default will occur under this Clause 21.5:
21.6
(i)
if the aggregate amount of such Financial Indebtedness or commitment
for such Financial Indebtedness falling within Clauses 21.5(a) to
21.5(d) is less than £2,500,000 (or its equivalent in any other currency
or currencies);
(ii)
if such Financial Indebtedness is on-demand in nature except to the
extent that such Financial Indebtedness has been demanded and has not
been repaid in accordance with the original terms of such demand; or
(iii)
if the Financial Indebtedness is owed by one member of the Group to
another member of the Group.
Senior Event of Default
Any Senior Event of Default under any Senior Finance Document is continuing.
21.7
Insolvency
(a)
A Transaction Obligor 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, commences negotiations with any one or
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more of its creditors (other than the Finance Parties in their capacities as such)
with a view to rescheduling any of its indebtedness.
(b)
21.8
A moratorium is declared in respect of any indebtedness of any Transaction
Obligor.
Insolvency Proceedings
Any corporate action, legal proceedings or other procedure or step is taken in relation
to:
(a)
the suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any Transaction
Obligor;
(b)
a composition, compromise, assignment or arrangement with any creditor of
any Transaction Obligor;
(c)
the appointment of a liquidator, receiver, administrator, administrative
receiver, compulsory manager or other similar officer in respect of any
Transaction Obligor; or
(d)
enforcement of any Security over any assets of any Transaction Obligor,
or any analogous procedure or step is taken in any jurisdiction.
This Clause 21.8 shall not apply to any winding-up petition (or an analogous
document in any jurisdiction outside of the United Kingdom) which is frivolous or
vexatious and is discharged, stayed or dismissed within 21 days of commencement.
21.9
Creditors' Process
Any expropriation, attachment, sequestration, distress or execution affects any asset
or assets of a Transaction Obligor having an aggregate value in excess of £2,500,000
is not discharged within 14 Business Days.
21.10 Ownership of the Company and the Target
(a)
The Company is not, or ceases to be, a directly, wholly-owned Subsidiary of
Holdco.
(b)
On and from the Control Date, the Target is not, or ceases to be, a directlyowned Subsidiary of the Company, with at least 90 per cent. of the Target
Shares held by the Company.
(c)
On and from the Completion Date, the Target is not, or ceases to be, a directly,
wholly-owned Subsidiary of the Company.
- 123 LEGAL_EU # 17337328.7
21.11 Unlawfulness
(a)
It is or becomes unlawful for a Transaction Obligor to perform any of its
obligations under the Finance Documents.
(b)
Any obligation of a Transaction Obligor under a Finance Document is not
enforceable in accordance with its terms or is alleged by a Transaction Obligor
not to be legal, valid and binding in accordance with its terms for any reason.
(c)
Subject to the Reservations, a Security Document does not create the security
it purports to create (save in the case of any purported legal mortgage that
takes effect as an equitable mortgage or fixed charge).
21.12 Repudiation
A Transaction Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
21.13 Litigation
Any litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency are started against a Transaction Obligor and which are
reasonably likely to be adversely determined and, if adversely determined, have or
would be reasonably likely to have a Material Adverse Effect.
21.14 Waiver Fee
The 0.125 per cent. fee payable in connection with the Initial Senior Facility
Agreement in accordance with the Acquisition Change of Control Waiver Letter
following an Approved Change of Control is not paid within any permitted period for
payment.
21.15 Compulsory purchase
(a)
Any part of any Property is compulsorily purchased or the applicable local
authority makes an order for the compulsory purchase of all or any part of any
Property; and
(b)
in the opinion of the Majority Lenders, taking into account the amount and
timing of any compensation payable, the compulsory purchase has or will
have a Material Adverse Effect.
21.16 Major damage
(a)
Any part of any Property is destroyed or damaged; and
(b)
in the opinion of the Majority Lenders, taking into account the amount and
timing of receipt of the proceeds of insurance effected in accordance with the
terms of this Agreement, the destruction or damage has or will have a Material
Adverse Effect.
- 124 LEGAL_EU # 17337328.7
21.17 Material Adverse Change
Any event or series of events occurs and is continuing which is reasonably likely to
have a Material Adverse Effect.
21.18 Cessation of Business
Any Transaction Obligor suspends or ceases to carry on (or threatens to suspend or
cease to carry on) all or a material part of its business except as a result of a disposal
or other transaction permitted under the terms of this Agreement.
21.19 Sponsor Affiliates and Senior Finance Documents
At any time a Sponsor Affiliate enters into a Senior Debt Purchase Transaction.
21.20 Acceleration
On and at any time after the occurrence of an Event of Default which is continuing the
Agent may, and shall if so directed by the Majority Lenders, by notice to the
Company:
(a)
cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b)
declare that all or part of the Loans, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon they shall become immediately due
and payable;
(c)
declare that all or part of the Loans be payable on demand, whereupon they
shall immediately become payable on demand by the Agent on the instructions
of the Majority Lenders; and/or
(d)
instruct the Agent to enforce any Security Interest.
21.21 Clean-Up Period
Notwithstanding any other provision of any Finance Document, during the Clean-Up
Period, the Events of Default set out in Clauses 21.3 (Other Obligations) and 21.4
(Misrepresentation) shall not apply to or in respect of any event or circumstance with
respect to any member of the Group which exists on the date on which an Approved
Change of Control occurs, or which occurs as a direct result of an Approved Change
of Control if:
(a)
the failure to comply is capable of remedy and reasonable steps are being
taken to remedy it;
(b)
the Company has not acted in wilful default or fraudulently in procuring or
approving the failure to comply; and
(c)
the failure to comply will not have a Material Adverse Effect,
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and the relevant circumstances are not continuing at the end of the Clean-up Period.
- 126 LEGAL_EU # 17337328.7
SECTION 9
CHANGES TO PARTIES
22.
CHANGES TO THE LENDERS
22.1
Assignments and Transfers by the Lenders
Subject to this Clause 22, a Lender (the "Existing Lender") may at any time:
(a)
assign any of its rights; or
(b)
transfer by novation any of its rights and obligations (including by way of
entry into a sub-participation agreement or other agreement or arrangement
having a substantially similar economic effect),
to another bank or financial institution or to a trust, fund or other entity (the "New
Lender").
22.2
Conditions of Assignment or Transfer
(a)
An Original Lender will not be permitted to assign or transfer any of its rights
or obligations (in the manner contemplated in Clause 22.1 (Assignments and
Transfers by the Lenders) unless such assignment or transfer is made to
another Original Lender (in the manner contemplated in Clause 22.1
(Assignments and Transfers by the Lenders).
(b)
Following the Relevant Date, subject to paragraph (c) below, a Lender may
assign or transfer any of its rights or obligations (in the manner contemplated
in Clause 22.1 (Assignments and transfers by the Lenders) to any New Lender,
other than to any New Lender:
(i)
who is a Prohibited Person;
(ii)
to the extent that such New Lender is not a Prohibited Person, who is
not:
(iii)
(A)
regularly engaged in originating loans in the primary lending
market; and/or
(B)
regularly engaged in investing in performing loans (but not
regularly engaged in investing in non-performing loans); or
who is not a Qualifying Lender,
unless, in each case, the prior written consent of the Company to such
assignment or transfer is obtained.
(c)
Paragraph (b) shall not apply at any time:
(i)
when an Event of Default is continuing at the time of a proposed
assignment or transfer;
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(ii)
to any transfer made by one Original Lender to another Original
Lender; or
(iii)
where the assignment or transfer is to another Lender or an Affiliate of
a Lender (unless such Lender or Affiliate of a Lender is a New Lender
falling into all or any of the categories set out in sub-paragraphs (b)(i),
(b)(ii) or (b)(iii) above, in which case paragraph (b) shall apply in
respect of such proposed assignment or transfer).
(d)
To the extent required, the consent of the Company to an assignment or
transfer must not be unreasonably withheld or delayed. The Company will be
deemed to have given its consent 5 Business Days after the Existing Lender
has requested such consent in writing unless consent is expressly refused by
the Company within that time.
(e)
An assignment will only be effective on:
(i)
receipt by the Agent of written confirmation from the New Lender (in
form and substance satisfactory to the Agent) that the New Lender will
assume the same obligations to the other Finance Parties as it would
have been under if it was an Original Lender; and
(ii)
the performance by the Agent of all necessary "know your customer"
or other similar checks under all applicable laws and regulations in
relation to such assignment to a New Lender, the completion of which
the Agent shall promptly notify to the Existing Lender and the New
Lender.
(f)
A transfer will only be effective if the procedure set out in Clause 22.5
(Procedure for Transfer) is complied with.
(g)
If:
(i)
a Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office; and
(ii)
as a result of circumstances existing at the date the assignment, transfer
or change occurs, the Company would be obliged to make a payment
to the New Lender or Lender acting through its new Facility Office
under Clause 11 (Tax Gross-up and Indemnities) or Clause 12
(Increased Costs),
then unless that obligation is as a result of the Company's failure to comply
with its obligations to file a duly completed form DTTP2 (or provide a copy of
that filing) in accordance with this Agreement 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.
(h)
Each New Lender, by executing the relevant Transfer Certificate or
assignment agreement, confirms, for the avoidance of doubt, that the Agent
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has authority to execute on its behalf any amendment or waiver that has been
approved by or on behalf of the requisite Lender or Lenders in accordance
with this Agreement on or prior to the date on which the transfer or
assignment becomes effective in accordance with this Agreement and that it is
bound by that decision to the same extent as the Existing Lender would have
been had it remained a Lender.
22.3
Assignment or Transfer Fee
The New Lender shall, on the date upon which an assignment or transfer takes effect,
pay to the Agent (for its own account) a fee of £2,500.
22.4
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
Finance Documents or any other documents;
(ii)
the financial condition of the Company;
(iii)
the performance and observance by the Company of its obligations
under the Finance Documents or any other documents; or
(iv)
the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b)
(c)
Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i)
has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs of
the Company 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 in connection with any Finance
Document; and
(ii)
will continue to make its own independent appraisal of the
creditworthiness of the Company and its related entities whilst any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
Nothing in any Finance Document obliges an Existing Lender to:
(i)
accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 22; or
- 129 LEGAL_EU # 17337328.7
(ii)
22.5
support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by the Company of its obligations
under the Finance Documents or otherwise.
Procedure for Transfer
(a)
Subject to the conditions set out in Clause 22.2 (Conditions of Assignment or
Transfer) a transfer is effected in accordance with Clause 22.5(c) when the
Agent executes an otherwise duly completed Transfer Certificate delivered to
it by the Existing Lender and the New Lender. The Agent shall, as soon as
reasonably practicable after receipt by it of a duly completed Transfer
Certificate 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.
(b)
The Agent shall only be obliged to execute a Transfer Certificate 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 other similar 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 the Existing Lender seeks
to transfer by novation its rights and obligations under the Finance
Documents each of the Company and the Existing Lender shall be
released from further obligations towards one another under the
Finance Documents and their respective rights against one another
under the Finance Documents shall be cancelled (being the
"Discharged Rights and Obligations");
(ii)
the Company and the New Lender shall each assume obligations
towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as the
Company and the New Lender have assumed and/or acquired the same
in place of the Company and the Existing Lender;
(iii)
the Agent, the Arranger, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between
themselves 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 Agent, the Arranger 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".
- 130 LEGAL_EU # 17337328.7
22.6
Security over Lenders' Rights
In addition to the other rights provided to Lenders under this Clause 22, each Lender
may without consulting with or obtaining consent from the Company, at any time
charge, assign or otherwise 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 charge, assignment or other Security to secure obligations to a federal
reserve or central bank; and
(b)
in the case of any Lender which is a fund, any charge, assignment or other
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 charge, assignment or Security shall:
23.
(i)
release a Lender from any of its obligations under the Finance
Documents or substitute the beneficiary of the relevant charge,
assignment or other Security for the Lender as a party to any of the
Finance Documents; or
(ii)
require any payments to be made by the Company 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.
CHANGES TO THE TRANSACTION OBLIGORS
No Transaction Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
- 131 LEGAL_EU # 17337328.7
SECTION 10
THE FINANCE PARTIES
24.
ROLE OF THE AGENT AND THE ARRANGER
24.1
Appointment of the Agent
24.2
24.3
(a)
Each other Finance Party appoints the Agent to act as its agent under and in
connection with the Finance Documents.
(b)
Each other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
Duties of the Agent
(a)
The Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other Party.
(b)
Except where a Finance Document specifically provides otherwise, the Agent
is not obliged to review or check the adequacy, accuracy or completeness of
any document it forwards to another Party.
(c)
If the 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 Finance Parties.
(d)
If the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the Agent
or the Arranger) under this Agreement it shall promptly notify the other
Finance Parties.
(e)
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
(f)
The Agent shall have only those duties, obligations and responsibilities
expressly specified in the Finance Documents to which it is expressed to be a
party (and no others shall be implied).
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.
24.4
No Fiduciary Duties
(a)
Nothing in this Agreement constitutes the Agent or the Arranger as a trustee or
fiduciary of any other person.
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(b)
24.5
Neither the Agent nor the Arranger shall be bound to account to any Lender
for any sum or the profit element of any sum received by it for its own
account.
Business with the Group
The Agent and the Arranger may accept deposits from, lend money to and generally
engage in any kind of banking or other business with any member of the Group or
Project 77 Trustee.
24.6
Rights and Discretions of the Agent
(a)
(b)
(c)
The Agent may rely on:
(i)
any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and
(ii)
any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify.
The Agent may assume that:
(i)
any instructions received by it from the Majority Lenders, any Lenders
or any group of Lenders are duly given in accordance with the terms of
the Finance Documents; and
(ii)
unless it has received notice of revocation, that those instructions have
not been revoked.
The 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 21.1 (Non-payment)); and
(ii)
any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised.
(d)
The Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts (and may rely on the advice
of such advisers, whether obtained by the Agent or by any other Party) and
shall not be liable for any damages, costs or losses to any person, any
diminution in value or any liability whatsoever arising as a result of it so
relying.
(e)
The Agent may act in relation to the Finance Documents through its personnel
and agents.
(f)
The Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this Agreement.
- 133 LEGAL_EU # 17337328.7
24.7
(g)
Without prejudice to the generality of sub-Clause 24.6(f) above, the Agent
may disclose the identity of a Defaulting Lender to the other Finance Parties
and the Company and shall disclose the same upon the written request of the
Company or the Majority Lenders,
(h)
Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arranger is obliged to 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.
(i)
Notwithstanding any provision of any Finance Document to the contrary, the
Agent is not obliged to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties, obligations or
responsibilities or the exercise of any right, power, authority or discretion if it
has grounds for believing the repayment of such funds or adequate indemnity
against, or security for, such risk or liability is not reasonably assured to it.
Majority Lenders' Instructions
(a)
Unless a contrary indication appears in a Finance Document, the Agent shall
(i) exercise any right, power, authority or discretion vested in it as 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 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.
(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.
(c)
The Agent shall be entitled to request instructions, or clarification of any
instruction, from the Majority Lenders (or, if the relevant Finance Document
stipulates the matter is a decision for any other Lender or group of Lenders,
from that Lender or group of Lenders) as to whether, and in what manner, it
should exercise or refrain from exercising any right, power, authority or
discretion. The Agent may refrain from acting unless and until it receives any
such instructions or clarification that it has requested.
(d)
The 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.
(e)
In the absence of instructions from the Majority Lenders, (or, if appropriate,
the Lenders) the Agent may act (or refrain from taking action) as it considers
to be in the best interest of the Lenders.
(f)
The 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.
- 134 LEGAL_EU # 17337328.7
24.8
Responsibility for Documentation
Neither the Agent nor the Arranger is responsible for:
24.9
(a)
the adequacy, accuracy and/or completeness of any information (whether oral
or written) supplied by the Agent, the Arranger, a Transaction Obligor or any
other person given in or in connection with any Finance Document;
(b)
the legality, validity, effectiveness, adequacy or enforceability of any Finance
Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Finance
Document; or
(c)
is responsible for any determination as to whether any information provided or
to be provided to any Finance Party is non public information the use of which
may be regulated or prohibited by applicable law or regulation relating to
insider dealing or otherwise.
Exclusion of Liability
(a)
Without limiting Clause 24.9(b), the Agent will not be liable for any action
taken by it under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct.
(b)
No Party (other than the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have against
the Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document and any officer,
employee or agent of the Agent may rely on this Clause 24.9 subject to Clause
1.5 (Third Party Rights) and the provisions of the Third Parties Act.
(c)
The 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 Agent if the 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 Agent for that
purpose.
(d)
Nothing in this Agreement shall oblige the 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 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 Agent or
the Arranger.
(e)
Without prejudice to any provision of any Finance Document excluding or
limiting the Agent's liability, any liability of the Agent arising under or in
connection with any Finance Document shall be limited to the amount of
actual loss which has been suffered (as determined by reference to the date of
default of the Agent or, if later, the date on which the loss arises as a result of
such default) but without reference to any special conditions or circumstances
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known to the Agent at any time which increase the amount of that loss. In no
event shall the Agent be liable for any loss of profits, goodwill, reputation,
business opportunity or anticipated saving, or for special, punitive, indirect or
consequential damages, whether or not the Agent has been advised of the
possibility of such loss or damages.
24.10 No Duty to Monitor
The Agent shall not be bound to enquire:
(a)
whether or not any Default has occurred;
(b)
as to the performance, default or any breach by any Party of its obligations
under any Finance Document; or
(c)
whether any other event specified in any Finance Document has occurred.
24.11 Lenders' Indemnity to the 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 the Agent and any Delegate, within 3 Business
Days of demand, against any cost, loss or liability (including, without limitation, for
negligence or any other category of liability whatsoever)incurred by the Agent
(otherwise than by reason of the Agent's gross negligence or wilful misconduct) in
acting as Agent under the Finance Documents (unless the Agent has been reimbursed
by the Company pursuant to a Finance Document).
24.12 Resignation of the Agent
(a)
The Agent may resign and appoint one of its Affiliates acting through an
office in the United Kingdom as successor by giving notice to the other
Finance Parties and the Company.
(b)
Alternatively the Agent may resign by giving notice to the other Finance
Parties and the Company, in which case the Majority Lenders (after
consultation with the Company) may appoint a successor Agent.
(c)
If the Majority Lenders have not appointed a successor Agent in accordance
with Clause 24.12(b) within thirty days after notice of resignation was given,
the Agent (after consultation with the Company) may appoint a successor
Agent (acting through an office in the United Kingdom).
(d)
The retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as Agent under the Finance Documents.
(e)
The Agent's resignation notice shall only take effect upon the appointment of a
successor.
- 136 LEGAL_EU # 17337328.7
(f)
Upon the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of Clause 13.3 (Indemnity to the Agent) and this
Clause 24. 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)
The Agent shall resign in accordance with Clause 24.12(b) above (and, to the
extent applicable, shall use reasonable endeavours to appoint a successor
Agent pursuant to Clause 24.12(c) above) if on or after the date which is three
months before the earliest FATCA Application Date relating to any payment
to the Agent under the Finance Documents, either:
(i)
the Agent fails to respond to a request under Clause 11.8 (FATCA
Information) and the Company or a Lender reasonably believes that the
Agent will not be (or will have ceased to be) a FATCA Exempt Party
on or after that FATCA Application Date;
(ii)
the information supplied by the Agent pursuant to Clause 11.8 (FATCA
Information) indicates that the Agent will not be (or will have ceased
to be) a FATCA Exempt Party on or after that FATCA Application
Date; or
(iii)
the Agent notifies the Company and the Lenders that the Agent will
not be (or will have ceased to be) a FATCA Exempt Party on or after
that FATCA Application Date,
and (in each case) the Company or a Lender reasonably believes that a Party will be
required to make a FATCA Deduction that would not be required if the Agent were a
FATCA Exempt Party, and the Company or that Lender, by notice to the Agent,
requires it to resign.
24.13 Replacement of the Agent
(a)
After consultation with the Company, the Majority Lenders may, by giving 30
days' notice to the Agent (or, at any time the Agent is an Impaired Agent, by
giving any shorter notice determined by the Majority Lenders), replace the
Agent by appointing a successor Agent (acting through an office in the United
Kingdom).
(b)
The retiring Agent shall (at its own cost if it is an Impaired Agent and
otherwise at the expense of the Lenders) make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as Agent under the Finance Documents.
(c)
The appointment of the successor Agent shall take effect on the date specified
in the notice from the Majority Lenders to the retiring Agent. As from this
date, the retiring Agent shall be discharged from any further obligation in
respect of the Finance Documents but shall remain entitled to the benefit of
- 137 LEGAL_EU # 17337328.7
this Clause 24 and Clause 13.3 (and any agency fees for the account of the
retiring Agent shall cease to accrue from that date).
(d)
Any successor Agent 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.
24.14 Confidentiality
(a)
In acting as agent for the Finance Parties, the 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 Agent, it
may be treated as confidential to that division or department and the Agent
shall not be deemed to have notice of it.
24.15 Relationship with the Lenders
(a)
(b)
The Agent may treat the person shown in its records as Lender at the opening
of business (in the place of the Agent's principal office as notified to the
Finance Parties from time to time) as the Lender acting through its Facility
Office:
(i)
entitled to or liable for any payment due under any Finance Document
on that day; and
(ii)
entitled to receive and act upon any notice, request, document or
communication or make any decision or determination under any
Finance Document made or delivered on that day.
The 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 5 Business Days prior notice from that Lender to the contrary in
accordance with the terms of this Agreement.
24.16 Credit Appraisal by the Lenders
Without affecting the responsibility of the Company for information supplied by it or
on its behalf in connection with any Finance Document, each Lender confirms to the
Agent and the Arranger that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:
(a)
the financial condition, status and nature of each member of the Group;
(b)
the legality, validity, effectiveness, adequacy or enforceability of any Finance
Document and any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance
Document; and
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(c)
whether that Lender 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 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.
24.17 Agent's Management Time
(a)
Any amount payable to the Agent under Clause 13.3 (Indemnity to the Agent),
Clause 15 (Costs and Expenses) and Clause 24.10 (Lenders' Indemnity to the
Agent) shall include the cost of utilising the Agent's management time or other
resources and will be calculated on the basis of such reasonable daily or
hourly rates as the Agent may notify to the Company and the Lenders, and is
in addition to any fee paid or payable to the Agent under Clause 10 (Fees).
(b)
Without prejudice to paragraph (a) above, in the event of:
(i)
an Event of Default;
(ii)
the Agent being requested by the Company or the Majority Lenders to
undertake duties which the Agent and the Company agree to be of an
exceptional nature or outside the scope of the normal duties of the
Agent under the Finance Documents; or
(iii)
the Agent and the Company agreeing that it is otherwise appropriate in
the circumstances
the Company shall pay to the Agent any additional remuneration that may be
agreed between them or determined pursuant to paragraph (c) below.
(c)
If the Agent and the Company fail to agree upon the nature of the duties, or
upon the additional remuneration referred to in paragraph (b) above or
whether additional remuneration is appropriate in the circumstances, any
dispute shall be determined by an investment bank (acting as an expert and not
as an arbitrator) selected by the Agent and approved by the Company or,
failing approval, nominated (on the application of the Agent) by the President
for the time being of the Law Society of England and Wales (the reasonable
costs of the nomination and of the investment bank being payable by the
Company) and the determination of any investment bank shall be final and
binding upon the Parties
24.18 Deduction from Amounts Payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the Agent
may, after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the 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.
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24.19 "Know your client" Checks
The Company shall promptly upon the request of the Agent or any Lender supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent or any Lender in order for the Agent or such Lender to carry
out and be satisfied with the results of all necessary "know your client" or other
applicable anti-money laundering checks in relation to the identity of any person that
it is required to carry out in relation to the transactions contemplated in the Finance
Documents.
25.
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a)
interfere with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks fit;
(b)
oblige any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or
(c)
oblige any Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of Tax.
26.
SHARING AMONG THE FINANCE PARTIES
26.1
Payments to Lenders
If a Lender or Agent (a "Recovering Finance Party") receives or recovers any
amount from the Company other than in accordance with Clause 27 (Payment
Mechanics) (a "Recovered Amount") and applies that amount to a payment due
under the Finance Documents then;
(a)
the Recovering Finance Party shall, within 3 Business Days, notify details of
the receipt or recovery, to the Agent;
(b)
the 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 Agent and distributed in accordance
with Clause 27 (Payment Mechanics), without taking account of any Tax
which would be imposed on the Agent in relation to the receipt, recovery or
distribution; and
(c)
the Recovering Finance Party shall, within 3 Business Days of demand by the
Agent, pay to the Agent an amount (the "Sharing Payment") equal to such
receipt or recovery less any amount which the Agent determines may be
retained by the Recovering Finance Party as its share of any payment to be
made, in accordance with Clause 27.6 (Partial Payments).
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26.2
Redistribution of Payments
The Agent shall treat the Sharing Payment as if it had been paid by the Company and
distribute it between the Finance Parties (other than the Recovering Finance Party)
(the "Sharing Finance Parties") in accordance with Clause 27.6 (Partial Payments).
26.3
26.4
Recovering Finance Party's Rights
(a)
On a distribution by the Agent under Clause 26.2 (Redistribution of
Payments)) of a payment received by a Recovering Finance Party from the
Company, as between the Company and the Recovering Finance Party, an
amount of the Recovered Amount equal to the Sharing Payment will be treated
as not having been paid by the Company, the Recovering Finance Party will
be subrogated to the rights of the Lenders 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 Clause 26.3(a), the Company shall be liable to the Recovering
Finance Party for a debt equal to the Sharing Payment which is immediately
due and payable.
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:
26.5
(a)
each Lender which has received a share of the relevant Sharing Payment
pursuant to Clause 26.2 (Redistribution of Payments) shall, upon request of the
Agent, pay to the 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);
(b)
as between the Company and each relevant Sharing Finance Party, an amount
equal to the relevant Redistributed Amount will be treated as not having been
paid by the Company; and
(c)
that Recovering Finance Party's rights of subrogation in respect of any
reimbursement shall be cancelled and the Company will be liable to the
reimbursing Lender for the amount so reimbursed.
Exceptions
(a)
This Clause 26 shall not apply to the extent that the Recovering Finance Party
would not, after making any payment pursuant to this Clause 26, have a valid
and enforceable claim against the Company.
(b)
A Recovering Finance Party is not obliged to share with any other Lender any
amount which the Recovering Finance Party has received or recovered as a
result of taking legal or arbitration proceedings, if:
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26.6
(i)
it notified that other Lender of the legal or arbitration proceedings; and
(ii)
that other Lender 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.
Application of Proceeds
All amounts from time to time received or recovered by the Agent in connection with
the realisation or enforcement of all or any part of the Transaction Security shall be
held by the Agent on trust to apply them at any time as the Agent sees fit, to the extent
permitted by applicable law in the following order of priority:
(a)
in discharging any sums owing to the Agent, any receiver or any Delegate; and
(b)
in or towards payment pro rata of any other sum due but unpaid under the
Finance Documents.
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SECTION 11
ADMINISTRATION
27.
PAYMENT MECHANICS
27.1
Payments to the Agent
27.2
(a)
On each date on which the Company or a Lender is required to make a
payment under a Finance Document, the Company or Lender shall make the
same available to the 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 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 with such bank as the Agent specifies.
Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 27.3 (Distributions to the Company) and Clause 27.4
(Clawback) be made available by the 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 Agent by not less than 5 Business Days' notice with a bank in the principal
financial centre of the country of that currency.
27.3
Distributions to the Company
The Agent may (with the consent of the Company or in accordance with Clause 29
(Set-off)) apply any amount received by it for the Company in or towards payment (on
the date and in the currency and funds of receipt) of any amount due from the
Company under the Finance Documents or in or towards purchase of any amount of
any currency to be so applied.
27.4
Clawback
(a)
Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the 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 Agent pays an amount to another Party and it proves to be the case that
the 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
Agent shall on demand refund the same to the Agent together with interest on
that amount from the date of payment to the date of receipt by the Agent,
calculated by the Agent to reflect its cost of funds.
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27.5
27.6
Impaired Agent
(a)
If, at any time, the Agent becomes an Impaired Agent, the Company or a
Lender which is required to make a payment under the Finance Documents to
the Agent in accordance with Clause 27.1 (Payments to the Agent) may
instead either pay that amount direct to the required recipient or, if the
Company and the Majority Lenders agree at that time, pay that amount to an
interest-bearing account held with an Acceptable Bank within the meaning of
paragraph (a) of the definition of "Acceptable Bank" and in relation to which
no Insolvency Event has occurred and is continuing, in the name of the
Company or the Lender making the payment and designated as a trust account
for the benefit of the Party or Parties beneficially entitled to that payment
under the Finance Documents. In each case such payments must be made on
the due date for payment under the Finance Documents.
(b)
All interest accrued on the amount standing to the credit of the trust account
shall be for the benefit of the beneficiaries of that trust account pro rata to
their respective entitlements.
(c)
A Party which has made a payment in accordance with this Clause 27.5 shall
be discharged of the relevant payment obligation under the Finance
Documents and shall not take any credit risk with respect to the amounts
standing to the credit of the trust account.
(d)
Promptly upon the appointment of a successor Agent in accordance with
Clause 24.13 (Replacement of the Agent), each Party which has made a
payment to a trust account in accordance with this Clause 27.5 shall give all
requisite instructions to the bank with whom the trust account is held to
transfer the amount (together with any accrued interest) to the successor Agent
for distribution in accordance with Clause 27.2 (Distributions by the Agent).
Partial Payments
(a)
If the Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by the Company under this Agreement or any
Fee Letter, the Agent shall apply that payment towards the obligations of the
Company under this Agreement or any Fee Letter in the following order:
(i)
first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent and the Arranger under this Agreement or any
Fee Letter;
(ii)
secondly, in or towards payment pro rata of any accrued interest, fee or
commission due but unpaid under this Agreement or any Fee Letter;
(iii)
thirdly, in or towards payment pro rata of any Cure Loans due but
unpaid under this Agreement;
(iv)
fourthly, in or towards payment pro rata of any Term Loans due but
unpaid under this Agreement or any Fee Letter; and
- 144 LEGAL_EU # 17337328.7
(v)
27.7
fourthly, in or towards payment pro rata of any other sum due but
unpaid under this Agreement or any Fee Letter.
(b)
The Agent shall, if so directed by the Majority Lenders, vary the order set out
in paragraphs (ii) to (v) of Clause 27.6(a).
(c)
Clauses 27.6(a) and 27.6(b) will override any appropriation made by the
Company.
No Set-off by the Company
All payments to be made by the Company under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off or
counterclaim.
27.8
27.9
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.
Currency of Account
(a)
Subject to Clauses 27.9(b) to 27.9(e), sterling is the currency of account and
payment for any sum due from the Company under any Finance Document.
(b)
A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c)
Each payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that interest
accrued.
(d)
Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
(e)
Any amount expressed to be payable in a currency other than sterling shall be
paid in that other currency.
28.
RESTRICTION ON DEBT PURCHASE TRANSACTIONS
28.1
Prohibition on Debt Purchase Transactions by the Group
The Company shall not, and shall procure that each other member of the Group shall
not, enter into any Debt Purchase Transaction or beneficially own all or any part of
the share capital of a company that is a Lender or a party to a Debt Purchase
- 145 LEGAL_EU # 17337328.7
Transaction of the type referred to in paragraphs (b) or (c) of the definition of "Debt
Purchase Transaction".
28.2
Disenfranchisement on Debt Purchase Transactions entered into by Sponsor Affiliates
(a)
For so long as a Sponsor Affiliate:
(i)
beneficially owns a Commitment; or
(ii)
has entered into a sub-participation agreement relating to a
Commitment or other agreement or arrangement having a substantially
similar economic effect and such agreement or arrangement has not
been terminated,
in ascertaining:
(A)
the Majority Lenders; or
(B)
whether:
(I)
any given percentage (including, for the avoidance of
doubt, unanimity) of the Total Commitments; or
(II)
the agreement of any specified group of Lenders,
has been obtained to approve any request for a consent, waiver, amendment or
other vote under the Finance Documents such Commitment shall be deemed to
be zero and such Sponsor Affiliate or the person with whom it has entered into
such sub-participation, other agreement or arrangement shall be deemed not to
be a Lender for the purposes of paragraphs (A) and (B) above (unless in the
case of a person not being a Sponsor Affiliate it is a Lender by virtue
otherwise than by beneficially owning the relevant Commitment).
(b)
Each Lender shall, unless such Debt Purchase Transaction is an assignment or
transfer, promptly notify the Agent in writing if it knowingly enters into a
Debt Purchase Transaction with a Sponsor Affiliate (a "Notifiable Debt
Purchase Transaction"), such notification to be substantially in the form set
out in Part I of Schedule 9 (Forms of Notifiable Debt Purchase Transaction
Notice).
(c)
A Lender shall promptly notify the Agent if a Notifiable Debt Purchase
Transaction to which it is a party:
(i)
is terminated; or
(ii)
ceases to be with a Sponsor Affiliate,
such notification to be substantially in the form set out in Part II of Schedule 9
(Forms of Notifiable Debt Purchase Transaction Notice).
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(d)
29.
Each Sponsor Affiliate that is a Lender agrees that:
(i)
in relation to any meeting or conference call to which all the Lenders
are invited to attend or participate, it shall not attend or participate in
the same if so requested by the Agent or, unless the Agent otherwise
agrees, be entitled to receive the agenda or any minutes of the same;
and
(ii)
in its capacity as Lender, unless the Agent otherwise agrees, it shall not
be entitled to receive any report or other document prepared at the
behest of, or on the instructions of, the Agent or one or more of the
Lenders.
SET-OFF
A Finance Party may set off any matured obligation due from the Company under the
Finance Documents (to the extent beneficially owned by that Finance Party) against
any matured obligation owed by that Finance Party to the Company, 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.
30.
NOTICES
30.1
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.
30.2
Addresses
The address or fax number (and the department or officer, if any, for whose attention
the communication is to be made) of each Party for any communication or document
to be made or delivered under or in connection with the Finance Documents is:
(a)
in the case of the Company, that identified with its name in the signature
blocks to this Agreement;
(b)
in the case of each Lender, that notified in writing to the Agent on or prior to
the date on which it becomes a Party; and
(c)
in the case of the Agent, that identified with its name below,
or any substitute address, fax number or department or officer as the Party may notify
to the Agent (or the Agent may notify to the other Parties, if a change is made by the
Agent) by not less than 5 Business Days' notice.
30.3
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 if
by way of letter, when it has been left at the relevant address or 2 Business
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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 30.2 (Addresses),
if addressed to that department or officer.
30.4
(b)
Any communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified with
the Agent's signature below (or any substitute department or officer as the
Agent shall specify for this purpose).
(c)
All notices from or to the Company under or in connection with the Finance
Documents shall be sent through the Agent.
Notification of Address
Promptly upon receipt of notification of an address or change of address pursuant to
Clause 30.2 (Addresses) or changing its own address, the Agent shall notify the other
Parties.
30.5
Communication when Agent is Impaired Agent
If the Agent is an Impaired Agent the Parties may, instead of communicating with
each other through the Agent, communicate with each other directly and (while the
Agent is an Impaired Agent) all the provisions of the Finance Documents which
require communications to be made or notices to be given to or by the Agent shall be
varied so that communications may be made and notices given to or by the relevant
Parties directly. This provision shall not operate after a replacement Agent has been
appointed.
30.6
Electronic Communication
(a)
Any communication to be made between any two Parties under or in
connection with the Finance Documents may be made by electronic mail or
other electronic means (including, without limitation, by way of posting to a
secure website) if those two Parties:
(i)
notify each other in writing of their electronic mail address and/or any
other information required to enable the transmission of information by
that means; and
(ii)
notify each other of any change to their address or any other such
information supplied by them.
(b)
Any such electronic communication as specified in paragraph 30.6(a) above to
be made between the Company and a Finance Party may only be made in that
way to the extent that those two Parties agree that, unless and until notified to
the contrary, this is to be an accepted form of communication.
(c)
Any such electronic communication as specified in paragraph 30.6(a) above
made between any two Parties will be effective only when actually received
(or made available) in readable form and in the case of any electronic
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communication made by a Party to the Agent only if it is addressed in such a
manner as the Agent shall specify for this purpose.
30.7
(d)
Any electronic communication which becomes effective, in accordance with
paragraph 30.6(c) above, after 5:00 p.m. in the place in which the Party to
whom the relevant communication is sent or made available has its address for
the purpose of this Agreement shall be deemed only to become effective on
the following day.
(e)
Any reference in a Finance Document to a communication being sent or
received shall be construed to include that communication being made
available in accordance with this Clause 30.6.
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 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.
31.
CALCULATIONS AND CERTIFICATES
31.1
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.
31.2
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.
31.3
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 365 days.
32.
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,
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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.
33.
REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any Finance 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. Any waiver must be in writing to be binding.
34.
AMENDMENTS AND WAIVERS
34.1
Required Consents
34.2
(a)
Subject to Clause 34.2 (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 Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause 34.1.
Exceptions
(a)
An amendment or waiver that has the effect of changing or which relates to:
(i)
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(ii)
an extension to the date of payment of any amount under the Finance
Documents;
(iii)
a reduction in the Coupon or a reduction in the amount of any payment
of principal, interest, fees or commission payable;
(iv)
an increase in or an extension of any Commitment (other than in the
case of any Cure Facility Commitment as contemplated pursuant to the
terms of this Agreement);
(v)
a change to the Company other than in accordance with Clause 23
(Changes to the Transaction Obligors);
(vi)
a release of security other than in accordance with the express
provisions of a Finance Document;
(vii)
any provision which expressly requires the consent of all the Lenders;
or
(viii) Clause 2.3 (Finance Parties' Rights and Obligations), Clause 17.15
(Sanctions), Clause 20.14 (Sanctions), Clause 22 (Changes to the
Lenders) or this Clause 34,
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shall not be made without the prior consent of all the Lenders.
(b)
34.3
An amendment or waiver which relates to the rights or obligations of the
Agent or the Arranger may not be effected without the consent of the Agent or
the Arranger.
Disenfranchisement of Defaulting Lenders
(a)
For so long as a Defaulting Lender has any Available Commitment, in
ascertaining the Majority Lenders or whether any given percentage (including,
for the avoidance of doubt, unanimity) of the Total Commitments has been
obtained to approve any request for a consent, waiver, amendment or other
vote under the Finance Documents, that Defaulting Lender's Commitments
will be reduced by the amount of its Available Commitments.
(b)
For the purposes of this Clause 34.3, the Agent may assume that the following
Lenders are Defaulting Lenders:
(i)
any Lender which has notified the Agent that it has become a
Defaulting Lender;
(ii)
any Lender in relation to which it is aware that any of the events or
circumstances referred to in paragraphs (a), (b) or (c) of the definition
of "Defaulting Lender" has occurred and, in the case of the events or
circumstances referred to in paragraph (a) of that definition, none of
the exceptions to that paragraph apply.
unless it has received notice to the contrary from the Lender concerned
(together with any supporting evidence reasonably requested by the Agent) or
the Agent is otherwise aware that the Lender has ceased to be a Defaulting
Lender.
34.4
Replacement of a Defaulting Lender
(a)
The Company may, at any time a Lender has become and continues to be a
Defaulting Lender, by giving 5 Business Days' prior written notice to the
Agent and such Lender replace such Lender by requiring such Lender to (and
such Lender shall) transfer pursuant to Clause 22 (Changes to the Lenders) all
(and not part only) of its rights and obligations under this Agreement, to a
Lender or other bank, financial institution, trust, fund or other entity (a
"Replacement Lender") selected by the Company, and which (unless the
Agent is an Impaired Agent) is acceptable to the Agent (acting reasonably),
which confirms its willingness to assume and does assume all the obligations
or all the relevant obligations of the transferring Lender (including the
assumption of the transferring Lender's participations or unfunded
participations (as the case may be) on the same basis as the transferring
Lender) for a purchase price in cash payable at the time of transfer equal to the
outstanding principal amount of such Lender's participation in the outstanding
Utilisations and all accrued interest and other amounts payable in relation
thereto under the Finance Documents.
- 151 LEGAL_EU # 17337328.7
(b)
Any transfer of rights and obligations of a Defaulting Lender pursuant to this
Clause shall be subject to the following conditions:
(i)
the Company shall have no right to replace the Agent or any security
agent or co-security agent appointed under Clause 37.7 (Co-security
Agent);
(ii)
neither the Agent nor the Defaulting Lender shall have any obligation
to the Company to find a Replacement Lender;
(iii)
the transfer must take place no later than 30 days after the notice
referred to in Clause 34.4(a) above; and
(iv)
in no event shall the Defaulting Lender be required to pay or surrender
to the Replacement Lender any of the fees received by the Defaulting
Lender pursuant to the Finance Documents.
35.
CONFIDENTIAL INFORMATION
35.1
Confidential Information
Each Finance Party agrees to keep all Confidential Information confidential and not to
disclose it to anyone, save to the extent permitted by Clause 35.2 (Disclosure of
Confidential Information) and Clause 35.3 (Disclosure to numbering service
providers), and to ensure that all Confidential Information is protected with security
measures and a degree of care that would apply to its own confidential information.
35.2
Disclosure of Confidential Information
Any Finance Party may disclose:
(a)
to any of its Affiliates and Related Funds and any of its or their officers,
directors, employees, professional advisers, auditors, partners and
Representatives such Confidential Information as that Finance Party shall
consider appropriate if any person to whom the Confidential Information is to
be given pursuant to this Clause 35.2(a) is informed in writing of its
confidential nature and that some or all of such Confidential Information may
be price- sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to maintain
the confidentiality of the information or is otherwise bound by requirements of
confidentiality in relation to the Confidential Information;
(b)
to any person:
(i)
to (or through) whom it assigns or transfers (or may potentially assign
or transfer) all or any of its rights and/or obligations under one or more
Finance Documents and to any of that person's Affiliates, Related
Funds, Representatives and professional advisers;
(ii)
with (or through) whom it enters into (or may potentially enter into),
whether directly or indirectly, any sub-participation in relation to, or
any other transaction under which payments are to be made or may be
- 152 -
LEGAL_EU # 17337328.7
made by reference to, one or more Finance Documents and/or the
Company and to any of that person's Affiliates, Related Funds,
Representatives and professional advisers;
(iii)
appointed by any Finance Party or by a person to whom Clause
35.2(b)(i) or 35.2(b)(ii) above applies to receive communications,
notices, information or documents delivered pursuant to the Finance
Documents on its behalf (including, without limitation, any person
appointed under Clause 24.15 (Relationship with the Lenders));
(iv)
who invests in or otherwise finances (or may potentially invest in or
otherwise finance), directly or indirectly, any transaction referred to in
Clauses 35.2(b)(i) or 35.2(b)(ii) above;
(v)
to whom information is required or requested to be disclosed by any
court of competent jurisdiction or any governmental, banking, taxation
or other regulatory authority or similar body, the rules of any relevant
stock exchange or pursuant to any applicable law or regulation;
(vi)
to whom or for whose benefit that Finance Party charges, assigns or
otherwise creates Security (or may do so) pursuant to Clause 22.6
(Security over Lenders' Rights);
(vii)
to whom information is required to be disclosed in connection with,
and for the purposes of, any litigation, arbitration, administrative or
other investigations, proceedings or disputes;
(viii) who is a Party;
(ix)
with the prior written consent of the Company; or
(x)
with (or through) whom a Finance Party enters into (or may potentially
enter into) whether directly or indirectly, any transaction under which
payments are to be made or may be made by reference to one or more
Finance Documents and their Affiliates and professional advisers,
in each case, such Confidential Information as that Finance Party shall
consider appropriate if:
(A)
in relation to Clauses 35.2(b)(i) to 35.2(b)(iii) above, the person
to whom the Confidential Information is to be given has
entered into a Confidentiality Undertaking except that there
shall be no requirement for a Confidentiality Undertaking if the
recipient is a professional adviser and is subject to professional
obligations to maintain the confidentiality of the Confidential
Information;
(B)
in relation to Clauses 35.2(b)(iv), 35.2(b)(vi) and 35.2(b)(x)
above, the person to whom the Confidential Information is to
be given has entered into a Confidentiality Undertaking or is
otherwise bound by requirements of confidentiality in relation
to the Confidential Information they receive and is informed
- 153 -
LEGAL_EU # 17337328.7
that some or all of such Confidential Information may be price
sensitive information;
(C)
35.3
in relation to Clauses 35.2(b)(v) and 35.2(b)(vii) above, the
person to whom the Confidential Information is to be given is
informed of its confidential nature and that some or all of such
Confidential Information may be price-sensitive information
except that there shall be no requirement to so inform if it is not
practicable so to do in the circumstances;
(c)
to any person appointed by that Finance Party or by a person to whom Clause
35.2(b)(i) or 35.2(b)(ii) above applies to provide administration or settlement
services in respect of one or more of the Finance Documents including without
limitation, in relation to the trading of participations in respect of the Finance
Documents, such Confidential Information as may be required to be disclosed
to enable such service provider to provide any of the services referred to in
this Clause 35.2(c) if the service provider to whom the Confidential
Information is to be given has entered into a confidentiality agreement
substantially in the form of the LMA Master Confidentiality Undertaking for
Use With Administration/Settlement Service Providers or such other form of
confidentiality undertaking agreed between the Company and the relevant
Finance Party; and
(d)
to any rating agency (including its professional advisers) such Confidential
Information as may be required to be disclosed to enable such rating agency to
carry out its normal rating activities in relation to the Finance Documents
and/or the Company if the rating agency to whom the Confidential
Information is to be given is informed of its confidential nature and that some
or all of such Confidential Information may be price-sensitive information.
Disclosure to Numbering Service Providers
(a)
Any Finance Party may disclose to any national or international numbering
service provider appointed by that Finance Party to provide identification
numbering services in respect of this Agreement, the Facility and/or the
Company the following information:
(i)
name of the Company;
(ii)
country of domicile of the Company;
(iii)
place of incorporation of the Company;
(iv)
(v)
the names of the Agent and the Arranger;
(vi)
date of each amendment and restatement of this Agreement;
(vii)
amount of Total Commitments;
(viii) currencies of the Facility;
- 154 LEGAL_EU # 17337328.7
(ix)
type of Facility;
(x)
ranking of Facility;
(xi)
Termination Date for Facility;
(xii)
changes to any of the information previously supplied pursuant to
Clause 35.3(a) 35.3(a)(i) to 35.3(a)(xi) above; and
(xiii) such other information agreed between such Finance Party and the
Company,
to enable such numbering service provider to provide its usual syndicated loan
numbering identification services.
35.4
(b)
The Parties acknowledge and agree that each identification number assigned to
this Agreement, the Facility and/or the Company by a numbering service
provider and the information associated with each such number may be
disclosed to users of its services in accordance with the standard terms and
conditions of that numbering service provider.
(c)
The Company represents that none of the information set out in Clauses
35.3(a)(i) to 35.3(a)(xiii) above is, nor will at any time be, unpublished pricesensitive information.
(d)
The Agent shall notify the Company and the other Finance Parties of:
(i)
the name of any numbering service provider appointed by the Agent in
respect of this Agreement, the Facility and/or the Company; and
(ii)
the number or, as the case may be, numbers assigned to this
Agreement, the Facility and/or the Company by such numbering
service provider.
Entire Agreement
This Clause 35 (Confidential Information) constitutes the entire agreement between
the Parties in relation to the obligations of the Finance Parties under the Finance
Documents regarding Confidential Information and supersedes any previous
agreement, whether express or implied, regarding Confidential Information.
35.5
Inside Information
Each of the Finance Parties acknowledges 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 including
securities law relating to insider dealing and market abuse and each of the Finance
Parties undertakes not to use any Confidential Information for any unlawful purpose.
- 155 LEGAL_EU # 17337328.7
35.6
Notification of Disclosure
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to
inform the Company:
35.7
(a)
of the circumstances of any disclosure of Confidential Information made
pursuant to Clause 35.2(b)(v) (Disclosure of Confidential Information) except
where such disclosure is made to any of the persons referred to in that Clause
during the ordinary course of its supervisory or regulatory function; and
(b)
upon becoming aware that Confidential Information has been disclosed in
breach of this Clause 35 (Confidential Information).
Continuing Obligations
The obligations in this Clause 35 (Confidential Information) are continuing and, in
particular, shall survive and remain binding on each Finance Party for a period of 12
months from the earlier of:
36.
(a)
the date on which all amounts payable by the Company under or in connection
with the Finance Documents have been paid in full and all Commitments have
been cancelled or otherwise cease to be available; and
(b)
the date on which such Finance Party otherwise ceases to be a Finance Party.
COUNTERPARTS
Each Finance Document 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.
- 156 LEGAL_EU # 17337328.7
SECTION 12
SECURITY
37.
SECURITY
37.1
Agent as Holder of Security
Unless expressly provided to the contrary, the Agent holds any security created by a
Security Document on trust for the Finance Parties.
37.2
Responsibility
The Agent is not liable or responsible to any other Finance Party for:
(a)
any failure in perfecting or protecting the security created by any Security
Document; or
(b)
any other action taken or not taken by it in connection with Security
Document,
unless directly caused by its gross negligence or wilful misconduct.
37.3
Title
The Agent may accept, without enquiry, the title (if any) any Transaction Obligor
may have to any asset over which security is intended to be created by any Security
Document.
37.4
Possession of Documents
The Agent is not obliged to hold in its own possession any Security Document, title
deed or other document in connection with any asset over which security is intended
to be created by a Security Document. Without prejudice to the above, the Agent may
allow any bank providing safe custody services or any professional adviser to the
Agent to retain any of those documents in its possession.
37.5
Investments
Except as otherwise provided in any Security Document, all moneys received by the
Agent under a Security Document may be invested in the name of, or under the
control of, the Agent in any investments selected by the Agent. Additionally, those
moneys may be placed on deposit in the name of, or under the control of, the Agent at
any bank or institution (including itself) and upon such terms as it may think fit.
37.6
Approval
Each Finance Party confirms its approval of each Security Document.
- 157 LEGAL_EU # 17337328.7
37.7
Co-security Agent
(a)
The Agent may appoint a separate security agent or a co-security agent in any
jurisdiction outside England and Wales:
(i)
if the Agent considers that without the appointment the interests of the
Lenders under the Finance Documents might be materially and
adversely affected;
(ii)
for the purpose of complying with any law, regulation or other
condition in any jurisdiction; or
(iii)
for the purpose of obtaining or enforcing a judgment or enforcing any
Finance Document in any jurisdiction.
(b)
Any appointment under this Clause 37.7 will only be effective if the security
agent or co-security agent confirms to the Agent and the Company in form and
substance satisfactory to the Agent that it is bound by the terms of this
Agreement as if it were the Agent.
(c)
The Agent may remove any security agent or co-security agent appointed by it
and may appoint a new security agent or co-security agent in its place.
(d)
If an Event of Default has occurred and is continuing, the Company must pay
to the Agent any reasonable remuneration paid by the Agent to any security
agent or co-security agent appointed by it, together with any related costs and
expenses properly incurred by the security agent or co- security agent.
- 158 LEGAL_EU # 17337328.7
SECTION 13
SECURITY
GOVERNING LAW AND ENFORCEMENT
38.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection
with it are governed by English law.
39.
JURISDICTION
(a)
The courts of England have exclusive jurisdiction to settle any dispute,
including a dispute relating to any non-contractual obligations, 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 39 is for the benefit of the Finance Parties only. As a result, no
Finance 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 may take concurrent proceedings in any number of
jurisdictions.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
- 159 LEGAL_EU # 17337328.7
SCHEDULE 1
THE ORIGINAL LENDERS
Treaty
Passport
scheme
reference
number and
jurisdiction of
tax residence
(if applicable)
Term Facility
Commitment
(£)
Cure Facility
Commitment
(£)
EUROPEAN REAL ESTATE DEBT
II S.À R.L.
£60,000,000
£0
48/E/0361142/
DTTP
DRC EUROPEAN REAL ESTATE
DEBT III NO. 2 S.À R.L.
£0
£0
48/D/368995/D
TTP
£60,000,000
£0
Name of Original Lender
Total
- 160 LEGAL_EU # 17337328.7
SCHEDULE 2
CONDITIONS PRECEDENT
1.
Transaction Obligors
1.1
A copy of the constitutional documents of each Transaction Obligor.
1.2
A copy of a resolution of the board of directors or managers (as applicable) of each
Transaction Obligor:
1.3
(a)
approving the terms of, and the transactions contemplated by, the Finance
Documents to which it is a party and resolving that it execute the Finance
Documents to which it is a party;
(b)
authorising a specified person or persons to execute the Finance Documents to
which it is a party on its behalf; and
(c)
authorising a specified person or persons, on its behalf, to sign and/or despatch
all documents and notices (including, if relevant, any Utilisation Request) to
be signed and/or despatched by it under or in connection with the Finance
Documents to which it is a party.
A certificate of an authorised signatory of each Transaction Obligor dated as at a date
no earlier than this Agreement:
(a)
attaching a specimen of the signature of each person authorised by the
resolution referred to in paragraph 1.2 above;
(b)
certifying that each copy document relating to it specified in this Schedule 2 is
correct, complete and in full force and effect as at a date no earlier than the
(c)
confirming that borrowing, securing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, securing, guaranteeing or
similar limit binding on it to be exceeded; and
(d)
in the case of Holdco only:
(i)
confirming that it is not subject to the provisions of the Luxembourg
law dated 31 May 1999 on the domiciliation of companies, as
amended;
(ii)
confirming that it has not been declared bankrupt (en faillite), and no
application has been made by it, the board of managers in relation to,
any declared bankruptcy (faillite), voluntary or judicial liquidation
(liquidation volontaire ou judiciaire), composition with creditors
(concordat préventif de la faillite), suspension of payments (sursis de
paiement), controlled management (gestion contrôlée), general
settlement with creditors, reorganisation or similar legal provisions
affecting the rights of creditors generally in Luxembourg or abroad, or
any analogous procedure in any jurisdiction, nor subject to any
- 161 -
LEGAL_EU # 17337328.7
proceedings under the Council Regulation 1346/2000/EC of 29 May
2000 on insolvency proceedings (the "Insolvency Regulation");
(iii)
confirming that, to the best of the knowledge of the board of managers,
no other person entitled has made any corporate action, legal
proceedings or other procedure or step in connection with, nor has it or
the board of managers been notified of, any bankruptcy (faillite),
voluntary or judicial liquidation (liquidation volontaire ou judiciaire),
composition with creditors (concordat préventif de la faillite),
suspension of payments (sursis de paiement), controlled management
(gestion contrôlée), fraudulent conveyance (action paulienne), general
settlement with creditors, reorganisation or similar legal provisions
affecting the rights of creditors generally in Luxembourg or abroad, or
any analogous procedure in any jurisdiction, nor subject to any
proceedings under the Insolvency Regulation; and
(iv)
confirming that it is not and will not, as a result of the execution of the
Finance Documents to which it is a party, be in a state of cessation of
payments (cessation de paiements) and lose its creditworthiness
(ébranlement de crédit).
1.4
A certified extract from the Register of trade and companies (Registre de commerce et
des sociétés) of Luxembourg (the "RCS") pertaining to Holdco dated as at a date no
earlier than the date of this Agreement.
1.5
A certified negative certificate (certificat de non-inscription d’une decision judiciaire)
from the RCS pertaining to Holdco dated as at a date no earlier than the date of this
Agreement.
2.
Legal Opinion
2.1
A legal opinion of Paul Hastings LLP, legal advisers to the Original Lenders as to
English law (relating to the capacity and authority of the Company to execute the
Finance Documents to which it is party and to the legal, valid, binding and
enforceable obligations of the Company in respect of the Finance Documents to
which it is a party).
2.2
A legal opinion of Elvinger Hoss Prussen, legal advisers to the Original Lenders as to
Luxembourg law (relating to the capacity and authority of Holdco to execute the
Finance Documents to which it is party and to the legal, valid, binding and
enforceable obligations of Holdco in respect of the Finance Documents to which it is
a party).
3.
Finance Documents
3.1
This Agreement duly executed by the Company.
3.2
Each Security Agreement duly executed by the relevant Transaction Obligors.
3.3
The following documents in relation to the Security Agreements:
- 162 LEGAL_EU # 17337328.7
(a)
in relation to the shares in the Company subject to the Holdco Security
Agreement, share certificates and blank, signed undated stock transfer forms;
and
(b)
in relation to the Accounts subject to the Company Account Security
Agreement, notices delivered to the relevant account bank in respect of such
Accounts, and the acknowledgements in relation thereto signed by the relevant
account bank.
3.4
Completed MR01 forms in respect of the Company Security Agreement.
3.5
The Fee Letters duly executed by the Company.
3.6
The Subordination Agreement.
4.
Offer Documents
A copy of the draft Offer Announcement or the Scheme Announcement (as
applicable).
5.
Financial Information
5.1
A pro forma balance sheet of each Transaction Obligor as at the date of this
Agreement.
5.2
A pro forma balance sheet of each Transaction Obligor which shows the balance sheet
position of each Transaction Obligor immediately following the Completion Date.
5.3
A draft Funds Flow Statement showing the anticipated sources and uses on the
Utilisation Date.
5.4
Copies of the bank mandates for the Accounts.
5.5
The Initial Business Plan.
5.6
The DTTP2 form duly completed.
5.7
A draft of the Utilisation Request in the agreed form.
6.
Senior Lender Documentation
6.1
A copy of the Senior Facility Agreement.
6.2
A copy of the Overdraft Facility.
6.3
Acquisition Change of Control Waiver Letter duly executed by all parties thereto.
7.
Other Documents and Evidence
7.1
The Reports together with confirmation that they can be relied upon by the Finance
Parties.
- 163 LEGAL_EU # 17337328.7
7.2
The Initial Valuation together with confirmation that it can be relied upon by the
Finance Parties.
7.3
Copies of all subordinated debt instruments provided by Holdco to the Company duly
executed.
7.4
Evidence that the fees, costs and expenses due from the Company on or prior to the
date of this Agreement pursuant to Clause 10 (Fees) and Clause 15 (Costs and
Expenses) have been paid.
7.5
A group structure chart showing the Transaction Obligors, the Target and each of its
Subsidiaries at the Completion Date (assuming the Acquisition has completed).
7.6
Process agent appointment letter for Holdco in relation to the Holdco Security
Agreement and the Subordination Agreement.
- 164 LEGAL_EU # 17337328.7
SCHEDULE 3
UTILISATION REQUEST
From: [Company]
To:
[Agent]
Dated:
Dear Sirs
[ ] - £[ ] Term Facility Agreement dated [ ] 2016
(as amended and or amended and restated from time to time, the "Agreement")
1.
We refer to the Agreement. This is the Utilisation Request. Terms defined in the
Agreement have the same meaning in this Utilisation Request unless given a different
meaning in this Utilisation Request.
2.
We wish to borrow the Term Loan on the following terms:
Proposed Utilisation Date:
[ ] (or, if that is not a Business Day, the next
Business Day)
Amount:
£[
Interest Period:
[
]
]
3.
We confirm that each relevant condition specified in Clause 4.2 (Additional
Conditions Precedent) is satisfied on the date of this Utilisation Request.
4.
The proceeds of this Loan should be credited to [insert details of account].
5.
This Utilisation Request is irrevocable.
Yours faithfully,
…………………………………
authorised signatory for
[name of Company]
- 165 LEGAL_EU # 17337328.7
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To:
[
] as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New
Lender")
Dated:
Dear Sirs
[ ] – £[ ] Term Facility Agreement dated [ ] 2016
1.
We refer to the Agreement. This is a Transfer Certificate, Terms defined in the
Agreement have the same meaning in this Transfer Certificate unless given a different
meaning in this Transfer Certificate.
2.
We refer to Clause 22.5 (Procedure for Transfer) of the Agreement:
2.1
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 22.5 (Procedure
for Transfer).
2.2
The proposed Transfer Date is [
2.3
The Facility Office and address, fax number and attention details for notices of the
New Lender for the purposes of Clause 30.2 (Addresses) are set out in the Schedule.
3.
The New Lender expressly acknowledges the limitations on the Existing Lender's
obligations set out in Clause 22.4(c) (Limitation of Responsibility of Existing
Lenders).
4.
The New Lender confirms for the benefit of the Agent and without any liability to the
Company that it is a [Qualifying Lender] or [a Treaty Lender] or [not a Qualifying
Lender].1
5.
[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:
5.1
a company resident in the United Kingdom; or
5.2
1
].
(a)
company so resident in the United Kingdom; or
(b)
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
Delete as applicable
- 166 LEGAL_EU # 17337328.7
account in computing its chargeable profits (within the meaning of section 19
of the CTA) the whole of any share of interest payable in respect of that
advance that falls to it by reason of Part 17 of the CTA; or
5.3
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 in
computing its chargeable profits (within the meaning of section 19 of the CTA) of that
company.]2
5.4
[The New Lender confirms (for the benefit of the Agent and without liability to the
Company) that it is a Treaty Lender that holds a passport under the HM Revenue &
Customs DT Treaty Passport scheme (reference number [ ]) and is tax resident in
[ ], so that interest payable to it by its borrowers is generally subject to full
exemption from UK withholding tax and notifies the Company that the Company
must make an application to HM Revenue & Customs under form DTTP2 within 30
days of the Transfer Date.
[4/5.] This Transfer Certificate 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
Transfer Certificate.
[5/6.] This Transfer Certificate is governed by English law.
2
Include if New Lender comes within paragraph (b) of the definition of Qualifying Lender in Clause
14.1(Definitions)
- 167 LEGAL_EU # 17337328.7
THE 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 Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [ ].
[Agent]
By:
- 168 LEGAL_EU # 17337328.7
SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To:
[
] as Agent
From: [Company]
Dated:
Dear Sirs
1.
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the
Agreement have the same meaning when used in this Compliance Certificate unless
given a different meaning in this Compliance Certificate.
2.
We confirm that: [Interest Cover/Restricted Senior Leverage/Aggregate Net Debt to
Market Value/Aggregate Net Debt to Vacant Possession Value] has been calculated
as follows:
[*]
3.
We confirm that: [Mezzanine ICR/Mezzanine DSCR] has been calculated as follows:
[*]
4.
[We confirm that no Default is continuing.]
Signed:

………
………
Director of [Company]
[Director of Company]
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.
- 169 LEGAL_EU # 17337328.7
SCHEDULE 6
FORM OF CONFIDENTIALITY UNDERTAKING
To:
[insert name of Potential Lender]
Re:
The Agreement
Company:
(the "Company")
Date:
Amount:
Agent:
Dear Sirs
We understand that you are considering acquiring an interest in the Agreement which, subject
to the Agreement, may be by way of novation, assignment, the entering into, whether directly
or indirectly, of a sub-participation or any other transaction under which payments are to be
made or may be made by reference to one or more Finance Documents and/or the Company
or by way of investing in or otherwise financing, directly or indirectly, any such novation,
assignment, sub-participation or other transaction (the "Acquisition"). 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 all Confidential Information confidential and not to
disclose it to anyone, save to the extent permitted by paragraph 2 below and to ensure
that all Confidential Information is protected with security measures and a degree of
care that would apply to your own confidential information, and (b) until the
Acquisition is completed to use the Confidential Information only for the Permitted
Purpose.
2.
Permitted Disclosure
We agree that you may disclose:
2.1
to any of your Affiliates and any of your or their officers, directors, employees,
professional advisers and auditors such Confidential Information as you shall consider
appropriate if any person to whom the Confidential Information is to be given
pursuant to this paragraph 2.1 is informed in writing of its confidential nature and that
- 170 -
LEGAL_EU # 17337328.7
some or all of such Confidential Information may be price-sensitive information,
except that there shall be no such requirement to so inform if the recipient is subject to
professional obligations to maintain the confidentiality of the information or is
otherwise bound by requirements of confidentiality in relation to the Confidential
Information;
2.2
subject to the requirements of the Agreement, to any person:
(a)
to (or through) whom you assign or transfer (or may potentially assign or
transfer) all or any of your rights and/or obligations which you may acquire
under the Agreement such Confidential Information as you shall consider
appropriate if the person to whom the Confidential Information is to be given
pursuant to this sub-paragraph (a) of paragraph 2.2 has delivered a letter to
you in equivalent form to this letter;
(b)
with (or through) whom you enter into (or may potentially enter into) any subparticipation in relation to, or any other transaction under which payments are
to be made or may be made by reference to the Agreement or the Company
such Confidential Information as you shall consider appropriate if the person
to whom the Confidential Information is to be given pursuant to this subparagraph (b) of paragraph 2.2 has delivered a letter to you in equivalent form
to this letter;
(c)
to whom information is required or requested to be disclosed by any
governmental, banking, taxation or other regulatory authority or similar body,
the rules of any relevant stock exchange or pursuant to any applicable law or
regulation such Confidential Information as you shall consider appropriate;
and
2.3
notwithstanding paragraphs 2.1 and 2.2 above, Confidential Information to such
persons to whom, and on the same terms as, a Finance Party is permitted to disclose
Confidential Information under the Agreement, as if such permissions were set out in
full in this letter and as if references in those permissions to Finance Party were
references to you.
3.
Notification of Disclosure
You agree (to the extent permitted by law and regulation) to inform us:
3.1
of the circumstances of any disclosure of Confidential Information made pursuant to
sub- paragraph (c) of paragraph 2.2 above except where such disclosure is made to
any of the persons referred to in that paragraph during the ordinary course of its
supervisory or regulatory function; and
3.2
upon becoming aware that Confidential Information has been disclosed in breach of
this letter.
4.
Return of Copies
If you do not enter into the Acquisition and we so request in writing, you shall return
or destroy all Confidential Information supplied to you by us and destroy or
permanently erase (to the extent technically practicable) all copies of Confidential
- 171 -
LEGAL_EU # 17337328.7
Information made by you and use your reasonable endeavours to ensure that anyone
to whom you have supplied any Confidential Information destroys or permanently
erases (to the extent technically practicable) 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 sub-paragraph (c) of paragraph 2.2 above.
5.
Continuing Obligations
The obligations in this letter are continuing and, in particular, shall survive and
remain binding on you until (a) if you become a party to the Agreement as a lender of
record, the date on which you become such a party to the Agreement; (b) if you enter
into the Acquisition but it does not result in you becoming a party to the Agreement as
a lender of record, the date falling twelve months after the date on which all of your
rights and obligations contained in the documentation entered into to implement that
Acquisition have terminated; or (c) in any other case the date falling twelve months
after the date of your final receipt (in whatever manner) of any Confidential
Information.
6.
No Representation; Consequences of Breach, etc.
You acknowledge and agree that:
6.1
neither we, nor any member of the Group nor any of our or their respective 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 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 be otherwise liable to you or
any other person in respect of the Confidential Information or any such information;
and
6.2
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 may be
granted an injunction or specific performance for any threatened or actual breach of
the provisions of this letter by you.
7.
Entire Agreement: No Waiver; Amendments, etc.
7.1
This letter constitutes the entire agreement between us in relation to your obligations
regarding Confidential Information and supersedes any previous agreement, whether
express or implied, regarding Confidential Information.
7.2
No failure to exercise, nor any delay in exercising, any right or remedy under this
letter will operate as a waiver of any such right or remedy or constitute an election to
affirm this letter. No election to affirm this letter will be effective unless it is in
writing. No single or partial exercise of any right or remedy will prevent any further
or other exercise or the exercise of any other right or remedy under this letter.
- 172 -
LEGAL_EU # 17337328.7
7.3
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 pricesensitive information and that the use of such information may be regulated or
prohibited by applicable legislation including securities law relating to insider dealing
and market abuse 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 are also given for
the benefit of the Company and each other member of the Group.
10.
Third Party Rights
10.1
Subject to this paragraph 10 and to paragraphs 6 and 9, a person who is not a party to
this letter has no right under the Contracts (Rights of Third Parties) Act 1999 (the
"Third Parties Act") to enforce or to enjoy the benefit of any term of this letter.
10.2
The Relevant Persons may enjoy the benefit of the terms of paragraphs 6 and 9
subject to and in accordance with this paragraph 10 and the provisions of the Third
Parties Act.
10.3
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.
11.
Governing Law and Jurisdiction
11.1
This letter (including the agreement constituted by your acknowledgement of its
terms) (the "Letter") and any non-contractual obligations arising out of or in
connection with it (including any non-contractual obligations arising out of the
negotiation of the transaction contemplated by this Letter) are governed by English
law.
11.2
The courts of England have non-exclusive jurisdiction to settle any dispute arising out
of or in connection with this Letter (including a dispute relating to any noncontractual obligation arising out of or in connection with either this Letter or the
negotiation of the transaction contemplated by this Letter).
12.
Definitions
In this letter (including the acknowledgement set out below) terms defined in the
Agreement shall, unless the context otherwise requires, have the same meaning and:
"Confidential Information" means all information relating to the Company, the
Group, the Project 77 Target, the Project 77 Trustees, the Finance Documents, a
Facility and/or the Acquisition which is provided to you in relation to the Finance
Documents or a Facility 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
- 173 -
LEGAL_EU # 17337328.7
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 information other than as a direct or indirect result of any
breach by you of this letter; or
(b)
is identified in writing at the time of delivery as non-confidential by us or our
advisers; or
(c)
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,
from a source which is, as far as you are aware, unconnected with the Group
and which, in either case, as far as you are aware, has not been obtained in
breach of, and is not otherwise subject to, any obligation of confidentiality.
"Group" means the Company and its subsidiaries for the time being (as such term is
defined in the Companies Act 2006).
"Permitted Purpose" means considering and evaluating whether to enter into the
Acquisition.
Please acknowledge your agreement to the above by signing and returning the enclosed copy.
Yours faithfully,
………………………………
For and on behalf of
[Lender]
To:
[Lender]
The Company and each other member of the Group
We acknowledge and agree to the above:
………………………………
For and on behalf of
[Potential Lender]
- 174 LEGAL_EU # 17337328.7
SCHEDULE 7
APPROVED INVESTOR LIST
Each of the following persons together with their respective Affiliates and Related Funds:
1.
LaSalle Investment Management
2.
M&G Real Estate
3.
Cale Street Partners LLP
4.
Macquarie
5.
SVP Global
6.
Cheyne
7.
Highbridge
8.
Apollo
9.
Ares
10.
Hayfin
11.
Pemira
12.
ICG
13.
Sankaty Advisors
14.
Blackstone
15.
Starwood
16.
TPG
17.
CVC
18.
Varde
19.
Oaktree
20.
Elliot
- 175 LEGAL_EU # 17337328.7
SCHEDULE 8
FORM OF CURE FACILITY NOTICE
From:
[
] as Lender[s]
To:
[
] as Agent
Copy to:
[
] as the Company
Dated:
Dear Sirs
1.
We refer to the Agreement. This is a Cure Facility Notice.
2.
Terms defined in the Agreement have the same meaning in this Cure Facility Notice
unless given a different meaning in this Cure Facility Notice.
3.
This constitutes notice to the Agent and the Company that the Lender[s] intend[s] to
provide a Cure Facility to the Company, together with the proceeds of a Cure Loan.
4.
We hereby direct you to apply the proceeds of the Cure Loan in an amount equal to
£[ ] on the Cure Facility Commencement Date, being [ ].
5.
This Cure Facility Notice is irrevocable.
Yours faithfully,
…………………………………
authorised signatory for
[name of Lender[s]]
- 176 LEGAL_EU # 17337328.7
SCHEDULE 9
FORMS OF NOTIFIABLE DEBT PURCHASE TRANSACTION NOTICE
Part I
Form of Notice on entering into Notifiable Debt Purchase Transaction
To:
[ ] as Agent
From: [Lender]
Dated: [
]
1.
We refer to paragraph (b) of Clause 28.2 (Disenfranchisement on Debt Purchase
Transactions) of the Agreement. Terms defined in the Agreement have the same
meaning in this notice unless given a different meaning in this notice.
2.
We have entered into a Notifiable Debt Purchase Transaction.
3.
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to
the amount of our Commitment(s) as set out below.
Commitment
Amount of our Commitment to which Notifiable
Debt Purchase Transaction relates (£)
[Commitment]
[insert amount (of that Commitment) to which the
relevant Debt Purchase Transaction applies]
[Lender]
By:
- 177 LEGAL_EU # 17337328.7
Part II
Form of Notice on Termination of Notifiable Debt Purchase Transaction /
Notifiable Debt Purchase Transaction ceasing to be with Sponsor Affiliate
To:
[ ] as Agent
From: [Lender]
Dated: [
]
1.
We refer to paragraph (c) of Clause 28.2 (Disenfranchisement on Debt Purchase
Transactions entered into by Sponsor Affiliates) of the Agreement. Terms defined in
the Agreement have the same meaning in this notice unless given a different meaning
in this notice.
2.
A Notifiable Debt Purchase Transaction which we entered into and which we notified
you of in a notice dated [ ] has [terminated]/[ceased to be with a Sponsor Affiliate].3
3.
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relates to
the amount of our Commitment(s) as set out below.
Commitment
Amount of our Commitment to which Notifiable Debt
Purchase Transaction relates (£)
[Commitment]
[insert amount (of that Commitment) to which the relevant
Debt Purchase Transaction applies]
[Lender]
By:
3
Delete as applicable.
- 178 LEGAL_EU # 17337328.7

EXECUTION VERSION Dated 12 August 2016 PICTURE HOLDCO

Transcription

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