6-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 6-K

 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13a-16 OR 15d-16

UNDER THE SECURITIES EXCHANGE ACT OF 1934

Report on Form 6-K dated March 9, 2017

(Commission File No. 001-35053)

 

 

INTERXION HOLDING N.V.

(Translation of Registrant’s Name into English)

 

 

Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands, +31 20 880 7600

(Address of Principal Executive Office)

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

Form 20-F  ☒             Form 40-F  ☐

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):  ☐

Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7)):  ☐

Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.

 

 

 


INFORMATION CONTAINED IN THIS FORM 6-K REPORT

On March 9, 2017 we entered into a €75,000,000 senior secured revolving facility agreement (the “New Facility”) by and among InterXion Holding N.V. (the “Company”), the guarantors thereunder, ABN AMRO Bank N.V., Bank of America Merrill Lynch International Limited and Citigroup Global Markets Limited as lenders thereunder, ABN AMRO Bank N.V., as agent and Barclays Bank PLC as security trustee.

On February 27, 2017, we announced the acquisition of a data center business from Vancis Holding B.V. The New Facility provides the company with additional flexibility to support its expansion projects following the use of cash on hand to complete the acquisition from Vancis Holding B.V.

The New Facility has an initial maturity date of 12 months from the date of the New Facility with the Company having the option to extend the maturity date by a further six-month period in accordance with the terms of the New Facility. The New Facility initially bears interest at a rate per annum equal to EURIBOR plus a margin of 2.25% per annum, subject to a margin ratchet pursuant to which the margin may be increased to a maximum of 3.25% per annum if the New Facility is extended up to an additional 6 months after its initial maturity date.

The New Facility contains customary operating and restrictive covenants, subject to certain agreed exceptions, qualifications and thresholds as well as customary events of default (subject in certain cases to agreed grace periods, qualifications and thresholds), including a cross default with respect to an event of default under the Revolving Facility Agreement (as defined below) and/or the indenture governing our outstanding senior secured notes.

The Company also received the requisite consents from lenders under its senior multicurrency revolving facility agreement dated June 17, 2013 between, among others, the Company, ABN AMRO Bank N.V., Barclays Bank PLC, Citigroup Global Markets Limited, Credit Suisse AG, London Branch and Bank of America Securities Limited as arrangers and Barclays Bank PLC as agent and security agent (the “Agent”), as amended, modified or supplemented from time to time (the “Revolving Facility Agreement”) to enter into the New Facility pursuant to a letter agreement dated February 17, 2017 from the Company to the Agent.

The foregoing description of the New Facility is not intended to be a complete description of that agreement. The description is qualified in its entirety by the full text of that agreement which is attached as Exhibit 99.1 and incorporated by reference in this Report.

This Report on Form 6-K is incorporated by reference into the Registration Statement on Form S-8 of the Registrant originally filed with the Securities and Exchange Commission on 23 June 2011 (File No. 333-175099) and into the Registration Statement on Form S-8 of the Registrant originally filed with the Securities and Exchange Commission on 2 June 2014 (File No. 333-196447).

 

Exhibit

    
99.1    Senior secured revolving facility agreement dated March 9, 2017 by and among the Company, the guarantors thereunder, ABN AMRO Bank N.V., Bank of America Merrill Lynch International Limited and Citigroup Global Markets Limited as lenders thereunder, ABN AMRO Bank N.V., as agent and Barclays Bank PLC as security trustee.


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  INTERXION HOLDING N.V.
By:  

/s/ David C. Ruberg

Name:   David C. Ruberg
Title:   Chief Executive Officer

Date: March 9, 2017

Senior secured revolving facility agreement

Exhibit 99.1

 

LOGO

EXECUTION VERSION

Dated 9 March 2017

EUR 75,000,000

REVOLVING FACILITY AGREEMENT

for

INTERXION HOLDING N.V.

arranged by

ABN AMRO BANK N.V.

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

and

CITIGROUP GLOBAL MARKETS LIMITED

with

ABN AMRO BANK N.V.

acting as Agent

and

BARCLAYS BANK PLC

acting as Security Trustee

 

 

SENIOR SECURED REVOLVING FACILITY AGREEMENT

 

 

 

LOGO


EXECUTION VERSION

 

CONTENTS

 

Clause    Page  

1.

 

DEFINITIONS AND INTERPRETATION

     1  

2.

 

THE FACILITY

     25  

3.

 

PURPOSE

     28  

4.

 

CONDITIONS OF UTILISATION

     28  

5.

 

UTILISATION – LOANS

     29  

6.

 

[RESERVED]

     30  

7.

 

ANCILLARY FACILITIES

     30  

8.

 

REPAYMENT AND EXTENSION

     34  

9.

 

ILLEGALITY, PREPAYMENT AND CANCELLATION

     36  

10.

 

INTEREST

     45  

11.

 

INTEREST PERIODS

     46  

12.

 

CHANGES TO THE CALCULATION OF INTEREST

     47  

13.

 

FEES

     48  

14.

 

TAX GROSS-UP AND INDEMNITIES

     49  

15.

 

INCREASED COSTS

     54  

16.

 

OTHER INDEMNITIES

     56  

17.

 

MITIGATION BY THE LENDERS

     58  

18.

 

COSTS AND EXPENSES

     58  

19.

 

GUARANTEE AND INDEMNITY

     59  

20.

 

REPRESENTATIONS

     62  

21.

 

INFORMATION UNDERTAKINGS

     69  

22.

 

FINANCIAL COVENANT

     72  

23.

 

GENERAL UNDERTAKINGS

     75  

24.

 

EVENTS OF DEFAULT

     84  

25.

 

CHANGES TO THE LENDERS

     88  

26.

 

CHANGES TO THE OBLIGORS

     93  

27.

 

ROLE OF THE AGENT AND THE ARRANGERS

     95  

28.

 

CONDUCT OF BUSINESS BY THE FINANCE PARTIES

     105  

 

i


EXECUTION VERSION

 

29.

 

SHARING AMONG THE FINANCE PARTIES

     106  

30.

 

PAYMENT MECHANICS

     107  

31.

 

SET-OFF

     110  

32.

 

APPLICATION OF PROCEEDS

     111  

33.

 

NOTICES

     112  

34.

 

CALCULATIONS AND CERTIFICATES

     116  

35.

 

PARTIAL INVALIDITY

     116  

36.

 

REMEDIES AND WAIVERS

     116  

37.

 

CONFIDENTIALITY

     117  

38.

 

AMENDMENTS AND WAIVERS

     123  

39.

 

DISCLOSURE OF LENDER DETAILS BY AGENT

     124  

40.

 

COUNTERPARTS

     125  

41.

 

GOVERNING LAW

     125  

42.

 

ENFORCEMENT

     125  

43.

 

SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN

     127  

SCHEDULE 1 THE PARTIES

     129  
 

Part 1 The Borrower

     129  
 

Part 2 The Original Lenders

     131  

SCHEDULE 2 CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT

     132  
 

Part 1 Conditions Precedent

     132  
 

Part 2 Conditions Precedent required to be delivered by an Additional Guarantor

     134  
 

Part 3 Conditions Precedent required to be delivered by a Required Guarantor

     138  

SCHEDULE 3 UTILISATION REQUEST

     142  

SCHEDULE 4 FORM OF TRANSFER CERTIFICATE

     143  

SCHEDULE 5 FORM OF ASSIGNMENT AGREEMENT

     146  

SCHEDULE 6 FORM OF ACCESSION LETTER

     149  

SCHEDULE 7 FORM OF RESIGNATION LETTER

     152  

SCHEDULE 8 FORM OF COMPLIANCE CERTIFICATE

     153  

SCHEDULE 9 LMA FORM OF CONFIDENTIALITY UNDERTAKING

     154  

SCHEDULE 10 TIMETABLES

     158  

 

ii


EXECUTION VERSION

 

SCHEDULE 11 FORM OF INCREASE CONFIRMATION

     159  

SCHEDULE 12 DORMANT SUBSIDIARIES

     162  

SCHEDULE 13 NEW YORK LAW UNDERTAKINGS

     163  

SCHEDULE 14 FORM OF EXTENSION NOTICE

     192  

SCHEDULE 15 FORM OF LENDER ACCESSION UNDERTAKING

     193  

SCHEDULE 16 FORM OF ANCILLARY FACILITY REQUEST

     194  

SCHEDULE 17 FORM OF AFFILIATE ELECTION NOTICE

     195  

 

iii


EXECUTION VERSION

 

THIS AGREEMENT is dated 9 March 2017 and made between:

 

(1) INTERXION HOLDING N.V., a public limited liability company (naamloze vennootschap), incorporated under the laws of The Netherlands, having its corporate seat (statutaire zetel) in Amsterdam, The Netherlands and its address at Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands, registered with the Trade Register of the Chamber of Commerce under registration number 33301892 (the “Borrower”, the “Original Guarantor” and the “Company”);

 

(2) ABN AMRO BANK N.V., BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED and CITIGROUP GLOBAL MARKETS LIMITED as mandated lead arrangers (each an “Arranger” and together, the “Arrangers”);

 

(3) THE FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 (The Parties) as lenders (the “Original Lenders”);

 

(4) ABN AMRO BANK N.V. as agent of the other Finance Parties (the “Agent”); and

 

(5) BARCLAYS BANK PLC as security trustee and security agent for the Secured Parties (the “Security Trustee”).

IT IS AGREED as follows:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

In this Agreement:

Acceptable Bank” means:

 

  (a) each Lender; or

 

  (b) 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

 

  (c) any other bank or financial institution approved by the Agent.

Accession Letter” means a document substantially in the form set out in Schedule 6 (Form of Accession Letter).

Accounting Principles” means:

 

  (a) in relation to the consolidated financial statements of the Company, IFRS and practices and financial reference periods used in the preparation of the Original Financial Statements and the Business Plan; and

 

  (b) in relation to any other member of the Group, IFRS or generally accepted accounting principles and practices in its jurisdiction of incorporation used in the preparation of the Original Financial Statements.

Additional Guarantor” means a person which becomes an Additional Guarantor in accordance with Clause 26 (Changes to the Obligors).

Adjusted EBITDA” has the meaning given to it in Clause 22.1 (Financial definitions).

 

1


EXECUTION VERSION

 

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.

Affiliate Election Notice” means a notice substantially in the form set out in Schedule 17 (Form of Affiliate Election Notice).

Ancillary Commencement Date” means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day within the Availability Period.

Ancillary Commitment” means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 7 (Ancillary Facilities), to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.

Ancillary Document” means each document relating to or evidencing the terms of an Ancillary Facility.

Ancillary Facility” means any ancillary facility made available by an Ancillary Lender in accordance with Clause 7 (Ancillary Facilities).

Ancillary Facility Request” means a notice requesting the establishment of an Ancillary Facility substantially in the form set out in Schedule 16 (Form of Ancillary Facility Request).

Ancillary Lender” means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 7 (Ancillary Facilities).

Ancillary Outstandings” means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) in the Base Currency of the following amounts outstanding under that Ancillary Facility:

 

  (a) the principal amount under each overdraft facility and on demand short term loan facility;

 

  (b) the face amount of each guarantee under that Ancillary Facility; and

 

  (c) the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,

in each case net of any credit balances on any account of the Borrower with the Ancillary Lender making available that Ancillary Facility to the extent that such credit balances are freely available to be set-off by that Ancillary Lender against liabilities owed to it by the Borrower under that Ancillary Facility and as determined by such Ancillary Lender in accordance with the relevant Ancillary Document or normal banking practice.

Annual Financial Statements” has the meaning given to that term in Clause 21 (Information Undertakings).

Asset Sale Proceeds” has the meaning give to that term in Clause 9.3 (Asset Sale Proceeds, Insurance Proceeds and Financing Proceeds).

Assignment Agreement” means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.

 

2


EXECUTION VERSION

 

Audit Laws” means the EU Regulation (537/2014) on specific requirements regarding statutory audit of public interest entities and repealing Commission Decision 2005/909/EC and the EU Directive (2014/56/EU) amending Directive 2006/14/EC on statutory audits of annual accounts and consolidated accounts and any law or regulation which implements that EU Directive (2014/56/EU).

Auditors” means a recognised accounting firm of international standing appointed by the Company and which shall include, for the avoidance of doubt, the auditors of the Group as at the date of this Agreement.

Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

Availability Period” means the period from and including the date of this Agreement to and including the date falling one month prior to the Termination Date.

Available Commitment” means a Lender’s Commitment minus (subject to Clause 7.8 (Affiliates of Lenders as Ancillary Lenders) and as set out below):

 

  (a) the Base Currency Amount of its participation in any outstanding Loans and the Base Currency Amount of the aggregate of its Ancillary Commitments; and

 

  (b) in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date and the Base Currency Amount of its Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date.

For the purposes of calculating a Lender’s Available Commitment in relation to any proposed Utilisation, the following amounts shall not be deducted from a Lender’s Commitment:

 

  (i) that Lender’s participation in any Loans or part thereof that are due to be repaid or prepaid on or before the proposed Utilisation Date; and

 

  (ii) that Lender’s (or its Affiliate’s) Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date.

Available Facility” means the aggregate for the time being of each Lender’s Available Commitment.

Bail-In Action” means the exercise of any Write-down and Conversion Powers.

Bail-In Legislation” means:

 

  (a) in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms , the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and

 

  (b) in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.

Baker Capital” means Baker Capital Corp., Lamont Finance N.V., Chianna Investment N.V., Baker Communications Fund II, L.P., Baker Communications Fund (Cayman), L.P., and/or Baker Communications Fund II (Cayman), L.P..

Base Currency” means Euro.

 

3


EXECUTION VERSION

 

Base Currency Amount” means:

 

  (a) in relation to a Loan, the amount specified in the Utilisation Request delivered by the Borrower for that Loan; and

 

  (b) in relation to an Ancillary Commitment, the amount specified as such in the Ancillary Facility Request delivered to the Agent by the Borrower pursuant to Clause 7.2 (Availability),

as adjusted to reflect any repayment or prepayment of a Loan, or (as the case may be) cancellation or reduction of an Ancillary Facility.

Base Reference Bank Rate” means, the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Base Reference Bank(s):

 

  (a) (other than where paragraph (b) below applies) as the rate at which the relevant Base Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in Euro within the Participating Member States for the Relevant Period; or

 

  (b) if different, as the rate (if any and applied to the relevant Base Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.

Base Reference Banks” means the principal office in London of ABN AMRO Bank N.V. and/or such other banks as may be appointed by the Agent in consultation with the Obligors’ Agent.

Belgian Guarantor” means a Guarantor incorporated and existing under Belgian law;

Bond Trustee” means the Senior Secured Trustee as such term is defined in the Intercreditor Agreement.

Break Costs” means the amount (if any) by which:

 

  (a) the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

 

  (b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Frankfurt am Main and Amsterdam and:

 

  (a) (in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; or

 

  (b) (in relation to any date for payment or purchase of euro) any TARGET Day.

Business Plan” means “The 3 Year Overlay Plan dated 8 September 2016”.

Cash” means, at any time, cash denominated in Euro or other currency freely transferrable into Euro (taking into account any applicable currency control regulations) in hand or at bank and (in the latter case) credited to an account in the name of an Obligor with an Acceptable Bank and to which an Obligor is alone (or together with other Obligors) beneficially entitled and for so long as:

 

  (a) that cash is repayable on demand (or within 30 days of the relevant date of calculation);

 

4


EXECUTION VERSION

 

  (b) repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition (other than giving notice);

 

  (c) there is no Security over that cash except for Transaction Security or to the extent constituted by any netting or set-off arrangement entered into with members of the Group or under standard account bank terms and conditions in each case permitted under the Finance Documents; and

 

  (d) the cash is freely and immediately (except as referred to in paragraph (a) of this definition) available to be applied in repayment or prepayment of the Facility.

Cash Equivalents” has the meaning given to that term in Schedule 13 (New York Law Undertakings).

Charged Property” means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.

Code” means the US Internal Revenue Code of 1986.

Commitment” means:

 

  (a) in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Commitment” in Part 2 of Schedule 1 (The Parties) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

  (b) in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

Compliance Certificate” means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate).

Confidential Information” means all information relating to any Obligor, the Group, the Finance Documents or the Facility in respect 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 the 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:

 

  (i) information that:

 

  (A) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 37 (Confidentiality); or

 

5


EXECUTION VERSION

 

  (B) is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

  (C) 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; and

 

  (ii) any Funding Rate or Reference Bank Quotation.

Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent.

Danish Guarantor” means a Guarantor incorporated and existing under Danish law.

Default” means an Event of Default or any event or circumstance specified in Clause 24 (Events of Default) which would (with the expiry of a grace period, the giving of notice, 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 a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan 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

 

  (B) a Disruption Event; and

payment is made within three 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.

Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Trustee.

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 Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

6


EXECUTION VERSION

 

  (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.

Dormant Subsidiary” means those members of the Group identified in Schedule 12 (Dormant Subsidiaries) and a member of the Group which does not trade (for itself or as agent for any person) and does not own, legally or beneficially, assets (including, without limitation, indebtedness owed to it) which in aggregate have a value of EUR 50,000 or more (or its equivalent in any other currency).

Dutch Civil Code” means the Dutch Civil Code (Burgerlijk Wetboek).

Dutch FSA” means the Financial Supervision Act (Wet op het financieel toezicht), including any regulations issued pursuant thereto.

Dutch Obligor” means an Obligor incorporated in The Netherlands.

EEA Member Country” means any member state of the European Union, Iceland, Liechtenstein and Norway.

EU Bail-In Legislation Schedule” means the document described as such and published by the LMA (or any successor person) from time to time.

Environment” means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

 

  (a) air (including, without limitation, air within natural or man-made structures, whether above or below ground);

 

  (b) water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

 

  (c) land (including, without limitation, land under water).

Environmental Claim” means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.

Environmental Law” means any applicable law or regulation which relates to:

 

  (a) the pollution or protection of the Environment;

 

  (b) the conditions of the workplace; or

 

  (c) the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.

Environmental Permits” means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group.

 

7


EXECUTION VERSION

 

Existing Notes” means the EUR 625,000,000 6.00 per cent senior secured notes due 2020 of the Company issued pursuant to the Indenture.

Existing SSRCF” means the EUR 100,000,000 senior multicurrency revolving facility agreement dated 17 June 2013 (as may be amended and/or restated or supplemented from time to time) between amongst others the Company and Barclays Bank PLC as agent.

Extension Notice” means the extension notice in the form specified in Schedule 14 (Form of Extension Notice).

Extended Termination Date” has the meaning given to that term in Clause 8.2 (Extension of Facility).

EURIBOR” means in relation to a Loan:

 

  (a) the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or

 

  (b) as otherwise determined pursuant to Clause 12.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, EURIBOR will be deemed to be zero.

Event of Default” means any event or circumstance specified as such in Clause 24 (Events of Default).

Facility” means the revolving loan facility made available under this Agreement as described in Clause 2 (The Facility).

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 five 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(1)(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(1)(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,

 

8


EXECUTION VERSION

 

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.

Fee Letter” means any letter or letters dated on or about the date of this Agreement between the Arrangers and the Company, the Agent and the Company or the Security Trustee and the Company setting out any of the fees referred to in Clause 13 (Fees), any letter between the Obligors’ Agent and an Increase Lender referred to in paragraph (e) of Clause 2.2 (Increase) and any other letter designated a “Fee Letter” by the Agent and the Company.

Finance Document” means this Agreement, the Intercreditor Agreement, the Transaction Security Documents, any Hedging Agreement, any Ancillary Document, any Compliance Certificate, any Fee Letter, any Accession Letter, any Resignation Letter, any Utilisation Request and any other document designated as a “Finance Document” by the Agent and the Company, provided that where the term “Finance Document” is used in, and construed for the purposes of, this Agreement or the Intercreditor Agreement, a Hedging Agreement shall be a Finance Document only for the purposes of:

 

  (a) the definition of Material Adverse Effect;

 

  (b) paragraph (a) of the definition of Permitted Transaction;

 

  (c) the definition of Transaction Security Documents;

 

  (d) paragraph (a)(v) of Clause 1.2 (Construction); and

 

  (e) Clause 24 (Events of Default) (other than Clause 24.18 (Acceleration)).

Finance Lease” has the meaning given to that term in Clause 22.1 (Financial definitions).

Finance Party” means the Agent, the Arrangers, the Security Trustee, a Lender or a Hedge Counterparty, or any Ancillary Lender, provided that where the term “Finance Party” is used in, and construed for the purposes of, this Agreement or the Intercreditor Agreement, a Hedge Counterparty shall be a Finance Party only for the purposes of:

 

  (a) the definition of Secured Parties;

 

  (b) paragraph (a)(i) of Clause 1.2 (Construction);

 

  (c) paragraph (c) of the definition of Material Adverse Effect; and

 

  (d) Clause 28 (Conduct of Business by the Finance Parties).

Financial Indebtedness” means any indebtedness for or in respect of:

 

  (a) moneys borrowed and debit balances at banks or other financial institutions;

 

  (b) any amount raised by acceptance under any acceptance credit facility or 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;

 

9


EXECUTION VERSION

 

  (d) the amount of any liability in respect of Finance Leases;

 

  (e) receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis);

 

  (f) any amount raised under any other transaction (including any forward sale or purchase agreement, sale and sale back or sale and leaseback agreement) required by Accounting Principles to be shown as a borrowing in the audited consolidated financial statements of the Company or having the commercial effect of a borrowing;

 

  (g) any Treasury Transaction (and, when calculating the value of any Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close out of that Treasury Transaction, that amount) shall be taken into account);

 

  (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of an underlying liability of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition;

 

  (i) any amount raised by the issue of shares which are redeemable before the date falling 18 months after the date of this Agreement or are otherwise classified as borrowings under the Accounting Principles;

 

  (j) any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind the entry into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply and is not entered into in the ordinary course of business; and

 

  (k) (without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.

Financial Quarter” has the meaning given to it in Clause 22.1 (Financial definitions).

Financial Support Direction” means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004.

Financial Year” has the meaning given to it in Clause 22.1 (Financial definitions).

Financing Proceeds” has the meaning given to that term in Clause 9.3 (Asset Sale Proceeds, Insurance Proceeds and Financing Proceeds).

French Guarantor” means a Guarantor incorporated in France.

Funding Rate” means any rate notified to the Agent by a Lender pursuant to paragraph (a)(ii) of Clause 12.4 (Cost of funds).

German GmbH Guarantor” means a Guarantor incorporated in the Federal Republic of Germany in the legal form of a limited liability company (Gesellschaft mit beschränkter Haftung (GmbH)).

Group” means the Company and each of its Subsidiaries from time to time.

Group Structure Chart” means the group structure chart in the agreed form.

Guarantor” means the Original Guarantor, a Required Guarantor or an Additional Guarantor unless it has ceased to be a Guarantor in accordance with Clause 26 (Changes to the Obligors).

 

10


EXECUTION VERSION

 

Hedging Agreement” means any master agreement, confirmation, schedule or other agreement entered into or to be entered into by a Debtor (as defined in the Intercreditor Agreement) and a Hedge Counterparty for the purpose of hedging risks which, at the time that the master agreement, confirmation, schedule or other agreement (as the case may be) is entered into, is permitted pursuant to Clause 23.21 (Treasury Transactions) of this Agreement.

Hedge Counterparty” means any entity which is or has become a party to the Intercreditor Agreement as a Hedge Counterparty in accordance with the provisions of the Intercreditor Agreement.

Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

HQ” means InterXion HeadQuarters B.V.

IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

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;

 

  (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; 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 three 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.

Increase Confirmation” means a confirmation substantially in the form set out in Schedule 11 (Form of Increase Confirmation).

Increase Lender” has the meaning given to that term in Clause 2.2(a)(ii) (Increase).

Indenture” has the meaning given to that term in Schedule 13 (New York Law Undertakings).

Insurance Proceeds” has the meaning give to that term in Clause 9.3 (Asset Sale Proceeds, Insurance Proceeds and Financing Proceeds).

Insolvency Event” in relation to an entity means that the entity:

 

  (a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

11


EXECUTION VERSION

 

  (b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (c) makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (d) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

  (e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

  (i) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

  (ii) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

  (f) has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;

 

  (g) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (h) seeks or becomes subject to the appointment of an administrator, liquidator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

  (i) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

  (j) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or

 

  (k) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

Intellectual Property” means:

 

  (a) any patents, trade marks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may on or after the date of this Agreement subsist), whether registered or unregistered; and

 

  (b) the benefit of all applications and rights to use such assets of each member of the Group (which may on or after the date of this Agreement subsist).

 

12


EXECUTION VERSION

 

Intercreditor Agreement” means the intercreditor agreement dated 3 July 2013 (as amended on 17 December 2013 (as may be further amended and/or restated or supplemented from time to time)) and made between, amongst others, the Company, the Original Debtors as named therein, the Security Trustee, the Lenders, the Hedge Counterparties (if any) (as defined in the Intercreditor Agreement) and the Bond Trustee and as amended and/or restated from time to time.

Interest Period” means each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.3 (Default interest).

Interpolated Screen Rate” means for any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

  (a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

  (b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time on the Quotation Day for the currency of that Loan.

Initial Termination Date” means the date falling 12 months after the date of this Agreement.

IPO” means the admission to trading of part of the share capital of the Company to the New York Stock Exchange on 28 January 2011.

Issue Date” means 3 July 2013.

Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

Legal Opinion” means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 26 (Changes to the Obligors).

Lender” means:

 

  (a) each Original Lender; and

 

  (b) any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.2 (Increase) or Clause 25 (Changes to the Lenders),

which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.

Lender Accession Undertaking” means a document substantially in the form set out in Schedule 15 (Form of Lender Accession Undertaking).

Leverage” has the meaning given to that term in Clause 22.1 (Financial definitions).

LMA” means the Loan Market Association.

 

13


EXECUTION VERSION

 

Loan” means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.

Mandatory Prepayment Account” means an interest-bearing account:

 

  (a) held in England & Wales or The Netherlands by the Borrower with the Agent or Security Trustee (or other jurisdiction agreed by the Borrower and the Agent (acting reasonably));

 

  (b) identified in a letter between the Borrower and the Agent as a Mandatory Prepayment Account;

 

  (c) subject to Security in favour of the Security Trustee which Security is in form and substance satisfactory to the Agent and Security Trustee; and

 

  (d) from which no withdrawals may be made by any members of the Group except as contemplated by this Agreement,

(as the same may be redesignated, substituted or replaced from time to time).

Majority Lenders” means:

 

  (a) (for the purposes of paragraph (a) of Clause 38.1 (Required consents) in the context of a waiver in relation to a proposed Utilisation of the Facility of the condition in Clause 4.2 (Further conditions precedent)), a Lender or Lenders whose Commitments (and for this purpose the amount of any Lender’s Commitment shall not be reduced by the amount of its Ancillary Commitment) aggregate at least 50.1 per cent. of the Total Commitments; and

 

  (b) (in any other case), a Lender or Lenders whose Commitments (and for this purpose the amount of any Lender’s Commitment shall not be reduced by the amount of its Ancillary Commitment) aggregate at least 50.1 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 50.1 per cent. of the Total Commitments immediately prior to the reduction).

Margin” means:

 

Period

   Margin (% per annum)  

From and including the date of this Agreement to including the Initial Termination Date

     2.25  

From but excluding the Initial Termination Date to and including the Extended Termination Date

     3.25  

Material Adverse Effect” means a material adverse effect on:

 

  (a) the business, operations, property or financial condition of the Group taken as a whole; or

 

  (b) the ability of the Obligors (taken as a whole) to perform their payment obligations under the Finance Documents or the ability of the Company to comply with Clause 22 (Financial Covenant); or

 

  (c) the validity or enforceability of, 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.

 

14


EXECUTION VERSION

 

Material Company” means, at any time:

 

  (a) an Obligor; or

 

  (b) a wholly-owned member of the Group that holds shares in an Obligor; or

 

  (c) a Subsidiary of the Company which has earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) representing five per cent. or more of Adjusted EBITDA, or has net assets (calculated on an unconsolidated basis and excluding intra-group items and investments in Subsidiaries of any Member of the Group) representing five per cent. or more of the net assets, of the Group calculated on a consolidated basis.

Compliance with the conditions set out in paragraph (c) shall be determined by reference to the most recent Compliance Certificate supplied by the Company and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited consolidated financial statements of the Group. However, if a Subsidiary has been acquired since the date as at which the latest audited consolidated financial statements of the Group were prepared, the financial statements shall be deemed to be adjusted in order to take into account the acquisition of that Subsidiary (that adjustment being certified by the Company’s Auditors as representing an accurate reflection of the revised Adjusted EBITDA or net assets of the Group).

A report by the Auditors of the Company that a Subsidiary is or is not a Material Company shall, in the absence of manifest error, be conclusive and binding on all parties.

Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

  (a) (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

  (b) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

  (c) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules will only apply to the last Month of any period. “Monthly” shall be construed accordingly.

New Lender” has the meaning given to it in Clause 25.1 (Assignments and transfers by the Lenders).

Obligor” means the Borrower or a Guarantor.

Obligors’ Agent” has the meaning given to it in Clause 2.4 (Obligors’ Agent).

OFAC” means The Office of Foreign Assets Control of the US Department of the Treasury.

Original Financial Statements” means, in relation to the Company:

 

  (a) the audited consolidated financial statements for its financial year ended 31 December 2015 and

 

  (b) its unaudited consolidated management accounts for the period ended 30 September 2016.

 

15


EXECUTION VERSION

 

Original Obligor” means the Company.

Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

Party” means a party to this Agreement.

Pensions Regulator” means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004.

Permitted Debt” has the meaning given to that term in Schedule 13 (New York Law Undertakings).

Permitted Holders” means:

 

  (a) Baker Capital;

 

  (b) any Affiliate (as defined in Schedule 13 (New York Law Undertakings)) or Related Person of any Permitted Holder; and/or

 

  (c) any successor (excluding, for the avoidance of doubt, any transferee or assignee) to any Permitted Holder or such Affiliate (as defined in Schedule 13 (New York Law Undertakings)) or Related Person.

Permitted Refinancing Debt” has the meaning given to that term in Schedule 13 (New York Law Undertakings).

Permitted Share Issue” means an issue of:

 

  (a) ordinary shares by the Company paid for in full in cash upon issue and which by their terms are not redeemable and where such issue does not lead to the occurrence of an event described under Clause 9.2 (Change of control or sale of assets); or

 

  (b) shares by a member of the Group which is a Subsidiary to its immediate Holding Company where (if the existing shares of the Subsidiary are the subject of Transaction Security) the newly-issued shares also become subject to Transaction Security on the same terms.

Permitted Transaction” means:

 

  (a) any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or Quasi-Security given, or other transaction arising, under the Finance Documents;

 

  (b) the solvent liquidation or reorganisation of any member of the Group (including, without limitation, the transfer of assets of such member of the Group not otherwise prohibited under the Finance Documents) where:

 

  (i) all of the business and assets of that member of the Group remain within the Group (and, if that member of the Group was an Obligor immediately prior to such liquidation or reorganisation being implemented, all of the business and assets of that member are retained by one or more other Obligors); and

 

  (ii) if it or its assets or the shares in it were subject to Transaction Security immediately prior to such reorganisation, the Finance Parties will enjoy (in the reasonable opinion of the Agent) substantially the same or equivalent Transaction Security over the same assets or, as the case may be, over it or the shares in it (or in each case over the shares of its successor) and, if a new holding company is inserted as part of such liquidation or reorganisation, security over the shares of such holding company,

 

16


EXECUTION VERSION

 

and provided that no Default would arise from such liquidation or reorganisation; or

 

  (c) transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading on arm’s length terms.

Quarter Date” has the meaning given to it in Clause 22.1 (Financial definitions).

Quasi-Security” means any transaction or arrangement in which a member of the Group agrees to:

 

  (a) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a member of the Group;

 

  (b) sell, transfer or otherwise dispose of any of receivables on recourse terms;

 

  (c) 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

 

  (d) enter into any other preferential arrangement having a similar effect,

in each case where such arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

Quotation Day” means, in relation to any period for which an interest rate is to be determined two TARGET Days (that are Business Days in London) before the first day of that period unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).

Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property, not including a Dutch curator or bewindvoerder.

Reference Bank Quotation” means any quotation supplied to the Agent by a Base Reference Bank.

Related Fund” in relation to a fund (the “first fund”), means 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.

Related Person” with respect to any Permitted Holder means:

 

  (a) any controlling equity-holder or majority (or more) owned Subsidiary of such Permitted Holder;

 

  (b) in the case of any individual, any spouse, family member or relative of such individual, any trust or partnership for the benefit of one or more of such individual and any such spouse, family member or relative, or the estate, executor, administrator, committee or beneficiaries of any thereof;

 

  (c) any trust, corporation, partnership or other Person for which one or more of the Permitted Holders and other Related Persons of any thereof constitute the beneficiaries, stockholders, partners or owners thereof, or persons beneficially holding in the aggregate a majority (or more) controlling interest therein; or

 

  (d) any investment fund or vehicle managed, sponsored or advised by such Permitted Holder or Fortis Intertrust (Curacao) B.V. on their behalf or any successor thereto or by any Affiliate of such Permitted Holder or Fortis Intertrust (Curacao) B.V. or on their behalf any such successor.

 

17


EXECUTION VERSION

 

Relevant Jurisdiction” means:

 

  (a) the jurisdiction of incorporation of each member of the Group; and

 

  (b) the jurisdiction where any asset subject to or intended to be subject to the Transaction Security is situated.

Relevant Market” means the European interbank market.

Repeating Representations” means each of the representations set out in Clauses 20.1 (Status) to 20.6 (Governing law and enforcement) (inclusive), Clause 20.10 (No default), paragraph (d) of Clause 20.11 (No misleading information), paragraph (d) of Clause 20.12 (Financial statements), Clause 20.13 (No proceedings pending or threatened), Clause 20.19 (Good title to assets) to Clause 20.21 (Shares) (inclusive), Clause 20.24 (Centre of main interests and establishments) and paragraph (a) of Clause 20.27 (Sanctions).

Required Guarantors” means the companies listed in Part 1 of Schedule 1 (The Parties) as Required Guarantors.

Required Guarantor Accession Date” means the date falling 120 days after (but not including) the first Utilisation Date under this Agreement.

Resignation Letter” means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).

Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.

Restricted Group” means the Company and its Restricted Subsidiaries, from time to time.

Restricted Party” means, at any time, any person that is:

 

  (a) the subject of any Sanctions;

 

  (b) located in, organised under the laws of, or resident in a country or territory that is the subject of country or territory-wide Sanctions;

 

  (c) any person specifically listed in any Sanctions List; or

 

  (d) any person controlled or owned by any such person referred to in (a) to (c) above.

Restricted Subsidiary” has the meaning given to such term in Schedule 13 (New York Law Undertakings).

Rollover Loan” means one or more Loans:

 

  (a) made or to be made on the same day that one or more maturing Loan(s) is or are due to be repaid;

 

  (b) the aggregate amount of which is equal to or less than the maturing Loan(s);

 

  (c) in the Base Currency; and

 

  (d) made or to be made to the Borrower for the purpose of refinancing the maturing Loan(s).

 

18


EXECUTION VERSION

 

Sanctions” means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures imposed, administered, enacted or enforced by a Sanctions Authority.

Sanctions Authority” means

 

  (a) the US;

 

  (b) the Security Council of the United Nations;

 

  (c) the European Union;

 

  (d) the United Kingdom;

 

  (e) the member states of the European Union; or

 

  (f) the governments and official institutions or agencies of any of paragraphs (a) to (d) above, including without limitation, Her Majesty’s Treasury, OFAC and the US Department of State.

Sanctions List” means the “Specially Designated Nationals and Blocked Person” list issued by OFAC, the “Consolidated List of Financial Sanctions Targets” issued by Her Majesty’s Treasury, or any similar list issued or maintained and made public by any of the Sanctions Authorities as amended, supplemented or substituted from time to time.

Screen Rate” means the euro interbank offered rate administered by European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or, on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Company.

Secured Obligations” means all obligations at any time due, owing or incurred by any Obligor to any Secured Party under the Finance Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as principal or surety or in some other capacity).

Secured Parties” means the Security Trustee, any Receiver or Delegate, the Agent, each Lender, each Hedge Counterparty, each Arranger and each Ancillary Lender from time to time party to this Agreement.

Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

Separate Loan” has the meaning given to that term in Clause 7.1 (Repayment of Loan).

Spanish Obligor” means an Obligor incorporated in Spain.

Specified Time” means a time determined in accordance with Schedule 10 (Timetables).

Subsidiary” means:

 

  (a) in relation to any company or corporation incorporated in The Netherlands, a company or corporation which is a subsidiary of such company or corporation within the meaning of Article 24a of Book 2 of the Dutch Civil Code; and

 

  (b) in relation to any company or corporation not incorporated in The Netherlands, a company or corporation:

 

  (i) which is controlled, directly or indirectly, by the first mentioned company or corporation;

 

19


EXECUTION VERSION

 

  (ii) more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or

 

  (iii) which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,

and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body whether through the ownership of voting capital, by contract or otherwise.

Super Majority Lenders” means a Lender or Lenders whose Commitments (and for this purpose the amount of any Lender’s Commitment shall not be reduced by the amount of its Ancillary Commitment) aggregate at least 90 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 90 per cent. of the Total Commitments immediately prior to that reduction).

Swedish Guarantor” means a Guarantor incorporated as a limited liability company (aktiebolag) in Sweden.

TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

TARGET Day” means any day on which TARGET2 is open for the settlement of payments in Euro.

Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure by an Obligor to pay or any delay by an Obligor in paying any of the same).

Termination Date” means the Initial Termination Date, or if extended pursuant to and in accordance with Clause 8.2 (Extension of Facility), the Extended Termination Date.

Total Commitments” means the aggregate of the Commitments, being EUR 75,000,000 at the date of this Agreement.

Transaction Security” means the Security created or expressed to be created pursuant to the Transaction Security Documents.

Transaction Security Documents” means any document required to be delivered to the Agent under paragraphs 15 to 17 inclusive of Part 3 of Schedule 2 (Conditions Precedent and Conditions Subsequent), together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents.

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.

 

20


EXECUTION VERSION

 

Transfer Date” means, in relation to a transfer or assignment, the later of:

 

  (a) the proposed Transfer Date specified in the Transfer Certificate or Assignment Agreement (as the case may be); and

 

  (b) the date on which the Agent executes the Transfer Certificate or Assignment Agreement (as the case may be).

Treasury Transactions” means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.

Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

Utilisation” means a utilisation of the Facility.

Utilisation Date” means the date of a Utilisation, being the date on which the relevant Loan is to be made.

Utilisation Request” means a notice substantially in the form set out in Schedule 3 (Utilisation Request).

US” means the United States of America.

US Tax Obligor” means:

 

  (a) a Borrower which is resident for tax purposes in the US; or

 

  (b) an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

VAT” means:

 

  (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

  (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

Write-down and Conversion Powers” means in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule.

 

1.2 Construction

 

  (a) Unless a contrary indication appears any reference in this Agreement to:

 

  (i) the “Agent”, the “Arranger”, the “Security Trustee”, any “Finance Party”, any “Secured Party”, any “Lender”, any “Hedge Counterparty”, any “Obligor” or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, the rights and/or obligations under the Finance Documents and, in the case of the Security Trustee, any person for the time being appointed as Security Trustee or Security Trustees in accordance with this Agreement;

 

21


EXECUTION VERSION

 

  (ii) a document in “agreed form” is a document which is previously agreed in writing by or on behalf of the Obligors’ Agent and the Agent or, if not so agreed, is in the form specified by the Agent;

 

  (iii) acting in concert” has the meaning given to that term in Clause 9.2 (Change of control or sale of assets);

 

  (iv) assets” includes present and future properties, revenues and rights of every description;

 

  (v) 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, replaced or restated;

 

  (vi) guarantee” means (other than in Clause 19 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

  (vii) indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

  (viii) a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

 

  (ix) 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 regulatory, self-regulatory or other authority or organisation;

 

  (x) a provision of law is a reference to that provision as amended or re-enacted;

 

  (xi) words importing the plural shall include the singular and vice versa; and

 

  (xii) a time of day is a reference to London time.

 

  (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) The Borrower providing “cash cover” for an Ancillary Facility means the Borrower paying an amount in the currency of that Ancillary Facility to an interest-bearing account in the name of the Borrower and the following conditions being met:

 

  (i) the account is with the Ancillary Lender in respect of that Ancillary Facility;

 

22


EXECUTION VERSION

 

  (ii) until no amount is or may be outstanding under that Ancillary Facility, withdrawals from the account may only be made to pay the Ancillary Lender amounts due and payable to it under this Agreement in respect of that Ancillary Facility; and

 

  (iii) the Borrower has executed a security document over that account, in form and substance satisfactory to the Ancillary Lender with which that account is held, creating a first ranking security interest over that account.

 

  (f) A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied or waived.

 

  (g) The Borrower “repaying” or “prepaying” Ancillary Outstandings means:

 

  (i) the Borrower providing cash cover in respect of those Ancillary Outstandings;

 

  (ii) the maximum amount payable under that Ancillary Facility being reduced in accordance with its terms; or

 

  (iii) the Ancillary Lender being satisfied that it has no further liability under that Ancillary Facility,

and the amount by which Ancillary Outstandings are repaid or prepaid under paragraphs (i) and (ii) above is the amount of the relevant cash cover or reduction.

 

  (h) An amount borrowed includes any amount utilised under an Ancillary Facility.

 

1.3 Dutch Terms

In this Agreement, where it relates to a Dutch entity, a reference to:

 

  (a) a necessary action to authorise, where applicable, includes without limitation:

 

  (i) any action required to comply with the Dutch Works Council Act (Wet op de ondernemingsraden); and

 

  (ii) obtaining unconditional positive advice (advies) from each competent works council;

 

  (b) a winding-up, administration or dissolution includes a Dutch entity being:

 

  (i) declared bankrupt (failliet verklaard);

 

  (ii) dissolved (ontbonden);

 

  (c) a moratorium includes (voorlopige) surséance van betaling and granted a moratorium includes (voorlopige) surséance van betaling verleend;

 

  (d) a trustee in bankruptcy includes a curator;

 

  (e) an administrator includes a bewindvoerder;

 

  (f) a Receiver or an administrative receiver does not include a curator or bewindvoerder; and

 

  (g) an attachment includes a conservatoir beslag or executoriaal beslag.

 

23


EXECUTION VERSION

 

1.4 Spanish Terms

In this Agreement, a reference to any of the following (in the case of paragraph (a) or (b) below, in relation to (or to the obligations of) a company incorporated in Spain):

 

  (a) a “winding up”, “administration” or “dissolution” includes any disolución, liquidación, procedimiento concursal, concurso or any other similar proceedings;

 

  (b) a “receiver”, “administrative receiver”, “administrator” or the like includes a depositario, administrador judicial or administrador concursal or any other person performing the same function of each of the foregoing;

 

  (c) a “matured obligation” includes any crédito vencido, líquido y exigible;

 

  (d) a “security interest” includes any prenda (con o sin desplazamiento), hipoteca (mobiliaria o inmobiliaria) and any other garantia real o personal, derecho de retentión or other transactions having the same effect as each of the foregoing;

 

  (e) a person being “unable to pay its debts” includes that person being in a state of insolvencia or concurso; and

 

  (f) “control” has the meaning provided in Article 42 of the Spanish Code of Commerce.

 

1.5 Currency Symbols and Definitions

EUR”, “euro”, “ ” and “Euro” means the single currency unit of the Participating Member States.

 

1.6 Intercreditor Agreement override

This Agreement is subject to the terms of the Intercreditor Agreement. In the event of any inconsistency between this Agreement and the Intercreditor Agreement, the Intercreditor Agreement will prevail. For the avoidance of doubt, this Agreement shall, and for all purposes shall be deemed to, constitute an Additional Senior Secured Debt Instrument (as defined in the Intercreditor Agreement) and all amounts owing under this Agreement shall, and shall for all purposes be deemed to, constitute Additional Senior Secured Notes Liabilities (as defined in the Intercreditor Agreement) for purposes of the Intercreditor Agreement.

 

1.7 Third party rights

 

  (a) Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or enjoy the benefit of any term of this Agreement.

 

  (b) Subject to paragraph (c) of Clause 38.2 (Exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

1.8 Affiliates of Lenders

 

  (a) Each Lender may, if it so elects, fulfil all or part of its Commitment in respect of any loan by designating a branch or an Affiliate to provide that Commitment or part thereof as set out in paragraph (b) below, provided that:

 

  (i) the Lender shall remain solely responsible for the performance of its (and that branch or Affiliate’s) obligations under this Agreement;

 

24


EXECUTION VERSION

 

  (ii) no such designation shall result in an Obligor being subject to increased obligations under this Agreement (whether pursuant to Clause 14 (Tax Gross up and Indemnities), Clause 15 (Increased Costs) or otherwise) under the Finance Documents than it would have been under had such designation not occurred; and

 

  (iii) the branch or Affiliate shall comply with all form delivery and other requirements under this Agreement (and the relevant Lender shall procure that it does so).

 

  (b) A Lender may provide for a branch or an Affiliate to participate in certain Loans in the manner contemplated in paragraph (a) above by:

 

  (i) giving notice to the Agent and the Company substantially in the form of Schedule 17 (Form of Affiliate Election Notice), detailing those Loans to the Borrower in which that branch or Affiliate may participate. The Agent is not obliged to accept an Affiliate Election Notice until it has completed all necessary “know your customer” requirements to its satisfaction. The Agent must notify the Lender if there are any such requirements; and

 

  (ii) procuring that such branch or Affiliate delivers to the Agent and the Security Trustee a duly completed accession undertaking substantially in the form set out in Schedule 15 (Form of Lender Accession Undertaking) and by delivery to the Security Trustee of a duly completed accession undertaking in the form scheduled to the Intercreditor Agreement.

 

  (c) If the Agent has accepted an Affiliate Election Notice, on each delivery of a Utilisation Request requesting a Loan be made to the Borrower in an Affiliate Election Notice, the Lender will promptly notify the Agent and the Company whether it will participate in the Loan itself or through a branch or Affiliate. If no notification is given by the Lender, the Agent shall be entitled to assume that the Lender will participate in the Loan itself. For the avoidance of doubt, in the event that a branch or an Affiliate participates in a Loan in accordance with this Clause, that Lender and its branch or Affiliate (as applicable) will be treated as a single Lender having a commitment under this Agreement, including without limitation for the purposes of compliance with this Clause and for the purpose of voting in connection with any Finance Document.

 

2. THE FACILITY

 

2.1 The Facility

 

  (a) Subject to the terms of this Agreement, the Lenders make available to the Borrower a revolving loan facility in an aggregate Base Currency Amount which is equal to the Total Commitments.

 

  (b) Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available to the Borrower an Ancillary Facility in place of all or part of its Commitment under the Facility.

 

2.2 Increase

 

  (a) The Obligors’ Agent may by giving prior notice to the Agent by no later than the date falling 20 Business Days after the effective date of a cancellation of:

 

  (i) the Available Commitments of a Defaulting Lender in accordance with Clause 9.10 (Right of cancellation in relation to a Defaulting Lender); or

 

  (ii) the Commitments of a Lender in accordance with Clause 9.1 (Illegality),

 

25


EXECUTION VERSION

 

request that the Total Commitments be increased (and the Total Commitments under the Facility shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments so cancelled as follows:

 

  (A) the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an “Increase Lender”) selected by the Obligors’ Agent (each of which shall not be a member of the Group and which is further acceptable to the Agent (acting reasonably)) and each of which confirms, at that time, its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender, provided that for the avoidance of doubt no Lender shall have any obligation under this paragraph (A) to make such a confirmation;

 

  (B) each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

  (C) each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

  (D) the Commitments of the other Lenders shall continue in full force and effect; and

 

  (E) any increase in the Total Commitments shall take effect on the date specified by the Obligors’ Agent in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

 

  (b) An increase in the Total Commitments will only be effective on:

 

  (i) the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and

 

  (ii) in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase:

 

  (A) the Increase Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and

 

  (B) the performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Obligors’ Agent, and the Increase Lender.

 

  (c) Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent 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 increase becomes effective.

 

  (d)

Unless the Agent otherwise agrees, the Obligors’ Agent shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee of EUR 2,000 and the

 

26


EXECUTION VERSION

 

  Obligors’ Agent shall promptly on demand pay the Agent and the Security Trustee the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Trustee, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.2.

 

  (e) The Obligors’ Agent may pay to the Increase Lender a fee in the amount and at the times agreed between the Obligors’ Agent and the Increase Lender in a Fee Letter.

 

  (f) Clause 25.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

  (i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;

 

  (ii) the “New Lender” were references to that “Increase Lender”; and

 

  (iii) a “re-transfer” and “re-assignment” were references to, respectively, a “transfer” and an “assignment”.

 

2.3 Finance Parties rights and obligations

 

  (a) The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

  (b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor 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 a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation 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 that Obligor.

 

  (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.

 

2.4 Obligors Agent

 

  (a) Each Obligor (other than the Company) by its execution of an Accession Letter irrevocably appoints the Company (in such capacity, the “Obligors’ Agent”) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

  (i) the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions, to execute on its behalf any Accession Letter, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect such Obligor, without further reference to or the consent of that Obligor; and

 

  (ii) each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,

 

27


EXECUTION VERSION

 

and in each case such Obligor shall be bound as though such Obligor itself had given the notices and instructions or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

  (b) Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of any Obligor or in connection with any Finance Document (whether or not known to any Obligor and whether occurring before or after such Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and the Obligor, those of the Obligors’ Agent shall prevail.

 

  (c) Each Obligor (other than the Company) hereby empowers (bevollmächtigt) the Company (in this capacity or in its capacity as Obligors’ Agent) to make the Repeating Representations on its behalf as its attorney (Stellvertreter). Each Obligor (other than the Company) hereby relieves the Company from any restrictions on representing several persons or self-dealing under any applicable law, in particular from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) for the purpose of making the Repeating Representations on its behalf as attorney (Stellvertreter).

 

  (d) The Obligors’ Agent shall be released from the restrictions of Section 181 of the German Civil Code (Bürgerliches Gesetzbuch).

 

3. PURPOSE

 

3.1 Purpose

The Borrower shall apply all amounts borrowed by it under the Facility towards the general corporate and working capital purposes of the Restricted Group including capital expenditure, acquisitions and investments which are not prohibited by this Agreement, but excluding refinancing any other Financial Indebtedness and the prepayment, repayment, redemption or purchase of, or payments of interest in respect of, any other Financial Indebtedness (other than, in each case, to the extent incurred or arising intra-Restricted Group and under the Existing SSRCF).

 

3.2 Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4. CONDITIONS OF UTILISATION

 

4.1 Initial conditions precedent

 

  (a) The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to any Loan if on or before the Utilisation Date for that Utilisation the Agent has received or is satisfied that it will have received all of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions Precedent and Conditions Subsequent) in form and substance satisfactory to the Agent acting on behalf of all Lenders or receipt of such documents and evidence has been waived by the Majority Lenders. The Agent shall notify the Obligors’ Agent and the Lenders promptly upon being so satisfied.

 

  (b) Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

28


EXECUTION VERSION

 

4.2 Further conditions precedent

Subject to Clause 4.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 5.4 (Lenders participation) in relation to a Loan if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (a) in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan;

 

  (b) in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

 

  (c) the Repeating Representations to be made by each Obligor are true in all material respects.

 

4.3 Maximum number of Loans

 

  (a) The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than four (4) Loans would be outstanding.

 

  (b) Any Separate Loans shall not be taken into account in this Clause 4.3.

 

5. UTILISATION LOANS

 

5.1 Delivery of a Utilisation Request

The Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

5.2 Completion of a Utilisation Request

 

  (a) Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

  (i) the proposed Utilisation Date is a Business Day within the Availability Period;

 

  (ii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);

 

  (iii) the proposed Interest Period complies with Clause 11 (Interest Periods); and

 

  (b) Only one Loan may be requested in each Utilisation Request.

 

5.3 Currency and amount

 

  (a) The currency specified in a Utilisation Request must be the Base Currency.

 

  (b) The amount of the proposed Loan must be:

 

  (i) an amount which is not more than the Available Facility; and

 

  (ii) a minimum of EUR 1,000,000 or, if less, the Available Facility.

 

5.4 Lenders participation

 

  (a) If the conditions set out in this Agreement have been met and subject to Clause 8 (Repayment and Extension), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

  (b) The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

 

29


EXECUTION VERSION

 

5.5 Cancellation of Commitment

The Commitments which, at that time, are unutilised shall be immediately cancelled in full at the end of the Availability Period.

 

6. [RESERVED]

 

7. ANCILLARY FACILITIES

 

7.1 Type of Facility

An Ancillary Facility may be made available by way of:

 

  (a) an overdraft facility;

 

  (b) a guarantee, bonding, documentary or stand-by letter of credit facility;

 

  (c) a short term loan facility;

 

  (d) a derivatives facility;

 

  (e) a foreign exchange facility; or

 

  (f) any other facility or accommodation required in connection with the business of the Group and which is agreed by the Borrower with an Ancillary Lender.

 

7.2 Availability

 

  (a) If the Borrower and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide an Ancillary Facility on a bilateral basis in place of part of that Lender’s unutilised Commitment (which shall (except for the purpose of determining the Majority Lenders) be reduced by the amount of the Ancillary Commitment under that Ancillary Facility).

 

  (b) An Ancillary Facility shall not be made available unless, not later than ten (10) Business Days prior to the Ancillary Commencement Date for an Ancillary Facility (or such later date as the Agent may agree), the Agent has received from the Borrower:

 

  (i) an Ancillary Facility Request specifying:

 

  (A) the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;

 

  (B) the proposed type of Ancillary Facility to be provided;

 

  (C) the proposed Ancillary Lender; and

 

  (D) the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, if the Ancillary Facility is an overdraft facility comprising more than one account, its maximum gross amount (that amount being the “Designated Gross Amount”) and its maximum net amount (that amount being the “Designated Net Amount”);

 

  (ii) a copy of the proposed Ancillary Document; and

 

  (iii) any other information which the Agent may reasonably request in connection with the Ancillary Facility.

 

30


EXECUTION VERSION

 

The Agent shall promptly notify the Borrower, the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility.

No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause). In such a case, the provisions of this Agreement with regard to amendments and waivers will apply.

 

  (c) Subject to compliance with paragraph (b) above:

 

  (i) the Lender concerned will become an Ancillary Lender; and

 

  (ii) the Ancillary Facility will be available,

with effect from the date agreed by the Borrower and the Ancillary Lender (such date to be promptly notified by the Borrower to the Agent).

 

7.3 Terms of Ancillary Facilities

 

  (a) Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Borrower.

 

  (b) However, those terms:

 

  (i) must be based upon normal commercial terms at that time (except as varied by this Agreement);

 

  (ii) may allow only the Borrower to use the Ancillary Facility;

 

  (iii) may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;

 

  (iv) may not allow the Ancillary Commitment of a Lender to exceed the Available Commitment of that Lender; and

 

  (v) must require that the Ancillary Commitment is reduced to zero, and that all Ancillary Outstandings are repaid (or cash cover provided in respect of all the Ancillary Outstandings) not later than the Termination Date (or such earlier date as the Commitment of the relevant Ancillary Lender is reduced to zero).

 

  (c) If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for (i) Clause 34.3 (Day count convention) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility, (ii) an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts, and (iii) where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.

 

  (d) Interest, commission and fees on Ancillary Facilities are dealt with in Clause 13.5(Interest, commission and fees on Ancillary Facilities).

 

31


EXECUTION VERSION

 

7.4 Repayment of Ancillary Facility

 

  (a) An Ancillary Facility shall cease to be available on the Termination Date or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement.

 

  (b) If an Ancillary Facility expires in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced to zero (and its Available Commitment shall be increased accordingly).

 

  (c) No Ancillary Lender may demand repayment or prepayment of any amounts made available, or demand cash cover for any liabilities incurred, by it under its Ancillary Facility (except where the Ancillary Facility is provided on a net limit basis to the extent required to bring any gross outstandings down to the net limit) unless:

 

  (i) the Total Commitments have been cancelled in full, or all outstanding Loans have become due and payable in accordance with the terms of this Agreement, or the Agent has declared all outstanding Loans immediately due and payable, or the expiry date of the Ancillary Facility occurs; or

 

  (ii) it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility; or

 

  (iii) the Ancillary Outstandings (if any) under that Ancillary Facility can be refinanced by a Loan and the Ancillary Lender gives sufficient notice to enable a Loan to be made to refinance those Ancillary Outstandings.

 

  (d) For the purposes of determining whether or not the Ancillary Outstandings under an Ancillary Facility mentioned in paragraph (c)(iii) above can be refinanced by a Loan:

 

  (i) the Available Commitment of the Ancillary Lender will be increased by the amount of its Ancillary Commitment; and

 

  (ii) the Loan may (so long as paragraph (c)(i) above does not apply) be made irrespective of whether a Default is outstanding or any other applicable condition precedent is not satisfied (but only to the extent that the proceeds are applied in refinancing those Ancillary Outstandings) and irrespective of whether Clause 4.3 (Maximum number of Loans) or paragraph (a)(iii) of Clause 5.2 (Completion of a Utilisation Request) applies.

 

  (e) On the making of a Loan to refinance Ancillary Outstandings:

 

  (i) each Lender will participate in that Loan in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in Loans then outstanding bearing the same proportion to the aggregate amount of the Loans then outstanding as its Commitment bears to the Total Commitments; and

 

  (ii) the relevant Ancillary Facility shall be cancelled.

 

  (f) In relation to an Ancillary Facility which comprises an overdraft facility where a Designated Net Amount has been established, the Ancillary Lender providing that Ancillary Facility shall only be obliged to take into account for the purposes of calculating compliance with the Designated Net Amount those credit balances which it is permitted to take into account by the then current law and regulations in relation to its reporting of exposures to applicable regulatory authorities as netted for capital adequacy purposes.

 

32


EXECUTION VERSION

 

7.5 Ancillary Outstandings

The Borrower and each Ancillary Lender agrees with and for the benefit of each Lender that:

 

  (a) the Ancillary Outstandings under any Ancillary Facility provided by that Ancillary Lender shall not exceed the Ancillary Commitment applicable to that Ancillary Facility and where the Ancillary Facility is an overdraft facility comprising more than one account, Ancillary Outstandings under that Ancillary Facility shall not exceed the Designated Net Amount in respect of that Ancillary Facility; and

 

  (b) where all or part of the Ancillary Facility is an overdraft facility comprising more than one account, the Ancillary Outstandings (calculated on the basis that the words in brackets in paragraph (a) of the definition of that term were deleted) shall not exceed the Designated Gross Amount applicable to that Ancillary Facility.

 

7.6 Adjustment for Ancillary Facilities upon acceleration

In this Clause 7.6:

Outstandings” means, in relation to a Lender, the aggregate of the equivalent in the Base Currency of (i) its participation in each Loan then outstanding (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender under the Facility), and (ii) if the Lender is also an Ancillary Lender, the Ancillary Outstandings in respect of Ancillary Facilities provided by that Ancillary Lender (together with the aggregate amount of all accrued interest, fees and commission owed to it as an Ancillary Lender in respect of the Ancillary Facility).

Total Outstandings” means the aggregate of all Outstandings.

 

  (a) If a notice is served under Clause 24.18 (Acceleration) (other than a notice declaring Loans to be due on demand), each Lender and each Ancillary Lender shall promptly adjust by corresponding transfers (to the extent necessary) their claims in respect of amounts outstanding to them under the Facility and each Ancillary Facility to ensure that after such transfers the Outstandings of each Lender bear the same proportion to the Total Outstandings as such Lender’s Commitment bears to the Total Commitments, each as at the date the notice is served under Clause 24.18 (Acceleration).

 

  (b) If an amount outstanding under an Ancillary Facility is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under paragraph (a) above, then each Lender and each Ancillary Lender will make a further adjustment by corresponding transfers (to the extent necessary) to put themselves in the position they would have been in had the original adjustment been determined by reference to the actual liability or, as the case may be, zero liability and not the contingent liability.

 

  (c) Any transfer of rights and obligations relating to Outstandings made pursuant to this Clause 7.6 shall be made for a purchase price in cash, payable at the time of transfer, in an amount equal to those Outstandings (less any accrued interest, fees and commission to which the transferor will remain entitled to receive notwithstanding that transfer, pursuant to Clause 25.13 (Pro rata interest settlement)).

 

  (d) Prior to the application of the provisions of paragraph (a) of this Clause 7.6, an Ancillary Lender that has provided an overdraft comprising more than one account under an Ancillary Facility shall set-off any liabilities owing to it under such overdraft facility against credit balances on any account comprised in such overdraft facility.

 

  (e) All calculations to be made pursuant to this Clause 7.6 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders.

 

33


EXECUTION VERSION

 

7.7 Information

The Borrower and each Ancillary Lender shall, promptly upon request by the Agent, supply the Agent with any information relating to the operation of an Ancillary Facility (including the Ancillary Outstandings) as the Agent may reasonably request from time to time. The Borrower consents to all such information being released to the Agent and the other Finance Parties.

 

7.8 Affiliates of Lenders as Ancillary Lenders

 

  (a) Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Commitment is the amount set out opposite the relevant Lender’s name in Part 2 of Schedule 1 (The Parties) and/or the amount of any Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement. For the purposes of calculating the Lender’s Available Commitment with respect to the Facility, the Lender’s Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates.

 

  (b) The Obligors’ Agent shall specify any relevant Affiliate of a Lender in any notice delivered by the Obligors’ Agent to the Agent pursuant to paragraph (b)(i) of Clause 7.2 (Availability).

 

  (c) An Affiliate of a Lender which becomes an Ancillary Lender shall accede to this Agreement and the Intercreditor Agreement by delivery to the Security Trustee of a duly completed accession undertaking in the form scheduled to the Intercreditor Agreement.

 

  (d) If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (as defined in Clause 25 (Changes to the Lenders)), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.

 

  (e) Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.

 

7.9 Commitment Amounts

Notwithstanding any other term of this Agreement each Lender shall ensure that at all times its Commitment is not less than:

 

  (a) its Ancillary Commitment; or

 

  (b) the Ancillary Commitment of its Affiliate.

 

8. REPAYMENT AND EXTENSION

 

8.1 Repayment of Loans

 

  (a) Subject to Clause 8.2 (Extension of Facility), the Borrower shall repay each Loan on the last day of its Interest Period.

 

  (b) (i) Without prejudice to the Borrower’s obligation under paragraph (a) above, if one or more Loans are to be made available to the Borrower:

 

  (A) on the same day that a maturing Loan is due to be repaid by the Borrower;

 

  (B) in the Base Currency;

 

  (C) in whole or in part for the purpose of refinancing a maturing Loan; and

 

34


EXECUTION VERSION

 

  (ii) the proportion borne by each Lender’s participation in the maturing Loan to the amount of the Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans,

the aggregate amount of the new Loans shall, unless the Borrower notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Loan or Loans so that:

 

  (A) if the amount of the maturing Loan(s) exceeds the aggregate amount of the new Loans:

 

  (1) the Borrower will only be required to pay an amount in cash in the Base Currency equal to that excess; and

 

  (2) each Lender’s participation (if any) in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Loan(s) and that Lender will not be required to make its participation in the new Loans available in cash; and

 

  (B) if the amount of the maturing Loan(s) is equal to or less than the aggregate amount of the new Loans:

 

  (1) the Borrower will not be required to make any payment in cash; and

 

  (2) each Lender will be required to make its participation in the new Loans available in cash only to the extent that its participation (if any) in the new Loans exceeds that Lender’s participation (if any) in the maturing Loan(s) and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan(s).

 

  (c) At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the Termination Date and will be treated as separate Loans (the “Separate Loan”) denominated in the currency in which the relevant participations are outstanding.

 

  (d) The Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving ten (10) Business Days’ prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

 

  (e) Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by the Borrower to the Defaulting Lender on the last day of each Interest Period of that Loan.

 

  (f) The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

 

35


EXECUTION VERSION

 

8.2 Extension of Facility

If:

 

  (a) the Facility has not already been cancelled and repaid or prepaid in full; and

 

  (b) no Default is continuing or would result from the extension of the Facility,

then the Borrower may, by delivering an Extension Notice to the Agent not more than thirty (30) days but at least five (5) Business Days prior to the Initial Termination Date, elect on a one-time only basis to extend the term of the Facility to a date falling on or prior to the date falling eighteen (18) months after the date of this Agreement (the “Extended Termination Date”).

 

9. ILLEGALITY, PREPAYMENT AND CANCELLATION

 

9.1 Illegality

If, at any time, it is or will become 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 any Loan:

 

  (a) that Lender shall promptly notify the Agent upon becoming aware of that event;

 

  (b) upon the Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and

 

  (c) the Borrower shall repay that Lender’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has notified the Obligors’ Agent or, if earlier, the date specified by the Lender in the notice delivered to the Agent.

 

9.2 Change of control or sale of assets

If:

 

  (a) there is a sale of all or substantially all of the assets of the Group whether in a single transaction or a series of related transactions; or

 

  (b) any person or group of persons acting in concert other than one or more Permitted Holders gains control of the Company,

then:

 

  (i) the Company shall immediately notify the Agent upon any such event occurring and the Agent shall notify the Lenders;

 

  (ii) a Lender shall not be obliged to fund a Loan;

 

  (iii)

if within 30 days of the Company notifying the Agent (pursuant to paragraph (i) above), a Lender notifies the Agent that it wishes to cancel its Commitment as a result of that event, such Lender’s Commitments will be immediately cancelled and its participation in all outstanding Loans shall, together with the accrued and unpaid interest and all other amounts accrued and outstanding under the Finance Documents (including any fees and Break Costs (if any) owing to it), become due and payable within 10 Business Days of the date on which the relevant Lender notifies the Agent, unless the Company replaces such Lender within such 10 Business Day period by requiring such Lender to (and, to the extent permitted by law and subject to paragraph (c) below, such Lender shall) transfer all (and not part only) of its rights

 

36


EXECUTION VERSION

 

  and obligations under this Agreement to a Lender or other bank or financial institution (a “Lender Replacement”) selected by the Company, which is acceptable (in the case of any transfer of the Total Commitments) to the Lender Replacement and which confirms its willingness to assume and does assume all the obligations of the transferring Lender for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest.

 

  (c) The Lender shall only be obliged to transfer its rights and obligations pursuant to clause (b)(iii) above once (i) it is satisfied that it has complied with all necessary “know your customer” and other similar checks under all applicable laws and regulations in relation to that transfer and (ii) it has received confirmation from the Agent that the Agent has complied with all necessary “know your customer” and other similar checks under all applicable laws and regulations in relation to that transfer. For the avoidance of doubt, if such Lender or the Agent is not able to satisfy itself that it has complied with all such “know your customer” or other similar checks in respect of a proposed transfer, the Lender’s Commitments will be cancelled and its participation in the Loans will become due and payable in accordance with paragraph (b) above.

 

  (d) For the purposes of this Clause 9.2:

acting in concert” shall have the meaning attributed to that term in the City Code.

City Code” means the City Code on Takeovers and Mergers of England and Wales.

control” means (whether by way of ownership of shares, proxy, contract, agency or otherwise):

 

  (i) having the power to appoint or remove all, or the majority, of the directors or other equivalent officers of the Company;

 

  (ii) having the power to give directions with respect to the operating and financial policies of the Company with which the directors or other equivalent officers of the Company are obliged to comply; or

 

  (iii) holding, directly or indirectly, more than 50 per cent. of the issued share capital or voting rights in respect of the share capital of the Company.

 

9.3 Asset Sale Proceeds, Insurance Proceeds and Financing Proceeds

 

  (a) For the purposes of this Clause 9.3, Clause 9.4 (Application of Mandatory Prepayments and Cancellations) and Clause 9.5 (Mandatory Prepayment Accounts):

Asset Sale Proceeds” means the Net Proceeds from any Disposal made by any member of the Restricted Group except for Excluded Asset Sale Proceeds.

Disposal” means any Asset Sale (as defined in Schedule 13 (New York Law Undertakings)) provided that the transaction described at paragraph (xiii) of the definition of Asset Sale shall be treated as an Asset Sale for the purposes of this Clause only.

Excluded Asset Sale Proceeds” means:

 

  (i) any Asset Sale Proceeds that are, or are intended to be, applied in accordance with and within the time periods specified in paragraph 4.2 of Section 4 (Limitation on Asset Sales) of Schedule 13 (New York Law Undertakings); and

 

  (ii) any Asset Sale Proceeds from a sale and leaseback transaction provided that such proceeds do not exceed EUR 5,000,000 (or its equivalent in any other currency or currencies).

 

37


EXECUTION VERSION

 

Excluded Insurance Proceeds” means any proceeds of an insurance claim which the Company notifies the Agent are, or are to be, applied:

 

  (i) to meet a third party claim;

 

  (ii) to cover operating losses in respect of which the relevant insurance claim was made;

 

  (iii) to the replacement, reinstatement and/or repair of the assets or otherwise in amelioration of the loss in respect of which the relevant insurance claim was made as soon as reasonably practicable and, in any event, within 12 months of receipt of such proceeds (or such longer period as the Majority Lenders may agree (acting reasonably)) after receipt; and

 

  (iv) do not fall within paragraph (i), (ii) or (iii) above and when aggregated with any other proceeds of any insurance claim relating to property received by a member of the Restricted Group within the same Financial Year, are less than EUR 1,000,000 (or its equivalent in other currencies).

Financing Proceeds” means the Net Proceeds of:

 

  (i) any direct or indirect public offering or private placement after the date of this Agreement of any debt or equity securities issued by any member of the Restricted Group including, without limitation, any Additional Notes (as defined in Schedule 13 (New York Law Undertakings)) but excluding the contribution, issue or sale of Capital Stock (as defined in Schedule 13 (New York Law Undertakings) directly or indirectly to a Permitted Holder or to management of the Restricted Group or pursuant to an employee incentive plan or issuance of Capital Stock to any member of the Restricted Group or in connection with any acquisitions by a member of the Restricted Group permitted under this Agreement; and

 

  (ii) any Financial Indebtedness incurred after the date of this Agreement under any credit facility provided by any bank or financial institution to any member of the Restricted Group other than any such Financial Indebtedness that:

 

  (A) constitutes Permitted Debt, save for Permitted Debt under any of:

 

  (1) (save as provided under paragraph (B) below) paragraph 1.2(b);

 

  (2) paragraph 1.2(c) (other than Note Guarantees given pursuant to the terms of the Indenture);

 

  (3) paragraph 1.2(l) to the extent that:

 

  (aa) such Permitted Refinancing Debt is in the form of debt securities described at paragraph (i) above; or

 

38


EXECUTION VERSION

 

  (bb) any of the proceeds of such Permitted Refinancing Debt are applied toward refunding, replacing or refinancing any Financial Indebtedness incurred pursuant to, or described in:

 

  (x) paragraph 1.1 but only where the Financial Indebtedness refunded, replaced or refinanced had a final maturity date of 12 months or more;

 

  (y) paragraph 1.2(c); or

 

  (z) paragraph 1.2(u); and

 

  (4) paragraph 1.2(u),

in each case of section 1 (Limitation on debt) of Schedule 13 (New York Law Undertakings);

 

  (B) is incurred under the Existing SSRCF;

 

  (C) is incurred under this Agreement; or

 

  (D) is incurred in connection with any acquisition permitted under this Agreement (other than, for the avoidance of doubt, Financial Indebtedness in the form of debt securities described at paragraph (i) above).

Insurance Proceeds” means the Net Proceeds of any insurance claim received by any member of the Restricted Group for loss or damage to property (excluding any business interruption element, directors and officers liability insurance, any third party liability insurance or any amount applied in meeting a third party claim for business disruption) except for Excluded Insurance Proceeds.

Net Proceeds” means, with respect to any financing transaction, Asset Sale or insurance claim, the proceeds received in Cash by any member of the Restricted Group from that financing transaction, Asset Sale or insurance claim net of:

 

  (i) brokerage commissions and other fees and expenses (including, without limitation, fees, costs and expenses of legal counsel, accountants, investment banks and other consultants) reasonably incurred by any member of the Restricted Group to a Person that is not a member of the Restricted Group in connection with that transaction or claim;

 

  (ii) provisions for all taxes paid or payable, or required to be accrued as a liability under IFRS as a result of such transaction or claim (as reasonably determined by that member of the Restricted Group, on the basis of existing rates and taking account of any available credit, deduction or allowance);

 

  (iii) (with respect to an Asset Sale) all distributions and other payments required to be made to any Person (other than the Company or any Restricted Subsidiary) owning a beneficial interest in the assets subject to an Asset Sale;

 

  (iv) (with respect to an Asset Sale or Insurance Claim) appropriate amounts required to be provided by the Company or any Restricted Subsidiary, as the case may be, as a reserve in accordance with IFRS against any liabilities associated with such Asset Sale or Insurance Claim and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Sale or Insurance Claim, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale or Insurance Claim, all as reflected in an Officers’ Certificate (as defined in Schedule 13 (New York Law Undertakings)) delivered to the Agent;

 

39


EXECUTION VERSION

 

  (v) (with respect to an Asset Sale) amounts to be repaid to the disposing entities in respect of intra-Group Financial Indebtedness;

 

  (vi) (with respect to an Asset Sale) any costs of closure, relocation costs, reorganisation or restructuring costs directly related to the Asset Sale or in preparing the applicable asset for disposal; and

 

  (vii) (with respect to an Asset Sale) third party debt secured on the assets disposed of that is to be repaid out of those proceeds.

 

  (b) The Borrower shall prepay Loans and cancel Available Commitments in amounts equal to the following amounts at the times and in the order of application contemplated by Clause 9.4 (Application of Mandatory Prepayments and Cancellations):

 

  (i) the amount of Asset Sale Proceeds;

 

  (ii) the amount of Insurance Proceeds; and

 

  (iii) the amount of Financing Proceeds.

 

9.4 Application of Mandatory Prepayments and Cancellations

 

  (a) A prepayment of Loans or cancellation of Available Commitments made under Clause 9.3 (Asset Sale Proceeds, Insurance Proceeds and Financing Proceeds) shall be applied in the following order:

 

  (i) first, in prepayment of Loans as contemplated in paragraphs (b) to (e) inclusive below; and

 

  (ii) then, immediately thereafter, in cancellation of Available Commitments under the Facility (and the Available Commitments of the Lenders under the Facility will be cancelled rateably).

 

  (b) The Borrower shall prepay Loans within one Business Day of receipt of any Financing Proceeds that are not subject to any escrow release arrangements (provided that the Borrower shall use its reasonable endeavours to procure that they are applied on the date of receipt).

 

  (c) Unless the Borrower makes an election under paragraph (d) below, the Borrower shall prepay Loans within three Business Days of receipt of Asset Sale Proceeds or Insurance Proceeds.

 

  (d) Subject to paragraph (e) below, the Borrower may elect that any prepayment under paragraphs (i) or (ii) of Clause 9.3(b) (Asset Sale Proceeds, Insurance Proceeds and Financing Proceeds) be applied in prepayment of a Loan on the last day of the Interest Period relating to that Loan. If the Borrower makes that election then a proportion of the Loan equal to the amount of the relevant prepayment will be due and payable on the last day of its Interest Period.

 

  (e) If the Borrower has made an election under paragraph (d) above but a Default has occurred and is continuing, that election shall no longer apply and a proportion of the Loan in respect of which the election was made equal to the amount of the relevant prepayment shall be immediately due and payable (unless the Majority Lenders otherwise agree in writing).

 

9.5 Mandatory Prepayment Accounts

 

  (a) The Borrower shall ensure that Asset Sale Proceeds and Insurance Proceeds in respect of which the Borrower has made an election under Clause 9.4(d) (Application of Mandatory Prepayments and Cancellations) are paid into a Mandatory Prepayment Account as soon as reasonably practicable after receipt by a member of the Group.

 

40


EXECUTION VERSION

 

  (b) The Borrower irrevocably authorises the Agent to apply amounts credited to the Mandatory Prepayment Account to pay amounts due and payable under Clause 9.4 (Application of Mandatory Prepayments and Cancellations) and otherwise under the Finance Documents.

 

  (c) Where the Agent holds a Mandatory Prepayment Account (or appoints another entity to hold such an account on its behalf) it acknowledges and agrees that the Borrower shall be entitled to receive any interest accruing on the amount credited to that account provided that such interest is positive (with such interest being paid in accordance with the mandate relating to such account) unless a Default is continuing.

 

9.6 Voluntary cancellation

The Borrower may, if it gives the Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of EUR 5,000,000) of the Available Facility. Any cancellation under this Clause 9.6 shall reduce the Commitments of the Lenders rateably.

 

9.7 Voluntary prepayment

The Borrower may, if it gives the Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but if in part, being an amount that reduces the amount of the Loan by a minimum amount of EUR 1,000,000).

 

9.8 Right of cancellation and repayment in relation to a single Lender

 

  (a) If:

 

  (i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or

 

  (ii) any Lender claims indemnification from the Obligors’ Agent or an Obligor under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs),

the Obligors’ Agent may, whilst the circumstance giving rise to the requirement for that increase 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.

 

  (b) On receipt of a notice referred to in paragraph (a) above in relation to a Lender, the Commitment of that Lender shall immediately be reduced to zero.

 

  (c) On the last day of each Interest Period which ends after the Obligors’ Agent has given notice under paragraph (a) above in relation to a Lender (or, if earlier, the date specified by the Obligors’ Agent in that notice), the Borrower to which a Loan is outstanding shall repay that Lender’s participation in that Loan together with all interest and other amounts accrued under the Finance Documents.

 

9.9 Replacement of a Lender

 

  (a) If at any time:

 

  (i) an Obligor becomes obliged to repay any amount in accordance with Clause 9.1 (Illegality) or to pay additional amounts pursuant to Clause 14.2 (Tax gross-up) or Clause 15.1 (Increased costs) to any Lender in excess of amounts payable to the other Lenders generally;

 

41


EXECUTION VERSION

 

  (ii) any Lender becomes a Non-Consenting Lender (as defined in paragraph (c) below); or

 

  (iii) any Lender has become and continues to be a Defaulting Lender,

then the Obligors’ Agent may, on not less than ten Business Days’ prior written notice to the Agent and such Lender or its Affiliate:

 

  (A) replace such Lender or its Affiliate by requiring such Lender or its Affiliate (in its capacity as a Lender and/or Hedge Counterparty) to (and such Lender shall or shall procure that its Affiliate shall) transfer pursuant to Clause 25 (Changes to the Lenders):

 

  (1) all (and not part only) of its rights and obligations under this Agreement (“Loan Participation”); and

 

  (2) (if the Lender or its Affiliate is a Hedge Counterparty) all of its rights and obligations under any Hedging Agreement (“Hedge Participation”); or

 

  (B) (if the Lender is a Defaulting Lender) require such Lender to (and such Lender shall) transfer pursuant to Clause 25 (Changes to the Lenders) all (and not part only) of the undrawn Commitment of the Lender; or

 

  (C) (if the Lender is a Defaulting Lender) require such Lender to (and such Lender shall) transfer pursuant to Clause 25 (Changes to the Lenders) all (and not part only) of its rights and obligations in respect of the Facility,

in each case, to a Lender or other bank, financial institution, trust, fund or other entity (a “Replacement Lender”) nominated by the Obligors’ Agent, 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 Loan Participations and Hedge Participations of the transferring Lender and/or its Affiliate (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). The Loan Participation shall be transferred 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 Loans and all accrued interest, fees, Break Costs and other amounts payable in relation thereto under the Finance Documents. The Hedge Participation shall be transferred for a purchase price (which may be negative) based upon the Section 6(e) methodology in the relevant Hedging Agreement with the Obligor as the sole “Affected Party”; or

 

  (D)     

 

  (1) Subject to Sub-clause (D)(2) of this Clause, prepay and cancel all (but not part only) of such Non-Consenting Lender’s participation in the Facility and pay to that Non-Consenting Lender all interest, fees, costs and other amounts due to the Non-Consenting Lender under or in connection with the Finance Documents.

 

  (2) If the Non-Consenting Lender is a Hedge Counterparty the Hedge Participations of that Non-Consenting Lender shall at the same time as the cancellation referred to in Sub-clause (D)(1) of this Clause be transferred to a Replacement Lender nominated by the Obligors’ Agent, and which (unless the Agent is an Impaired Agent) is acceptable to the Agent (acting reasonably), and which confirms its willingness to assume and does assume all the Hedge Participations of the relevant Non-Consenting Lender.

 

42


EXECUTION VERSION

 

  (b) The replacement or prepayment and cancellation of a Lender pursuant to this Clause 9.9 shall be subject to the following conditions:

 

  (i) the Obligors’ Agent shall have no right to replace the Agent or Security Trustee;

 

  (ii) neither the Agent nor the Lender shall have any obligation to the Obligors’ Agent to find a Replacement Lender;

 

  (iii) in the event of a replacement or prepayment and cancellation of a Non-Consenting Lender (as defined in paragraph (c) below) such replacement or prepayment and cancellation must take place no later than 180 days after the date the Non-Consenting Lender notifies the Obligors’ Agent and the Agent of its failure or refusal to agree to any consent, waiver or amendment to the Finance Documents requested by the Obligors’ Agent;

 

  (iv) in the event of a replacement of a Defaulting Lender, such replacement must take place no later than 20 Business Days after the notice referred to in paragraph (a) above; and

 

  (v) in no event shall the Lender replaced or prepaid and cancelled under this paragraph (b) be required to pay or surrender to such Replacement Lender (or any other Party) any of the fees received by such Lender pursuant to the Finance Documents.

 

  (c) In the event that:

 

  (i) the Obligors’ Agent or the Agent (at the request of the Obligors’ Agent) has requested the Lenders to consent to a waiver or amendment of any provisions of the Finance Documents;

 

  (ii) the waiver or amendment in question requires the consent of all the Lenders; and

 

  (iii) provided that the Lenders whose Commitments (and for this purpose the amount of any Lender’s Commitments shall not be reduced by the amount of its Ancillary Commitments) aggregate 80 per cent. of the Total Commitments (or if the Total Commitments have been reduced to zero, aggregated at least 80 per cent. of the Total Commitments immediately prior to that reduction) have consented to such waiver or amendment,

then any Lender who does not and continues not to agree to such waiver or amendment shall be deemed a “Non-Consenting Lender”.

 

  (d) (i) For so long as a Defaulting Lender has any Available Commitment, in ascertaining the Majority Lenders or Super 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.

 

  (ii) For the purposes of this Clause 9.9, the Agent may assume that the following Lenders are Defaulting Lenders:

 

  (A) any Lender which has notified the Agent that it has become a Defaulting Lender;

 

  (B) 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,

 

43


EXECUTION VERSION

 

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.

 

9.10 Right of cancellation in relation to a Defaulting Lender

 

  (a) If any Lender becomes a Defaulting Lender, the Obligors’ Agent may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent ten Business Days’ notice of cancellation of each Available Commitment of that Lender.

 

  (b) On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

  (c) The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

 

9.11 Restrictions

 

  (a) Any notice of cancellation and/or prepayment given by any Party under this Clause 9 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 provided that (i) a notice of cancellation under Clause 9.6 (Voluntary cancellation) and/or a notice of prepayment under Clause 9.7 (Voluntary prepayment) may be conditional and (ii) may be revoked by the Company by giving notice to the Agent at least one Business Day prior to the specified date of prepayment and/or cancellation, provided further that the Company shall within 5 Business Days’ of written notice from the Agent pay any Lender in respect, and in the amount, of such Lenders’ Break Costs as specified in such notice should such voluntary cancellation and/or prepayment not occur on the date specified in the notice of cancellation and/or prepayment.

 

  (b) Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

 

  (c) Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid pursuant to clause 9.4 (Voluntary prepayment of Loans) may be reborrowed in accordance with the terms of this Agreement.

 

  (d) The Borrower shall not repay or prepay all or any part of a Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

  (e) Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

  (f) If the Agent receives a notice under this Clause 9 it shall promptly forward a copy of that notice to either the Obligors’ Agent or the affected Lender, as appropriate.

 

9.12 Application of prepayments

Any prepayment of a Loan (other than a prepayment pursuant to Clause 9.1 (Illegality) or Clause 9.8 (Right of cancellation and repayment in relation to a single Lender)) shall be applied pro rata to each Lender’s participation in that Loan.

 

44


EXECUTION VERSION

 

9.13 Trapped Cash

If:

 

  (a) monies are required to be applied in prepayment or repayment of the Facility under this Clause 9 (other than Clause 9.1 (Illegality), Clause 9.2 (Change of control or sale of assets) or Clause 9.3(b)(iii) (Asset Sale proceeds, Insurance proceeds and Financing Proceeds)) but in order to be so applied need to be upstreamed or otherwise transferred from one member of the Group to another member of the Group to effect such payment; and

 

  (b) such monies cannot be so upstreamed or transferred without a material risk of breaching a financial assistance prohibition or some other legal restriction (including, without limitation, capital maintenance and/or corporate benefit restrictions on upstreaming cash intra-Group and the fiduciary and statutory duties of the directors of any member of the Group) or without the Group incurring a material cost (whether as a result of paying additional Taxes or otherwise),

there will be no obligation to make such payment or prepayment, or to place such sums in a Mandatory Prepayment Account, until such impediment no longer applies provided that, at all times the Company will (and will procure the relevant member of the Group will):

 

  (i) use reasonable endeavours to avoid or overcome such impediment as soon as possible; and

 

  (ii) use other available cash in the Group which is not affected by such impediment to prepay an equivalent amount, to the extent that to do so would not be prejudicial in a material respect to the financial liquidity of the Group or give rise to any of the issues referred to in sub-paragraphs (a) and (b) above.

For the purposes of this Clause 9.13 only, “material cost” is defined as 5% or more of the amount of such prepayment at that time and “material risk” means circumstances in which reputable counsel of the Group has advised that such prepayment (or the making of such proceeds available to another member of the Group) will present a material risk of liability for the entity concerned, or its directors or officers.

 

9.14 Existing SSRCF

If the Existing SSRCF is fully cancelled and repaid or prepaid prior to the Termination Date, the Company shall promptly notify the Agent upon the occurrence of such event, whereupon (i) the Facility will be cancelled and all outstanding Utilisations and Ancillary Outstandings, together with accrued interest, and all other amounts accrued under the Finance Documents, shall become due and payable three Business Days’ after such notification, and (ii) with immediate effect, a Lender shall be under no obligation to fund a Loan pursuant to any Utilisation Request.

 

10. INTEREST

 

10.1 Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

  (a) Margin; and

 

  (b) EURIBOR.

 

45


EXECUTION VERSION

 

10.2 Payment of interest

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than three Months, on the dates falling at three-Monthly intervals after the first day of the Interest Period).

 

10.3 Default interest

 

  (a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 100 basis points 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 10.3 shall be immediately payable by the Obligor on demand by the Agent. For the purposes of calculating the rate of interest applicable under this Clause on any amount that is overdue on or following the Termination Date, the applicable Margin shall be the Margin that would have been applicable to that overdue amount had it constituted a Loan on the Termination Date.

 

  (b) If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

  (i) the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

  (ii) the rate of interest applying to the overdue amount during that first Interest Period shall be 100 basis points higher than the rate which would have applied if the overdue amount had not become due.

 

  (c) Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

10.4 Notification of rates of interest

 

  (a) The Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.

 

  (b) The Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.

 

11. INTEREST PERIODS

 

11.1 Selection of Interest Periods

 

  (a) The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan.

 

  (b) Subject to this Clause 11, the Borrower may select an Interest Period for a Loan of one, two, three or six Months or any other period agreed between the Borrower and the Agent (acting on the instructions of all the Lenders).

 

  (c) An Interest Period for a Loan shall not extend beyond the Termination Date.

 

  (d) Each Interest Period for a Loan shall start on the Utilisation Date.

 

  (e) A Loan has one Interest Period only.

 

46


EXECUTION VERSION

 

11.2 Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

12. CHANGES TO THE CALCULATION OF INTEREST

 

12.1 Unavailability of Screen Rate

 

  (a) Interpolated Screen Rate: If no Screen Rate is available for EURIBOR for the Interest Period of a Loan, the applicable EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

 

  (b) Base Reference Bank Rate: If no Screen Rate is available for EURIBOR for:

 

  (i) the currency of a Loan; or

 

  (ii) the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable EURIBOR shall be the Base Reference Bank Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.

 

  (c) Cost of funds: If paragraph (b) above applies but no Base Reference Bank Rate is available for the relevant currency or Interest Period there shall be no EURIBOR for that Loan and Clause 12.4 (Cost of funds) shall apply to that Loan for that Interest Period.

 

12.2 Calculation of Base Reference Bank Rate

 

  (a) Subject to paragraph (b) below, if EURIBOR is to be determined on the basis of a Base Reference Bank Rate but a Base Reference Bank does not supply a quotation by the Specified Time, the Base Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Base Reference Banks.

 

  (b) If at or about noon on the Quotation Day none or only one of the Base Reference Banks supplies a quotation, there shall be no Base Reference Bank Rate for the relevant Interest Period.

 

12.3 Market disruption

If before close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notifications from not less than two Lenders (whose participations in a Loan exceed thirty-five per cent. (35%) of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of EURIBOR then Clause 12.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

 

12.4 Cost of funds

 

  (a) If this Clause 12.4 applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

  (i) the Margin; and

 

  (ii)

the rate notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling one (1) Business Day after the Quotation Day (or, if earlier, on the date falling one (1) Business Day before the date on which

 

47


EXECUTION VERSION

 

  interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

  (b) If this Clause 12.4 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing a substitute basis for determining the rate of interest.

 

  (c) Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

 

  (d) If this Clause 12.4 applies pursuant to Clause 12.3 (Market disruption), and

 

  (i) a Lender’s Funding Rate is less than EURIBOR; or

 

  (ii) a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,

the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be EURIBOR.

 

12.5 Notification to Company

If Clause 12.4 (Cost of funds) applies the Agent shall, as soon as is practicable, notify the Company.

 

12.6 Break Costs

 

  (a) The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

  (b) Each Lender shall, together with its demand, provide a certificate to the Agent confirming the amount and basis of calculation of its Break Costs for any Interest Period in which they accrue.

 

13. FEES

 

13.1 Commitment Fee

 

  (a) The Company shall pay (or procure the payment) to the Agent (for the account of each Lender) a fee in the Base Currency computed at the rate of thirty-five per cent. (35%) of the applicable Margin on that Lender’s Available Commitment for the Availability Period.

 

  (b) The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period and on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

 

13.2 Upfront Fee

The Company shall pay (or procure the payment of) an upfront fee in the amount and at the times agreed in a Fee Letter.

 

13.3 Agency Fee

The Company shall pay (or procure the payment of) to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

48


EXECUTION VERSION

 

13.4 Security Trustee Fee

The Company shall pay (or procure the payment) to the Security Trustee (for its own account) a fee in the amount and at the times agreed in a Fee Letter.

 

13.5 Interest, commission and fees on Ancillary Facilities

The rate and time of payment of interest, commission, fees and any other remuneration in respect of each Ancillary Facility shall be determined by agreement between the relevant Ancillary Lender and the Borrower of that Ancillary Facility based upon normal market rates and terms.

 

14. TAX GROSS-UP AND INDEMNITIES

 

14.1 Definitions

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.

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 an Obligor to a Finance Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax indemnity).

 

14.2 Tax gross-up

 

  (a) Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

  (b) The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the 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 and the relevant Obligor.

 

  (c) If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

  (d)     

 

  (i) If an Obligor is required to make a Tax Deduction, that Obligor 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.

 

49


EXECUTION VERSION

 

  (ii) Without limiting the generality of the foregoing, in relation to a Guarantor resident for tax purposes in Spain (for purposes of this paragraph (d), a “Spanish Guarantor”), a Spanish Guarantor is not required to make any increased payment to a Protected Party under paragraph (c) above by reason of a Tax Deduction imposed by a tax authority located in Spain if, and to the extent that:

 

  (A) the Protected Party is not resident for tax purposes in Spain;

 

  (B) the Protected Party is entitled to an exemption or reduced tax rate in Spain under domestic Spanish Law or any applicable treaty for the avoidance of double taxation on income taxes ratified by Spain;

 

  (C) when such Tax Deduction is made, that Protected Party has not provided to such Spanish Guarantor a certificate of tax residency or any other procedural formality required by law in order for such Spanish Guarantor to benefit from an exemption or reduced rate on any Tax imposed by Spain on any payment made by the Spanish Guarantor under a Finance Document to that Protected Party; and

 

  (D) the Spanish Guarantor has duly required that Protected Party (in not less than thirty Business Days’ before any payment is due and through the Agent) to deliver a certificate of tax residency or such other procedural formality. Otherwise, payments to that Protected Party are entitled to increased payments under paragraph (c) above if a Tax Deduction is required by law to be made by a Spanish Guarantor.

In case the Protected Party is entitled to an exemption or reduced tax rate under the Spanish Non-Resident Income Tax Law or a treaty for the avoidance of double taxation on income taxes ratified by Spain, the requirement of delivery of a certificate of tax residency is currently limited to the delivery to such Spanish Guarantor, at such Spanish Guarantor’s timely request and through the Agent of (x) a tax residence certificate duly issued by the tax authorities of such Protected Party’s jurisdiction of tax residence evidencing that such Protected Party is resident for tax purposes therein or, (y) if such Protected Party is resident in a jurisdiction that has entered into a treaty for the avoidance of double taxation on income taxes with Spain, a tax residence certificate duly issued by the tax authorities of its jurisdiction of residence evidencing that such Protected Party is resident for tax purposes therein for the purposes of the applicable tax treaty, in both cases issued at a date that is not earlier than one year prior to the date a payment is due by such Spanish Guarantor.

 

  (iii) The tax residence certificates referred to in sub-paragraph (ii) above generally expire after a period of one year from the date of such certificate’s issuance. Therefore, the relevant Spanish Guarantor may request from time to time from the relevant Protected Party the supply of a renewed tax residence with the same content of the certificate provided pursuant to sub-paragraph (ii) above, provided that the relevant tax residence certificate has expired (or will be deemed to have expired at the time the relevant payment is due) and therefore become invalid for Spanish tax purposes.

 

  (e) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a valid original certificate of deduction of Tax or if unavailable such other 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.

 

14.3 Tax indemnity

 

  (a) Except as provided in (b) below, the Company shall (within three 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 (in its absolute discretion) has been or will be (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

50


EXECUTION VERSION

 

  (b) Paragraph (a) above shall not apply:

 

  (i) with respect to any Tax assessed on a Finance Party:

 

  (A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

  (B) under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

  (ii) to the extent a loss, liability or cost:

 

  (A) is compensated for by an increased payment under Clause 14.2 (Tax gross-up); or

 

  (B) relates to a FATCA Deduction required to be made by a Party.

 

  (c) A Protected Party making, or intending to make a claim under paragraph (a) above 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 an Obligor under this Clause 14.3, notify the Agent.

 

14.4 Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines (in its absolute discretion) that:

 

  (a) a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

  (b) that Finance Party has obtained and utilised that Tax Credit on an affiliated group basis,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines (in its absolute discretion) will leave it (after that payment) in the same after-Tax position as it would have been in had the Obligor not been required to make the Tax Payment.

 

14.5 Stamp taxes

The Company shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, stamp duty reserve, documentary, registration and other similar Taxes payable in respect of any Finance Document.

 

14.6 Value added tax

 

  (a)

All amounts set out, or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and

 

51


EXECUTION VERSION

 

  accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party shall pay to such Finance Party (in addition to and at the same time as paying the consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).

 

  (b) If VAT is 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):

 

  (i) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

  (ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

  (c) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

  (d) Any reference in this Clause 14.6 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated as making the supply, or (as appropriate) receiving the supply, under grouping rules as provided for in Article 11 of the Council Directive 2006/112/EC (or as implemented by a member state of the European Union).

 

  (e) In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

 

14.7 FATCA Information

 

  (a) Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

  (i) confirm to that other Party whether it is:

 

  (A) a FATCA Exempt Party; or

 

  (B) not a FATCA Exempt Party; and

 

52


EXECUTION VERSION

 

  (ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

 

  (iii) 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.

 

  (b) If a Party confirms to another Party pursuant to paragraph (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) Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

  (i) any law or regulation;

 

  (ii) any fiduciary duty; or

 

  (iii) any duty of confidentiality.

 

  (d) 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 paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (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.

 

  (e) If the Borrower is a US Tax Obligor, or where the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

 

  (i) where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

 

  (ii) where the Borrower is a US Tax Obligor on a Transfer Date or date on which an increase in Commitments takes effect pursuant to Clause 2.2 (Increase) and the relevant Lender is a New Lender, the relevant Transfer Date or date on which an increase in Commitments takes effect pursuant to Clause 2.2 (Increase); or

 

  (iii) where the Borrower is not a US Tax Obligor, the date of a request from the Agent,

supply to the Agent:

 

  (A) a withholding certificate on Form W-8 or Form W-9 (or any successor form) (as applicable); or

 

  (B) any withholding statement and other documentation, authorisations and waivers as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

 

  (f) The Agent shall provide any withholding certificate, withholding statement, documentation, authorisations and waivers it receives from a Lender pursuant to this paragraph (e) to the Borrower.

 

53


EXECUTION VERSION

 

  (g) If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.

 

  (h) The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above

 

14.8 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.

 

15. INCREASED COSTS

 

15.1 Increased costs

 

  (a) Subject to Clause 15.3 (Exceptions) the Company shall (or shall procure that an Obligor will), within three 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 Affiliates as a result of

 

  (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or

 

  (ii) compliance with any law or regulation made after the date of this Agreement (including, for the avoidance of doubt, any law or regulation in relation to the implementation or application of, or compliance with, Basel III or to the extent that it relates to Basel III, CRD IV or any law or regulation that implements or applies Basel III or CRD IV to the extent that it relates to Basel III to the extent enacted after the date of this Agreement).

 

  (b) In this Agreement:

Increased Costs” means:

 

  (i) a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

 

  (ii) an additional or increased cost; or

 

  (iii) a reduction of any amount due and payable under any Finance Document,

 

54


EXECUTION VERSION

 

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or an Ancillary Commitment or funding or performing its obligations under any Finance Document.

Basel III” means:

 

  (i) 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; and

 

  (ii) any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

CRD IV” means:

 

  (i) 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

 

  (ii) 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, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.

 

15.2 Increased cost claims

 

  (a) A Finance Party intending to make a claim pursuant to Clause 15.1 (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, together with its demand, provide a certificate to the Agent confirming the amount and basis of calculations of its Increased Costs.

 

15.3 Exceptions

 

  (a) Clause 15.1 (Increased costs) does not apply to the extent any Increased Cost is:

 

  (i) attributable to a Tax Deduction required by law to be made by an Obligor;

 

  (ii) attributable to a FATCA Deduction required to be made by a Party;

 

  (iii) compensated for by Clause 14.3 (Tax indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 14.3 (Tax indemnity) applied);

 

  (iv) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation or the gross negligence of any of them; 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 Basel III) (“Basel II”) or any other law or regulation which

 

55


EXECUTION VERSION

 

  implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates) (but excluding for the avoidance of doubt, any amendment arising out of Basel III and/or CRD IV (in each case, unless a Finance Party was or reasonably should have been aware of such Increased Cost on the date on which it became a Finance Party under this Agreement)).

 

  (b) In this Clause 15.3, a reference to a “Tax Deduction” has the same meaning given to the term in Clause 14.1 (Definitions).

 

16. OTHER INDEMNITIES

 

16.1 Currency indemnity

 

  (a) If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

 

  (i) making or filing a claim or proof against that Obligor;

 

  (ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Secured Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

  (b) Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

 

16.2 Other indemnities

The Company shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Secured Party and each Arranger against any cost, loss or liability incurred by that Secured Party or Arranger as a result of:

 

  (a) the occurrence of any Event of Default;

 

  (b) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 29 (Sharing among the Finance Parties);

 

  (c) funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

 

  (d) a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.

 

56


EXECUTION VERSION

 

16.3 Indemnity to the Agent

 

  (a) The Company shall (or shall procure that an Obligor will) promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (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; or

 

  (iii) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and

 

  (b) any cost, loss or liability incurred by the Agent in acting as Agent under the Finance Documents.

 

16.4 Indemnity to the Security Trustee

 

  (a) Each Obligor shall promptly indemnify the Security Trustee and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

 

  (i) any failure by the Company to comply with its obligations under Clause 18 (Costs and Expenses);

 

  (ii) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

 

  (iii) the taking, holding, protection or enforcement of the Transaction Security;

 

  (iv) the exercise of any of the rights, powers, discretions and remedies vested in the Security Trustee and each Receiver and Delegate by the Finance Documents or by law;

 

  (v) any Default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; and

 

  (vi) acting as Security Trustee, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Charged Property (otherwise in each case, then by reason of the relevant Security Trustee’s, Receiver’s or Delegate’s gross negligence or wilful misconduct).

 

  (b) The Security Trustee and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 16.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.

 

  (c) Each Obligor expressly acknowledges and agrees that the continuation of its indemnity obligations under this Clause 16.4 will not be prejudiced by any release or disposal under Clause 14.2 (Distressed Disposals) of the Intercreditor Agreement (taking into account the operation of that Clause).

 

57


EXECUTION VERSION

 

17. MITIGATION BY THE LENDERS

 

17.1 Mitigation

 

  (a) Each Finance Party shall, in consultation with the Obligors’ Agent, take all reasonable steps to mitigate any circumstances which arise and which would result in the Facility ceasing to be available or any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 (Illegality), Clause 14 (Tax gross-up and indemnities) or Clause 15 (Increased costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

  (b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

 

17.2 Limitation of liability

 

  (a) The Company shall (or shall procure that an Obligor will) 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 17.1 (Mitigation).

 

  (b) A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

18. COSTS AND EXPENSES

 

18.1 Transaction expenses

The Company shall (or shall procure that an Obligor will) promptly on demand pay the Agent, each Arranger, the Security Trustee the amount of all costs and expenses (including, but not limited to, legal fees, subject to any agreed cap) reasonably incurred by any of them (and, in the case of the Security Trustee, by any Receiver or Delegate) in connection with the negotiation, preparation, printing, execution and perfection of:

 

  (a) this Agreement and any other documents referred to in this Agreement and the Transaction Security; and

 

  (b) any other Finance Documents executed after the date of this Agreement.

 

18.2 Amendment costs

If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 30.9 (Change of currency), the Company shall (or shall procure that an Obligor will), within three Business Days of demand, reimburse each of the Agent and the Security Trustee for the amount of all costs and expenses (including, but not limited to, legal fees, subject to any agreed cap) reasonably incurred by the Agent, the Security Trustee (and in the case of the Security Trustee, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.

 

18.3 Enforcement and preservation costs

The Company shall (or shall procure that an Obligor will), within three Business Days of demand, pay to each Secured Party the amount of all costs and expenses (including, but not limited to, legal fees) incurred by that Secured 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 Security Trustee as a consequence of taking or holding the Transaction Security or enforcing these rights.

 

58


EXECUTION VERSION

 

19. GUARANTEE AND INDEMNITY

 

19.1 Guarantee and indemnity

Each Guarantor irrevocably and unconditionally jointly and severally:

 

  (a) guarantees to each Finance Party punctual performance by each other Obligor of all the Obligors’ obligations under the Finance Documents;

 

  (b) undertakes with each Finance Party that whenever another Obligor does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

 

  (c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 19 if the amount claimed had been recoverable on the basis of a guarantee.

 

19.2 Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

 

19.3 Reinstatement

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 19 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

19.4 Waiver of defences

The obligations of each Guarantor under this Clause 19 will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 19 (without limitation and whether or not known to it or any Finance Party) including:

 

  (a) any time, waiver or consent granted to, or composition with, any Obligor or other person;

 

  (b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

  (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

  (d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

 

59


EXECUTION VERSION

 

  (e) any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Finance Document or other document or security;

 

  (f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;

 

  (g) any insolvency or similar proceedings; or

 

  (h) any benefit (beneficio) under Spanish Law, including but not limited, benefits of prior exhaustion of the main debtor’s assets (excusión), division (división) and order (orden), which shall not in any event apply.

 

19.5 Guarantor intent

Without prejudice to the generality of Clause 19.4 (Waiver of defences), each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents including, but not limited to, for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

19.6 Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 19. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

19.7 Appropriations

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

 

  (a) refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

 

  (b) hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 19.

 

19.8 Deferral of Guarantors’ rights

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 19:

 

  (a) to be indemnified by an Obligor;

 

60


EXECUTION VERSION

 

  (b) to claim any contribution from any other Guarantor of any Obligor’s obligations under the Finance Documents;

 

  (c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

 

  (d) to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 19.1 (Guarantee and indemnity);

 

  (e) to exercise any right of set-off against any Obligor; and/or

 

  (f) to claim or prove as a creditor of any Obligor in competition with any Finance Party.

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 30 (Payment Mechanics) of this Agreement.

 

19.9 Release of Guarantors’ right of contribution

If any Guarantor (a “Retiring Guarantor”) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

 

  (a) that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

 

  (b) each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

 

19.10 Additional security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

 

19.11 Dutch Guarantee Limitation

Notwithstanding any other provision of this Clause 19 the guarantee, indemnity and other obligations of any Dutch Obligor expressed to be assumed in this Clause 19 shall be deemed not to be assumed by such Dutch Obligor to the extent that the same would constitute unlawful financial assistance within the meaning of Article 2:98c Dutch Civil Code or any other applicable financial assistance rules under any relevant jurisdiction (the “Prohibition”) and the provisions of this Agreement and the other Finance Documents shall be construed accordingly. For the avoidance of doubt it is expressly acknowledged that the relevant Dutch Obligors will continue to guarantee all such obligations which, if included, do not constitute a violation of the Prohibition.

 

61


EXECUTION VERSION

 

19.12 Limitation

This guarantee does not apply to any liability to the extent that it would result in this guarantee being illegal or contravening any applicable law or regulation in the jurisdiction of a Guarantor concerning financial assistance by that Guarantor for the acquisition of, or subscription for, shares and with respect to any Required Guarantor or Additional Guarantor is subject to any limitation set out in the Accession Letter applicable to such Required Guarantor or Additional Guarantor.

 

20. REPRESENTATIONS

Each Obligor makes the representations and warranties set out in this Clause 20 to each Finance Party on the dates set out in Clause 20.28 (Time when representations made) (in the case of any Obligor other than the Company, only in relation to itself and its Subsidiaries and, in the case of the Company, in respect of itself and its Subsidiaries).

 

20.1 Status

 

  (a) It and each of its Subsidiaries is a limited liability company or a corporation, duly incorporated and validly existing under the law of its respective jurisdiction of incorporation.

 

  (b) It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

 

20.2 Binding obligations

 

  (a) The obligations expressed to be assumed by it in each Finance Document are, subject to any general principles of law as at the date of this Agreement limiting its obligations that are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the Obligors) and perfection requirement referred to in the relevant Legal Opinion, legal, valid, binding and enforceable obligations; and

 

  (b) (without limiting the generality of paragraph (a) above) save, where applicable, for the filing of necessary or appropriate registrations of the Transaction Security Documents with the appropriate registries in each Relevant Jurisdiction each Transaction Security Document to which it is a party creates the Security which that Transaction Security Document purports to create and that Security is valid and effective.

 

20.3 Non-conflict with other obligations

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents and the granting of the Transaction Security do not and will not conflict with:

 

  (a) any material law or regulation applicable to it;

 

  (b) the constitutional documents of it or any of its Subsidiaries; or

 

  (c) any agreement or instrument binding upon it or any member of the Group or any of its or any member of the Group’s assets or constitute a default or termination event (however described) under any such agreement or instrument in a manner which has or is reasonably likely to have a Material Adverse Effect.

 

20.4 Power and authority

 

  (a) It 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) No limit on its powers will be exceeded as a result of the borrowing, grant of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.

 

62


EXECUTION VERSION

 

20.5 Validity and admissibility in evidence

 

  (a) All Authorisations required or desirable:

 

  (i) to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

 

  (ii) to make the Finance Documents to which it is a party admissible in evidence in each Relevant Jurisdiction (save, where applicable, for the filing of necessary or appropriate registrations of the Transaction Security Documents with the appropriate registries in each Relevant Jurisdiction),

have been obtained or effected and are in full force and effect.

 

  (b) All Authorisations necessary for the conduct of its and its Subsidiaries’ trade and ordinary activities have been obtained or effected and are in full force and effect if failure to obtain or effect those Authorisations has or is reasonably likely to have a Material Adverse Effect.

 

20.6 Governing law and enforcement

 

  (a) The choice of governing law of each of the Finance Documents will be recognised and enforced in its Relevant Jurisdiction, subject to any general principles of law as at the date of this Agreement limiting its obligations that are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the Obligors).

 

  (b) Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in each Relevant Jurisdiction, subject to any general principles of law as at the date of this Agreement limiting its obligations that are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the Obligors).

 

20.7 Insolvency

No:

 

  (a) corporate action, legal proceeding or other procedure or step described in Clause 24.7 (Insolvency proceedings); or

 

  (b) creditors’ process described in Clause 24.8 (Creditors’ process),

has been taken or, to its knowledge, threatened in relation to it or any of its Subsidiaries; and none of the circumstances described in Clause 24.6 (Insolvency) applies to it and its Subsidiaries.

 

20.8 Deduction of Tax

It is not required to make any deduction for or on account of Tax from any payment it may make under any Finance Document.

 

20.9 No filing or stamp taxes

Subject to general principles of law as at the date of this Agreement limiting its obligations, which are specifically referred to in any Legal Opinion, under the law of each Relevant Jurisdiction it is not

 

63


EXECUTION VERSION

 

necessary 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, except any filing, recording or enrolling or any tax or fee payable in relation to any Finance Document which is referred to in any Legal Opinion and which will be made or paid promptly after the date of the relevant Finance Document.

 

20.10 No default

 

  (a) No Event of Default and, on the date of this Agreement, no Default is continuing or would reasonably be expected to result from the making of any Utilisation or its entry into, its performance of, or any transaction contemplated by, any Finance Document.

 

  (b) No other event or circumstances is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject which has or is reasonably likely to have a Material Adverse Effect.

 

20.11 No misleading information

 

  (a) The Business Plan and underlying assumptions in developing the financial projections and forecasts have been prepared on the basis of recent historical information and, to the best of our knowledge, are fair and based on reasonable assumptions, including projects that have been approved by the managing board of the Company and other projects being considered by management, generally in support of the customer and anticipated growth requirements of the business.

 

  (b) The expressions of opinion or intention provided by or on behalf of an Obligor for the purposes of the Business Plan were made after careful consideration and (as at the date of the Business Plan) were fair and based on reasonable grounds.

 

  (c) No event or circumstance has occurred or arisen and no information has been omitted from the Business Plan and no information has been given or withheld that results in the information, opinions, intentions, forecasts or projections contained in the Business Plan being untrue or misleading in any material respect it being understood that projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Group and that no assurances can be given that such projections can be realised.

 

  (d) Any written factual information provided by or on behalf of any Obligor in relation to the Finance Documents was true and accurate in all material respects as at the date it was provided and is not misleading in any respect.

 

20.12 Financial statements

 

  (a) The Original Financial Statements were prepared in accordance with the Accounting Principles consistently applied.

 

  (b) Its unaudited Original Financial Statements fairly represent its financial condition and results of operations (consolidated in the case of the Company) for each relevant month.

 

  (c) Its audited Original Financial Statements give a true and fair view of its financial condition and results of operations (consolidated in the case of the Company) during the relevant financial year.

 

64


EXECUTION VERSION

 

  (d) Its most recent financial statements delivered pursuant to Clause 21.1 (Financial statements):

 

  (i) have been prepared in accordance with the Accounting Principles as applied to the Original Financial Statements; and

 

  (ii) give a true and fair view (if audited) or fairly present (if unaudited) its consolidated financial condition as at the end of, and consolidated results of operations for, the period to which they relate.

 

  (e) The budgets and forecasts supplied under this Agreement were arrived at after careful consideration and have been 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) There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Company) since 31 December 2015.

 

20.13 No proceedings pending or threatened

No litigation, arbitration, administrative proceedings or investigations of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against it or any of its Subsidiaries (or against any of their respective directors).

 

20.14 No breach of laws

 

  (a) It has not (and none of its Subsidiaries has) breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.

 

  (b) No labour disputes are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against it or any of its Subsidiaries which have or are reasonably likely to have a Material Adverse Effect.

 

20.15 Environmental laws

 

  (a) It and each of its Subsidiaries is in compliance with Clause 23.3 (Environmental compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or is reasonably likely to have a Material Adverse Effect.

 

  (b) No Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against it or any of its Subsidiaries where that claim has or is reasonably likely, if determined against that member of the Group, to have a Material Adverse Effect.

 

20.16 Taxation

 

  (a) It is not (and none of its Subsidiaries is) materially overdue in the filing of any Tax returns and it is not (and none of its Subsidiaries is) overdue in the payment of any amount in respect of Tax of Euro 500,000 (or its equivalent in any other currency) or more.

 

  (b) No claims, audits or investigations are being, or are reasonably likely to be, made or conducted against it (or any of its Subsidiaries) with respect to Tax which would result, or be reasonably likely to result, in liabilities of or claims against any members of the Group which would have a Material Adverse Effect.

 

  (c) It is resident for Tax purposes only in the jurisdiction of its incorporation.

 

65


EXECUTION VERSION

 

20.17 Security and Financial Indebtedness

 

  (a) No Security or Quasi-Security exists over all or any of the present or future assets of it or any of its Restricted Subsidiaries other than as not prohibited by this Agreement.

 

  (b) Neither it nor any of its Restricted Subsidiaries has any Financial Indebtedness outstanding other than as not prohibited by this Agreement.

 

20.18 Ranking

 

  (a) Its 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.

 

  (b) The Transaction Security has or will have:

 

  (i) first ranking priority and it is not subject to any prior ranking or pari passu ranking Security; or

 

  (ii) second ranking or other lower ranking (or similar under local law) priority to the Security granted in favour of the Existing SSRCF and Notes (as defined in Schedule 13 (New York Law Undertaking)) but will rank pari passu with the Notes in accordance with the terms of the Intercreditor Agreement,

subject, in each case, to any pledges a German account bank may have over the accounts held with that German account bank pursuant to its general business conditions.

 

20.19 Good title to assets

It and each of its Subsidiaries has a good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted.

 

20.20 Legal and beneficial ownership

It and each of its Subsidiaries is the sole legal and beneficial owner of the respective assets over which it purports to grant Security free from any claims, third party rights or competing interests.

 

20.21 Shares

The shares of any of its Subsidiaries which are (or will be no later than the Required Guarantor Accession Date) subject to the Transaction Security are fully paid and not subject to any option to purchase or similar rights and are free from any charges, liens, encumbrances, third party rights, options, any statutory or contractual restrictions to their transfer save for (i) the “Transaction Security Documents” (as defined in the Existing SSRCF); and (ii) any share transfer restrictions (blokkeringsregeling) pursuant to section 2:195 of the Dutch Civil Code. The constitutional documents of any of its Subsidiaries whose shares are subject to the Transaction Security do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Transaction Security. There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share or loan capital of any member of the Group (including any option or right of pre-emption or conversion).

 

66


EXECUTION VERSION

 

20.22 Intellectual Property

It and each of its Subsidiaries:

 

  (a) is the sole legal and beneficial owner of or has licensed to it all the Intellectual Property which is material in the context of its business and which is required by it in order to carry on its business as it is being conducted and as contemplated in the Business Plan;

 

  (b) does not (nor does any of its Subsidiaries), in carrying on its businesses, infringe any Intellectual Property of any third party in any respect which has or is reasonably likely to have a Material Adverse Effect; and

 

  (c) has taken all formal or procedural actions (including payment of fees) required to maintain any material Intellectual Property owned by it.

 

20.23 Group Structure Chart

The Company represents that the Group Structure Chart delivered to the Agent pursuant to Part 1 of Schedule 2 (Conditions Precedent and Conditions Subsequent) is true, complete and accurate in all material respects and shows all minority interests in any Subsidiary of the Company.

 

20.24 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”), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its jurisdiction of incorporation and it has no “establishment” (as that term is used in Article 2(h) of the Regulations) in any other jurisdiction.

 

20.25 Pensions

 

  (a) Neither it nor any of its Subsidiaries is or has at any time been an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993).

 

  (b) Neither it nor any of its Subsidiaries is or has at any time been “connected” with or an “associate” of (as those terms are used in sections 38 and 43 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993).

 

  (c) The pension plan operated for the benefit of certain employees of Interxion (Schweiz) AG is fully funded.

 

20.26 Anti-corruption and Anti-money laundering laws

 

  (a) It and each member of the Group has conducted its business in compliance with all applicable anti-corruption and anti-money laundering laws and regulations, including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, anti-money laundering laws and regulations of the United Kingdom, the European Union, the United States and any related or similar statutes (including, but not limited to, the U.S. PATRIOT Act of 2001) (the “Anti-Corruption and Anti-Money Laundering Laws”), and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

 

  (b) Neither it nor any member of the Group will directly or knowingly (after due and careful enquiry) indirectly use the proceeds contemplated by this Agreement or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other person or entity for the purpose of financing or facilitating any activity that would violate applicable Anti-Corruption and Anti-Money Laundering Laws.

 

67


EXECUTION VERSION

 

20.27 Sanctions

 

  (a) Subject to paragraph (d) below, neither it nor any member of the Group, nor any directors or officers or, to the best of its knowledge (after due and careful enquiry), employees of it or any member of the Group:

 

  (i) is a Restricted Party;

 

  (ii) has received notice of, or is otherwise aware of, any claim, action, suit, proceedings or investigations with respect to Sanctions;

 

  (iii) is engaging or has engaged in any transaction that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or knowingly (after due and careful enquiry) indirectly, any Sanctions applicable to it; or

 

  (iv) has engaged or is engaging, directly or knowingly (after due and careful enquiry) indirectly, in any trade, business or other activities with or for the benefit of any Restricted Party in violation of Sanctions.

 

  (b) Subject to paragraph (d) below, neither it nor any member of the Group will, directly or knowingly (after due and careful enquiry) indirectly, use the proceeds contemplated by this Agreement, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity:

 

  (i) to fund or facilitate any activities or business of or with any Restricted Party or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or

 

  (ii) in any other manner that will result in a violation of Sanctions by any Party hereto.

 

  (c) Subject to paragraph (d) below, it and each member of the Group has implemented policies and procedures designed to promote and achieve compliance with Sanctions.

 

  (d) For the avoidance of doubt the obligations under this Clause 20.27 are not binding upon any member of the Group incorporated in Germany.

 

20.28 Times when representations made

 

  (a) All the representations and warranties in this Clause 20 are made by the Original Obligor on the date of this Agreement.

 

  (b) The Repeating Representations are deemed to be made by the Original Obligor and each Obligor that has acceded to this Agreement on the date of each Utilisation Request, on each Utilisation Date and on the first day of each Interest Period.

 

  (c) All the representations and warranties in this Clause 20 (except Clause 20.11 (No misleading information) and Clause 20.23 (Group Structure Chart)) are deemed to be made by each Required Guarantor or Additional Guarantor (as applicable) on the day on which it becomes (or it is proposed that it becomes) a Required Guarantor or an Additional Guarantor (as applicable).

 

  (d) Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made.

 

68


EXECUTION VERSION

 

21. INFORMATION UNDERTAKINGS

The undertakings in this Clause 21 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

In this Clause 21:

Annual Financial Statements” means the financial statements for a Financial Year delivered pursuant to paragraph (a) of Clause 21.1 (Financial statements).

Quarterly Financial Statements” means the financial statements delivered pursuant to paragraph (b) of Clause 21.1 (Financial statements).

 

21.1 Financial statements

The Company shall supply to the Agent in sufficient copies for all the Lenders:

 

  (a) as soon as they are available, but in any event within 120 days after the end of each of its Financial Years, its audited consolidated financial statements for that Financial Year; and

 

  (b) as soon as they are available, but in any event within 60 days after the end of each Financial Quarter of each of its Financial Years its consolidated financial statements for that Financial Quarter.

 

21.2 Provision and contents of Compliance Certificate

 

  (a) The Company shall supply a Compliance Certificate to the Agent with each set of its audited consolidated Annual Financial Statements and each set of its consolidated Quarterly Financial Statements. The Compliance Certificate shall, amongst other things, set out (in reasonable detail) computations as to compliance with Clause 22 (Financial Covenant).

 

  (b) Each Compliance Certificate shall be signed by two officers of the Company, one of whom shall be the Chief Financial Officer, and, in respect of the consolidated Annual Financial Statements, shall be reported on by the Company’s Auditors in the form agreed by the Company and all the Lenders before the date of this Agreement.

 

21.3 Requirements as to financial statements

 

  (a) The Company shall procure that each set of Annual Financial Statements and Quarterly Financial Statements includes a balance sheet, profit and loss account and cashflow statement. In addition the Company shall procure that each set of Annual Financial Statements shall be audited by the Auditors.

 

  (b) Each set of financial statements delivered pursuant to Clause 21.1 (Financial statements):

 

  (i) shall be certified by a managing director of the relevant company as giving a true and fair view of (in the case of Annual Financial Statements for any Financial Year), or fairly representing (in the case of Quarterly Financial Statements), its financial condition and operations as at the date as at which those financial statements were drawn up and, in the case of the Annual Financial Statements, shall be accompanied by any letter addressed to the management of the relevant company by the Auditors and accompanying those Annual Financial Statements; and

 

69


EXECUTION VERSION

 

  (ii) shall be prepared using the Accounting Principles, accounting practices and financial reference periods consistent with those applied:

 

  (A) in the case of the Company, in the preparation of its Original Financial Statements and the Business Plan; and

 

  (B) in the case of any other Obligor, in the preparation of the Original Financial Statements for that Obligor,

unless, in relation to any set of financial statements, the Company notifies the Agent that there has been a change in the Accounting Principles or the accounting practices and its Auditors (or, if appropriate, the Auditors of the Obligor) deliver to the Agent:

 

  (C) a description of any change necessary for those financial statements to reflect the Accounting Principles or accounting practices upon which the Company’s Original Financial Statements and the Business Plan or, as the case may be, that Obligor’s Original Financial Statements were prepared; and

 

  (D) sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 22 (Financial Covenant) has been complied with and to make an accurate comparison between the financial position indicated in the Company’s Original Financial Statements and the Business Plan (in the case of the Company) or that Obligor’s Original Financial Statements (in the case of an Obligor).

Any reference in this Agreement to any financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Business Plan or, as the case may be, the Original Financial Statements were prepared.

 

  (c) If the Agent wishes to discuss the financial position of any member of the Group with the Auditors, the Agent may notify the Company, stating the questions or issues which the Agent wishes to discuss with the Auditors. In this event, the Company must ensure that the Auditors are authorised (at the expense of the Company):

 

  (i) to discuss the financial position of each member of the Group with the Agent on request from the Agent; and

 

  (ii) to disclose to the Agent for the Finance Parties any information which the Agent may reasonably request.

 

  (d) At any time that any of the Company’s subsidiaries are Unrestricted Subsidiaries (as defined in Schedule 13 (New York Law Undertakings)) then the Annual Financial Statements and Quarterly Financial Statements shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries (as defined in Schedule 13 (New York Law Undertakings)) of the Company.

 

  (e) Notwithstanding any other term of this Agreement no Event of Default shall occur, or be deemed to occur, as a result of any restriction on the identity of the Auditors contained in this Agreement, being prohibited, unlawful, ineffective, invalid or unenforceable pursuant to the Audit Laws.

 

21.4 Group companies

The Company shall supply to the Agent, together with each Compliance Certificate delivered with its Annual Financial Statements, a report issued by its Auditors stating which of its Subsidiaries are Material Companies and, for Annual Financial Statements delivered on and from the date on which the

 

70


EXECUTION VERSION

 

Required Guarantors accede to this Agreement, confirming that (i) the aggregate of earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) of the Guarantors (excluding HQ) is at least equal to 85 per cent. of the consolidated Adjusted EBITDA of the Group (including HQ) and (ii) the aggregate net assets of the Guarantors (calculated on an unconsolidated basis and excluding all intra-Group items and investments in Subsidiaries of any member of the Group) is at least equal to 70 per cent. of consolidated net assets of the Group.

 

21.5 Year-end

The Company shall not change its Financial Year-end from 31 December.

 

21.6 Information: miscellaneous

The Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

 

  (a) all documents despatched by the Company to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;

 

  (b) promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group (or against the directors of any member of the Group), and which might, if adversely determined, have a Material Adverse Effect;

 

  (c) promptly, the details of any disposal or insurance claim or financing transaction which will require a prepayment and/or cancellation under Clause 9.3 (Asset Sale Proceeds, Insurance Proceeds and Financing Proceeds);

 

  (d) promptly, such further information regarding the financial condition, business, assets and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request and any documentation, certification or other information prescribed by applicable law or regulation, or reasonably requested by any Finance Party, as may be necessary for a Finance Party to comply with any applicable tax, regulatory or other requirements prescribed by law or regulation, except to the extent that disclosure of the information would breach any law, regulation, stock exchange requirement or, to the extent required by normal market practice, any duty of confidentiality;

 

  (e) promptly, such information as the Security Trustee may reasonably require about the Charged Property and compliance of the Obligors with the terms of any Transaction Security Document; and

 

  (f) such information as is required under sections 13, 13a and 18 of the German Banking Act (Kreditwesengesetz).

 

21.7 Notification of default

 

  (a) The Company shall notify the Agent of any 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 the CEO, CFO or other managing director on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

 

71


EXECUTION VERSION

 

21.8 Know your customer checks

 

  (a) If:

 

  (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

 

  (ii) any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or

 

  (iii) a proposed assignment or transfer by a Lender of any of its rights and 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) 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.

 

  (c) The Company shall, by not less than ten Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Guarantor pursuant to Clause 26 (Changes to the Obligors).

 

  (d) Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Guarantor obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the 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 on behalf of any prospective new Lender) in order for the Agent or such Lender or 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 accession of such Subsidiary to this Agreement as an Additional Guarantor.

 

22. FINANCIAL COVENANT

 

22.1 Financial definitions

In this Clause 22:

Adjusted EBITDA” means, in respect of any Relevant Period, EBIT for that Relevant Period after adding back any amount attributable to the amortisation, depreciation or impairment of assets of members of the Group (and taking no account of the reversal of any previous impairment charge made in that Relevant Period) and any share based payments.

 

72


EXECUTION VERSION

 

EBIT” means, in respect of any Relevant Period, the consolidated operating profit of the Group before taxation:

 

  (a) before deducting any Finance Charges;

 

  (b) not including any accrued interest owing to any member of the Group;

 

  (c) before taking into account any Exceptional Items;

 

  (d) before deducting any Transaction Costs;

 

  (e) after deducting the amount of any profit (or adding back the amount of any loss) of any member of the Group which is attributable to minority interests;

 

  (f) plus or minus the Group’s share of the profits or losses (after finance costs and tax) of Non-Group Entities (after deducting the amount of any profit of any Non-Group Entity to the extent that the amount of the profit included in the financial statements of the Group exceeds the amount actually received in cash by members of the Group through distributions by the Non-Group Entity);

 

  (g) before taking into account any unrealised gains or losses on any derivative instrument (other than any derivative instrument which is accounted for on a hedge accounting basis); and

 

  (h) before taking into account any Pension Items;

in each case, to the extent added, deducted or taken into account, as the case may be, for the purposes of determining operating profits of the Group before taxation.

Exceptional Items” means any material items of an unusual or non-recurring nature which represent gains or losses including, but not limited to, those arising in respect of:

 

  (a) exceptional general and administrative costs including, but not limited to, additions and releases relating to the provisions for onerous lease contracts concerning the losses on real estate obligations of existing unused sites and disposals, revaluations, impairment or reversal of non-current assets;

 

  (b) exceptional income including, but not limited to, sub-lease income from unused sites; and

 

  (c) Transaction Costs.

Finance Charges” means, for any Relevant Period, the aggregate amount of the accrued interest, commission, fees, discounts, prepayment fees, premiums or charges and other finance payments in respect of Financial Indebtedness whether paid, payable or capitalised by any member of the Group (calculated on a consolidated basis) in respect of that Relevant Period:

 

  (a) excluding any Transaction Costs;

 

  (b) excluding any non-cash write-offs of the un-amortised cost of debt arising on the repayment of Financial Indebtedness on the Issue Date;

 

  (c) including the interest (but not the capital) element of payments in respect of Finance Leases;

 

73


EXECUTION VERSION

 

  (d) including any commission, fees, discounts and other finance payments payable by (and deducting any such amounts payable to) any member of the Group under any interest rate hedging arrangement;

 

  (e) excluding any interest cost or expected return on plan assets in relation to any defined benefit pension scheme; and

 

  (f) taking no account of any unrealised gains or losses on any derivative instruments other than any derivative instruments which are accounted for on a hedge accounting basis,

together with the amount of any cash dividends or distributions paid or made by the Company in respect of that Relevant Period and so that no amount shall be added (or deducted) more than once.

Finance Lease” means any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a finance or capital lease.

Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.

Financial Year” means the annual accounting period of the Company ending on or about 31 December in each year.

Leverage” means, in respect of any Relevant Period, the ratio of Total Net Debt on the last day of that Relevant Period to Pro Forma EBITDA in respect of that Relevant Period.

Non-Group Entity” means any investment or entity (which is not itself a member of the Group (including associates and Joint Ventures)) in which any member of the Group has an ownership interest.

Pension Items” means any income or charge attributable to a defined benefit pension scheme other than the current service costs attributable to the scheme.

Pro Forma EBITDA” means, in respect of any Relevant Period, Adjusted EBITDA for that Relevant Period adjusted by:

 

  (a) including the operating profit before interest, tax, depreciation, amortisation and impairment charges (calculated on the same basis as Adjusted EBITDA) of a member of the Group for the Relevant Period (or attributable to a business or assets acquired during the Relevant Period) prior to its becoming a member of the Group or (as the case may be) prior to the acquisition of the business or assets; and

 

  (b) excluding operating profit before interest, tax, depreciation, amortisation and impairment charges (calculated on the same basis as Adjusted EBITDA) attributable to any member of the Group (or to any business or assets) disposed of during the Relevant Period.

Quarter Date” means each of 31 March, 30 June, 30 September and 31 December.

Relevant Date” means the date specified in Clause 22.2 (Financial condition) as the date as at (or to) which a particular financial ratio is being tested.

Relevant Period” means each period of four consecutive Financial Quarters ending on a Relevant Date.

Total Debt” means, at any time, the aggregate amount of all obligations of members of the Group for or in respect of Financial Indebtedness at that time but:

 

  (a) excluding any such obligations to any other member of the Group; and

 

  (b) including, in the case of Finance Leases only, their capitalised value,

 

74


EXECUTION VERSION

 

and so that no amount shall be included or excluded more than once.

Total Net Debt” means Total Debt after the deduction of Cash or Cash Equivalents.

Transaction Costs” means all non-periodic fees, costs and expenses, stamp registration and other Taxes incurred by the Company in connection with (i) the entry into this Agreement, (ii) any refinancing of the Notes, the Existing SSRCF or the Facility, (iii) any transaction pursuant to which additional high yield bonds are issued or further credit facilities are borrowed by the Company, (iv) any offering of the Company’s ordinary shares pursuant to a secondary offering of such shares following the IPO, (v) any M&A transaction (but only in respect of costs incurred prior to the closing of such transaction) and (vi) any of the foregoing transactions (other than as described under (i)) where that transaction was abandoned prior to its completion.

 

22.2 Financial condition

The Company shall ensure that the ratio of Total Net Debt to Pro Forma EBITDA will not exceed (a) 4.75:1 for each Relevant Period ending on a Quarter Date following the first Utilisation Date under this Agreement to and including 30 June 2018 and (b) 4.00:1 for each Relevant Period ending on a Quarter Date falling thereafter.

 

22.3 Financial testing

 

  (a) The financial covenant set out in this Clause 22 shall be calculated in accordance with the Accounting Principles and tested on a rolling four quarter basis by reference to each of the financial statements delivered pursuant to paragraphs (a) and (b) of Clause 21.1 (Financial statements) and each Compliance Certificate delivered pursuant to Clause 21.2 (Provision and contents of Compliance Certificate).

 

  (b) For the purposes of calculation of each financial covenant, no item shall be included or excluded more than once in any calculation.

 

23. GENERAL UNDERTAKINGS

The undertakings in this Clause 23 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

Authorisations and compliance with laws

 

23.1 Authorisations

Each Obligor shall promptly:

 

  (a) obtain, comply with and do all that is necessary to maintain in full force and effect; and

 

  (b) supply certified copies to the Agent of,

any Authorisation required under any law or regulation of the Relevant Jurisdictions to enable it to perform its obligations under the Finance Documents, to ensure the legality, validity, enforceability or admissibility in evidence in each Relevant Jurisdiction of any Finance Document and, where failure to do so has or is reasonably likely to have a Material Adverse Effect, carry on its business.

 

23.2 Compliance with laws

Each Obligor shall comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents.

 

75


EXECUTION VERSION

 

23.3 Environmental compliance

Each Obligor shall (and the Company shall ensure that each member of the Group will):

 

  (a) comply with all Environmental Law;

 

  (b) obtain, maintain and ensure compliance with all requisite Environmental Permits;

 

  (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.

 

23.4 Environmental claims

Each Obligor shall (through the Company), promptly upon becoming aware of the same, inform the Agent in writing of:

 

  (a) any Environmental Claim against any member of the Group which is current, pending or threatened; and

 

  (b) any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group,

where the claim, if determined against that member of the Group, has or is reasonably likely to have a Material Adverse Effect.

 

23.5 Taxation

 

  (a) Each Obligor shall (and the Company shall ensure that each member of the Group will) pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:

 

  (i) such payment is being contested in good faith;

 

  (ii) 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 21.1 (Financial statements); and

 

  (iii) such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.

 

  (b) No member of the Group may change its residence for Tax purposes.

 

23.6 People with Significant Control regime

Each Obligor shall (to the extent applicable to it):

 

  (a) within the relevant timeframe, comply with any notice it receives pursuant to Part 21A of the Companies Act 2006 from any Obligor incorporated in England and Wales whose shares are the subject of the Transaction Security; and

 

  (b) promptly provide the Security Trustee with a copy of that notice.

 

76


EXECUTION VERSION

 

Restrictions on business focus

 

23.7 New York Law Undertakings

Each Obligor shall (and the Company shall ensure that each member of the Restricted Group will) comply with the undertakings set out in Schedule 13 (New York Law Undertakings).

 

23.8 Merger

No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction other than a Permitted Transaction.

 

23.9 Change of business

The Company shall ensure that no substantial change is made to the general nature of the business of the Company or the Group taken as a whole from that carried on at the date of this Agreement.

 

23.10 Holding Companies

The Company shall not carry on any business, own any assets or incur any liabilities except for:

 

  (a) the provision of administrative services to other members of the Group of a type customarily provided by a holding company to its Subsidiaries including, for the avoidance of doubt, negotiating and entering into contracts of insurance and maintenance with third party providers for the Group and the provision of treasury and IT services and director services to the Group;

 

  (b) ownership of shares in its Subsidiaries, intra-Group debit balances, intra-Group credit balances and other credit balances in bank accounts, cash and Cash Equivalents;

 

  (c) any liabilities under the Finance Documents to which it is a party and professional fees and administration costs and Tax incurred in the ordinary course of business as a holding company;

 

  (d) any Super Senior Liabilities (as defined in the Intercreditor Agreement) which are permitted under the Finance Documents and which are subject to the terms of the Intercreditor Agreement;

 

  (e) any liabilities under the Senior Secured Documents (as defined in the Intercreditor Agreement) to which it is a party and which are permitted under the Finance Documents and which are subject to the terms of the Intercreditor Agreement;

 

  (f) any liabilities under the Senior Unsecured Notes Documents (as defined in the Intercreditor Agreement) to which it is a party and which are permitted under the Finance Documents and which are subject to the terms of the Intercreditor Agreement;

 

  (g) any Subordinated Liabilities (as defined in the Intercreditor Agreement) which are permitted under the Finance Documents and which are subject to the terms of the Intercreditor Agreement; and

 

  (h) the entry into of any dealer manager, tender agency, underwriting, purchase or similar agreements and any engagement letters in each case in connection with the entry into of the documents at paragraphs (d), (e) and (f) of this Clause 23.10 (and in each case which are permitted under the Finance Documents) and on terms customary for such agreements and letters and documents.

 

77


EXECUTION VERSION

 

23.11 Dormant subsidiaries

No Obligor shall (and the Company shall ensure no member of the Group will) cause or permit any member of the Group which is a Dormant Subsidiary to commence trading or cease to satisfy the criteria for a Dormant Subsidiary unless the Company has given the Agent prior written notice whereupon the relevant entity shall cease to be a Dormant Subsidiary.

 

23.12 Preservation of assets

Each Obligor shall (and the Company shall ensure that each member of the Group will) maintain in good working order and condition (ordinary wear and tear excepted) all of its material assets.

 

23.13 Pari passu ranking

Each Obligor shall ensure that at all times any unsecured and unsubordinated claims of a Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.

 

23.14 Senior ranking

Notwithstanding anything in any Finance Document to the contrary, prior to the cancellation and/or repayment and/or prepayment in full of the Facility and save for Security granted for the benefit of the finance parties under the Existing SSRCF (or otherwise permitted under this Agreement) or unless otherwise agreed by all the Lenders, no Obligor shall create or permit to subsist (or permit any other member of the Restricted Group to create or permit to subsist) any Security that ranks senior to the Transaction Security Documents.

 

23.15 Arms length basis

 

  (a) Except as permitted by paragraph (b) below, no Obligor shall (and the Company shall ensure no member of the Group will) enter into any transaction with any person except on arm’s length terms.

 

  (b) The following transactions shall not be a breach of this Clause 23.15:

 

  (i) intra-Group loans not prohibited under this Agreement;

 

  (ii) fees, costs and expenses payable under the Finance Documents in the amounts set out in the Finance Documents delivered to the Agent under Clause 4.1 (Initial conditions precedent) or agreed by the Agent;

 

  (iii) any transaction entered into on terms more favourable to the relevant member of the Group than it would be if it was on arm’s length terms; and

 

  (iv) any Permitted Transaction.

 

23.16 Share capital

No Obligor shall (and the Company shall ensure no member of the Group will) issue any shares except pursuant to a Permitted Share Issue.

 

78


EXECUTION VERSION

 

Miscellaneous

 

23.17 Insurance

Each Obligor shall (and the Company shall ensure that each Material Company will) maintain insurances on and in relation to its business and assets with reputable underwriters or insurance companies against those risks and to the extent as is usual for companies carrying on the same or substantially similar business.

 

23.18 Pensions

 

  (a) The Company shall ensure that all pension schemes operated by or maintained for the benefit of members of the Group and/or any of their employees are (where applicable) fully funded based on the statutory funding objective under sections 221 and 222 of the Pensions Act 2004 or, in the case of the pension plan operated for certain employees of Interxion (Schweiz) AG, any applicable Swiss regulations and that no action or omission is taken by any member of the Group in relation to such a pension scheme which has or is reasonably likely to have a Material Adverse Effect (including, without limitation, the termination or commencement of winding-up proceedings of any such pension scheme or any member of the Group ceasing to employ any member of such a pension scheme). The Company shall ensure that all pension liabilities of InterXion Deutschland GmbH are properly accounted for in accordance with the Accounting Principles.

 

  (b) The Company shall ensure that no member of the Group is or has been at any time an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pension Schemes Act 1993) or “connected” with or an “associate” of (as those terms are used in sections 38 or 43 of the Pensions Act 2004) such an employer. For the avoidance of doubt, this paragraph (b) does not apply to the pension plan operated for certain employees of Interxion (Schweiz) AG.

 

  (c) The Company shall deliver to the Agent at such times as those reports are prepared in order to comply with the then current statutory or auditing requirements (as applicable either to the trustees of any relevant schemes or to the Company), actuarial reports in relation to all pension schemes mentioned in paragraph (a) above.

 

  (d) The Company shall promptly notify the Agent of any material change in the rate of contributions to any pension schemes mentioned in paragraph (a) above paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or otherwise).

 

  (e) Each Obligor shall immediately notify the Agent of any investigation or proposed investigation by the Pensions Regulator which may lead to the issue of a Financial Support Direction or a Contribution Notice to it.

 

  (f) Each Obligor shall immediately notify the Agent if it receives a Financial Support Direction or a Contribution Notice from the Pensions Regulator.

 

23.19 Access

If an Event of Default is continuing or the Agent reasonably suspects an Event of Default is continuing or may occur, each Obligor shall, and the Company shall ensure that each member of the Group will, (not more than once in every Financial Year unless the Agent reasonably suspects an Event of Default is continuing or may occur) permit the Agent and/or the Security Trustee and/or accountants or other professional advisers and contractors of the Agent or Security Trustee free access at all reasonable times and on reasonable notice at the risk and cost of the Obligor or Company to (a) the premises, assets, books, accounts and records of each member of the Group and (b) meet and discuss matters with senior management.

 

79


EXECUTION VERSION

 

23.20 Intellectual Property

Each Obligor shall (and the Company shall procure that each Group member will):

 

  (a) preserve and maintain the subsistence and validity of the Intellectual Property necessary for the business of the relevant Group member;

 

  (b) use reasonable endeavours to prevent any infringement in any material respect of the Intellectual Property;

 

  (c) make registrations and pay all registration fees and taxes necessary to maintain the Intellectual Property in full force and effect and record its interest in that Intellectual Property;

 

  (d) not use or permit the Intellectual Property to be used in a way or take any step or omit to take any step in respect of that Intellectual Property which may materially and adversely affect the existence or value of the Intellectual Property or imperil the right of any member of the Group to use such property; and

 

  (e) not discontinue the use of the Intellectual Property,

where failure to do so, in the case of paragraphs (a), (b) and (c) above, or, in the case of paragraphs (d) and (e) above, such use, permission to use, omission or discontinuation, is reasonably likely to have a Material Adverse Effect.

 

23.21 Treasury Transactions

No Obligor shall (and the Company will procure that no members of the Group will) enter into any Treasury Transaction, other than:

 

  (a) any Treasury Transaction documented by a Hedging Agreement provided that such Hedging Agreement is entered into in the ordinary course of business and not for speculative purposes;

 

  (b) spot and forward delivery foreign exchange contracts entered into in the ordinary course of business and not for speculative purposes; and

 

  (c) any Treasury Transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of business and not for speculative purposes.

 

23.22 Guarantor Coverage

 

  (a) The Company shall ensure at all times on and from the earlier to occur of (x) the date on which the Required Guarantors accede to this Agreement and (y) the Required Guarantor Accession Date, that (i) the aggregate of the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) of the Guarantors (excluding HQ) represents at least 85 per cent. of the consolidated Adjusted EBITDA of the Group (including HQ) and (ii) the aggregate net assets of the Guarantors (calculated on an unconsolidated basis and excluding all intra-group items and investments in Subsidiaries of any member of the Group) represents at least 70 per cent. of the consolidated net assets of the Group.

 

  (b) In the event that paragraph (a) above is not complied with the Company shall, within 45 days of the earlier to occur of the Company becoming aware of such non-compliance and receipt of a written request from the Agent, procure that one or more of its Subsidiaries becomes an Additional Guarantor such that:

 

  (i)

the aggregate of the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) of the Guarantors (excluding

 

80


EXECUTION VERSION

 

  HQ) immediately following the accession of that Subsidiary or those Subsidiaries as Additional Guarantor(s) is equal to at least 85 per cent. of the consolidated Adjusted EBITDA of the Group (including HQ);

 

  (ii) the aggregate gross assets of the Guarantors (calculated on an unconsolidated basis and excluding all intra-group items and investments in Subsidiaries of any member of the Group) immediately following the accession of that Subsidiary or those Subsidiaries as Additional Guarantor(s) is equal to at least 70 per cent. of the consolidated net assets of the Group; and

 

  (iii) such Additional Guarantor’s (or Additional Guarantors’) shares are pledged in favour of the Security Trustee.

The Company must use all reasonable endeavours to ensure that the accession of that Subsidiary or those Subsidiaries as Additional Guarantor(s) occurs as soon as reasonably possible but in any event not later than the last day of such 45 day period.

 

  (c) The Company need only perform its obligations under paragraph (a) above if it is not unlawful for the relevant person to become an Additional Guarantor and that person becoming an Additional Guarantor would not result in personal liability for that person’s directors or other management. Each Obligor must use, and must procure that the relevant person uses, all reasonable endeavours lawfully available to avoid any such unlawfulness or personal liability. This includes agreeing to a limit on the amount guaranteed. The Agent may (but shall not be obliged to) agree to such a limit if, in its opinion, to do so would avoid the relevant unlawfulness or personal liability.

 

23.23 Further assurance

 

  (a) Each Obligor shall (and the Company shall procure that each relevant member of the Group will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Trustee may reasonably specify (and in such form as the Security Trustee may reasonably require in favour of the Security Trustee and/or the Finance Parties or its/their nominee(s)):

 

  (i) to perfect the Security created or intended to be created under or evidenced by the Transaction Security (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Trustee or the Finance Parties provided by or pursuant to the Finance Documents or by law;

 

  (ii) to confer on the Security Trustee or confer on the Finance Parties, to the extent legally possible and upon receipt of a written request from the Agent, Security over any property and assets relating to a project in which that Obligor has invested;

 

  (iii) to confer on the Security Trustee or confer on the Finance Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Transaction Security; and/or

 

  (iv) to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.

 

  (b) Each Obligor shall (and the Company shall procure that each member of the Group shall) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Trustee or the Finance Parties by or pursuant to the Finance Documents.

 

81


EXECUTION VERSION

 

23.24 Restrictive Covenants

 

  (a) Notwithstanding this Clause 23, the provisions of Clauses 23.8 (Merger), 23.9 (Change of business) and 23.16 (Share capital) and Sections 2 (Limitation on Restricted Payments) and 6 (Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries) of Schedule 13 (New York Law Undertakings) (the “Relevant Restrictive Covenants”) shall not restrict any such act or step by any Obligor (the “German Obligor”) or any of its Subsidiaries from time to time whose Relevant Jurisdiction is Germany (together the “German Group”).

 

  (b) Each German Obligor shall give the Agent no less than twenty Business Days’ prior written notice of the intention of it or of its Subsidiaries whose Relevant Jurisdiction is Germany to carry out any of the acts or take any of the steps referred to in the Relevant Restrictive Covenants which, if all the Relevant Restrictive Covenants were applicable to that German Obligor and had thereafter remained in force, would constitute a breach of any of the Relevant Restrictive Covenants (without any applicable consent of the Lenders) by a member of the German Group.

 

  (c) The Agent shall be entitled within ten Business Days of receipt of the relevant German Obligor’s notice under paragraph (b) above to request the relevant German Obligor to supply to the Agent in sufficient copies for the Lenders any relevant information in connection with the proposed action or steps referred to in such notice.

 

  (d) The Agent shall notify the relevant German Obligor, within ten Business Days of receipt of the relevant German Obligor’s notice under paragraph (b) above or, if additional information has been requested by the Agent within the prescribed time, within ten Business Days of receipt of such information, whether the proposed action or steps under paragraph (b) above is, or is in the reasonable opinion of the Agent acting on the instructions of the Majority Lenders, likely to have a Material Adverse Effect or to materially adversely change the risk evaluation of the Lenders.

 

  (e) If the proposed action or steps under paragraph (b) above is or is so considered by the Agent, to have a Material Adverse Effect or to materially adversely change the risk evaluation of the Lenders and the relevant member of the German Group nevertheless takes such action or steps under paragraph (b) above, the Agent shall be entitled to make (and, if so instructed by the Majority Lenders, shall make) the declaration, request and/or instruction set out in Clause 24.18 (Acceleration) and call for repayment of the Loans and exercise the other rights in accordance with Clause 24.18 (Acceleration).

 

23.25 Reinvestment of insurance proceeds

Each Obligor shall (and the Company shall ensure that each other member of the Group will) reinvest all insurance proceeds received in the business of the Group.

 

23.26 Conditions subsequent

 

  (a) The Company shall procure that each of the Required Guarantors accede to this Agreement as a Required Guarantor on or prior to the Required Guarantor Accession Date and delivers to the Agent all of the documents and other evidence listed in Part 3 of Schedule 2 (Conditions Precedent and Conditions Subsequent) in form and substance satisfactory to the Agent (acting reasonably) or receipt of such documents and evidence has been waived by the Majority Lenders.

 

  (b) Each Obligor shall provide any conditions subsequent required under and in accordance with any applicable Transaction Security Documents.

 

82


EXECUTION VERSION

 

23.27 Note Purchase Condition

Notwithstanding anything to the contrary in this Agreement, no member of the Group may prepay, purchase, defease, redeem or retire for value any Notes or offer to do so other than an offer pursuant of section 4.09 (Change of Control) of the Indenture.

 

23.28 Anti-corruption law and Anti-money laundering laws

 

  (a) No Obligor shall (and the Parent shall ensure that no other member of the Group will) directly or knowingly (after due and careful enquiry) indirectly use the proceeds of the Facility for the purpose of financing or facilitating any activity that would violate applicable Anti-Corruption and Anti-Money Laundering Laws.

 

  (b) Each Obligor shall (and the Company shall ensure that each other member of the Group will):

 

  (i) conduct its businesses in compliance with applicable Anti-Corruption and Anti-Money Laundering Laws; and

 

  (ii) maintain policies and procedures designed to promote and achieve compliance with such laws.

 

23.29 Sanctions

 

  (a) Subject to paragraph (c) below, no Obligor shall (and the Company shall ensure that no member of the Group will):

 

  (i) use, lend, contribute or otherwise make available any part of the proceeds of any Loan or other transaction contemplated by this Agreement directly or knowingly (after due and careful enquiry) indirectly:

 

  (A) to fund or facilitate any trade, business or other activities involving, or for the benefit of, any Restricted Party or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions (to the extent prohibited by Sanctions); or

 

  (B) in any other manner that will result in a violation of Sanctions by any Party hereto;

 

  (ii) fund all or part of any payment in connection with a Finance Document out of proceeds derived from business or transactions with a Restricted Party or from any action which is in breach of any Sanctions; or

 

  (iii) permit proceeds from any activity or dealing with a Restricted Person to be credited to any bank account held with any Finance Party in its name.

 

  (b) Each Obligor shall (and the Company shall ensure that each member of the Group will) ensure that appropriate controls and safeguards are in place designed to prevent any action being taken that would be contrary to paragraph (a) above.

 

  (c) For the avoidance of doubt the obligations under this Clause 23.29 are not binding upon any member of the Group incorporated in Germany.

 

83


EXECUTION VERSION

 

24. EVENTS OF DEFAULT

Each of the events or circumstances set out in this Clause 24 is an Event of Default (save as for Clause 24.18 (Acceleration)).

 

24.1 Non-payment

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:

 

  (a) its failure to pay is caused by:

 

  (i) administrative or technical error; or

 

  (ii) a Disruption Event; and

 

  (b) payment is made within 3 Business Days of its due date.

 

24.2 Financial covenant and information

 

  (a) Any requirement of Clause 22 (Financial Covenant) is not satisfied.

 

  (b) A failure to comply with any requirement set out in Clauses 21.1 (Financial statements) or 21.2 (Provision and contents of Compliance Certificate), provided that no Event of Default under this paragraph (b) will occur if the failure to comply is capable of remedy and is remedied within five days of the applicable deadline for delivery set out in those Clauses.

 

24.3 Other obligations

 

  (a) An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.1 (Non-payment) and Clause 24.2 (Financial covenant and information)).

 

  (b) No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 15 days of the earlier of the Agent giving notice to the Company or the relevant Obligor or the Company or the relevant Obligor becoming aware of the failure to comply.

 

24.4 Misrepresentation

 

  (a) Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.

 

  (b) No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 15 days of the earlier of the Agent giving notice to the Company or the relevant Obligor or the Company or the relevant Obligor becoming aware of the failure to comply.

 

24.5 Cross default

 

  (a) Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period.

 

84


EXECUTION VERSION

 

  (b) Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

 

  (c) Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).

 

  (d) Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described).

 

  (e) No Event of Default will occur under this Clause 24.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than EUR 10,000,000 (or its equivalent in any other currency).

 

24.6 Insolvency

 

  (a) An Obligor is unable or admits inability to pay its debts as they fall due (including, in respect of a French Guarantor, cessation des paiements within the meaning of the French Code de commerce, and in respect of a Belgian Guarantor, staking van betaling / cessation de paiement within the meaning of the Belgian bankruptcy law), or suspends making payments on any of its debts, or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness (including, without limitation, in respect of a German Obligor, such Obligor is unable to pay its debts as they fall due (Zahlungsunfähigkeit) or is deemed unable to pay its debts as they fall due (drohende Zahlungsunfähigkeit) in the meaning of sections 17 and 18 of the German Insolvency Code (Insolvenzordnung)).

 

  (b) The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities) (including, without limitation, in respect of a German Obligor, it is over-indebted (überschuldet) within the meaning of section 19 of the German Insolvency Code (Insolvenzordnung)).

 

  (c) A moratorium is declared in respect of any indebtedness of any Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.

 

24.7 Insolvency proceedings

Any corporate action, legal proceedings or other procedure or step is taken (regardless whether by any Obligor or any third party) in relation to:

 

  (a)

the suspension of payments, a moratorium of any indebtedness (including, without limitation, a moratorium, under a conciliation procedure in accordance with articles L. 611-4 to L. 611-15 of the French Code de commerce), winding-up, dissolution, administration, receivership or examination or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) (including any voluntary winding-up (dissolution or liquidation amiable), any safeguard proceedings (procédure de sauvegarde or procédure de sauvegarde financière accélérée), judicial reorganisation (redressement judiciaire), or judicial liquidation (liquidation judiciaire) under articles L. 620-1 to L. 670-8 of the French Code de commerce) of any Obligor other than a solvent liquidation or reorganisation of any Obligor (this paragraph (a) to include, without limitation, the making of an application for the opening of insolvency proceedings for the reasons set out in sections 17 to 19 of the German Insolvency Code (Insolvenzordnung) (Antrag auf Eröffnung eines Insolvenzverfahrens) or the competent court taking (and having not yet stayed) (ausgesetzt) any of the actions set out in Section 21 of

 

85


EXECUTION VERSION

 

  the German Insolvency Code (Insolvenzordnung) or the competent court instituting or rejecting (for reason of insufficiency of its funds to implement such proceedings) insolvency proceedings against it (Eröffnung des Insolvenzverfahrens)) and, in respect of a Belgian Guarantor, this paragraph (a) includes, without limitation, (i) the opening of a bankruptcy procedure in accordance with the Belgian bankruptcy law and (ii) an amicable settlement filed with the competent court and any judicial reorganisation described under the Belgian law of continuity of companies);

 

  (b) a composition, compromise, assignment or arrangement with any creditor of any Obligor;

 

  (c) the appointment of a liquidator, examiner, receiver, receiver and manager, administrative receiver, administrator, compulsory manager or other similar officer (including, without limitation, any mandataire ad-hoc, conciliateur, administrateur judiciaire, or liquidateur judiciaire under French law, and any voorlopige bewindvoerder / administrateur provisoire, ondernemingsbemiddelaar / médiateur d’entreprise, gerechtsmandataris / mandataire de justice, gedelegeerd rechter / juge délégué, sekwester / sequester, curator / curateur under Belgian law) in respect of any member of the Group or any of its assets;

 

  (d) enforcement of any Security over any assets of any Obligor; or

 

  (e) a declaration of concourse (concurso) made in respect of any Obligor incorporated in Spain,

or any analogous procedure or step is taken in any jurisdiction.

 

24.8 Creditors process

Any expropriation, attachment, sequestration, distress or execution or any analogous process in any jurisdiction affects any asset or assets of an Obligor having an aggregate value of EUR 7,500,000 or more.

 

24.9 Unlawfulness

 

  (a) It is or becomes unlawful for an Obligor (or any other member of the Group that is a party to the Intercreditor Agreement) to perform any of its obligations under the Finance Documents or any Transaction Security created or expressed to be created or evidenced by the Transaction Security Documents ceases to be effective or any subordination created under the Intercreditor Agreement is or becomes unlawful.

 

  (b) Any obligation or obligations of any Obligor under any Finance Document (or any other member of the Group that is a party to the Intercreditor Agreement) are not (subject to any general principles of law as at the date of this Agreement limiting its obligations, which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the Obligors)) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents.

 

  (c) Any Finance Document ceases to be in full force and effect or any Transaction Security or any subordination created under the Intercreditor Agreement ceases to be legal, valid, binding, enforceable or effective or is alleged by a party to it (other than a Finance Party) to be ineffective unless any such matter(s) is (or are) capable of remedy and is (or are) remedied within 15 days of its (or their) occurrence.

 

24.10 Repudiation

An Obligor rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Finance Document or any Transaction Security.

 

86


EXECUTION VERSION

 

24.11 Intercreditor Agreement

 

  (a) Any party to the Intercreditor Agreement (other than a Finance Party or an Obligor) fails to comply with the provisions of, or does not perform its obligations under, the Intercreditor Agreement; or

 

  (b) a representation or warranty given by that party in the Intercreditor Agreement is incorrect in any material respect,

and, if the non-compliance or circumstances giving rise to the misrepresentation are capable of remedy, it is not remedied within 15 days of the earlier of the Agent giving notice to that party or that party becoming aware of the non-compliance or misrepresentation.

 

24.12 Ownership of the Obligors

Any Obligor (other than the Company) ceases to be a wholly owned Subsidiary of the Company.

 

24.13 Material adverse change

Any event or series of events or circumstance occurs which has or is reasonably likely to have, a Material Adverse Effect.

 

24.14 Cessation of business

An Obligor suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business other than as a result of an Asset Sale not prohibited by this Agreement or a transaction described in paragraph (b) of the definition of Permitted Transaction.

 

24.15 Audit Qualification

The Auditors qualify the audited consolidated financial statements of the Company on a going concern basis (where “going concern” is defined by reference to IFRS as at the date of this Agreement).

 

24.16 Tax Status

A notice under Article 36 Tax Collection Act (Invorderingswet 1990) has been given by a member of the Group.

 

24.17 Litigation

Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened in relation to the Finance Documents or the transactions contemplated in the Finance Documents or against any member of the Group or its assets which has or is reasonably likely to have a Material Adverse Effect.

 

24.18 Acceleration

On and at any time after the occurrence of an Event of Default which is continuing the Agent may, without mise en demeure or any other judicial or extra judicial step, and shall if so directed by the Majority Lenders, by notice to the Company:

 

  (a) cancel the Total Commitments and/or Ancillary Commitments, at which time 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, at which time they shall become immediately due and payable;

 

87


EXECUTION VERSION

 

  (c) declare that all or part of the Loans be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders;

 

  (d) exercise, or direct the Security Trustee to exercise, any or all of its rights, remedies, powers and discretions under any of the Finance Documents;

 

  (e) declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be immediately due and payable at which time they shall become immediately due and payable; and/or

 

  (f) declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders.

 

25. CHANGES TO THE LENDERS

 

25.1 Assignments and transfers by the Lenders

 

  (a) Subject to this Clause 25, a Lender (the “Existing Lender”) may:

 

  (i) assign any of its rights; or

 

  (ii) transfer by novation any of its rights and obligations,

under any Finance Document to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the “New Lender”).

 

  (b) The amount transferred to a New Lender in relation to a Loan or Commitment made to the Company shall be at least EUR 1,000,000 (or its equivalent in any other currency) unless it is of the whole of that Existing Lender’s participation under this Agreement or, if the competent authority has published its interpretation of the term ‘public’ as referred to in article 4.1.(1) of 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, such other minimum amount as may be required for the New Lender not to be considered part of the public under such interpretation.

 

  (c) Any assignment or transfer must be made pro-rata between a Lender’s drawn and undrawn Commitments.

 

25.2 Conditions of assignment or transfer

 

  (a) An assignment or transfer or sub-participation may only be made with the consent of the Company (such consent not to be unreasonably withheld or delayed and, in any event, to be deemed to be given if the Company does not give its decisions within 6 Business Days of a request for consent (provided that, for the avoidance of doubt, it will not be deemed to be unreasonable to withhold consent to an assignment, transfer or sub-participation to a business competitor (or an Affiliate of a business competitor) of any member of the Group)), provided that no consent shall be required if the assignment or transfer or sub-participation is:

 

  (i) to another Lender or an Affiliate of a Lender;

 

  (ii) an Event of Default has occurred which is continuing; or

 

  (iii) in respect of a sub-participation where the Existing Lender retains the right to exercise all voting and similar rights in respect of the portion of the Commitments subject to the sub-participation free of any obligations to act on the instructions of another person.

 

88


EXECUTION VERSION

 

  (b) An assignment will only be effective on:

 

  (i) receipt by the Agent (whether in the Assignment Agreement or otherwise) 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 and the other Secured Parties as it would have been under if it was an Original Lender; and

 

  (ii) the New Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and

 

  (iii) 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.

 

  (c) A transfer will only be effective if the New Lender enters into the documentation required for it to accede as a party to the Intercreditor Agreement and if the procedure set out in Clause 25.6 (Procedure for transfer) is complied with.

 

  (d) If:

 

  (i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

 

  (ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 14 (Tax Gross-up and Indemnities) or Clause 15 (Increased Costs),

then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.

 

25.3 Authority to Agent

Each Finance Party (other than the Existing Lender and the New Lender) irrevocably authorises the Agent to execute any duly completed Transfer Certificate or Assignment Agreement on its behalf. For the purposes of this Clause 25.3, each such Finance Party hereby releases the Agent from the restrictions provided for in Section 181 of the German Civil Code (Bürgerliches Gesetzbuch).

 

25.4 Assignment or transfer fee

Unless the Agent otherwise agrees, a 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 EUR 2,500.

 

89


EXECUTION VERSION

 

25.5 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, the Transaction Security or any other documents;

 

  (ii) the financial condition of any Obligor;

 

  (iii) the performance and observance by any Obligor 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) Each New Lender confirms to the Existing Lender, the other Finance Parties and the Secured Parties that it:

 

  (i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

 

  (ii) will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 

  (c) Nothing in any Finance Document obliges an Existing Lender to:

 

  (i) accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 25; or

 

  (ii) support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

 

25.6 Procedure for transfer

 

  (a) Subject to the conditions set out in Clause 25.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, 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) Subject to Clause 25.13 (Pro rata interest settlement), 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 and in respect of the Transaction Security each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another shall be cancelled (being the “Discharged Rights and Obligations”);

 

90


EXECUTION VERSION

 

  (ii) each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;

 

  (iii) the Agent, the Arrangers, the Security Trustee, the New Lender, the other Lenders and any relevant Ancillary Lender shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arrangers, the Security Trustee, the Existing Lender and any relevant Ancillary Lender shall each be released from further obligations to each other under the Finance Documents; and

 

  (iv) the New Lender shall become a Party as a “Lender”.

 

  (d) Subject to the terms of this Agreement, the obligations of each Guarantor under this Agreement will continue in full force and effect following any novation under this Clause 25. A novation under this clause is a novation (novation) within the meaning of article 1271 et seq. of the French Code Civil. In the event of an assignment, a transfer, a novation or disposal of all or part of the rights and obligations by any Lender, each Lender expressly reserves the rights, powers, privileges and actions that it enjoys under any Transaction Security Documents governed by French law in favour of its assignees or, as the case may be, its successors, in accordance with the provisions of article 1278 et seq of the French Code Civil.

 

25.7 Procedure for assignment

 

  (a) Subject to the conditions set out in Clause 25.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.

 

  (b) The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender upon its completion of all “know your customer” or other checks relating to any person that it is required to carry out in relation to the assignment to such New Lender.

 

  (c) Subject to Clause 25.13 (Pro rata interest settlement), on the Transfer Date:

 

  (i) the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;

 

  (ii) the Existing Lender will be released from the obligations (the “Relevant Obligations”) expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and

 

  (iii) the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.

 

  (d) Lenders may utilise procedures other than those set out in this Clause 25.7 to assign their rights under the Finance Documents provided that they comply with the conditions set out in Clause 25.2 (Conditions of assignment or transfer).

 

91


EXECUTION VERSION

 

25.8 Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Obligors Agent

The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, an Assignment Agreement or an Increase Confirmation, send to the Obligors’ Agent a copy of that Transfer Certificate, Assignment Agreement or Increase Confirmation and each Obligor, to the extent permitted by the laws of its jurisdiction of incorporation, confirms that such delivery to the Obligors’ Agent shall be considered as a notification to it of such transfer, assignment or increase.

 

25.9 Security over Lenders rights

In addition to the other rights provided to Lenders under this Clause 25, each Lender may without consulting with or obtaining consent from any Obligor, 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,

 

  (c) except that no such charge, assignment or Security shall:

 

  (i) release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or

 

  (ii) require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.

 

25.10 German Security Interests

Each Obligor also accepts for the purposes of Sections 401, 412 and 1250 para (1) of the German Civil Code and all other purposes, that all guarantees, indemnities and Security granted by it under any Finance Document will, notwithstanding any such assignment and transfer, continue and be preserved for the benefit of the New Lender and each of the other Finance Parties in accordance with the terms of the Finance Documents.

 

25.11 Spanish Documents

Upon the effective assignment, transfer and/or novation of rights or obligations made in accordance with this Clause 25, each Spanish Obligor accepts and confirms for the purposes of the Spanish Civil Code and all other purposes that all guarantees, indemnities and Security granted by it under any Finance Document will, notwithstanding any such assignment and transfer, continue and be preserved for the benefit of the New Lender and each of the other Finance Parties in accordance with the terms of the Finance Documents.

 

92


EXECUTION VERSION

 

25.12 Belgian Novation

For the purposes of Article 1271 et seq of the Belgian Civil Code, the Parties agree that upon any novation under the Finance Documents, the Transaction Security, guarantees, indemnities, and other undertakings created by the Finance Documents shall continue for the benefit of the Secured Parties, their successors, transferees and assignees, as the case may be.

 

25.13 Pro rata interest settlement

 

  (a) If the Agent has notified the Lenders that it is able to distribute interest payments on a “pro rata basis” to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 25.6 (Procedure for transfer) or any assignment pursuant to Clause 25.7 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):

 

  (i) any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (“Accrued Amounts”) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six-Monthly intervals after the first day of that Interest Period); and

 

  (ii) the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt:

 

  (A) when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Lender; and

 

  (B) the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 25.13, have been payable to it on that date, but after deduction of the Accrued Amounts.

 

  (b) In this Clause 25.13 references to “Interest Period” shall be construed to include a reference to any other period for accrual of fees.

 

26. CHANGES TO THE OBLIGORS

 

26.1 Assignments and transfers by Obligors

No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

 

26.2 Additional Guarantors

 

  (a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 21.8 (“Know your customer” checks), the Company may request that any of its Subsidiaries become an Additional Guarantor. That Subsidiary shall become an Additional Guarantor if:

 

  (i) the Company delivers to the Agent a duly completed and executed Accession Letter; and

 

  (ii) the Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent and Conditions Subsequent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent.

 

93


EXECUTION VERSION

 

  (b) The Company shall procure that any other member of the Group which (i) is not a Required Guarantor and (ii) is a Material Company (other than Interxion (Schweiz) AG) shall, as soon as possible after becoming a Material Company, become an Additional Guarantor, grant Security as the Agent may require and accede to the Intercreditor Agreement.

 

  (c) The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part 2 of Schedule 2 (Conditions Precedent and Conditions Subsequent).

 

  (d) Other than to the extent the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (c) above, the Lenders authorise (but do not require) the Agent to give the notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

26.3 Required Guarantors

 

  (a) A member of the Restricted Group shall become a Required Guarantor if:

 

  (i) the Company and the proposed Required Guarantor deliver to the Agent a duly completed and executed Accession Letter; and

 

  (ii) the Agent has received all of the documents and other evidence listed in Part 3 of Schedule 2 (Conditions Precedent and Conditions Subsequent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent.

 

  (b) The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence required pursuant to paragraph (a)(ii) above.

 

  (c) Other than to the extent the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (c) above, the Lenders authorise (but do not require) the Agent to give the notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

26.4 Resignation of a Guarantor

 

  (a) The Company may request that a Guarantor (other than the Company) ceases to be a Guarantor by delivering to the Agent a Resignation Letter.

 

  (b) The Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if:

 

  (i) no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case);

 

  (ii) the Super Majority Lenders have consented to the Company’s request; and

 

  (iii) no payment is due from that Guarantor under Clause 19 (Guarantee and Indemnity),

at which time that company shall cease to be a Guarantor and shall have no further rights or obligations under the Finance Documents.

 

  (c) If the resignation of a Guarantor is accepted in accordance with paragraph (b) of this Clause 26.4, the Agent shall instruct the Security Trustee to release any Transaction Security granted by that Guarantor, in accordance with Clause 26.6 (Resignation and release of security on disposal).

 

94


EXECUTION VERSION

 

26.5 Repetition of Representations

Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.

 

26.6 Resignation and release of security on disposal

If a Guarantor (other than the Borrower) is or is proposed to be the subject of a disposal to a person which is not a member of the Group where that disposal is not prohibited under Section 4 (Limitations on Asset Sales) of Schedule 13 (New York Law Undertakings), or if there is a disposal of Charged Property that is an Asset Sale which is not prohibited under Section 4 (Limitations on Asset Sales) of Schedule 13 (New York Law Undertakings), then:

 

  (a) where that Guarantor created Transaction Security over any of its assets or business (or Transaction Security otherwise exists over the Charged Property to be disposed of or the shares to be transferred or the shares in an entity to be converted) in favour of the Security Trustee and/or the Finance Parties, or Transaction Security in favour of the Security Trustee and/or the Finance Parties was created over the shares (or equivalent) of that Guarantor, the Security Trustee may, at the cost and request of the Company, release those assets, business or shares (or equivalent) and issue certificates of non-crystallisation;

 

  (b) the resignation of that Guarantor and related release of Transaction Security referred to in paragraph (a) above shall not become effective until the date of that disposal; and

 

  (c) if the disposal of that Guarantor is not made, the Resignation Letter of that Guarantor and the related release of Transaction Security referred to in paragraph (a) above shall have no effect and the obligations of that Guarantor and the Transaction Security created or intended to be created by or over that Guarantor shall continue in full force and effect,

provided that, for the avoidance of doubt:

 

  (i) in respect of any release of Transaction Security granted by a member of the Group that resigns as a Guarantor and remains a member of the Group, Transaction Security over the shares or other ownership interests in such member of the Group shall not be released where the holder of those shares or ownership interests is a Guarantor; and

 

  (ii) in respect of any disposal of assets between members of the Group that are Obligors, or as a result of such disposal the transferee would be required to become an Obligor, (x) Transaction Security over those assets shall not be released where the disposal may be made subject to such Transaction Security and (y) if a release of such Transaction Security is necessary in order to effect the disposal, the transferee grants equivalent Security over the assets to the extent permitted by law provided that the grant of that Transaction Security would not result in material costs to the Group taken as a whole or the cost to the Group in providing such Transaction Security outweighs the benefit to the Finance Parties of receiving such Transaction Security.

 

27. ROLE OF THE AGENT AND THE ARRANGERS

 

27.1 Appointment of the Agent

 

  (a) Each Finance Party (other than the Agent and the Security Trustee) appoints the Agent to act as its agent under and in connection with the Finance Documents.

 

  (b) Each Finance Party (other than the Agent and the Security Trustee) authorises the Agent to perform the duties, obligations and responsibilities and 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.

 

  (c) Each Finance Party (other than the Agent and the Security Trustee) hereby releases the Agent from any restrictions on representing several persons and self-dealing under any applicable law, and in particular from the restrictions of Section 181 of the German Civil Code (Bürgerliches Gesetzbuch), to make use of any authorisation granted under this Agreement and to perform its duties and obligations as Agent hereunder, in each case to the extent legally possible to such Finance Party. A Finance Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Agent accordingly.

 

95


EXECUTION VERSION

 

27.2 Instructions

 

  (a) The Agent shall:

 

  (i) unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:

 

  (A) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision;

 

  (B) the Super Majority Lenders if the relevant Finance Document stipulates the matter is a Super Majority Lender decision; and

 

  (C) in all other cases, the Majority Lenders; and

 

  (ii) not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.

 

  (b) 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 and the Agent may refrain from acting unless and until it receives those instructions or that clarification.

 

  (c) Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties save for the Security Trustee.

 

  (d) The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.

 

  (e) In the absence of instructions, the Agent may act (or refrain from acting) 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. This paragraph (f) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security Documents or enforcement of the Transaction Security or Transaction Security Documents.

 

96


EXECUTION VERSION

 

27.3 Duties of the Agent

 

  (a) Subject to paragraph (b) below, 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) Without prejudice to Clause 25.8 (Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Obligors’ Agent) paragraph (a) above shall not apply to any Transfer Certificate, any Assignment Agreement or any Increase Confirmation

 

  (c) 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.

 

  (d) 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 other Finance Parties.

 

  (e) 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, the Arrangers or the Security Trustee) under this Agreement it shall promptly notify the other Finance Parties.

 

  (f) The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

 

  (g) The Agent shall promptly forward to the Security Trustee a copy of all notices issued pursuant to Clause 24.18 (Acceleration).

 

  (h) The Agent shall only have those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is a party and no others shall be implied.

 

27.4 Role of the Arrangers

Except as specifically provided in the Finance Documents, the Arrangers have no obligations of any kind to any other Party under or in connection with any Finance Document.

 

27.5 No fiduciary duties

 

  (a) Nothing in any Finance Document constitutes the Agent or any Arranger as a trustee or fiduciary of any other person.

 

  (b) None of the Agent, the Security Trustee, any Arranger or any Ancillary Lender shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

 

27.6 Business with the Group

The Agent, the Security Trustee, each Arranger and each Ancillary Lender may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

 

27.7 Rights and discretions of the Agent

 

  (a) The Agent may rely on:

 

  (i) any representation, communication, 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.

 

97


EXECUTION VERSION

 

  (b) 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 24.1 (Non-payment));

 

  (ii) any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised;

 

  (iii) any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors; and

 

(iv)      (A)      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
     (B)      unless it has received notice of revocation, that those instructions have not been revoked.

 

  (c) The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other professional advisers or experts.

 

  (d) Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as Agent under this Agreement.

 

  (e) Without prejudice to the generality of paragraph (e) above, the Agent:

 

  (i) may disclose; and

 

  (ii) on the written request of the Company or the Majority Lenders shall, as soon as reasonably practicable, disclose,

the identity of a Defaulting Lender to the other Finance Parties and the Company.

 

  (f) Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor any 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.

 

  (g) The Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Agent by any Lender or the identity of any such Lender for the purpose of paragraph (a)(ii) of Clause 12.3 (Market disruption).

 

  (h) The Agent may rely on a certificate from any person:

 

  (i) as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or

 

  (ii) to the effect that such person approves of any particular dealing, transaction, step, action or thing,

as sufficient evidence that that is the case and, in the case of paragraph (h)(i) above, may assume the truth and accuracy of that certificate.

 

98


EXECUTION VERSION

 

  (i) Without prejudice to the generality of paragraph (c) above or paragraph (j) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be desirable.

 

  (j) The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (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 its so relying.

 

  (k) The Agent may act in relation to the Finance Documents through its officers, employees and agents and the Agent shall not:

 

  (i) be liable for any error of judgment made by any such person; or

 

  (ii) be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,

unless such error or such loss was directly caused by the Agent’s gross negligence or wilful misconduct.

 

  (l) 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.

 

27.8 Responsibility for documentation

None of the Agent, any Arranger or any Ancillary Lender is responsible for:

 

  (a) the adequacy, accuracy and/or completeness of any information (whether oral or written) provided by the Agent, any Arranger, an Ancillary Lender, an Obligor or any other person given in or in connection with any Finance Document or the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

 

  (b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document or the Transaction Security; or

 

  (c) 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.

 

27.9 Exclusion of liability

 

  (a) Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent, or any Ancillary Lender), none of the Agent, nor any Ancillary Lender will be liable (including, without limitation, for negligence or any other category of liability whatsoever) for:

 

  (i) any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct;

 

99


EXECUTION VERSION

 

  (ii) exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Transaction Security; or

 

  (iii) without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:

 

  (A) any act, event or circumstance not reasonably within its control; or

 

  (B) the general risks of investment in, or the holding of assets in, any jurisdiction,

including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.

 

  (b) No Party (other than the Agent or any Ancillary Lender as applicable) may take any proceedings against any officer, employee or agent of the Agent or any Ancillary Lender in respect of any claim it might have against the Agent or any Ancillary Lender or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent or any Ancillary Lender may rely on this Clause 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 any Arranger to carry out any “know your customer” or other checks in relation to any person; or any check on the extent to which a transaction contemplated by this Agreement might be unlawful for any Lender, on behalf of any Lender and each Lender confirms to the Agent and the Arrangers 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 any 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 or the Transaction Security shall be limited to the amount of actual loss which has been finally judicially determined to have 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 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.

 

100


EXECUTION VERSION

 

27.10 Lenders’ indemnity to the Agent

 

  (a) 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, within three 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) (or, in the case of any cost, loss or liability pursuant to Clause 30.10 (Disruption to Payment Systems etc.) notwithstanding the Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).

 

  (b) Subject to paragraph (c) the Company shall immediately on demand reimburse any Lender for any payment that the Lender makes to the Agent pursuant to paragraph (a) above.

 

  (c) Paragraph (b) shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Agent to an Obligor.

 

27.11 Resignation of the Agent

 

  (a) The Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom or the Netherlands 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 paragraph (b) above within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Company) may appoint a successor Agent (acting through an office in the United Kingdom or the Netherlands).

 

  (d) If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree, following consultation with the Company and the proposed successor Agent, amendments to this Clause 27 and any other term of this Agreement dealing specifically with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees and agents together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agent’s normal fee rates in respect of an agency appointment similar to that under this Agreement and those amendments will bind the Parties.

 

  (e) 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.

 

  (f) The Agent’s resignation notice shall only take effect upon the appointment of a successor.

 

  (g)

Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligation under paragraph (e) above) but shall remain entitled to the benefit of Clause 16.3 (Indemnity to the Agent) and this Clause 27 (and any agency fees for the account of the retiring Agent shall cease to accrue (and

 

101


EXECUTION VERSION

 

  shall be payable on) that date). 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.

 

  (h) The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (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 14.7 (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 14.7 (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.

 

27.12 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 or the Netherlands), require it to resign in accordance with Clause 27.11 (Resignation of the Agent). In this event, the Agent shall resign in accordance with Clause 27.11 (Resignation of the Agent).

 

  (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 this Clause 27 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) 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.

 

27.13 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.

 

102


EXECUTION VERSION

 

27.14 Relationship with the Lenders

 

  (a) Subject to Clause 25.13 (Pro rata interest settlement), the Agent may treat each person shown in its records as a 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 a Lender acting through its Facility Office, entitled to or liable for any payment under any Finance Document on that day and 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, unless it has received not less than five Business Days’ prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

 

  (b) Each Secured Party shall supply the Agent with any information that the Security Trustee may reasonably specify (through the Agent) as being necessary or desirable to enable the Security Trustee to perform its functions as security trustee or security agent (as the case may be). Each Lender shall deal with the Security Trustee exclusively through the Agent and shall not deal directly with the Security Trustee.

 

  (c) Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 33.5 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 33.2 (Addresses) and paragraph (a)(iii) of Clause 33.5 (Electronic communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

 

27.15 Credit appraisal by the Lenders and Ancillary Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender and Ancillary Lender confirms to the Agent, the Arrangers and each Ancillary Lender that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

 

  (a) the financial condition, creditworthiness, affairs, status and nature of each member of the Group;

 

  (b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;

 

  (c) whether that Lender or Ancillary 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 Transaction Security, 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;

 

103


EXECUTION VERSION

 

  (d) the adequacy, accuracy and/or completeness of any information provided by the Agent, the Security Trustee, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

 

  (e) the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.

 

27.16 Agent’s management time

In the event that an Event of Default has occurred and is continuing, any amount payable to the Agent under Clause 16.3 (Indemnity to the Agent), Clause 18 (Costs and Expenses) and Clause 27.10 (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 13 (Fees).

 

27.17 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.

 

27.18 Reliance and engagement letters

Each Finance Party and Secured Party confirms that each of the Arrangers and the Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Arrangers or Agent) the terms of any reliance letter or engagement letters relating to any reports or letters provided by accountants in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect of those reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.

 

27.19 Role of Base Reference Banks

 

  (a) No Base Reference Bank is under any obligation to provide a quotation or any other information to the Agent.

 

  (b) No Base Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.

 

  (c) No Party (other than the relevant Base Reference Bank) may take any proceedings against any officer, employee or agent of any Base Reference Bank in respect of any claim it might have against that Base Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Base Reference Bank may rely on this Clause 27.19 subject to Clause 1.7 (Third party rights) and the provisions of the Third Parties Act.

 

104


EXECUTION VERSION

 

27.20 Third party Base Reference Banks

A Base Reference Bank which is not a Party may rely on Clause 27.19 (Role of Base Reference Banks), paragraph (c) of Clause 38.2 (Exceptions) and Clause 37.4 (Confidentiality of Funding Rates) subject to Clause 1.7 (Third party rights) and the provisions of the Third Parties Act.

 

27.21 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.

 

27.22 Role of Base Reference Banks

 

  (a) No Base Reference Bank is under any obligation to provide a quotation or any other information to the Agent but may do so at the Agent’s request.

 

  (b) No Base Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any quotation provided to the Agent.

 

  (c) No Party (other than the relevant Base Reference Bank) may take any proceedings against any officer, employee or agent of any Base Reference Bank in respect of any claim it might have against that Base Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any quotation provided to the Agent, and any officer, employee or agent of each Base Reference Bank may rely on this Clause subject to Clause 1.7 (Third party rights) and the provisions of the Third Parties Act.

 

27.23 Third party Base Reference Banks

Any Base Reference Bank which is not a Party may rely on Clause 27.22 (Role of Base Reference Banks) and Clause 37.4 (Confidentiality of Funding Rates) subject to Clause 1.7 (Third Party Rights) and the provisions of the Third Parties Act.

 

28. 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.

 

105


EXECUTION VERSION

 

29. SHARING AMONG THE FINANCE PARTIES

 

29.1 Payments to Finance Parties

 

  (a) Subject to paragraph (b) below, if a Finance Party (a “Recovering Finance Party”) receives or recovers any amount from an Obligor other than in accordance with Clause 30 (Payment Mechanics) (a “Recovered Amount”) or Clause 32 (Application of Proceeds) and applies that amount to a payment due under the Finance Documents then:

 

  (i) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;

 

  (ii) 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 30 (Payment Mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

 

  (iii) the Recovering Finance Party shall, within three 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 30.5 (Partial payments).

 

  (b) Paragraph (a) above shall not apply to any amount received or recovered by an Ancillary Lender in respect of any cash cover provided for the benefit of that Ancillary Lender.

 

29.2 Redistribution of payments

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the “Sharing Finance Parties”) in accordance with Clause 30.5 (Partial payments).

 

29.3 Recovering Finance Party’s rights

On a distribution by the Agent under Clause 29.2 (Redistribution of payments), of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor 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 that Obligor.

 

29.4 Reversal of redistribution

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

 

  (a) each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the 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) (the “Redistributed Amount”); and

 

  (b) as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.

 

106


EXECUTION VERSION

 

29.5 Exceptions

 

  (a) This Clause 29 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause 29, have a valid and enforceable claim against the relevant Obligor.

 

  (b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:

 

  (i) it notified the other Finance Party of the legal or arbitration proceedings; and

 

  (ii) the other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

 

29.6 Ancillary Lenders

 

  (a) This Clause 29 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to service of notice under Clause 24.18 (Acceleration).

 

  (b) Following service of notice under Clause 24.18 (Acceleration), this Clause 29 shall apply to all receipts or recoveries by Ancillary Lenders except to the extent that the receipt or recovery represents a reduction from the Designated Gross Amount for an Ancillary Facility to its Designated Net Amount.

 

30. PAYMENT MECHANICS

 

30.1 Payments to the Agent

 

  (a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document excluding a payment under the terms of an Ancillary Document, that Obligor 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 (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent specifies.

 

30.2 Distributions by the Agent

Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 30.3 (Distributions to an Obligor), Clause 30.4 (Clawback) and Clause 27.17 (Deduction from amounts payable by the Agent) 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 five Business Days’ notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London).

 

30.3 Distributions to an Obligor

The Agent may (with the consent of the Obligor or in accordance with Clause 31 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

 

107


EXECUTION VERSION

 

30.4 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. However, it may do so if it wishes.

 

  (b) Unless paragraph (c) below applies, 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.

 

  (c) If the Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:

 

  (i) the Agent shall notify the Company of that Lender’s identity and the Borrower shall on demand refund it to the Agent; and

 

  (ii) the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.

 

30.5 Partial payments

 

  (a) If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts then due and payable by an Obligor under those Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under those Finance Documents in the following order:

 

  (i) first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent, the Arrangers and the Security Trustee (including, in the case of the Security Trustee, any unpaid fees, costs and expenses of any Receiver or Delegate) under those Finance Documents;

 

  (ii) secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under those Finance Documents;

 

  (iii) thirdly, in or towards payment pro rata of any principal due but unpaid under those Finance Documents; and

 

  (iv) fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

 

  (b) The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above.

 

  (c) Paragraphs (a) and (b) above will override any appropriation made by an Obligor.

 

30.6 No set-off by Obligors

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

 

108


EXECUTION VERSION

 

30.7 Business Days

 

  (a) Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

 

  (b) During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

 

30.8 Currency of account

 

  (a) Subject to paragraphs (b) and (c) below, the Base Currency is the currency of account and payment for any sum from an Obligor 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 the Base Currency shall be paid in that other currency.

 

30.9 Change of currency

 

  (a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

 

  (i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (acting reasonably and after consultation with the Company); and

 

  (ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably and after consultation with the Company).

 

  (b) If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency.

 

30.10 Disruption to Payment Systems etc.

If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Company that a Disruption Event has occurred:

 

  (a) the Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances;

 

109


EXECUTION VERSION

 

  (b) the Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;

 

  (c) the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

 

  (d) any such changes agreed upon by the Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 38 (Amendments and Waivers);

 

  (e) the Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 30.10; and

 

  (f) the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.

 

30.11 Impaired Agent

 

  (a) If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 30.1 (Payments to the Agent) may instead either pay that amount direct to the required recipient or 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 Obligor 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 30.11 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 27.11 (Resignation of the Agent), each Party which has made a payment to a trust account in accordance with this Clause 30.11 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 30.2 (Distributions by the Agent).

 

31. SET-OFF

 

  (a) While an Event of Default is continuing, a Finance Party may set-off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. That Finance Party shall promptly notify that Obligor of any such set-off or conversion.

 

110


EXECUTION VERSION

 

For the avoidance of doubt, the Finance Parties shall be entitled to exercise such right of set-off in relation to the Ancillary Facilities and the Hedging Agreements at any time.

 

  (b) Any credit balances taken into account by an Ancillary Lender when operating a net limit in respect of any overdraft under an Ancillary Facility shall on enforcement of the Finance Documents be applied first in reduction of the overdraft provided under that Ancillary Facility in accordance with its terms.

 

32. APPLICATION OF PROCEEDS

 

32.1 Order of Application

All moneys from time to time received or recovered by the Security Trustee under clause 17.2 (Parallel Debt) of the Intercreditor Agreement and/or by the Security Trustee in connection with the realisation or enforcement of all or any part of the Transaction Security shall be held by the Security Trustee on trust to apply them at such times as the Security Trustee see(s) fit, to the extent permitted by applicable law, in the following order of priority:

 

  (a) in discharging any sums owing to the Security Trustee (in its capacity as trustee), any Receiver or any Delegate;

 

  (b) in payment to the Agent, on behalf of the Secured Parties, for application towards the discharge of all sums due and payable by any Obligor under any of the Finance Documents in accordance with Clause 30.5 (Partial payments);

 

  (c) if none of the Obligors is under any further actual or contingent liability under any Finance Document, in payment to any person to whom the Security Trustee is (or are) obliged to pay in priority to any Obligor; and

 

  (d) the balance, if any, in payment to the relevant Obligor.

 

32.2 Investment of Proceeds

Prior to the application of the proceeds of the Transaction Security in accordance with Clause 32.1 (Order of Application) the Security Trustee may, at its (or their) discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Trustee or the Agent with any financial institution (including itself) and for so long as the Security Trustee think(s) fit (the interest being credited to the relevant account) pending the application from time to time of those monies at the discretion of the Security Trustee in accordance with the provisions of this Clause 32.

 

32.3 Currency Conversion

 

  (a) For the purpose of or pending the discharge of any of the Secured Obligations the Security Trustee may convert any moneys received or recovered by the Security Trustee from one currency to another, at the spot rate at which the Security Trustee is (or are) able to purchase the currency in which the Secured Obligations are due with the amount received.

 

  (b) The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.

 

32.4 Permitted Deductions

The Security Trustee shall be entitled (a) to set aside by way of reserve amounts required to meet and (b) to make and pay, any deductions and withholdings (on account of Tax or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it (or them) under this Agreement, and to pay all Tax which may be assessed against it (or them) in respect of any

 

111


EXECUTION VERSION

 

of the Charged Property, or as a consequence of performing its (or their) duties, or by virtue of its (or their) capacity as Security Trustee under any of the Finance Documents or otherwise (except in connection with its (or their) remuneration for performing its (or their) duties under this Agreement).

 

32.5 Discharge of Secured Obligations

 

  (a) Any payment to be made in respect of the Secured Obligations by the Security Trustee may be made to the Agent on behalf of the Lenders and that payment shall be a good discharge to the extent of that payment, to the Security Trustee.

 

  (b) The Security Trustee is not under an obligation to make payment to the Agent in the same currency as that in which any Unpaid Sum is denominated.

 

32.6 Sums received by Obligors

If any of the Obligors receives any sum which, pursuant to any of the Finance Documents, should have been paid to the Security Trustee, that sum shall promptly be paid to the Security Trustee for application in accordance with this Clause 32.

 

32.7 Application and consideration

In consideration for the covenants given to the Security Trustee by each Obligor in clause 17.2 (Parallel Debt) of the Intercreditor Agreement, the Security Trustee agrees with each Obligor to apply all money from time to time paid by such Obligor to the Security Trustee in accordance with the provisions of Clause 32.1 (Order of Application).

 

33. NOTICES

 

33.1 Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter or any electronic method of communication approved by the Agent and, in relation to communications with any member of the Group, the Company.

 

33.2 Addresses

The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

 

  (a) in the case of the Company (in that capacity or as Obligors’ Agent), that identified with its name below;

 

  (b) in the case of each Lender, each Ancillary Lender or any other Obligor, 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 and the Security Trustee, that identified with each of their names below,

or any substitute address or 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 five Business Days’ notice.

 

112


EXECUTION VERSION

 

  (1) The Company:

Notice Details

 

Address:   

InterXion Holding N.V.

Tupolevlaan 24,

1119 NX Schiphol-Rijk,

The Netherlands

Facsimile:    +31 (0) 2088807601