EX-4.1 2 ex41additionalfacilityacce.htm EXHIBIT 4.1 Exhibit
Exhibit 4.1

CONFORMED COPY

ADDITIONAL FACILITY ACCESSION AGREEMENT

To:    The Bank of Nova Scotia as Facility Agent (the “Facility Agent”)
Credit Suisse AG, London Branch as Security Trustee (the “Security Trustee”)
From:
The persons listed in Schedule 1 to this Additional Facility B Accession Agreement (the “Facility B Lenders”, such defined term to include any lender which becomes a New Lender in respect of the Term Loan B Facility, by the execution by the Facility Agent of a Transfer Certificate or Assignment Agreement)
Date:    8 June 2017
Dear Sirs
€420,000,000 senior facilities agreement dated 25 July 2014 between, among others, Unitymedia Hessen GmbH (as Original Borrower), Unitymedia GmbH (formerly Unitymedia KabelBW GmbH), Unitymedia NRW GmbH, Unitymedia Management GmbH, Unitymedia Hessen Verwaltung GmbH and Unitymedia BW GmbH (formerly Kabel BW GmbH) (as Original Guarantors), and the Financial Institutions listed therein (as Original Lenders), The Bank of Nova Scotia (as Facility Agent) and Credit Suisse AG, London Branch (as Security Trustee) (as amended, restated or otherwise modified from time to time prior to the date hereof, the “Facilities Agreement”)

1.
In this Additional Facility B Accession Agreement (this “Agreement”):
Borrower” means Unitymedia Finance LLC.
Facility B Commitment” means, in relation to a Facility B Lender, the amount in US Dollars set opposite its name under the heading “Facility B Commitment” in Schedule 1 of this Agreement executed by that Facility B Lender, to the extent not cancelled, transferred, or reduced under the Facilities Agreement.
Facility B Loan” means any Additional Facility Loan made available to the Borrower by the Facility B Lenders under the Term Loan B Facility.
Facility B Maturity Date” means 30 September 2025 or such other date as agreed between the Facility B Lenders and the Borrower.
Fee Letter” means the fee and syndication letter, dated 1 June 2017, between the Original Borrower and the Mandated Lead Arrangers (as defined therein) in respect of the Term Loan B Facility.
Term Loan B Facility” means the US$855,000,000 term loan facility made available by the Facility B Lenders under this Agreement.
Majority Facility B Lenders” means those Facility B Lenders, the aggregate of whose Facility B Commitments exceeds 50 per cent. of the aggregate of the Facility B Commitments of all Facility B Lenders.
2.
Unless otherwise defined in this Agreement, terms defined in the Facilities Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the


63529049_1



Facilities Agreement. The principles of construction set out in Clause 1.2 (Construction) of the Facilities Agreement apply to this Agreement as though they were set out in full in this Agreement.
3.
We refer to Clause 2.2 (Additional Facilities) of the Facilities Agreement. This Agreement is an Additional Facility Accession Agreement for the purposes of the Facilites Agremeent.
4.
This Agreement will take effect on the date on which the Facility Agent notifies the Borrower and the Facility B Lenders that it has received the documents and evidence set out in Schedule 2 to this Agreement, in each case in form and substance satisfactory to it (acting reasonably), or, as the case may be, the requirement to provide any of such documents or evidence has been waived by the Facility Agent on behalf of the Majority Facility B Lenders (the “Effective Date”). The obligations of each Facility B Lender to make available its participations in the Term Loan B Facility are subject to the further conditions precedent that the Facility Agent has received all documentation and other information satisfactory to each Mandated Lead Arranger (as defined in the Fee Letter) (acting reasonably) about the Borrower required as a result of “know your customer” and antimoney laundering rules and regulations, including the PATRIOT Act, that has been requested by the Facility Agent (for itself or on behalf of any Mandated Lead Arranger (as defined in the Fee Letter)) or any Mandated Lead Arranger (as defined in the Fee Letter) (through the Facility Agent and for itself) in writing at least 5 days prior to the first Utilisation Date in respect of the Term Loan B Facility.
5.
Unless otherwise indicated herein, the terms of this Agreement shall be consistent in all material respects with the terms of the Facilities Agreement including, without limitation, with respect to interest period, conditions precedent, tax gross-up provisions and indemnity provisions, representations and warranties, utilisation mechanics, cancellation and prepayment (including the treatment of this Agreement under the prepayment waterfall), fees, costs and expenses, transfers, voting, amendments and waivers, non-financial covenants and events of default.
6.
No Utilisation may be made of the Additional Facility made available pursuant to this Agreement, if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation.
7.
The Additional Facility made available pursuant to this Agreement is a term loan.
8.
We, the Facility B Lenders, agree:
(a)
to become party to and to be bound by the terms of the Facilities Agreement as a Lender in accordance with Clause 2.2 (Additional Facilities); and
(b)
to become a party to the Intercreditor Agreement as a Senior Creditor and to observe, perform and be bound by the terms and provisions of the Intercreditor Agreement in the capacity of a Senior Creditor.
9.
The Additional Facility Commitment of each Facility B Lender for the purposes of the definition of Additional Facility Commitment in Clause 1.1 (Definitions) of the Facilities Agreement is its Facility B Commitment.
10.
If any determination under the Facilities Agreement needs to be made by reference to a euro amount, the Facility Agent will translate the relevant US Dollar amount into euros using the Facility Agent’s Spot Rate of Exchange on the relevant date.
11.
The Termination Date in respect of the Term Loan B Facility is the Facility B Maturity Date.
12.
The Term Loan B Facility shall be repaid in full on the Facility B Maturity Date.

2
63529049_1




13.
Subject to the terms of this Agreement, the Facility B Lenders agree to make available to the Borrower a term loan facility in an amount equal to the aggregate of the Facility B Commitments. The Availability Period in respect of the Term Loan B Facility is the period from and including the Additional Facility Commencement Date up to and including 15 September 2017 or such other date agreed between the Facility B Lenders and the Borrower.
14.
The Margin in relation to the Term Loan B Facility is 2.25% per annum or such other rate agreed between the Facility B Lenders and the Borrower.
15.
The interest rate for the Term Loan B Facility will be calculated in accordance with Clause 11 (Interest) of the Facilities Agreement, being the sum of LIBOR and the applicable Margin. For the avoidance of doubt, each party to this Agreement accepts and acknowledges that LIBOR has the meaning given to it under Clause 1.1 (Definitions) of the Failities Agreement provided that if LIBOR as determined in accordance with that definition is less than zero, it shall be deemed to be zero. The first Interest Period in relation to the first Loan under the Term Loan B Facility will commence on the first Utilisation Date in relation to the Term Loan B Facility and end on 14 September 2017.
16.
Loans under this Additional Facility will be used for general corporate purposes and/or working capital purposes, including, without limitation, the refinancing, repayment or prepayment of any existing indebtedness of any member of the Group including the payment of fees and expenses in connection with the refinancing.
17.
The Term Loan B Facility may be drawn by up to two Loans (or any other number of Loans agreed between the Facility B Lenders and the Borrower) and no more than two Utilisation Requests (or any other number of Utilisation Requests agreed between the Facility B Lenders and the Borrower) may be made in respect of the Term Loan B Facility under the Facilities Agreement.
18.
For the purposes of partial assignments, transfers or novations of rights and/or obligations by a Lender in respect of this Additional Facility, the Lenders and the Borrower agree that such assignment, transfer or novation shall be in a minimum amount of US$1,000,000 (save that in the case of a partial assignment, transfer or novation by a Lender of its rights and/or obligations under this Additional Facility to an Affiliate or Related Fund of that Lender, such assignment, transfer or novation shall be in a minimum amount of US$500,000).
19.
If on or prior to the date falling six months after the date of this Agreement (but not otherwise) the Borrower:
(a)
makes any prepayment of the Term Loan B Facility in connection with any Repricing Transaction (as defined below) other than where such prepayment is funded by the issuance of notes by any member of the Group or a special purpose vehicle which on-lends the proceeds of such notes to a member of the Group; or
(b)
effects any amendment of this Agreement or the Facilities Agreement resulting in a Repricing Transaction, other than, for the avoidance of doubt, any amendments contemplated by the Amendment and Restatement Agreement (as defined below),
the Borrower shall, in each case, pay to the Facility Agent, for the account of each applicable Facility B Lender:

3
63529049_1




(c)
in the case of paragraph (a) above, a prepayment fee equal to 1.00 per cent. flat on the amount of that Facility B Lender’s Facility B Loan which is prepaid and such prepayment fee shall be due and payable on the date of such prepayment; and
(d)
in the case of paragraph (b) above, a prepayment fee equal to 1.00 per cent. flat on the aggregate amount of the Facility B Loans of each Facility B Lender that shall have been the subject of a mandatory assignment under the Facilities Agreement following the failure of such Lender to consent to such amendment on or prior to the date falling six months after the date of this Agreement and such prepayment fee shall be due and payable on the effective date of such assignment.

In this paragraph 19, “Repricing Transaction” means the prepayment or refinancing of all or a portion of the Facility B Loans with any long term bank debt financing incurred for the primary purpose of repaying, refinancing, substituting or replacing the Facility B Loans which has (or any amendment to this Agreement or the Facilities Agreement which results in) an effective interest cost or weighted average yield (as determined by the Facility Agent consistent with generally accepted financial practice and, in any event, excluding any arrangement or commitment fees in connection therewith) that is less than the interest rate for or weighted average yield (as determined by the Facility Agent (acting reasonably) on the same basis) of the Facility B Loans.

20.
(a)     Provided that any upsizing of the Term Loan B Facility permitted under this paragraph will not breach any term of the Facilities Agreement, the Term Loan B Facility may be upsized by any amount, by the signing of one or more further Additional Facility Accession Agreements in respect of the Term Loan B Facility (an “Additional Accession Agreement”), that specifies (along with the other terms specified therein) Unitymedia Finance LLC as the sole Borrower, that the Commitments under that Additional Accession Agreement are denominated in US Dollars, to be drawn in US Dollars and with the same Termination Date and Margin as specified in this Agreement.

(b)     For the purposes of this paragraph 20 (unless otherwise specified), references to each Facility B Lender and Facility B Loan shall include Lenders and Loans made under any such further Additional Accession Agreement.

(c)     Where any Facility B Loan has not already been consolidated with any other Facility B Loan, on the last day of any Interest Period for that unconsolidated Facility B Loan, that Facility B Loan will be consolidated with any Facility B Loan which has an Interest Period ending on the same day as that unconsolidated Facility B Loan, and all such Loans will then be treated as one Loan under the Term Loan B Facility.

21.
On the first Utilisation Date in respect of the Term Loan B Facility, the Borrower confirms, on behalf of itself and the Company confirms on behalf of itself and each other Obligor, that the Repeating Representations are true and correct as if made at the first Utilisation Date in respect of the Facility B Loan with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement.

22.
Each of the Obligors further represents and warrants on the first Utilisation Date in respect of the Term Loan B Facility that the execution and delivery by it of this Agreement and the performance of the transactions contemplated by this Agreement will not violate any agreement or instrument to which it is a party or which is binding upon it or any member of the Group or any of its assets or any member of the Group’s assets, where such violation would or is reasonably likely to have a Material Adverse Effect.

4
63529049_1




23.
Each of the Guarantors party to this Agreement confirm that its obligations under Clause 20 (Guarantee and Indemnity) of the Facilities Agreement confirms that the Security created pursuant to the Transaction Security Documents and its obligations under the Finance Documents, shall continue unaffected and that such obligations extend to the Total Commitments as increased by the addition of the Facility B Commitment and that such obligations shall be owed to each Finance Party including the Facility B Lenders.
24.
We confirm to each Finance Party that:
(a)
we have made our own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Facilities Agreement and have not relied on any information provided to us by a Finance Party in connection with any Finance Document; and
(b)
we will continue to make our own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Facilities Agreement or any Facility B Commitment is in force.
25.
Each of the Facility B Lenders hereby agrees with each other person who is or who becomes a party to the Intercreditor Agreement that with effect on and from the Additional Facility Commencement Date it will be bound by the Intercreditor Agreement as a Senior Creditor (as defined in the Intercreditor Agreement) (in its capacity as a Lender under the Facilities Agreement) as if it had been party originally to the Intercreditor Agreement in that capacity and that it shall perform all of the undertakings and agreement set out in the Intercreditor Agreement and given by a Senior Creditor (as defined in the Intercreditor Agreement). This Agreement is the “Accession Agreement” referred to in Clause 13.2(b) of the Intercreditor Agreement.
26.
As a condition subsequent to this Agreement, the Company shall procure that within nine months of the date of this Agreement, each Obligor identified in Schedule 2 Part 4 (Conditions Subsequent—Transaction Security) of the Facilities Agreement grants the Transaction Security (in form and substance satisfactory to the Facility Agent (acting reasonably)) identified opposite its name in Schedule 2 Part 4 (Conditions Subsequent—Transaction Security) of the Facilities Agreement.
27.
(a)    For the purposes of any amendment or waiver, consent or other modification (including, with respect to any existing Default or Event of Default) that may be sought by the Company under the Facilities Agreement or any other Finance Document at any time on or after the date of this letter, each Lender hereby consents to:
(i)
the amendment and restatement of the Facilities Agreement so that it shall, on and following the Amendment Effective Date (as defined in the Amendment and Restatement Agreement referred to below), be in effect in substantially the form set out in Schedule 1 to the Amendment and Restatement Agreement (the “Amended and Restated Facilities Agreement”), provided that, in the event that the consent of all (or a requisite threshold) of the Lenders which is necessary for such amendment and restatement of the Facilities Agreement in full is not obtained, the Company and the Facility Agent (in each case, acting reasonably) may agree amendments to such form in order to remove any amendments to the Facilities Agreement that would require the consent of all (or such requisite threshold) of the Lenders; and

5
63529049_1




(ii)
the Facility Agent’s execution on its (or its Affiliate’s) behalf, at any time, following a request by the Company to do so, of the amendment and restatement agreement (the “Amendment and Restatement Agreement”) in substantially the form set out in Schedule 2 to this Agreement, pursuant to which the Facilities Agreement shall be amended and restated in its entirety and take the form of the Amended and Restated Facilities Agreement,
and this Agreement shall constitute each Facility B Lender’s irrevocable and unconditional written consent in respect of any consents required for the purposes of Clause 36 (Amendments and Waivers) of the Facilities Agreement without any further action required on the part of any party thereto.
(b)
Each Lender waives receipt of any fee in connection with the foregoing consents, notwithstanding that other consenting Lenders under the Facilities Agreement may be paid a fee in consideration of such Lenders’ consent to any or all of the foregoing amendments, waivers or other modifications).
(c)
Each Lender acknowledges and agrees that the Facility Agent and/or the Security Agent (as applicable) may, but shall not be required to, send any further formal amendment request in connection with all, or any of the proposed amendments set out under paragraph 27(a) above and the Facility Agent and/or the Security Agent (as applicable) shall be authorised to consent on our behalf, as a Lender, to any such proposed amendments set out under paragraph 27(a) above, and such consent shall be taken into account in calculating whether the Majority Lenders, or the relevant requisite Lenders have consented to the relevant amendments and/or waiver to the Finance Documents in accordance with Clause 36 (Amendments and Waivers) of the Facilities Agreement.
28.
This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.
29.
If a term of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect:
(a)
the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or

(b)
the legality, validity or enforceability in other jurisdictions of that or any other term of this Agreement.

30.
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
31.
Clause 40.1 (Jurisdiction) of the Facilities Agreement is incorporated into this Agreement as if set out in full and as if references in that clause to “this Agreement” is to this Agreement.
32.
This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement.
33.
This Agreement is an Accession Agreement for the purposes of and as defined in the Intercreditor Agreement.

6
63529049_1




SCHEDULE 1
FACILITY B LENDERS AND FACILITY B COMMITMENTS

Facility B Lender
Facility B Commitment
The Bank of Nova Scotia
US$855,000,000


63529049_1





SCHEDULE 2
CONDITIONS PRECEDENT
1.    Original Obligors

(a)
A copy of the Constitutional Documents of each Original Obligor.
(b)
In respect of each Original Obligor incorporated in Germany, a recent excerpt from the commercial register (Handelsregister) of the Original Obligors, not older than 14 days from the date of this Agreement.
(c)
A copy of a resolution of the shareholder(s) of each Original Obligor approving the terms of, and the transactions contemplated by, this Agreement and resolving that it execute, deliver and perform this Agreement.
(d)
A specimen of the signature of each person authorised to execute, on behalf of each Original Obligor, this Agreement and related documents to which it is a party and to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with this Agreement.
(e)
A certificate by the directors of each Original Obligor confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments will not cause any borrowing, guarantee, security or similar limit binding on any Original Obligor to be exceeded.
(f)
A certificate by the directors of each Original Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement.
2.    Legal Opinions

The following legal opinions, each addressed to the Facility Agent, the Security Trustee and the Original Lenders and capable of being relied upon by any persons to become Lenders pursuant to the primary syndication of the Facilities:

(a)
A legal opinion of Allen & Overy LLP legal advisers to the Facility Agent and the Mandated Lead Arrangers as to English law.
(b)
A legal opinion of Freshfields Bruckhaus Deringer legal advisers to the Company as to German law.

(c)
A legal opinion of Ropes & Gray International LLP legal advisers to the Company as to Delaware law.

3.    Other Documents and Evidence

(a)
A duly executed copy of this Agreement.
(b)
A duly executed copy of the Fee Letter.
(c)
A certificate of the Senior Subordinated Notes Issuer (as defined in the Intercreditor Agreement) to the Super Priority Representatives, the Senior Representatives and the Senior Subordinated Representatives (each as defined in the Intercreditor Agreement) confirming that each of the


63529049_1





conditions set out in paragraphs (a)(i) to (v) of clause 13.2 of the Intercreditor Agreement have been satisfied.
(d)
A copy of a designation certificate executed by the Senior Subordinated Notes Issuer (as defined in the Intercreditor Agreement) designating the Term Loan B Facility under this Agreement as Senior Debt (as defined in the Intercreditor Agreement) and this Agreement as a Senior Designated Debt Document (as defined in the Intercreditor Agreement).
(e)
Evidence that the Borrower has acceded as an Additional Borrower pursuant to clause 28.2 of the Facilities Agreement.
(f)
Evidence that the agent of the Borrower under the Finance Documents for service of process in England has accepted its appointment.

 





63529049_1





SCHEDULE 3
AMENDMENT AND RESTATEMENT AGREEMENT


63529049_1



Exhibit 4.1

CONFORMED COPY





AMENDMENT AND RESTATEMENT AGREEMENT
related to a senior facilities agreement
originally dated 25 July 2014











Dated _____________ 2017
BETWEEN



UNITYMEDIA HESSEN GMBH & CO. KG
as Original Borrower
UNITYMEDIA GMBH
UNITYMEDIA BW GMBH
UNITYMEDIA HESSEN GMBH & CO. KG
UNITYMEDIA HESSEN VERWALTUNG GMBH
UNITYMEDIA MANAGEMENT GMBH
UNITYMEDIA NRW GMBH
as Original Guarantors

THE BANK OF NOVA SCOTIA
as Facility Agent

and

[CREDIT SUISSE AG, LONDON BRANCH
as Security Trustee]


`CONTENTS
__________________________
1 Note: Identity of US Borrower TBC.


63529049_1





Clause
 
Page
 
1.
INTERPRETATION
3

2.
Amendments
4

3.
Representations: Obligors
4

4.
Confirmation, Guarantee and Security
5

5.
Miscellaneous
6

6.
Governing Law
6

Schedule 1 THE ORIGNAL GUARANTORS
7

Schedule 2 CONDITIONS PRECEDENT TO THE AMENDMENT EFFECTIVE DATE
8

Schedule 3 AMENDED AND RESTATED FACILITIES AGREEMENT
9



12
63529049_1




THIS AMENDMENT AND RESTATEMENT AGREEMENT (this “Agreement”) is dated _____________ 2017 and made
BETWEEN
(1)
UNITYMEDIA HESSEN GMBH & CO. KG, a German limited partnership (Kommanditgesellschaft) organised and validly existing under the laws of the Federal Republic of Germany having its registered address at Aachener Strasse 746-750, 50933 Cologne, and which is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Cologne under registration number HRA 24116 (the “Original Borrower” or the “Company”);
(2)
THE ENTITIES listed in Schedule 1 (The Original Guarantors) as original guarantors (the “Original Guarantors”);
(3)
THE BANK OF NOVA SCOTIA as facility agent (the “Facility Agent”); and
(4)
[CREDIT SUISSE AG, LONDON BRANCH as security trustee (the “Security Trustee”)].
BACKGROUND
(A)
We refer to the €420,000,000 senior facilities agreement originally dated 25 July 2014 and made between the Company, the Original Guarantors, the Security Trustee and the Facility Agent (amongst others) (the “Existing Facilities Agreement”).
(B)
This Agreement is supplemental to and amends the Existing Facilities Agreement.
(C)
Pursuant to clause 36 (Amendments and Waivers) of the Existing Facilities Agreement, [all Lenders/the Majority Lenders] have consented to the amendments to the Existing Facilities Agreement contemplated by this Agreement. Accordingly, the Facility Agent is authorised to execute this Agreement to effect the amendments on behalf of the Finance Parties.
IT IS AGREED as follows:

13
63529049_1




1.
INTERPRETATION
1.1
Definitions
In this Agreement:
Amended and Restated Facilities Agreement” means the Existing Facilities Agreement as amended and restated in its entirety in the form set out in Schedule 3 (Amended and Restated Facilities Agreement).
Amendment Effective Date” means the date upon which the Facility Agent confirms to the Company that it has received each of the documents and evidence set out in Schedule 2 (Conditions Precedent) to this Agreement in form and substance satisfactory to the Facility Agent. The Facility Agent must give this confirmation as soon as reasonably practicable.
(a)
Capitalised terms defined in the Facilities Agreement have, unless expressly defined in this Agreement, the same meaning in this Agreement.
(a)
The provisions of clauses 1.2 (Construction) of the Facilities Agreement apply to this Agreement as though they were set out in full in this Agreement except that references to the Facilities Agreement are to be construed as references to this Agreement.
(b)
Where paragraph or clause numbers have changed in the Amended and Restated Facilities Agreement as a result of the amendments to the Facilities Agreement, and such paragraph and clause numbers are referred to in any other Finance Document in force on the Amendment Effective Date, such paragraph or clause numbers shall be read and construed in the Amended and Restated Facilities Agreement, for the purposes of the relevant Finance Document only, so that the equivalent provision in the Amended and Restated Facilities Agreement is instead referred to in each such Finance Document.

1.2
Third Party Rights
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
2.
Amendments
The parties hereto agree that with effect from the Amendment Effective Date, the Facilities Agreement shall be supplemented and amended and restated by this Agreement so that it shall then be in effect in the form set out at Schedule 3 (Amended and Restated Facilities Agreement) to this Agreement.
3.
REPRESENTATIONS: OBLIGORS
3.1
Representations
The representations and warranties set out in this Clause are made on the Amendment Effective Date by each Obligor to each Finance Party. Each Obligor makes the representations and warranties set out in this Clause in respect of itself and (where applicable) in respect of its Subsidiaries which are members of the Group.

14
63529049_1




3.2
Legal Validity
(a)
The obligations expressed to be assumed by it in this Agreement constitutes its legal, valid and binding obligations enforceable, subject to any relevant reservations or qualifications as to matters of law contained in any legal opinion referred to in paragraph 2 of Schedule 2 to this Agreement in accordance with its terms.
(b)
The choice of English law as the governing law of this Agreement will be recognised and enforced in its jurisdiction of incorporation, subject to any relevant reservation or qualification as to matters of law contained in any legal opinion referred to in paragraph (a) above.
(c)
Any judgment obtained in England in relation to this Agreement will be recognised and enforced in its jurisdiction of incorporation, subject to any relevant reservation or qualification as to matters of law contained in any legal opinion referred to in paragraph (a) above.
3.3
Non-conflict
The execution and delivery by it of, this Agreement, and its performance of the transactions contemplated thereby, will not violate:
(a)
any law or regulation or official judgment or decree applicable to it;
(b)
its constitutional documents; or
(c)
any agreement or instrument to which it is a party or binding on any of its assets or binding upon any other member of the Group or any other member of the Group’s assets,
in each case, where such violation would or is reasonably likely to have a Material Adverse Effect.
3.4
Power and authority
It has the power to enter into and comply with all obligations expressed on its part under this Agreement and has taken all necessary actions to authorise the execution, delivery and performance of this Agreement and the transactions contemplated by this Agreement.
3.5
Authorisations
Subject to any relevant reservations or qualifications contained in any legal opinion referred to in paragraph (a) of Clause 3.2 (Legal Validity) above, all material Authorisations required:
(a)
to enable it lawfully to enter into, exercise its rights and comply with its obligations in this Agreement; and
(b)
to make this Agreement admissible in evidence,
have been obtained or effected and are in full force and effect.

15
63529049_1




4.
CONFIRMATION, GUARANTEE AND SECURITY
With effect from the Amendment Effective Date, each Obligor (as applicable):
(a)
confirms its acceptance of the Amended and Restated Facilities Agreement;
(b)
agrees that it is bound as an Obligor; and
(c)
confirms and accepts that:
(i)
any Security, guarantee and indemnity created or given by it under a Transaction Security Document will:
(A)
continue in full force and effect on the terms of the respective Finance Documents (including the Amended and Restated Facilities Agreement); and
(B)
continue to extend to the [Secured Debt]2, under and as defined in the Intercreditor Agreement; and
(ii)
any guarantee or indemnity created or given by it under clause 20 (Guarantee and Indemnity) of the Facilities Agreement will:
(A)
continue in full force and effect on the terms of the respective Finance Documents (including the Amended and Restated Facilities Agreement); and
(B)
extend to the liabilities and obligations of the Obligors under the Finance Documents (including the Amended and Restated Facilities Agreement),
in each case, as amended by the terms of this Agreement and subject to any limitations set out in clause 20.10 (Guarantee Limitations) of the Amended and Restated Facilities Agreement.
______________________________
2 Note: FBD to confirm.
5.
MISCELLANEOUS
(a)
Each of this Agreement and the Amended and Restated Facilities Agreement is a Finance Document.
(b)
Subject to the terms of this Agreement:
(i)
the Amended and Restated Facilities Agreement will remain in full force and effect and, from the Amendment Effective Date, the Facilities Agreement and this Agreement will be read and construed as one document; and
(ii)
except as otherwise provided in this Agreement, the Finance Documents remain in full force and effect.

16
63529049_1




(c)
The provisions of clauses 38 (Counterparts) and 40 (Enforcement) of the Facilities Agreement apply to this Agreement as though they were set out in full in this Agreement except that references to the Facilities Agreement are to be construed as references to this Agreement.
6.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.


17
63529049_1




SCHEDULE 1

THE ORIGNAL GUARANTORS
Name of Original Guarantor
Registration number (or equivalent, if any)
(All entities registered in Cologne unless otherwise stated)

Unitymedia BW GmbH
(formerly Kabel BW GmbH)

HRB 83533
(formerly HRB 702325 (registered in Mannheim))
Unitymedia GmbH
(formerly Unitymedia KabelBW GmbH)

HRB 68501
Unitymedia Hessen GmbH & Co. KG
HRA 24116
Unitymedia Hessen Verwaltung GmbH
HRB 58137
Unitymedia Management GmbH
HRB 57277
Unitymedia NRW GmbH
HRB 55984




63529049_1





SCHEDULE 2

CONDITIONS PRECEDENT TO THE AMENDMENT EFFECTIVE DATE
1.    Original Obligors

(g)
A copy of the Constitutional Documents of each Original Obligor.
(h)
In respect of each Original Obligor incorporated in Germany, a recent excerpt from the commercial register (Handelsregister) of the Original Obligors, not older than 14 days from the date of this Agreement.
(i)
A copy of a resolution of the shareholder(s) of each Original Obligor approving the terms of, and the transactions contemplated by, this Agreement and resolving that it execute, deliver and perform this Agreement.
(j)
A specimen of the signature of each person authorised to execute, on behalf of each Original Obligor, this Agreement and related documents to which it is a party and to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with this Agreement.
(k)
A certificate by the directors of each Original Obligor confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments will not cause any borrowing, guarantee, security or similar limit binding on any Original Obligor to be exceeded.
(l)
A certificate by the directors of each Original Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement.
2.    Legal Opinions

The following legal opinions, each addressed to the Facility Agent, the Security Trustee and the Original Lenders and capable of being relied upon by any persons to become Lenders pursuant to the primary syndication of the Facilities:

(m)
A legal opinion of Allen & Overy LLP legal advisers to the Facility Agent and the Mandated Lead Arrangers as to English law.
(n)
A legal opinion of Freshfields Bruckhaus Deringer legal advisers to the Company as to German law.

(o)
A legal opinion of Ropes & Gray International LLP legal advisers to the Company as to Delaware law.





63529049_1





SCHEDULE 3

AMENDED AND RESTATED FACILITIES AGREEMENT
    

€420,000,000

SENIOR FACILITIES AGREEMENT 
originally dated 25 July 2014 as amended and restated 
by an amendment and restatement agreement dated
[•] 2017

for

UNITYMEDIA HESSEN GMBH & CO. KG 
as Original Borrower
and
CERTAIN BANKS AND FINANCIAL INSTITUTIONS 
as Original Lenders
with

THE BANK OF NOVA SCOTIA 
acting as Facility Agent

CREDIT SUISSE AG, LONDON BRANCH 
acting as Security Trustee

This Agreement is subject to the terms and conditions 
of the Intercreditor Agreement
rglogo.jpg


63529049_1





1.
Definitions and Interpretation
1

2.
The Facilities
33

3.
Purpose
40

4.
Conditions of Utilisation
40

5.
Utilisation
41

6.
Ancillary Facilities
43

7.
Documentary Credits
50

8.
Repayment
57

9.
Illegality, Voluntary Prepayment and Cancellation
59

10.
Mandatory Prepayment
62

11.
Restrictions
63

12.
Interest
64

13.
Interest Periods
65

14.
Changes to the Calculation of Interest
67

15.
Fees
70

16.
Tax Gross up and Indemnities
71

17.
Increased Costs
77

18.
Other Indemnities
80

19.
Mitigation by the Lenders
81

20.
Costs and Expenses
82

21.
Guarantee and Indemnity
83

22.
Representations
92

23.
Information Undertakings
97

24.
Financial Covenant
99

25.
General Undertakings
102

26.
Events of Default
107

27.
Changes to the Finance Parties
109

28.
Changes to the Obligors
124

29.
Conduct of Business by the Finance Parties
140

30.
Sharing Among the Finance Parties
140

31.
Payment Mechanics
142

32.
Set-off
145

33.
Notices
146

34.
Calculations and Certificates
149

35.
Partial Invalidity
149

36.
Remedies and Waivers
149

37.
Amendments and Waivers
150

38.
INTERCREDITOR AGREEMENT AND ASSET SECURITY RELEASE
152

39.
Termination of Certain Provisions
153

40.
Counterparts
153

41.
Governing Law
153

42.
Enforcement
153

43.
Confidentiality of Funding Rates and Reference Banks Quotations
154

Schedule 1 The Original Parties
157

 
Part 1: The Original Obligors
157

 
Part 2: The Original Lenders
158


(i)
63529049_1



Schedule 2 Conditions Precedent
159

 
Part 1: Conditions Precedent to Signing the Agreement
159

 
Part 2: Conditions Precedent to Initial Utilisation
161

 
Part 3: Conditions Precedent Required To Be Delivered By An Additional Obligor
162

 
Part 4: Condition Subsequent - Transaction Security
164

Schedule 3 Requests
168

 
Part 1: : Utilisation Request (Loans)
168

 
Part 2: : Utilisation Request (Documentary Credits)
170

 
Part 3: : Selection Notice
171

Schedule 4 Form of Transfer Certificate
172

Schedule 5 Form of Assignment Agreement
175

Schedule 6 Form of Documentary Credit
178

Schedule 7 Form of L/C Bank Accession Certificate
180

Schedule 8 Form of Obligor Accession Agreement
182

Schedule 9 Form of Additional Facility Accession Agreement
183

Schedule 10 Form of Resignation Letter
186

Schedule 11 Form of Compliance Certificate
188

Schedule 12 LMA Form of Confidentiality Undertaking
189

Schedule 13 Timetables
194

Schedule 14 Covenants
195

Schedule 15 Events of Default
196

Schedule 16 Definitions
197

Schedule 17 Form of Increase Confirmation
198

Schedule 18 List of Designated Entities
201

Schedule 19 Form of Designated Entity Accession Agreement
202



(ii)
63529049_1



THIS AGREEMENT originally dated 25 July 2014 and as amended and restated by an amendment and restatement agreement dated [•] 2017.
BETWEEN:
(1)
UNITYMEDIA HESSEN GMBH & CO. KG, a German limited partnership (Kommanditgesellschaft) organised and validly existing under the laws of the Federal Republic Germany having its registered address at Aachener Street 746-750, 50933 Cologne and which is registered in the commercial register (Handelsregister) of the local court (Amtsgericht) of Cologne under registration number HRA 24116 (the Original Borrower or the Company);
(2)
[US BORROWER], a limited liability company incorporated under the laws of the State of Delaware with its registered office at [•] (the “Original US Borrower”);
(3)
THE ENTITIES listed in Part 1 of Schedule 1 (The Original Parties) as original guarantors (the Original Guarantors);
(4)
THE FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 (The Original Parties) as lenders (the Original Lenders);
(5)
THE BANK OF NOVA SCOTIA as agent of the other Finance Parties (other than the Security Trustee) (the Facility Agent); and
(6)
CREDIT SUISSE AG, LONDON BRANCH as security trustee for the Secured Parties (the Security Trustee).
IT IS AGREED as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
2017 Amendment Effective Date” means [•].
Acceptable Bank” means:
(a)
a bank or financial institution which has a rating for its long term unsecured and non credit-enhanced debt obligations of BBB or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa or higher by Moody’s Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or
(b)
any other bank or financial institution approved by the Facility Agent.
Acceleration Date” means the date on which a written notice has been served under Clause 26.2 (Acceleration).

1
63529049_1



Additional Borrower” means a company which becomes a Borrower in accordance with Clause 28 (Changes to the Obligors).
Additional Currency” means any currency that is the lawful currency for the time being of any country in which a member of the Group is incorporated and/or carries on its business, or in a jurisdiction incidental to the business of a member of the Group.
Additional Facility” means an additional term or revolving loan facility referred to in Clause 2.3 (Additional Facilities) and Additional Facilities means all or any such Additional Facilities.
Additional Facility Accession Agreement” means a document substantially in the form of Schedule 9 (Form of Additional Facility Accession Agreement), with such amendments as the Facility Agent or the relevant Lenders under such Additional Facility and the Company may approve or reasonably require.
Additional Facility Availability Period” means in relation to an Additional Facility the availability period specified in the Additional Facility Accession Agreement for that Additional Facility.
Additional Facility Commencement Date” means, in relation to an Additional Facility, the effective date of that Additional Facility which shall be the later of:
(a)
the date specified in the relevant Additional Facility Accession Agreement; and
(b)
the date on which the conditions set out in paragraph (b) of Clause 2.2 (Additional Facilities) are satisfied.
Additional Facility Commitment” means in relation to:
(a)
an Initial Additional Facility Lender the amount in euros, US Dollars or relevant Additional Currency set out as the Additional Facility Commitment of a Lender in the relevant Additional Facility Accession Agreement and the amount of any other Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.5 (Increase); and
(b)
any other Lender, the amount in euros, US Dollars or relevant Additional Currency (as applicable) transferred to it in accordance with this Agreement or assumed by it in accordance with Clause 2.5 (Increase),
to the extent not cancelled, reduced or transferred by it in accordance with this Agreement.
Additional Facility Loan” means a loan and/or advance made or to be made under the Additional Facility or the principal amount outstanding for the time being of that loan.
Additional Guarantor” means a company which becomes a Guarantor in accordance with Clause 28 (Changes to the Obligors).
Additional Obligor” means an Additional Borrower or an Additional Guarantor.

2
63529049_1



Administrative Party” means each of a Mandated Lead Arranger, the Security Trustee and the Facility Agent.
Affected Documentary Credit” has the meaning given to such term in Clause 9.2 (Illegality in Relation to an L/C Bank).
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.
Alternative Market Disruption Event” has the meaning given to that term in Clause 14.2 (Market disruption).
Alternative Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Alternative Reference Banks:
(a)
in relation to LIBOR:
(i)
(other than where paragraph (ii) below applies) as the rate at which the relevant Alternative Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or
(ii)
if different, as the rate (if any and applied to the relevant Alternative Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or
(b)
in relation to EURIBOR:
(i)
(other than where paragraph (ii) below applies) as the rate at which the relevant Alternative 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
(ii)
if different, as the rate (if any and applied to the relevant Alternative Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.
Alternative Reference Banks” means:
(a)
in relation to EURIBOR, Scotiabank Europe plc, BNP Paribas Fortis SA/NV and Deutsche Bank AG, London Branch, or their respective affiliates or such other banks as may be appointed by the Facility Agent in consultation with the Company; and
(b)
in relation to LIBOR, Scotiabank Europe plc, BNP Paribas Fortis SA/NV and Deutsche Bank AG, London Branch, or their respective affiliates or such other

3
63529049_1



banks as may be appointed by the Facility Agent in consultation with the Company.
Ancillary Facility” means any:
(a)
overdraft, automated payment, cheque drawing or other current account or on demand facility;
(b)
forward foreign exchange facility;
(c)
derivatives facility;
(d)
a short term loan facility;
(e)
guarantee, bond issuance, documentary or stand-by letter of credit facility;
(f)
performance bond facility; and/or
(g)
such other facility or financial accommodation as may be required in connection with the business of the Group and which is agreed in writing between the relevant Borrower and the relevant Ancillary Facility Lender.
Ancillary Facility Commitment means, in relation to an Ancillary Facility Lender at any time, the amount in euros, US Dollars or relevant Additional Currency set out as the Ancillary Facility Commitment of a Lender in the relevant Conversion Notice and the amount of any other Ancillary Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.4 (Increase) to the extent not cancelled, reduced or transferred by it in accordance with this Agreement.
Ancillary Facility Documents means the documents and other instruments pursuant to which an Ancillary Facility is made available and the Ancillary Facility Outstandings under it are evidenced in such form as is agreed between the relevant Ancillary Facility Lender and the relevant Borrower.
Ancillary Facility Effective Date has the meaning given to such term in paragraph (a) of Clause 6.1 (Utilisation of Ancillary Facilities).
Ancillary Facility Lender” means any Lender (or Affiliate of a Lender) which has notified the Facility Agent that it has agreed to its nomination in a Conversion Notice to be an Ancillary Facility Lender in respect of an Ancillary Facility granted pursuant to the terms of this Agreement.
Ancillary Facility Outstandings” means (without double counting), at any time with respect to an Ancillary Facility Lender and each Ancillary Facility provided by it, the aggregate of:
(a)
all amounts of principal then outstanding under any overdraft, automated payment, cheque drawing or other current account facility (determined in accordance with the applicable terms) as at such time (net of any Available Credit Balance); and

4
63529049_1



(b)
in respect of any other facility or financial accommodation, such other amount as fairly represents the aggregate potential exposure of that Ancillary Facility Lender with respect to it under its Ancillary Facility, as reasonably determined by that Ancillary Facility Lender from time to time in accordance with its usual banking practices for facilities or accommodation of the relevant type (including without limitation, the calculation of exposure under any derivatives facility by reference to the mark-to-market valuation of such transaction at the relevant time).
Ancillary Facility Termination Date” has the meaning given to such term in paragraph (g) of Clause 6.1 (Utilisation of Ancillary Facilities).
Amount” means in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan as adjusted to reflect any repayment, prepayment, consolidation or division of a Loan.
Assignment Agreement” means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) with such amendments as the Facility Agent may approve or reasonably require.
Auditors” means KPMG LLP, PriceWaterhouseCoopers, Ernst &Young, Deloitte & Touche or such other internationally recognised firm approved by the Company.
Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
Availability Period” means:
(a)
in relation to a Revolving Facility, the period from and including the date of this Agreement to and including the date falling one Month or such shorter period as may be agreed by the Obligors’ Agent and the Facility Agent (acting on the instructions of the Lenders) prior to the Termination Date; and
(b)
in relation to an Additional Facility which is not a Revolving Facility, the Additional Facility Availability Period.
Available Ancillary Facility Commitment” means in relation to an Ancillary Facility Lender and an Ancillary Facility granted by it at any time, and save as otherwise provided in this Agreement or in the applicable Ancillary Facility Documents, its Ancillary Facility Commitment at such time, less the Ancillary Facility Outstandings at such time, provided always that such amount shall not be less than zero.
Available Commitment” means:
(a)
in relation to an Ancillary Facility Lender and an Ancillary Facility granted by it at any time, its Available Ancillary Facility Commitment; and
(b)
in relation to any Lender and any other Facility, that Lender’s Commitment under that Facility minus (subject as set out below):

5
63529049_1



(i)
the Amount of its participation in any outstanding Utilisations under that Facility; and
(ii)
in relation to any proposed Utilisation, the Amount of its participation in any Utilisations under that Facility that are due to be made on or before the proposed Utilisation Date.
For the purposes of calculating a Lender’s Available Commitment in relation to any proposed Utilisation under a Revolving Facility, that Lender’s share in any Utilisations or Ancillary Facility Outstandings, that are due to be repaid or prepaid on or before the proposed Utilisation Date shall not be deducted from a Lender’s Commitment.
Available Credit Balance” means, in relation to an Ancillary Facility, credit balances on any account of any Borrower of that Ancillary Facility with the Ancillary Facility Lender making available that Ancillary Facility to the extent that those credit balances are freely available to be set off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility.
Available Facility” means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.
Bank Levy” means the bank levy which is imposed under section 73 of, and schedule 19 to, the Finance Act 2011 (the “UK Bank Levy”) and any levy or Tax of an equivalent nature imposed in any jurisdiction in a similar context or for a similar reason to that in and/or which the UK Bank Levy has been imposed by reference to the equity and liability of a financial institution or other person carrying out financial transactions.
Beneficiary” means a beneficiary in respect of a Documentary Credit.
BNetzA” means the German Federal Network Agency for Electricity, Gas, Telecommunications, Postal Services and Railways (Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen) as German telecommunications regulatory authority (formerly RegTP; Regulierungsbehörde für Telekommunikation und Post).
Borrower” means the Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 28 (Changes to the Obligors) and, in respect of an Ancillary Facility only, any Affiliate of a Borrower that becomes a borrower of that Ancillary Facility with the approval of the relevant Ancillary Facility Lender pursuant to Clause 6.7 (Affiliates of Borrowers).
Break Costs” means:
(a)
the amount (if any) by which:
(i)
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

6
63529049_1



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:
(ii)
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period; or
(b)
for the purposes of Clause 11.1 (Notices of Cancellation or Prepayment), the loss suffered by any Lender as a result of having to unwind any funding contract for reinvestment of proceeds which it had entered into or initiated upon receipt of the notice of prepayment referred to in Clause 11.1 (Notices of Cancellation or Prepayment).
Business Day” means a day (other than a Saturday or Sunday):
(a)
on which banks are open for general business in London, Amsterdam and Frankfurt am Main;
(b)
if such reference relates to a date for the payment or purchase of any sum denominated in euro, which is a TARGET Day;
(c)
if such reference relates to a date for the payment or purchase of any sum denominated in US$, on which banks generally are open for business in New York; and
(d)
if such reference relates to a date for the payment or purchase of any sum denominated in an Additional Currency or an Optional Currency (other than euro or US$), the principal financial centre of the country of that currency.
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 Revolving Facility Commitment, an Additional Facility Commitments and/or an Ancillary Facility Commitment.
Company means the Original Borrower and any resulting, surviving successor or transferee entity permitted under, or not prohibited by, this Agreement; provided however, that upon the delivery of a Group Redesignation Notice designating any Holding Company of the Company as a New Group Topco in accordance with Clause 25.14 (Group Redesignation) of this Agreement, “Company” will mean that New Group Topco and its successors.
Company Affiliate means the Company and each other Affiliate of the Company, any trust of which the Company or any of its Affiliates is a trustee, any partnership of which

7
63529049_1



the Company or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the control of, the Company or any of its Affiliates.
Company Affiliate Lender” means any Company Affiliate that is a Lender.
Compliance Certificate” means a certificate substantially in the form set out in Schedule 11 (Form of Compliance Certificate).
Composite Revolving Facility Majority Lenders means a Lender or group of Lenders under Maintenance Covenant Revolving Facilities the aggregate of whose Commitments in relation to Maintenance Covenant Revolving Facilities amount in aggregate to more than 50 per cent. of the Commitments in relation to Maintenance Covenant Revolving Facilities, in each case, not taking into account any Commitments in relation to which a prepayment or cancellation notice has been served in accordance with Clause 8.2 (Voluntary prepayment of Loans) or Clause 9.7 (Voluntary cancellation) unless the cancellation or prepayment in relation to those Commitments shall not occur or does not occur on the date or dates specified in the relevant notice of cancellation or prepayment (as applicable).
Confidential Information” means any information about any Obligor, the Group and the Finance Documents.
Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 12 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Facility Agent.
Constitutional Documents” means in respect of any person, memorandum and articles of association, partnership agreement or other document pursuant to which it is incorporated or organised.
Conversion Notice” has the meaning given to such term in paragraph (a) of Clause 6.1 (Utilisation of Ancillary Facilities).
Cure Amount” has the meaning given to such term in Clause 24.4 (Cure provisions).
Default” means an event which is, or after notice or passage of time or both would be, an Event of Default.
Defaulting Lender” means any Lender (other than a Lender which is a Company Affiliate 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) or has failed to provide cash collateral (or has notified an L/C Bank that it will not provide cash collateral) in accordance with Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover);
(b)
which has otherwise rescinded or repudiated a Finance Document; or

8
63529049_1



(c)
with respect to which a Finance Party 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)
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.
Designated Gross Amount” has the meaning given to such term in Clause 6.1(b) (Utilisation of Ancillary Facilities).
Designated Net Amount” has the meaning given to such term in Clause 6.1(b) (Utilisation of Ancillary Facilities).
Disruption Event” means either or both of:
(a)
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
(b)
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
(i)
from performing its payment obligations under the Finance Documents; or
(ii)
from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
Documentary Credit” means a letter of credit, bank guarantee, indemnity, performance bond or other documentary credit issued to be issued by an L/C Bank pursuant to Clause 5 (Utilisation).

9
63529049_1



Documentary Credit Term” means, in relation to any Documentary Credit, the period from the date of its issue until its Expiry Date.
EBITDA” means “Consolidated EBITDA” as defined in Schedule 16 (Definitions).
Effective Date” means the date on which the Facility Agent confirms that the conditions precedents under Clause 4.1 (Initial conditions precedent) are satisfied or otherwise waived.
Environmental Claim” means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.
Environmental Law” means any applicable law or regulation which relates to:
(a)
the pollution or protection of the environment;
(b)
harm to or the protection of human health;
(c)
the conditions of the workplace; or
(d)
any emission or substance capable of causing harm to any living organism or the environment.
Environmental Permits” means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group.
ERISA” means the United States Employee Retirement Income Security Act of 1974.
ERISA Affiliate” means any person treated as a single employer with any Obligor for the purpose of section 414 of the Code.
EURIBOR” means, in relation to any Loan denominated in euro or in an Additional Currency or Optional Currency for which EURIBOR is the applicable interbank offered rate:
(a)
the applicable Screen Rate as of the Specified Time on the Quotation Day for the currency of that Loan for a period equal in length to the Interest Period for that Loan; or
(b)
as otherwise determined pursuant to Clause 14.2 (Unavailability of Screen Rate).
euro” or “” has the meaning given to it in Schedule 16 (Definitions).
Event of Default means any of the events or circumstances described as such in Clause 26 (Events of Default) and, in respect of any reference to such term:
(a)
in connection with Clause 25 (General Undertakings) (including any defined terms when used in Clause 25 (General Undertakings)); and

10
63529049_1



(b)
in connection with any other provision of this Agreement, with respect to any Lender or Lenders under the Maintenance Covenant Revolving Facilities only,
shall include a breach of the undertaking set out in Clause 24.3 (Financial Condition) to the extent tested and subject to the expiry of the cure period set out in Clause 24.4 (Cure Provisions).
Expiry Date” means, in relation to any Documentary Credit granted under this Agreement, the date stated in it to be its expiry date or the latest date on which demand may be made under it being a date falling on or prior to the Termination Date in respect of the relevant Revolving Facility.
Facility” means the Original Revolving Facility, any Additional Facility, any Ancillary Facility and/or any Documentary Credit, as the context may require.
Facility Agent’s Spot Rate of Exchange” means the spot rate of exchange as determined by the Facility Agent for the purchase of the relevant currency in the London foreign exchange market with euros at or about 11:00 a.m. on a particular day.
Facility Office means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.
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,

11
63529049_1



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:
(a)
an up-front fee letter dated on or about the date of this Agreement between, among others, the Company and the Facility Agent;
(b)
any letter or letters between any Administrative Party and the Company (or the Facility Agent and the Company or the Security Trustee and the Company) setting out any of the fees referred to in Clause 15 (Fees); and
(c)
any agreement setting out fees payable to a Finance Party under any other Finance Document.
Finance Document” means this Agreement, any Obligor Accession Agreement, any Additional Facility Accession Agreement, any Ancillary Facility Documents, any Increase Confirmation, any Documentary Credit, any Fee Letter, the Intercreditor Agreement, any Compliance Certificate, any Transfer Certificate, any Assignment Agreement, any Resignation Letter, any Transaction Security Document, any Utilisation Request, any Selection Notice and any other document designated as a “Finance Document” by the Facility Agent and the Company.
Finance Party” means a Lender or an Administrative Party.
Finance Party Insolvency Event” in relation to a Finance Party means that the Finance Party:
(a)
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(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;

12
63529049_1



(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 a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(g)
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, 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);
(h)
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; or
(i)
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 (a) to (h) above.
Financial Year” means a period commencing January 1 and ending on December 31.
Fund” means a fund that invests in loans.
Funding Rate” means any individual rate notified by a Lender to the Facility Agent pursuant to paragraph (a)(ii) of Clause 14.4 (Cost of funds).
GAAP” means generally accepted accounting principles in the United States.
Gross Outstandings” means, in relation to a Multi-account Overdraft, the Ancillary Facility Outstandings of that Multi-account Overdraft but calculated on the basis that the words “(net of any Available Credit Balance)” in paragraph (a) of the definition of “Ancillary Facility Outstandings” were deleted.
Group” means the Company and its Subsidiaries and any Permitted Affiliate Parent and its Subsidiaries from time to time, in each case other than any Unrestricted Subsidiary as defined in Schedule 16 (Definitions) provided that at any time after a Group Redesignation Notice has been delivered to the Facility Agent in accordance with Clause

13
63529049_1



25.14 (Group Redesignation), the “Group” shall also include each New Group Topco and its Subsidiaries, other than any Unrestricted Subsidiary as defined in Schedule 16 (Definitions).
Group Redesignation Notice” has the meaning given to such term in Clause 25.14 (Group Redesignation).
Group Structure Chart” means the structure chart of each Obligor and the Group in the form delivered to the Facility Agent on or prior to the date of this Agreement.
Guarantor” means the Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 28 (Changes to the Obligors).
Historic Screen Rate” means, in relation to that Loan, the most recent applicable Screen Rate for the currency of that Loan and for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than 30 days before the Quotation Day.
Holding Company” means, in relation to a company, corporation or partnership, any other company, corporation or partnership in respect of which it is a Subsidiary.
IFRS” has the meaning given to that term in Schedule 16 (Definitions).
Impaired Agent” means the Facility Agent at a 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 Facility Agent otherwise rescinds or repudiates a Finance Document;
(c)
(if the Facility Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or
(d)
a Finance Party Insolvency Event has occurred and is continuing with respect to the Facility 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 Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

14
63529049_1



Increase Confirmation” means a confirmation substantially in the form set out in Schedule 17 (Form of Increase Confirmation).
Initial Additional Facility Lender” means a person which becomes a Lender under an Additional Facility pursuant to Clause 2.3 (Additional Facilities).
Insolvency Event” in relation to any person incorporated or established in Germany means (a) such person is unable to pay its debts as they fall due (zahlungsunfähig) or it is over-indebted (überschuldet) within the meaning of Section 19 of the German Insolvency Code (Insolvenzordnung) or such person’s inability to pay its debts as they fall due is imminent (drohende Zahlungsunfähigkeit), or (b) such person, by reason of actual or financial difficulties, commences negotiations with any of its creditors (other than the Finance Parties or such other person as the Majority Lenders may agree) with a view to any arrangement for the general readjustment or rescheduling of its material indebtedness provided that for the purposes of this paragraph (b) no Insolvency Event shall occur in connection with Unitymedia if it commences negotiations with creditors that do not have recourse to any member of the Group and any other Guarantor (other than Unitymedia) and further provided that Unitymedia has, no later than ten Business Days prior to commencing such negotiations, notified the Facility Agent in writing of its intention to commence such negotiations, or (c) a general assignment for the benefit of or a composition with its creditors or a moratorium is declared in respect of any of its indebtedness or (d) any corporate action, legal proceedings or other steps are taken in relation to (i) the suspension of payments, a moratorium of any of its indebtedness, winding-up, dissolution, administration or re-organisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of such person other than a solvent liquidation, (ii) a composition, compromise, assignment or arrangement with any creditor of such person or (iii) the appointment of a liquidator (other than in respect of a solvent liquidation of such person), receiver, preliminary receiver, administrator, administrative receiver, trustee or similar officer of it or of all of its revenues and assets (other than a solvent reorganisation on terms and conditions approved by the Lenders). For the purposes of this definition, a person which is incorporated or established in Germany shall be deemed to be in a state of imminent inability to pay its debts as they fall due (drohend zahlungsunfähig) if so determined by such person’s auditors or other generally recognised international firm of auditors. In relation to any person established in a jurisdiction other than Germany Insolvency Event shall mean an analogous event to any event described above, under the laws of such person’s jurisdiction of establishment.
Intellectual Property” means:
(a)
any patents, trade marks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered; and
(b)
the benefit of all applications and rights to use such assets of each member of the Group.
Intercreditor Agreement” means the intercreditor agreement dated 20 November 2009 as amended from time to time and made between (among others) UPC Germany GmbH,

15
63529049_1



the other Obligors, the Security Trustee (as Security Trustee for itself and for and on behalf of the Finance Parties and the holders of the Notes), the Facility Agent, the Mandated Lead Arrangers, the Lenders and the trustee for the holders of the Notes (each as defined therein).
Interpolated Historic Screen Rate” means, in relation to LIBOR or EURIBOR 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 most recent 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 most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
each for the currency of that Loan and each of which is as of a day which is no more than 30 days before the Quotation Day.
Interpolated Screen Rate” means, in relation to LIBOR or EURIBOR, 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 relevant period on which interest is to accrue; and
(b)
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant period on which interest is to accrue,
each as of the Specified Time in respect of LIBOR or EURIBOR (as applicable) on the Quotation Day for such period. When determining the rate for a period which is less than the shortest period for which the relevant Screen Rate is available, the applicable Screen Rate for purposes of paragraph (a) above shall be deemed to be the overnight screen rate where “overnight screen rate” means, in relation to any currency, the overnight rate for such currency determined by the Facility Agent from such service as the Facility Agent may select.
Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 13 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 12.3 (Default interest).
L/C Bank” means any Lender which has been appointed as an L/C Bank in accordance with Clause 7.11 (Appointment and Change of L/C Bank) and which has not resigned in accordance with paragraph (c) of Clause 7.11 (Appointment and Change of L/C Bank).
L/C Bank Accession Certificate” means a duly completed accession certificate substantially in the form set out in Schedule 7 (Form of L/C Bank Accession Certificate).
L/C Lender” has the meaning set out in Clause 7.1(b) (Documentary Credit Indemnities).

16
63529049_1



L/C Proportion means, in relation to a Lender in respect of any Documentary Credit and save as otherwise provided in this Agreement, the proportion (expressed as a percentage) borne by such Lenders’ Available Commitments to the aggregate amount of Available Commitments immediately prior to the issue of such Documentary Credit.
Legal Opinions” means the legal opinions set out in Schedule 2 (Conditions Precedent) and any other legal opinion delivered under this Agreement.
Legal Reservations” means:
(a)
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
(b)
the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;
(c)
similar principles, rights and defences under the laws of the jurisdiction of incorporation of any Obligor; and
(d)
any other qualifications and limitations in respect of any applicable law in force as set out in the Legal Opinions.
Lender” means:
(a)
any Original Lender; and
(b)
any Initial Additional Facility Lender;
(c)
any Ancillary Facility Lender;
(d)
any person which has become a New Lender under an Additional Facility in accordance with Clause 27 (Changes to the Finance Parties) or an Increase Lender in accordance with Clause 2.5 (Increase); and
(e)
any other bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 27 (Changes to the Finance Parties) or Clause 2.5 (Increase),
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
LGI/KBW Transaction” refers to the acquisition by UPC Germany Holdco 2 GmbH (now merged with Unitymedia BW GmbH (formerly Kabel BW GmbH) as surviving entity), an indirect subsidiary of Liberty Global, Inc., of all of the outstanding shares of Kabel BW Musketeer GmbH (merged with UPC Germany Holdco 2 GmbH as surviving entity which was merged itself with Unitymedia BW GmbH (formerly Kabel BW GmbH)), the indirect parent company of Kabel BW Erste Beteiligungs GmbH (merged

17
63529049_1



with UPC Germany Holdco 2 GmbH as surviving entity which was merged itself with Unitymedia BW GmbH (formerly Kabel BW GmbH)), on 15 December 2011.
LIBOR means in relation to any Loan denominated in US Dollars or in an Additional Currency or Optional Currency for which LIBOR is the applicable interbank offered rate:
(a)
the applicable Screen Rate as of the Specified Time on the Quotation Day for the currency of that Loan for a period equal in length to the Interest Period for that Loan; or
(b)
as otherwise determined pursuant to Clause 14.2 (Unavailability of Screen Rate).
Licences” means any public law permits for operation of telecommunications/cable systems or provision of telecommunications and/or broadcasting services from BNetzA, RegTP as predecessor of BNetzA or any other relevant national public authority (as applicable). Licence(s) shall, for the avoidance of doubt, also mean any notifications required for the operation of telecommunications networks or the provision of telecommunications services under Section 6 of the German Telecommunications Act (as amended from time to time) or any other comparable national laws to be issued to the BNetzA or any other relevant public authority (as applicable) in any relevant townships (as the case may be).
Limited Condition Transaction” has the meaning given to that term in Schedule 16 (Definitions).
LMA” means the Loan Market Association.
Loan” means a Revolving Facility Loan or an Additional Facility Loan.
Maintenance Covenant Revolving Facility” means:
(a)
the Original Revolving Facility; and
(b)
each Additional Facility which is a revolving facility that is designated by the Company by notice in writing to the Facility Agent at any time to have the benefit of Clause 24.3 (Financial Condition).
Majority Lenders” means a Lender or Lenders whose Commitments aggregate more than 50% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 50% of the Total Commitments immediately prior to that reduction) and not taking into account any Commitments in relation to which a prepayment or cancellation notice has been served in accordance with Clause 9.3 (Voluntary prepayment of Loans) and Clause 9.7 (Voluntary cancellation) unless the cancellation or prepayment in relation to those Commitments shall not occur or does not occur on the date or dates specified in the relevant notice of cancellation or prepayment (as applicable).
Margin” means:

18
63529049_1



(a)
in relation to the Original Revolving Facility, 2.75% per annum; and
(b)
in relation to an Additional Facility, the amount specified in the relevant Additional Facility Accession Agreement.
Margin Regulations” means Regulation T, Regulation U and Regulation X issued, in each case, of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or any portion thereof.
Margin Stock” means “margin stock” or “margin securities” as defined in the Margin Regulations.
Market Disruption Event” has the meaning given to that term in Clause 14.2 (Market disruption).
Material Adverse Effect” means any event or circumstance which has a material adverse effect on the ability of the Obligors (taken as a whole) to perform their payment obligations under any Finance Document.
Maturing Loan” has the meaning given to that term in Clause 8.2 (Rollover Loans).
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.
Multi-account Overdraft” means an Ancillary Facility which is an overdraft facility comprising more than one account.
Net Outstandings” means, in relation to a Multi-account Overdraft, the Ancillary Facility Outstandings of that Multi-account Overdraft.
New Group Topco” means any Holding Company of the Company and/or any Holding Company of any Permitted Affiliate Parent designated as such in a Group Redesignation Notice.

19
63529049_1



New Lender” has the meaning given to that term in Clause 27.1 (Assignments and Transfers by the Lenders).
Non-Acceptable L/C Lender” means a Lender under the Revolving Facility or any Additional Facility that is a Revolving Facility which the Facility Agent has determined:
(a)
is not an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” (other than a Lender which each L/C Bank has agreed is acceptable to it notwithstanding that fact); or
(b)
is a Defaulting Lender; or
(c)
has failed to make (or has notified the Facility Agent that it will not make) a payment to be made by it under Clause 27.17 (Lender’s indemnity to the Facility Agent) or any other payment to be made by it under the Finance Documents to or for the account of any other Finance Party in its capacity as Lender by the due date for payment unless the failure to pay falls within the description of any of those items set out at (c)(i) and (ii) of the definition of Defaulting Lender.
Non-Funding Lender” means:
(a)
a Lender which fails to comply with its obligation to participate in any Loan where:
(i)
all conditions to the relevant Loan (including without limitation, delivery of a Utilisation Request) have been satisfied or waived by the Majority Lenders in accordance with the terms of this Agreement;
(ii)
Lenders representing not less than 80% of the relevant Commitments have agreed to comply with their obligations to participate in such Loan; and
(iii)
the Company has notified the Lender that it will treat it as a Non-Funding Lender;
(b)
a Lender which has given notice to a Borrower or the Facility Agent that it will not make, or has disaffirmed or repudiated any obligation to participate in, a Loan; or
(c)
a Defaulting Lender.
Notes” means the Senior Secured Notes or the Senior Subordinated Notes (in each case as defined in the Intercreditor Agreement).
Obligor” means a Borrower or a Guarantor.
Obligor Accession Agreement” means a document substantially in the form set out in Schedule 8 (Form of Obligor Accession Agreement).
Obligors’ Agent” means the Company, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.6 (Obligors’ Agent).

20
63529049_1



Optional Currency” means, in relation to any Utilisation, any currency other than euros, which is:
(a)
is readily available to banks in the London interbank market, and is freely convertible into euros on the Quotation Day and the Utilisation Date for the relevant Utilisation; and
(b)
has been approved by the Facility Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Facility Agent of the relevant Utilisation Request.
Original Financial Statements” means the audited consolidated financial statements of Unitymedia for the Financial Year ended 31 December 2013 (EU-IFRS), audited by KPMG AG and the auditor’s report thereon.
Original Obligor” means the Original Borrower or the Original Guarantors.
Original RCF Agreement” means the EUR312,500,000 facilities agreement originally dated 1 May 2012 (as amended and restated from time to time) between, among others, Unitymedia Hessen GmbH & Co. KG as original borrower, The Bank of Nova Scotia as facility agent and Credit Suisse AG, London Branch as security trustee.
Original Revolving Facility” means the revolving credit facility made available under this Agreement as described in Clause 2.1 (The Original Revolving Facility).
Original Revolving Facility Commitment” means:
(a)
in relation to an Original Lender, the aggregate of (i) the amount set opposite its name under the heading “Original Revolving Facility Commitment” in Part 2 of Schedule 1 (The Original Parties), and (ii) the amount of any other Revolving Facility Commitment of any other Lender transferred to it under this Agreement or assumed by it in accordance with Clause 2.5 (Increase); and
(b)
in relation to any other Lender, the amount in euro of any Original Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.5 (Increase),
to the extent not cancelled, reduced or assigned by it under this Agreement.
Outstanding L/C Amount” means each sum paid or payable by an L/C Bank to a Beneficiary pursuant to the terms of a Documentary Credit which has not been reimbursed or in respect of which cash cover has not been provided by or on behalf of a relevant Borrower.
Plan” means an “employee benefit plan” as defined in section 3(3) of ERISA which is subject to Title IV of ERISA:
(a)
maintained by any Obligor or any ERISA Affiliate; or
(b)
to which any Obligor or any ERISA Affiliate is required to make any payment or contribution.

21
63529049_1



Parent” means Unitymedia.
Participating Member State” means any member state of the European Union that at the relevant time 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.
Paying Lender” has the meaning given to such term in Clause 6.4(g) (Adjustment for Ancillary Facilities upon acceleration).
Permitted Affiliate Parent” has the meaning given to that term in Clause 28.5 (Permitted Affiliate Parent Designation); provided however, that upon the delivery of a Group Redesignation Notice designating any Holding Company of a Permitted Affiliate Parent as a New Group Topco in accordance with Clause 25.14 (Group Redesignation) of this Agreement, “Permitted Affiliate Parent” will mean that New Group Topco and its successors.
Permitted Affiliate Group Designation Date” means any date on which the Facility Agent provides confirmation to the Company that the conditions set out in Clause 27.5 (Permitted Affiliate Parent Designation) are satisfied.
Permitted Security” means security and/or liens permitted by Schedule 14 (Covenants).
Quotation Day” means, in relation to any period for which interest is to be determined, two Business Days before the first day of that period unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Date for that currency will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Date 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.
Reference Banks” means:
(a)
in relation to EURIBOR, JPMorgan Chase Bank, N.A., London Branch, ING Bank N.V. and Societe Generale, London Branch, or their respective affiliates or such other banks as may be appointed by the Facility Agent in consultation with the Company; and
(b)
in relation to LIBOR, JPMorgan Chase Bank, N.A., London Branch, ING Bank N.V. and Societe Generale, London Branch, or their respective affiliates or such other banks as may be appointed by the Facility Agent in consultation with the Company.
Reference Bank Quotation” means any quotation supplied to the Facility Agent by a Reference Bank or an Alternative Reference Bank.

22
63529049_1



Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks:
(a)
in relation to LIBOR:
(i)
(other than where paragraph (ii) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or

(ii)
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or
(b)
in relation to EURIBOR:
(i)
(other than where paragraph (ii) below applies) as the rate at which the relevant 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
(ii)
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.
RegTP” means the German Regulatory Authority for Telecommunications and Post (Regulierungsbehörde für Telekommunikation und Post).
Related Fund” means, with respect to any Lender that is a fund that invests in commercial loans, any other fund that invests in commercial loans and is administered or managed by (a) that Lender, (b) any Affiliate of that Lender or (c) the same investment adviser (or an Affiliate of that investment adviser) that administers or manages that Lender.
Relevant Interbank Market” means the London interbank market or such other interbank market as may be applicable to any Facility to be drawn in an Additional Currency or an Optional Currency.
Relevant Revolving Facility Majority Lenders” means, in relation to a Revolving Facility, a Lender or group of Lenders the aggregate of whose Commitments in relation to that Revolving Facility amount to more than 50% of the Commitments (not taking into account any Commitments in relation to which a prepayment or cancellation notice has been served in accordance with Clause 8.2 (Voluntary prepayment of Loans) or Clause 8.6 (Voluntary cancellation) unless the cancellation or prepayment in relation to those Commitments shall not occur or does not occur on the date or dates specified in the relevant notice of cancellation or prepayment (as applicable)) of all of the Lenders under that Revolving Facility.

23
63529049_1



Renewal Request” means, in relation to a Documentary Credit, a Utilisation Request thereof, in respect of which the proposed Utilisation Date stated in it is the Expiry Date or an existing Documentary Credit and the proposed Outstanding L/C Amount is the same or less than the Outstanding L/C Amount of that existing Documentary Credit.
Repeating Representations” means each of the representations set out in Clause 22 (Representations) other than those representations which are expressly stated to not be Repeating Representations.
Reportable Event” means:
(a)
an event specified as such in section 4043 of ERISA or any regulation, other than an event in relation to which the requirement to give notice of that event is waived by any regulation; or
(b)
a failure to meet the minimum funding standard under section 412 or 430 of the Code or section 302 of ERISA, whether or not waived.
Representative” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
Resignation Letter” means a letter substantially in the form set out in Schedule 10 (Form of Resignation Letter).
Revolving Facility” means the Original Revolving Facility and/or any revolving credit facility made available pursuant to an Additional Facility (in each case, including any Ancillary Facility) and the Documentary Credit facility made available thereunder.
Revolving Facility Commitment” means:
(a)
in relation to an Additional Facility which is a revolving credit facility, the Additional Facility Commitment; and/or
(b)
in relation to the Original Revolving Facility, the Original Revolving Facility Commitment.
Revolving Facility Loan means a loan or advance made or to be made under a Revolving Facility or the principal amount outstanding for the time being of that loan.
Revolving Facility Outstandings” means, at any time, the aggregate outstanding amount of each Revolving Facility Loan and of each Revolving Lender’s Participation in an Outstanding L/C Amount.
Rollover Loan” means one or more Revolving Facility Loans made or to be made on the same day that a maturing Revolving Facility Loan is due to be repaid:
(a)
(other than as used in relation to Clause 8.2 (Rollover Loans)) the aggregate amount of which is equal to or less than the maturing Revolving Facility Loan; and

24
63529049_1



(b)
made or to be made to the same Borrower for the purpose of refinancing that maturing Revolving Facility Loan.
Screen Rate” means:
(a)
in relation to EURIBOR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Reuters screen (or any replacement Reuters page which displays that rate); and
(b)
in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate);
or, in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters. If such page or service ceases to be available, the Facility Agent may (following consultation with the Company and the Lenders) specify another page or service displaying the relevant rate.
Secured Parties” means each Finance Party from time to time and any Receiver or Delegate.
Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
Security Trust Agreement means the security trust agreement between (among others) certain security grantors, the Finance Parties and the Security Trustee, under which the Security Trustee grants certain rights and assumes certain obligations in relation to the Transaction Security Documents governed by German law.
Selection Notice” means a notice substantially in the form set out in Part 3 of Schedule 3 (Requests) given in accordance with Clause 13 (Interest Periods) in relation to a Term Facility.
Specified Jurisdiction” means Austria, Denmark, Finland, France, Germany, Ireland, Luxembourg, The Netherlands, Norway, Sweden, Switzerland, United Kingdom, or the United States.
Specified Time” means a time determined in accordance with Schedule 13 (Timetables).
Subsidiary” has the meaning given to it in Schedule 16 (Definitions).
Super Senior Revolving Credit Facility Agreement” means the €80,000,000 super senior facilities agreement dated 25 July 2015 (as amended and restated from time to

25
63529049_1



time) between amongst others, the Original Borrower as original borrower, certain banks and financial institutions as original lenders, the Bank of Nova Scotia as facility agent and Credit Suisse AG, London Branch as security trustee.
TARGET2” means 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 to pay or any delay in paying any of the same).
Telecommunications and Cable Laws” means:
(a)
in relation to members of the Group incorporated and/or doing business in Germany the Telecommunications Act (Telekommunikationsgesetz), the approval rules for reception installations (Genehmigungsrechtliche Regelung für Rundfunksempfangsanlagen) and all other federal and state laws, statutes, regulations and judgments relating to the building, installation, management or operation of systems for telecommunications or cable television as well as the provision of such telecommunications or cable television services applicable to any member of the Group and/or business carried on by any member of the Group; and
(b)
the corresponding laws, statutes, regulations and judgments existing in any other jurisdiction as applicable to any other member of the Group incorporated, or carrying on business in such other jurisdiction.
Termination Date” means:
(a)
in relation to the Original Revolving Facility, 31 December 2023 or if earlier, the date of repayment and cancellation in full of the Original Revolving Facility;
(b)
in relation to any Additional Facility, the date specified in the Additional Facility Accession Agreement for that Additional Facility; and
(c)
in relation to each Ancillary Facility, the relevant Ancillary Facility Termination Date.
Term Facilities” means Additional Facility (other than any Additional Facility that is designated as a Revolving Facility) and the “Term Facility” means any of them, as the context requires.
Total Additional Facility Commitments” means in relation to an Additional Facility, the aggregate for the time being of the Additional Facility Commitments for that Additional Facility.

26
63529049_1



Total Commitments” means the aggregate of the Original Revolving Facility Commitments and any Additional Facility Commitments, as the same may be reduced in accordance with the terms of this Agreement.
Total Original Revolving Facility Commitments” means the aggregate of the Original Revolving Facility Commitments, being €420,000,000 as at the date of this Agreement as the same may be reduced or increased in accordance with the terms of this Agreement.
Total Revolving Facility Commitments” means the aggregate for the time being of the Original Revolving Facility Commitments and any other Revolving Facility Commitments.
Transaction Security” means the Security created or expressed to be created in favour of the Security Trustee pursuant to the Transaction Security Documents.
Transaction Security Documents” means any document required to be delivered to the Facility Agent under Schedule 2 Part 4 (Condition Subsequent – Transaction Security) together with any other document entered into by any person 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 in each case as amended, supplemented and/or confirmed from time to time.
Transfer Certificate” means a certificate substantially in one of the forms set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the Company.
Transfer Date” means, in relation to an assignment or transfer, the later of:
(a)
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
(b)
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
UM/KBW Matter” means the investigation and review of the LGI/KBW Transaction by a regulatory authority or court of competent jurisdiction.
United States” or “US means the United States of America.
Unitymedia” means Unitymedia GmbH (formerly Unitymedia KabelBW GmbH).
Unpaid Sum” means any sum due and payable but unpaid by an Obligor under any Finance Document (other than any Ancillary Facility Document).
US Obligor” means the Original US Borrower and any other Obligor that is incorporated or organised under the laws of the United States of America, any State thereof or the District of Columbia or that resides or has a domicile in the United States.
US Tax Obligor” means:
(a)
a Borrower which is resident for tax purposes in the US; or

27
63529049_1



(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.
US Dollars” and “US$ means the lawful currency for the time being of the United States.
Utilisation” means the utilisation of a Facility under this Agreement, whether by way of a Loan, the issue of a Documentary Credit or the utilisation of any Ancillary Facility.
Utilisation Date” means:
(a)
in relation to a Loan, the date on which a Loan is made;
(b)
in relation to a utilisation by way of an Ancillary Facility, the date on which such Ancillary Facility is established; and
(c)
in relation to a utilisation by way of a Documentary Credit, the date on which such Documentary Credit is to be issued,
in each case, in accordance with the terms of this Agreement.
Utilisation Request” means:
(a)
in relation to a Loan, a duly completed notice substantially in the form set out in Part 1 to Schedule 3 (Requests); or
(b)
in relation to a Documentary Credit, a duly completed notice substantially in the form set out in Part 2 to Schedule 3 (Requests).
VAT” means
(a)
value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature imposed in compliance with the Council Directive 2006/112/EC on the common system of value added tax as implemented by a member state of the European Union; 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.
1.2
Construction
(a)
Unless a contrary indication appears, a reference in this Agreement to:
(i)
the Facility Agent, the Mandated Lead Arrangers, any Finance Party, any Lender, any Ancillary Facility Lender, any Obligor, and Permitted Affiliate Parent, any Party, any Secured Party, the Security Trustee and L/C Bank or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Security Trustee,

28
63529049_1



any person for the time being appointed as Security Trustee or Security Trustees in accordance with the Finance Documents;
(ii)
a document in agreed form is a document which is previously agreed in writing by or on behalf of the Company and the Facility Agent or, if not so agreed, is in the form specified by the Facility Agent acting reasonably;
(iii)
assets includes present and future properties, revenues and rights of every description;
(iv)
company includes any body corporate;
(v)
determines or determined means, save as otherwise provided herein, a determination made in the absolute discretion of the person making the determination;
(vi)
a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, varied, supplemented or novated (however fundamentally) and shall include any confirmation thereof;
(vii)
guarantee means (other than in Clause 21 (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;
(viii)
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;
(ix)
a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality) of two or more of the foregoing;
(x)
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

29
63529049_1



(xi)
a Lenders’ “participation” in relation to a Documentary Credit, shall be construed as a reference to the relevant amount that is or may be payable by that Lender in relation to that Documentary Credit;
(xii)
a Borrower providing “cash cover” for a Documentary Credit or an Ancillary Facility means that Borrower paying an amount in the currency of the Documentary Credit (or, as the case may be, Ancillary Facility) to an interest-bearing account in the name of that Borrower and the following conditions being met:
(A)
the account is with the Security Trustee or with the L/C Bank or Ancillary Facility Lender for which that cash collateral is to be provided;
(B)
subject to paragraph (b) of Clause 7.9 (Cash cover by Borrower), until no amount is or may be outstanding under that Documentary Credit or Ancillary Facility, withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Documentary Credit or Ancillary Facility; and
(C)
that Borrower has executed a security document over that account, in form and substance satisfactory to the Security Trustee or the L/C Bank or the Ancillary Facility Lender, each acting reasonably, with which that account is held, creating a first priority perfected security interest over that account;
(xiii)
a Borrower “repaying” or “prepaying” a Documentary Credit or any Ancillary Facility Outstandings means:
(A)
that Borrower providing cash cover for that Documentary Credit or in respect of the Ancillary Facility Outstandings;
(B)
the maximum amount payable under the Documentary Credit or Ancillary Facility being reduced or cancelled in accordance with its terms;
(C)
the relevant L/C Bank or Ancillary Facility Lender being satisfied that it has no further liability under that Documentary Credit or Ancillary Facility;
(D)
in the case of a Documentary Credit, a Borrower making a payment under paragraph (b) of Clause 7.7 (Claims Under a Documentary Credit) in respect of that Documentary Credit or a Borrower has made a reimbursement in respect of that Documentary Credit under Clause 7.8 (Documentary Credit Indemnities) (but in each case only to the extent of such payment or reimbursement);

30
63529049_1



(E)
the Documentary Credit or Ancillary Facility (as the case may be) expires in accordance with its terms or is otherwise returned by the beneficiary with its written confirmation that it is released and cancelled; or
(F)
a bank or financial institution having a long term credit rating from any of Moody’s, Standard & Poor’s or Fitch at least equal to Baa3/BBB- (as applicable or its equivalent or such other rating as the Facility Agent and the applicable L/C Bank or Ancillary Facility Lender (as the case may be) may agree), or by any other institution satisfactory to the applicable L/C Bank or Ancillary Facility Lender (as the case may be) (acting reasonably), having issued an unconditional and irrevocable guarantee, indemnity, counter-indemnity or similar assurance against financial loss in respect of amounts due under that Documentary Credit or Ancillary Facility,
and the amount by which a Documentary Credit or Ancillary Facility Outstandings are, repaid or prepaid under (A) and (B) above is the amount of the relevant cash cover, reduction or cancellation;
(xiv)
an amount “borrowed” includes any amount utilised by way of Documentary Credit under or an Ancillary Facility;
(xv)
an “outstanding amount” of a Documentary Credit at any time is the maximum amount that is or may be payable by a Borrower in respect of that Documentary Credit at that time;
(xvi)
a repayment shall include a prepayment and references to repay or prepay shall be construed accordingly;
(xvii)
the administration of a company shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company is incorporated, established or organised or any jurisdiction in which such company carries on business, including the seeking of liquidation, winding up, reorganisation, dissolution, administration, arrangement, adjustment, protection from creditors or relief of debtors;
(xviii)
a provision of law is a reference to that provision as amended or re-enacted;
(xix)
a time of day is, unless otherwise specified, a reference to London time; and
(xx)
a “sub-participation” means any sub-participation or sub-contract (whether written or oral) or any other agreement or

31
63529049_1



arrangement having an economically substantially similar effect, including any credit default or total return swap or derivative (whether disclosed, undisclosed, risk or funded) by a Lender of or in relation to any of its rights or obligations under, or its legal, beneficial or economic interest in relation to, the Facilities and/or Finance Documents to a counterparty and “sub-participate” shall be construed accordingly.
(b)
Section, Clause and Schedule headings are for ease of reference only.
(c)
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
(d)
Any reference in this Agreement to a statute or a statutory provision shall, save where a contrary intention is specified, be construed as a reference to such statute or statutory provision as the same shall have been, or may be, amended or re enacted.
(e)
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.
(f)
A reference to on a consolidated basis means consolidated in accordance with IFRS as applied in the preparation of the Original Financial Statements.
(g)
No personal liability shall attach to any director, officer or employee of any member of the Group for any representation or statement made by that member of the Group in a certificate signed by such director, officer or employee.
(h)
The knowledge or awareness or belief of any member of the Group shall be limited to the actual knowledge, awareness or belief of the Board of Directors (or equivalent body) of such member of the Group at the relevant time.
(i)
Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrowers, the Facility Agent and such Lender, and any such exchange, continuation or rollover shall be deemed to comply with any requirement hereunder or under any other Finance Document that any payment be made “in US Dollars” (or any other relevant currency), “in immediately available funds”, “in cash” or any other similar requirements.
1.3
Other defined terms

32
63529049_1



Any capitalised words and expressions used in this Agreement and not otherwise defined in this Clause 1.3 shall bear the meanings ascribed to them in the Intercreditor Agreement, and with respect to capitalised words and expressions used in Schedule 14 (Covenants) and Schedule 15 (Events of Default), the meanings ascribed to them in Schedule 16 (Definitions) if not otherwise defined in this Clause 1. In the event of any conflict between the provisions of this Clause 1 (for the avoidance of doubt, taking into account those words and expressions defined in the Intercreditor Agreement and incorporated by reference herein) and Schedule 16 (Definitions), this Clause 1 will prevail.
1.4
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 (h) of Clause 37.2 (Exceptions) but otherwise notwithstanding 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.
1.5
Permitted Affiliate Parent
(a)
Any obligation in this Agreement of the Company or any Permitted Affiliate Parent to procure that members of the Group comply with any covenant shall be construed such that the Company or any Permitted Affiliate Parent shall be obliged to procure that only their respective Subsidiaries that are members of Group comply with that obligation.
(b)
To the extent:
(i)
any representation in this Agreement is stated to be given by the Company in respect of a member of the Group or its Subsidiaries that are members of the Group; and/or
(ii)
any covenant in this Agreement applies to the Company only or requires that the Company only procures that a member of the Group or its Subsidiaries that are members of the Group comply with any such covenant,
in the case of a Permitted Affiliate Parent, such representations shall be given by, or such covenant shall be construed as applying to (as applicable) such Permitted Affiliate Parent rather than the Company.
2.
THE FACILITIES
2.1
The Original Revolving Facility

33
63529049_1



Subject to the terms of this Agreement, the Lenders make available to the Borrowers a euro revolving credit facility in an aggregate amount equal to the Total Original Revolving Facility Commitments.
2.2
Additional Facilities
(a)
The Company may notify the Facility Agent by no less than 2 Business Days’ notice that it wishes to establish one or more Additional Facilities by delivery to the Facility Agent of an Additional Facility Accession Agreement duly completed and executed by a Lender (or any person that is not a Lender that proposes to become a Lender under that Additional Facility), the Parent, the Company and, if the Additional Facility is to be granted to an Additional Borrower, the relevant Additional Borrower, provided, in respect of each Additional Facility, that:
(i)
other than in relation to a Limited Condition Transaction, no Event of Default is continuing or would result from that Additional Facility being established;
(ii)
the principal amount (in euro, US Dollars or an Additional Currency), interest rate, interest periods, Termination Date, use of proceeds, repayment schedule, availability, fees, incorporation of relevant clauses relating to, or in connection with any Additional Facility and related provisions and the currency (which must be euros, US Dollars or an Additional Currency) of that Additional Facility shall be agreed by the relevant Additional Borrowers and the relevant Initial Additional Facility Lenders (and, in the case of currency and incorporation of the relevant clauses relating to, or in connection with, any Additional Facility which is a revolving facility, the Facility Agent) and set out in the relevant Additional Facility Accession;
(iii)
the relevant Additional Facility Accession Agreement shall specify whether that Additional Facility is in form of a term or revolving facility; and
(iv)
subject to paragraph (ii) above, the general terms of that Additional Facility shall be consistent in all material respects with the terms of this Agreement.
(b)
An increase in the Total Commitments pursuant to an Additional Facility will only be effective on:
(i)
the execution by the Facility Agent of an Additional Facility Accession Agreement which has been duly executed by each other relevant party thereto; and

34
63529049_1



(ii)
in relation to an Initial Additional Facility Lender which is not a Lender immediately prior to the relevant Additional Facility becoming effective:
(A)
the Initial Additional Facility Lender entering into the documentation required for it to accede to the Intercreditor Agreement; and
(B)
the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the Additional Facility Commitments, the completion of which the Facility Agent shall promptly notify to the Company, the Initial Additional Facility Lender and each L/C Bank.
(c)
Subject to the conditions in this Clause 2.1 (Additional Facilities) being met, from the relevant Additional Facility Commencement Date for an Additional Facility, the Initial Additional Facility Lenders for that Additional Facility shall make available the Additional Facility in a maximum aggregate amount not exceeding the aggregate Additional Facility Commitments in respect of that Additional Facility as set out in the relevant Additional Facility Accession Agreement subject to the terms of this Agreement.
(d)
Each Initial Additional Facility Lender shall become a party to this Agreement and be entitled to share in the Transaction Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that the Company and each Initial Additional Facility Lender in relation to an Additional Facility may agree that an Additional Facility shall be entitled to share in the Transaction Security on a junior basis to the Lenders under the other Facilities or shall not be entitled to share in the Transaction Security either in accordance with the terms of the Intercreditor Agreement or pursuant to ancillary intercreditor arrangements.
(e)
Each party to this Agreement (other than each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Initial Additional Facility Lender, the Parent, the Company and each proposed Additional Borrower and each Obligor agrees to be bound by such accession.
(f)
The execution by the Parent, the Company and the relevant Borrower of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 20 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.

35
63529049_1



(g)
The Company may pay to any Initial Additional Facility Lender a fee in the amount and at the times agreed between the Company and that Initial Additional Facility Lender.
(h)
On the Additional Facility Commencement Date:
(i)
each Initial Additional Facility Lender party to that Additional Facility Accession Agreement, each other Finance Party and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Initial Additional Facility Lender been an Original Lender, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and
(ii)
each Initial Additional Facility Lender shall become a party to this Agreement as an “Initial Additional Facility Lender”.
(i)
With the prior written consent of the Company, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with the terms of this Clause 2.2 (Additional Facilities)) to reflect the terms of each Additional Facility without the consent of any Lender other than each applicable Initial Additional Facility Lender.
(j)
Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 (Additional Facilities) in relation to any Initial Additional Facility Lender as if references in that Clause to:
(i)
a “Transferor” were references to all the Lenders immediately prior to the relevant Additional Facility becoming effective ;
(ii)
the “New Lender” were references to that “Initial Additional Facility Lender”; and
(iii)
a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
2.3
Overall Additional Facility Limits
(a)
The aggregate amount of all outstanding Additional Facility Loans under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(b)
The aggregate amount of the participations of a Lender in Additional Facility Loans under an Additional Facility shall not at any time exceed that Lender’s Additional Facility Commitment for that Additional Facility at that time.

36
63529049_1



2.4
Increase
(a)
Notwithstanding Clause 2.1 (The Original Revolving Facility) above, and in addition to paragraph (b) below, the Company may with the prior consent of a Lender, any bank, financial institution, trust, fund or any other entity selected by the Company (each an Increase Lender) and by giving 5 Business Days prior notice to the Facility Agent (or such shorter period as may be agreed between the Company and the Facility Agent (without any requirement for consent from any other Finance Party)), increase the Commitments under any Facility by including any new Commitments of any Increase Lender provided that:
(i)
no Event of Default is continuing; and
(ii)
each Increase Lender confirms 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 by executing an Increase Confirmation.
(b)
The Company may by giving prior notice to the Facility Agent by no later than the date falling thirty Business Days after the effective date of a cancellation of:
(i)
the Available Commitments of a Defaulting Lender in accordance with Clause 9.5 (Right of cancellation in relation to a Defaulting Lender); or
(ii)
the Commitments of a Lender in accordance with Clause 9.1 (Illegality),
request that the Commitments relating to any Facility be increased (and the Commitments under that Facility shall be so increased) in an aggregate amount in the relevant currency of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled and the increased Commitments will be assumed by one or more Increase Lenders each of which confirms 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 by executing an Increase Confirmation.
(c)
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.
(d)
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

37
63529049_1



Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender.
(e)
The Commitments of the other Lenders shall continue in full force and effect; and
(f)
An increase in the Commitments relating to a Facility shall take effect on the date specified by the Company in any relevant notice referred to in paragraph (a) or (b) above (as applicable) or any later date on which the conditions set out in paragraph (g) below are satisfied.
(g)
An increase in the Commitments relating to a Facility will only be effective on:
(i)
the execution by the Facility 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 Facility 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 Facility Agent shall promptly notify to the Company and the Increase Lender.
(h)
The Company may pay to any Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender.
(i)
Each Increase Lender, by executing an Increase Confirmation, confirms (for the avoidance of doubt) that the Facility 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.
(j)
The execution by the Parent and the Company of an Increase Confirmation constitutes confirmation from each Guarantor that its obligations under Clause 21 (Guarantee and Indemnity) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the new Commitments of any Increase Lender and shall be owed to each Finance Party including the relevant Lender.
(k)
Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.4 in relation to an Increase Lender as if references in that Clause to:

38
63529049_1



(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 “assignment”.
2.5
Finance Parties’ rights and obligations
(a)
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
(b)
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt 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 otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
2.6
Obligors’ Agent
(a)
Each Obligor (other than the Company) by its execution of this Agreement or an Obligor Accession Agreement irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
(i)
the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Obligor Accession Agreement or Additional Facility Accession Agreement, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

39
63529049_1



(ii)
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,
and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication. Each Obligor (other than the Company) exempts the Company from the restrictions in section 181 of the German Civil Code (Bürgerliches Gesetzbuch).
(b)
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.
(c)
If (notwithstanding the fact that the guarantees granted under this Agreement are and the Security created by the Transaction Security Documents is, intended to guarantee and secure, respectively, all obligations arising under the Finance Documents), any guarantee or Security created by the Transaction Security Documents does not automatically extend from time to time to any (however fundamental and of whatsoever nature and whether or not more onerous) amendment, 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, each Obligor (other than the Company) expressly confirms that the Obligors’ Agent is authorised to confirm such guarantee and/or Security on behalf of such Obligor.
3.
PURPOSE
3.1
Purpose
Each Borrower shall apply all amounts borrowed by it under the Facilities towards the general corporate and working capital purposes of the Group, including, but not limited to, the refinancing of any financial indebtedness of the Group.
3.2
Monitoring

40
63529049_1



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 Loan, the Facility Agent has received (or waived receipt of) all of the documents and other evidence listed in Part 1 and Part 2 of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent acting reasonably. The Facility Agent shall notify the Company and the Lenders promptly upon being so satisfied.
(b)
Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
4.2
Further conditions precedent
The Lenders will only be obliged to comply with Clause 5.5 (Lenders’ participation) and an L/C Bank will only be obliged to issue a Documentary Credit if on the date of the Utilisation Request and on the proposed Utilisation Date:
(a)
other than in the case of a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 7.2 (Renewal of Documentary Credits) and subject to the proviso below:
(i)
no Default is continuing or would result from the proposed Utilisation;
(ii)
the Repeating Representations made by the persons identified as making those representations are true in all material respects by reference to the circumstances then existing;
(b)
in the case of a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 7.2 (Renewal of Documentary Credits), the Facility Agent shall not have received instructions from the Relevant Revolving Facility Majority Lenders requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit by reason of the Acceleration Date having occurred; and
(c)
in the case of a Utilisation under a Maintenance Covenant Revolving Facility (other than, (i) in each case, in relation to a Utilisation that is a Rollover Loan

41
63529049_1



provided that the amount of the Maturing Loan is equal to or greater than the amount of that Rollover Loan or (ii) in relation to a Utilisation under any Additional Facility that is a revolving facility in relation to a Limited Condition Transaction), subject to the expiry of the cure period in Clause 24.4 (Cure Provisions) there is no subsisting breach of Clause 24 (Financial Covenant),
provided that, in relation to any Utilisation under an Additional Facility in relation to a Limited Condition Transaction, the Additional Facility Lenders may agree to amend or waive any of the conditions in paragraph (a) of this Clause 4.2 (Further Conditions Precedent).
4.3
Utilisation of a Revolving Facility
No Borrower may directly or through the Obligors’ Agent deliver a Utilisation Request in relation to a Revolving Facility Loan or Documentary Credit if as a result of the proposed:
(a)
Revolving Facility Loan, 15 or more Revolving Facility Loans would be outstanding;
(b)
Documentary Credit, 15 or more Documentary Credits would be outstanding.
4.4
Utilisation of the Additional Facility
(a)
No more than one Utilisation Request may be made under each Additional Facility unless an Additional Facility Accession Agreement specifies otherwise, in which case the maximum number of requests for Additional Facility Loans under that Additional Facility will be as set out in that Additional Facility Accession Agreement.
(b)
Unless the Facility Agent agrees otherwise, or unless otherwise agreed in the Additional Facility Accession Agreement, no more than five Additional Facility Loans may be outstanding at any one time under each Additional Facility (other than Additional Facilities that are Revolving Facilities).
5.
UTILISATION
5.1
Delivery of a Utilisation Request
A Borrower (or the Obligors’ Agent on its behalf) may utilise a Facility by delivery to the Facility Agent of a duly completed Utilisation Request (and in the case of a Documentary Credit, delivery of such Utilisation Request to both the Facility Agent and the relevant L/C Bank) not later than the Specified Time or by not later than the time specified in the relevant Additional Facility Accession Agreement.
5.2
Completion of a Utilisation Request for Utilisations

42
63529049_1



(a)
Each Utilisation Request for a Utilisation 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); and
(iii)
in relation to a Loan, the proposed Interest Period complies with Clause 13 (Interest Periods), and in relation to a Documentary Credit, the proposed Documentary Credit Term ends on or before the Termination Date in relation to the relevant Revolving Facility.
(b)
Only one Utilisation may be requested in each Utilisation Request.
(c)
In the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 6 (Form of Documentary Credit), the relevant L/C Bank shall have approved the terms of such Documentary Credit (acting reasonably).
5.3
Currency and amount
(a)
The currency specified in a Utilisation Request for the Original Revolving Facility must be euro.
(b)
The currency specified in a Utilisation Request for an Additional Facility must be euro, US Dollars or an Additional Currency or, in relation to a Revolving Facility only, an Optional Currency, in each case as provided in the Additional Facility Accession Agreement for that Additional Facility.
(c)
The amount of the proposed Loan must be a minimum of €2,000,000 (or equivalent) or, if less, the Available Facility.
5.4
Lenders’ participation
(a)
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
(b)
The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
(c)
The Facility Agent shall determine the euro equivalent (calculated using the Facility Agent’s Spot Rate of Exchange at the relevant time) of each Loan which is made in US Dollars, an Additional Currency or an Optional Currency and notify each Lender of the amount, currency and euro equivalent amount of each

43
63529049_1



Loan and the amount of its participation in that Loan by the Specified Time or the time specified in the relevant Additional Facility Accession Agreement.
(d)
The amount of a proposed Documentary Credit must be a minimum of €2,000,000 or such lesser amount as the relevant L/C Bank may agree (acting reasonably).
5.5
Optional Currencies
(a)
If before the Specified Time on the Quotation Day for the relevant Revolving Facility or Additional Facility Loan:
(i)
a Lender notifies the Facility Agent that the relevant Optional Currency is not readily available to it in the amount required; or
(ii)
a Lender notifies the Facility Agent that compliance with its obligation to participate in the relevant Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,
the Facility Agent will give notice to the relevant Borrowers to that effect by the Specified Time. In this event, any Lender that gives notice pursuant to this paragraph (a) will be required to participate in the relevant Loan in euros (in an amount equal to the euro equivalent (calculated using the Facility Agent’s Spot Rate of Exchange at the relevant time) of that Lender’s proportion of the relevant Loan (calculated based on the proportion of such Lender’s Available Commitment in respect of the relevant Facility, the relevant Borrower(s) and the relevant currency to the relevant Available Facility) or, in respect of a Rollover Loan, an amount equal to the euro equivalent (calculated using the Facility Agent’s Spot Rate of Exchange at the relevant time) of that Lender’s proportion of any amount that the Lenders are actually required to advance in accordance with Clause 8.4 (Rollover Loans)) (calculated based on the proportion of such Lender’s share of such loan to the total amount thereof), and its participation will be treated as a separate Loan denominated in euros during that Interest Period.
(b)
Any part of a Loan treated as a separate Loan under this Clause ‎5.5 will not be taken into account for the purposes of any limit on the number of Loans, or currencies outstanding at any one time.
6.
ANCILLARY FACILITIES
6.1
Utilisation of Ancillary Facilities
(a)
Each Borrower may, subject to paragraph (b) below, at any time at least 35 days prior to the Termination Date in respect of a Revolving Facility by delivery of a notice (a “Conversion Notice”) to the Facility Agent, request an Ancillary Facility to be established by the conversion of any Available Commitment under a Revolving Facility (or any part of it) into an Ancillary Facility Commitment

44
63529049_1



with effect from the date (in this Clause 6 (Ancillary Facilities), the “Ancillary Facility Effective Date”) specified in the Conversion Notice (being a date not less than 5 Business Days after the date such Conversion Notice is received by the Facility Agent).
(b)
Each Conversion Notice shall specify:
(i)
the proposed Borrower(s) (or any Affiliate of the Borrower(s) that is a member of the Group) which may use the Ancillary Facility;
(ii)
the nominated Ancillary Facility Lender;
(iii)
the type of Ancillary Facility and the currency or currencies in which the relevant Borrower wishes such Ancillary Facility to be available;
(iv)
the proposed amount of the original Ancillary Facility Commitment, being an amount (i) equal to the Available Commitment of the nominated Ancillary Facility Lender under a Revolving Facility or, if less, (ii) equal to or more than EUR 1,000,000;
(v)
the Ancillary Facility Effective Date and expiry date for the Ancillary Facility (such expiry date not to extend beyond the maturity date in respect of the Revolving Facility);
(vi)
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”); and
(vii)
such other details as to the nature, amount, fees for and operation of the proposed Ancillary Facility as the Facility Agent and the nominated Ancillary Facility Lender may reasonably require.
(c)
The Facility Agent shall promptly notify the Company, the nominated Ancillary Facility Lender and the Lenders of each Conversion Notice received pursuant to paragraph (a) above.
(d)
Any Lender nominated as an Ancillary Facility Lender which has notified the Facility Agent of its consent to such nomination shall be authorised to make the proposed Ancillary Facility available in accordance with the Conversion Notice (as approved by the Facility Agent) with effect on and from the Ancillary Facility Effective Date. No other Lender shall be obliged to consent to the nomination of the Ancillary Facility Lender.

45
63529049_1



(e)
Any material variation from the terms of the Ancillary Facility or any proposed increase or reduction or extension of the Ancillary Facility Commitment shall be effected on and subject to the provisions of this Clause 6 (Ancillary Facilities) mutatis mutandis as if such Ancillary Facility were newly requested (including, for the avoidance of doubt, that such newly requested Ancillary Facility shall only take effect from a date not less than 5 Business Days after the date the Facility Agent has received notice of the modification or variation or extension), provided that the amount of the Ancillary Facility Outstandings under each Ancillary Facility provided by an Ancillary Facility Lender shall at no time exceed the Available Commitment under the relevant Revolving Facility of that Ancillary Facility Lender.
(f)
Each relevant Borrower may (subject to compliance with the applicable terms of the relevant Ancillary Facility) at any time by giving written notice to the Facility Agent and the relevant Ancillary Facility Lender cancel any Ancillary Facility Commitment pursuant to and in accordance with Clause 9.7 (Voluntary Cancellation), provided that on the date of such cancellation, that part of such Ancillary Facility Commitment as shall have been so cancelled shall be converted back into the Revolving Facility Commitment of the relevant Lender unless the Revolving Facility Commitments are also cancelled on such date.
(g)
The Ancillary Facility Commitment of any Ancillary Facility Lender shall terminate and be cancelled on the date agreed therefor between the relevant Ancillary Facility Lender and the relevant Borrower, provided such date shall be no later than the Termination Date in respect of the Revolving Facility (the “Ancillary Facility Termination Date”). Any Ancillary Facility Outstandings on the applicable Ancillary Facility Termination Date shall be repaid in full by the relevant Borrower on such date.
(h)
The Revolving Facility Commitment of each Lender at any time shall be reduced by the amount of any Ancillary Facility Commitment of such Lender at such time but such reduced Commitment shall, subject to any other provisions of this Agreement, automatically be increased by the amount of any portion of its Ancillary Facility Commitment which ceases to be made available to the relevant Borrowers for any reason (other than as a result of Utilisation of it) in accordance with the terms of such Ancillary Facility or is cancelled pursuant to (f) or (g) above.
6.2
Operation of Ancillary Facilities
(a)
Subject to paragraph (b) below, the terms governing the operation of any Ancillary Facility (including the rate of interest (including default interest), fees, commission and other remuneration in respect of such Ancillary Facility) shall be those determined by agreement between the Ancillary Facility Lender and the relevant Borrower, provided that such terms shall be based upon the normal commercial terms and market rates of the relevant Ancillary Facility Lender.

46
63529049_1



(b)
In the case of any inconsistency or conflict between the terms of any Ancillary Facility, the applicable Ancillary Facility Documents and this Agreement, the terms and provisions of the applicable Ancillary Facility Document shall prevail unless the contrary intention is expressly provided for in this Agreement.
(c)
Each relevant Borrower and Ancillary Facility Lender will promptly upon request by the Facility Agent, supply the Facility Agent with such information relating to the operation of each Ancillary Facility (including without limitation details of the Ancillary Facility Outstandings and the amount thereof) as the Facility Agent may from time to time reasonably request (and each relevant Borrower consents to such documents and information being provided to the Facility Agent and the other Lenders).
6.3
Continuation of Ancillary Facilities
(a)
A Borrower and an Ancillary Facility Lender may, as between themselves only, agree to continue to provide the same banking facilities following the Termination Date applicable to the Revolving Facility or, as the case may be, following the cancellation of the Revolving Facility Commitments under this Agreement.
(b)
If any arrangement contemplated in paragraph (a) above is to occur, the relevant Borrower and the Ancillary Facility Lender shall each confirm that to be the case in writing to the Facility Agent. Upon such Termination Date or, as the case may be, date of cancellation, any such facility shall continue as between the said entities on a bilateral basis and not as part of, or under, the Finance Documents. Save for any rights and obligations against any Finance Party under the Finance Documents prior to such Termination Date or, as the case may be, date of cancellation, no such rights or obligations in respect of such Ancillary Facility shall, as between the Finance Parties, continue and the Security shall not support any such facility in respect of any matters that arise after such Termination Date or, as the case may be, date of cancellation.
6.4
Adjustment for Ancillary Facilities upon acceleration
(a)
If a default occurs under any Ancillary Facility, no Ancillary Facility Lender may demand repayment of any monies or demand cash cover for any Ancillary Facility Outstandings, or take any analogous action in respect of any Ancillary Facility, until the Acceleration Date.
(b)
If an Acceleration Date occurs, the claims of each Lender with a Revolving Facility Commitment under the applicable Revolving Facility and each Ancillary Facility Lender in respect of amounts outstanding to them under the applicable Revolving Facility and Ancillary Facilities respectively shall be adjusted in accordance with this Clause 6.4 (Adjustment for Ancillary Facilities upon acceleration) by making all necessary transfers of such portions of such claims such that following such transfers the Revolving Facility Outstandings and

47
63529049_1



Ancillary Facility Outstandings (together with the rights to receive interest, fees and charges in relation thereto) of (i) each Lender with an applicable Revolving Facility Commitment and (ii) each applicable Ancillary Facility Lender, in each case as at the Acceleration Date shall be an amount corresponding pro rata to the proportion that the sum of such Lender’s applicable Revolving Facility Commitment and/or (as the case may be) Ancillary Facility Commitment bears to the sum of all of the applicable Revolving Facility Commitments and the Ancillary Facility Commitments under that Revolving Facility, each as at the Acceleration Date.
(c)
No later than the third Business Day following the Acceleration Date each of the Ancillary Facility Lenders shall notify the Facility Agent in writing of the amount of its Ancillary Facility Outstandings as at the close of business on the Acceleration Date, such amount to take account of any clearing of debits which were entered into the clearing system of such Ancillary Facility Lenders prior to the Acceleration Date and any amounts credited to the relevant accounts prior to close of business on the Acceleration Date.
(d)
On receipt of the information referred to in paragraph (a) above, the Facility Agent will promptly determine what adjustment payments (if any) are necessary as between the Lenders participating in the applicable Revolving Facility and each Ancillary Facility Lender in order to ensure that, following such adjustment payments, the requirements of paragraph (b) above are complied with.
(e)
The Facility Agent will notify all the Lenders as soon as practicable of its determinations pursuant to paragraph (d) above, giving details of the adjustment payments required to be made. Such adjustment payments shall be payable by the relevant Lenders and shall be made to the Facility Agent within 5 Business Days following receipt of such notification from the Facility Agent. The Facility Agent shall distribute the adjustment payments received, among the Ancillary Facility Lenders and the Lenders participating in the relevant Revolving Facility in order to satisfy the requirements of paragraph (b) above.
(f)
If at any time following the Acceleration Date, the amount of Revolving Facility Outstandings of any Lender or Ancillary Facility Outstandings of any Ancillary Facility Lender used in the Facility Agent’s calculation of the adjustments required under paragraph (d) above should vary for any reason (other than as a result of currency exchange fluctuation or other reason which affects all relevant Lenders equally), further adjustment payments shall be made on the same basis (mutatis mutandis) provided for in this Clause 6.4 (Adjustment for Ancillary Facilities upon acceleration).
(g)
In respect of any amount paid by any Lender (a “Paying Lender”) pursuant to either of paragraphs (e) or (f) above, as between a relevant Borrower and the Paying Lender, the amount so paid shall be immediately due and payable by such relevant Borrower to the Paying Lender and the payment obligations of such

48
63529049_1



relevant Borrower to the Lender(s) which received such payment shall be treated as correspondingly reduced by the amount of such payment.
(h)
Each Lender shall promptly supply to the Facility Agent such information as the Facility Agent may from time to time request for the purpose of giving effect to this Clause 6.4 (Adjustment for Ancillary Facilities upon acceleration).
(i)
If an Ancillary Facility Lender has the benefit of any security interest securing any of its Ancillary Facilities, the realisations from such security when enforced will be treated as an amount recovered by such Ancillary Facility Lender in its capacity as a Lender which is subject to the sharing arrangements in Clause 30 (Sharing among the Finance Parties) to the intent that such realisation should benefit all Lenders pro rata.
(j)
Prior to the application of the provisions of paragraph (b) above, an Ancillary Facility Lender that has provided a Multi-account Overdraft shall set-off any Available Credit Balance on any account comprised in that Multi-account Overdraft.
(k)
All calculations to be made pursuant to this Clause 6.4 (Adjustment for Ancillary Facilities upon acceleration) shall be made by the Facility Agent based upon information provided to it by the Lenders and Ancillary Lenders and using the amount equivalent where applicable.
(l)
This Clause 6.4 (Adjustment for Ancillary Facilities upon acceleration) shall not oblige any Lender to accept the transfer of a claim relating to an amount outstanding under an Ancillary Facility which is not denominated (pursuant to the relevant Finance Document) in Sterling or where the Borrower is not an existing Borrower under the applicable Revolving Facility (excluding that Ancillary Facility).
6.5
Repayment of Ancillary Facilities
(a)
No Ancillary Facility Lender may demand repayment or prepayment of any amounts under its Ancillary Facility unless:
(i)
required to reduce the Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Net Outstandings;
(ii)
the Revolving Facility Commitments have been cancelled in full, or the Facility Agent has declared all Outstandings under the Revolving Facility immediately due and payable; or
(iii)
the Ancillary Facility Outstandings under that Ancillary Facility can be repaid by a Revolving Facility Loan (and not less than 7 Business Days notice is given to the relevant Borrower before payment becomes due).

49
63529049_1



(b)
For the purposes of repaying Ancillary Facility Outstandings (so long as paragraph (a)(i) above does not apply) a Revolving Facility Loan may be borrowed irrespective of whether a Default is outstanding or any other applicable condition precedent not satisfied.
(c)
The share of the Ancillary Facility Lender in a Revolving Facility Loan being used to refinance that Ancillary Facility Lender’s Ancillary Facility will be that amount which will result (so far as possible) in:
(i)
the proportion which its share of all Revolving Facility Outstandings under the applicable Revolving Facility bears to the aggregate amount of the Revolving Facility Outstandings under the applicable Revolving Facility,
being equal to:
(ii)
the proportion which its Available Commitment with respect to the applicable Revolving Facility bears to the aggregate of the Available Commitments with respect to the Revolving Facility,
in each case, assuming the repayment of the relevant Ancillary Facility has taken place. The share of the other Lenders in any such Revolving Facility Loan will be adjusted accordingly.
6.6
Affiliates of Lenders as Ancillary Lenders
(a)
Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Facility Lender. In such case, with the prior consent of the Company, the Lender and its Affiliate shall be treated as a single Lender whose Revolving Facility Commitment is the amount set out in the Register as at the Effective Date and/or the amount of any Revolving Facility Commitment under that Revolving Facility 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 Revolving Facility, the Lender’s Commitment shall be reduced to the extent of the aggregate of the Ancillary Facility Commitments under that Revolving Facility of its Affiliates.
(b)
The Company shall specify any relevant Affiliate of a Lender in any Conversion Notice delivered by the Company to the Facility Agent pursuant to Clause 6.1 (Utilisation of Ancillary Facilities).
(c)
An Affiliate of a Lender which becomes an Ancillary Facility Lender shall accede to this Agreement as an Ancillary Facility Lender, and the Intercreditor Agreement as a Lender.

50
63529049_1



(d)
If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (in accordance with Clause 27.1 (Assignments and Transfers by the Lenders), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Facility Document in respect of that Revolving Facility.
(e)
Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Facility Lender and the relevant Ancillary Facility 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.
6.7
Affiliates of Borrowers
(a)
Subject to the terms of this Agreement, an Affiliate of a Borrower that is a member of the Group may with the approval of the relevant Ancillary Facility Lender become a Borrower with respect to an Ancillary Facility.
(b)
The Company shall specify any relevant Affiliate of the Borrower in any Conversion Notice delivered by the Company to the Facility Agent pursuant to Clause 6.1 (Utilisation of Ancillary Facilities).
(c)
If any Borrower ceases to be a Borrower under this Agreement in accordance with Clause 28.3 (Resignation of a Borrower), any of its Affiliates that are not Affiliates of another Borrower shall cease to have any rights under this Agreement or any Ancillary Facility Document.
(d)
Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.
(e)
Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Facility Document.
6.8
Amendments and Waivers – Ancillary Facilities
No amendment or waiver of a term of any Ancillary Facility or Ancillary Facility Document or Conversion Notice shall require the consent of any Finance Party other than the relevant Ancillary Facility Lender unless such amendment or waiver itself directly gives rise to an amendment or waiver which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause 6.8) and in such a case, Clause 37 (Amendments and Waivers) will apply.
7.
DOCUMENTARY CREDITS

51
63529049_1



7.1
Issue of Documentary Credits
(a)
Each L/C Bank shall issue Documentary Credits pursuant to Clause 5 (Utilisation) by:
(i)
completing the issue date and the proposed Expiry Date of any Documentary Credit to be issued by it; and
(ii)
executing and delivering such Documentary Credit to the relevant Beneficiary on the relevant Utilisation Date.
(b)
Each Lender having a Commitment in relation to a Revolving Facility (an “L/C Lender”) will participate by way of indemnity in each Documentary Credit issued under that Revolving Facility in an amount equal to its L/C Proportion.
(c)
The Facility Agent shall notify each L/C Lender and the relevant L/C Bank of the details of any requested Documentary Credit (including the relevant currency in which it will be denominated, the euro equivalent and the amount of it) and its participation in that Documentary Credit.
7.2
Renewal of Documentary Credits
(a)
Each Borrower may request that a Documentary Credit issued on its behalf be renewed by delivering to the Facility Agent and the relevant L/C Bank a Renewal Request which complies with Clause 4.2 (Further conditions precedent), Clause 5 (Utilisations) and Part 2 of Schedule 3 (Requests).
(b)
The terms of each renewed Documentary Credit shall be the same as those of the relevant Documentary Credit immediately prior to its renewal, except that (as stated in the Renewal Request therefor):
(i)
its amount may be less than the amount of such Documentary Credit immediately prior to its renewal; and
(ii)
its Documentary Credit Term shall start on the date which was the Expiry Date of that Documentary Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.
(c)
If the conditions set out in this Clause 7.2 (Renewal of Documentary Credits)) have been met, the relevant L/C Bank shall amend and re-issue the relevant Documentary Credit pursuant to a Renewal Request.
7.3
Reduction of a Documentary Credit
(a)
If, on the proposed Utilisation Date of a Documentary Credit, any of the Lenders under the Revolving Facility or any relevant Additional Facility that is a revolving facility (as applicable) is a Non-Acceptable L/C Lender and:

52
63529049_1



(i)
that Lender has failed to provide cash collateral to the relevant L/C Bank in accordance with Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover); and
(ii)
either:
(A)
the relevant L/C Bank has not required the relevant Borrower which requested the Documentary Credit to provide cash cover pursuant to Clause 7.9 (Cash Cover by Borrower); or
(B)
the relevant Borrower which requested the Documentary Credit has failed to provide cash cover to the relevant L/C Bank in accordance with Clause 7.9 (Cash Cover by Borrower),
the relevant L/C Bank may reduce the amount of that Documentary Credit by an amount equal to the amount of the participation of that Non-Acceptable L/C Lender in respect of that Documentary Credit and that Non-Acceptable L/C Lender shall be deemed not to have any participation (or obligation to indemnify the relevant L/C Bank) in respect of that Documentary Credit for the purposes of the Finance Documents.
(b)
The relevant Borrower shall notify the Facility Agent (with a copy to the relevant L/C Bank) of each reduction made pursuant to this Clause 7.1 (Reduction of a Documentary Credit).
(c)
This Clause 7.1 (Reduction of a Documentary Credit) shall not affect the participation of each other Lender in that Documentary Credit.
7.4
Cash Cover by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover
(a)
If, at any time, a Lender under the Revolving Facility or any relevant Additional Facility that is a revolving facility (as applicable) is a Non-Acceptable L/C Lender, the relevant L/C Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling 3 Business Days after the request by such L/C Bank, an amount equal to that Lender’s L/C Proportion of the outstanding amount of a Documentary Credit issued by such L/C Bank and in the currency of that Documentary Credit to an interest-bearing account held in the name of that Lender with such L/C Bank.
(b)
The Non-Acceptable L/C Lender to whom a request has been made in accordance with paragraph (a) above shall enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the relevant L/C Bank, as collateral for any amounts due and payable under the Finance Documents by that Lender to the L/C Bank in respect of that Documentary Credit.

53
63529049_1



(c)
Until no amount is or may be outstanding under that Documentary Credit, withdrawals from the account specified in paragraph (a) above may only be made to pay to the relevant L/C Bank amounts due and payable to the relevant L/C Bank by the Non-Acceptable L/C Lender under the Finance Documents in respect of that Documentary Credit.
(d)
Each Lender under the Revolving Facility or any relevant Additional Facility that is a revolving facility (as applicable) shall notify the Facility Agent and the Company:
(i)
on the date of this Agreement or on any later date on which it becomes such a Lender in accordance with Clause 2.5 (Increase) or Clause 27 (Changes to the Finance Parties) whether it is a Non-Acceptable L/C Lender; and
(ii)
as soon as practicable upon becoming aware of the same, that it has become a Non-Acceptable L/C Lender,
and an indication in a Assignment Agreement or Transfer Certificate or in an Increase Confirmation to that effect will constitute a notice under paragraph (i) to the Facility Agent and, upon delivery in accordance with Clause 27.1 (Assignments or Transfers by Lenders), to the Company.
(e)
Any notice received by the Facility Agent pursuant to paragraph (d) above shall constitute notice to each L/C Bank of that Lender’s status and the Facility Agent shall, upon receiving each such notice, promptly notify each L/C Bank of that Lender’s status as specified in that notice.
(f)
If a Lender who has provided cash collateral in accordance with this Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover):
(i)
ceases to be a Non-Acceptable L/C Lender; and
(ii)
no amount is due and payable by that Lender in respect of a Documentary Credit,
that Lender may, at any time it is not a Non-Acceptable L/C Lender, by notice to the relevant L/C Bank request that an amount equal to the amount of the cash provided by it as collateral in respect of that Documentary Credit (together with any accrued interest) standing to the credit of the relevant account held with that L/C Bank be returned to it and that L/C Bank shall pay that amount to the Lender within 3 Business Days after the request from the Lender (and shall cooperate with the Lender in order to procure that the relevant security or collateral arrangement is released and discharged).
7.5
Revaluation of Documentary Credits

54
63529049_1



(a)
If any Documentary Credit is denominated in a currency other than euros, the Facility Agent shall at six monthly intervals after the date of the Documentary Credit recalculate the euro amount of that Documentary Credit by notionally converting into euros, the outstanding amount of that Documentary Credit on the basis of the Facility Agent’s Spot Rate of Exchange on the date of calculation.
(b)
The relevant Borrower shall, if requested by the Facility Agent within 2 days of any calculation under paragraph (a) above, ensure that within 3 Business Days sufficient Revolving Facility Outstandings or Additional Facility Outstandings in relation to a revolving facility (as applicable) are repaid (subject to Break Costs, if applicable, but otherwise without penalty or premium which might otherwise be payable), to prevent the euro amount of the Revolving Facility Outstandings or Additional Facility Outstandings in relation to a revolving facility (as applicable) exceeding the aggregate amount of all of the Revolving Facility Commitments or Additional Facility Commitments in relation to a revolving facility (as applicable) adjusted to reflect any cancellations or reductions, following any adjustment under paragraph (a) above.
7.6
Immediately Payable
(a)
If a Documentary Credit or any amount outstanding under a Documentary Credit becomes immediately payable under this Agreement, the relevant Borrower that requested (or on behalf of which the Company requested) the issue of that Documentary Credit shall repay or prepay that Documentary Credit or that amount within 3 Business Days of demand.
(b)
Each L/C Bank shall promptly notify the Facility Agent of any demand received by it under and in accordance with any Documentary Credit (including details of the Documentary Credit under which such demand has been received and the amount demanded). The Facility Agent shall promptly notify the Company, the relevant Borrower for whose account the Documentary Credit was issued and each of the Lenders under the Revolving Facility or Additional Facility in relation to a revolving facility (as applicable).
7.7
Claims under a Documentary Credit
(a)
Each Borrower irrevocably and unconditionally authorises each L/C Bank to pay any claim made or purported to be made under a Documentary Credit requested by it (or by the Company on its behalf) and which appears on its face to be in order (a “claim”).
(b)
Each Borrower shall within 3 Business Days of demand pay to the Facility Agent for the account of the relevant L/C Bank an amount equal to the amount of any claim under that Documentary Credit.

55
63529049_1



(c)
On receipt of any demand or notification under Clause 7.6 (Immediately Payable), the relevant Borrower shall (unless the Company notifies the Facility Agent otherwise) be deemed to have delivered to the Facility Agent a duly completed Utilisation Request requesting a Revolving Facility Loan or Additional Facility Loan in relation to a revolving facility (as applicable):
(i)
in an amount and currency equal to the amount and currency of the relevant claim (if applicable, net of any available cash cover);
(ii)
for a term of three months or such other period of up to six months as notified by the relevant Borrower to the relevant L/C Bank promptly following such demand or notification; and
(iii)
with a Utilisation Date on the date of receipt of the relevant demand or notification.
The proceeds of any such Revolving Facility Loan or Additional Facility Loan in relation to a revolving facility (as applicable) shall be used to pay the relevant claim.
(d)
Each Borrower acknowledges that each L/C Bank:
(i)
is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and
(ii)
deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.
(e)
The obligations of each Borrower under this Clause 7.7 (Claims under a Documentary Credit) will not be affected by:
(i)
the sufficiency, accuracy or genuineness of any claim or any other document; or
(ii)
any incapacity of, or limitation on the powers of, any person signing a claim or other document.
(f)
Without prejudice to any other matter contained in this Clause 7.7 (Claims under a Documentary Credit), the relevant L/C Bank shall notify the relevant Borrowers as soon as reasonably practicable after receiving a claim.
7.8
Documentary Credit Indemnities
(a)
The relevant Borrower shall within 3 Business Days of demand indemnify an L/C Bank against any cost, loss or liability incurred by such L/C Bank (otherwise than by reason of such L/C Bank’s gross negligence, wilful misconduct or wilful

56
63529049_1



breach of the terms of this Agreement) in acting as an L/C Bank under any Documentary Credit requested by such Borrower.
(b)
Each L/C Lender shall (according to its L/C Proportion) promptly on demand indemnify an L/C Bank against any cost, loss or liability incurred by such L/C Bank (otherwise than by reason of such L/C Bank’s gross negligence, wilful misconduct or wilful breach of the terms of this Agreement) in acting as an L/C Bank under any Documentary Credit (except to the extent that such L/C Bank has been reimbursed by an Obligor pursuant to a Finance Document).
(c)
If any L/C Lender is not permitted (by its constitutional documents or any applicable Law) to comply with paragraph (b) above, then that L/C Lender will not be obliged to comply with paragraph (b) above and shall instead be deemed to have taken, on the date the relevant Documentary Credit is issued (or if later, on the date that L/C Lender’s participation in the Documentary Credit is transferred or assigned to that L/C Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Documentary Credit in an amount equal to its L/C Proportion of that Documentary Credit. On receipt of demand from the Facility Agent, that L/C Lender shall pay to the Facility Agent (for the account of the relevant L/C Bank) an amount equal to its L/C Proportion of the amount demanded under paragraph (b) above.
(d)
The Borrower which requested the Documentary Credit shall within 3 Business Days of demand reimburse any L/C Lender for any payment it makes to an L/C Bank under this Clause 7.8 (Documentary Credit Indemnities) in respect of that Documentary Credit unless such Lender or an Obligor has already reimbursed such L/C Bank in respect of that payment.
(e)
The obligations of each L/C Lender and Borrower under this Clause 7.8 (Documentary Credit Indemnities) are continuing obligations and will extend to the ultimate balance of sums payable by that L/C Lender in respect of any Documentary Credit, regardless of any intermediate payment or discharge in whole or in part.
(f)
The obligations of any L/C Lender or Borrower under this Clause 7.8 (Documentary Credit Indemnities) will not be affected by any act, omission, matter or thing which, but for this Clause 7.8 (Documentary Credit Indemnities) would reduce, release or prejudice any of its obligations under this Clause 7.8 (Documentary Credit Indemnities) (without limitation and whether or not known to it or any other person) including:
(i)
any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Documentary Credit or any other person;

57
63529049_1



(ii)
the release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
(iii)
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Documentary Credit or any 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;
(iv)
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Documentary Credit or any other person;
(v)
any amendment or restatement (however fundamental) or replacement of a Finance Document, any Documentary Credit or any other document or security;
(vi)
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Documentary Credit or any other document or security; or
(vii)
any insolvency or similar proceedings.
7.9
Cash Cover by Borrower
(a)
If a Lender which is a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the relevant L/C Bank that it will not provide cash collateral) in accordance with Clause 7.4 (Cash Collateral by Non-Acceptable L/C Lender and Borrower’s option to provide cash cover) and that L/C Bank notifies the Obligors’ Agent (with a copy to the Facility Agent) that it requires the relevant Borrower of the relevant Documentary Credit or proposed Documentary Credit to provide cash cover to an account with that L/C Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Documentary Credit and in the currency of that Documentary Credit then that Borrower shall do so within 5 Business Days after the notice is given.
(b)
Notwithstanding paragraph (a)(xiii) of Clause 1.2 (Construction), the relevant Borrower shall be entitled to withdraw amounts up to the level of that cash cover from the account if:
(i)
the relevant L/C Bank is satisfied that the relevant Lender is no longer a Non-Acceptable L/C Lender; or

58
63529049_1



(ii)
the relevant Lender’s obligations in respect of the relevant Documentary Credit are transferred to a New Lender in accordance with the terms of this Agreement; or
(iii)
an Increase Lender has agreed to undertake the obligations in respect of the relevant Lender’s L/C Proportion of the Documentary Credit.
(c)
To the extent that a Borrower has complied with its obligations to provide cash cover in accordance with this Clause 7.9 (Cash Cover by Borrower), the relevant Lender’s L/C Proportion in respect of that Documentary Credit will remain (but that Lender’s obligations in relation to that Documentary Credit may be satisfied in accordance with Clause 1.2 (Construction)). However, the relevant Borrower’s obligation to pay any Documentary Credit fee in relation to the relevant Documentary Credit to the Facility Agent (for the account of that Lender) in accordance with Clause 15 (Fees) will be reduced proportionately as from the date on which it complies with that obligation to provide cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).
(d)
The relevant L/C Bank shall promptly notify the Facility Agent of the extent to which the relevant Borrower provides cash cover pursuant to this Clause 7.9 (Cash Cover by Borrower) and of any change in the amount of cash cover so provided.
7.10
Rights of Contribution
No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7 (Documentary Credits).
7.11
Appointment and Change of L/C Bank
(a)
The Company, with the prior written consent of the relevant Lender, may designate any Lender with a Revolving Facility Commitment or Additional Facility Commitment in relation to a revolving facility (as applicable) as an L/C Bank or as a replacement therefor, but not with respect to Documentary Credits already issued by any other L/C Bank.
(b)
Any Lender so designated shall become an L/C Bank under this Agreement by delivering to the Facility Agent an executed L/C Bank Accession Certificate.
(c)
An L/C Bank may resign as issuer of further Documentary Credits at any time if (i) the Company and the Majority Lenders consent to such resignation or so require; (ii) there is, in the reasonable opinion of each L/C Bank, an actual or potential conflict of interest in it continuing to act as L/C Bank; or (iii) its Revolving Facility Commitment or Additional Facility Commitment in relation

59
63529049_1



to a revolving facility (as applicable) is reduced to zero, provided that an L/C Bank shall not resign until a replacement L/C Bank is appointed.
8.
REPAYMENT
8.1
Repayment of Revolving Facility Loans
(a)
Subject to Clause 8.2 (Rollover Loans), each Borrower which has drawn a Revolving Facility Loan shall repay that Loan on the last day of its Interest Period.
(b)
At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Revolving Facility Loans then outstanding will be automatically extended to the Termination Date in relation to the Revolving Facility and will be treated as separate Revolving Facility Loans (the “Separate Loans”) denominated in the currency in which the relevant participations are outstanding.
(c)
A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving three Business Days’ prior notice to the Facility Agent. The Facility Agent will forward a copy of a prepayment notice received in accordance with this paragraph (c) to the Defaulting Lender concerned as soon as practicable on receipt.
(d)
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 Facility Agent (acting reasonably) and will be payable by that Borrower to the Defaulting Lender on the last day of each Interest Period of that Loan.
8.2
Rollover Loans
Without prejudice to each Borrower’s obligation to repay the full amount of each Revolving Facility Loan made to it on the last day of its Interest Period, where, on the same day on which such Borrower is due to repay a Revolving Facility Loan (a “Maturing Loan”) such Borrower has also requested that one or more Rollover Loans be made to it, subject to the Lenders being obliged to make such Rollover Loans under Clause 4.2 (Further conditions precedent), the aggregate amount of the Rollover Loan shall be treated as if applied in or towards repayment of the Maturing Loan so that:
(a)
if the amount of the Maturing Loan exceeds the aggregate amount of the Rollover Loan:
(i)
the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and
(ii)
each Lender’s participation (if any) in the Rollover Loan shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation

60
63529049_1



(if any) in the Maturing Loan and that Lender will not be required to make its participation in the Rollover Loan available in cash; and
(b)
if the amount of the Maturing Loan is equal to or less than the aggregate amount of the Rollover Loan:
(i)
the relevant Borrower will not be required to make any payment in cash; and
(ii)
each Lender will be required to make its participation in the Rollover Loan available in cash only to the extent that its participation (if any) in the Rollover Loan exceeds that Lender’s participation (if any) in the Maturing Loan and the remainder of that Lender’s participation in the Rollover Loan 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.
8.3
Cash Collateralisation of Documentary Credits
(a)
If not previously repaid in accordance with paragraph (b) below, each Borrower must repay each Documentary Credit issued on its behalf in full on the date stated in that Documentary Credit to be its Expiry Date.
(b)
A Borrower may give the Facility Agent not less than 3 Business Days prior written notice of its intention to repay all or any portion of a Documentary Credit requested by it prior to its stated Expiry Date and, having given such notice, shall procure that the relevant Outstanding L/C Amount in respect of such Documentary Credit is reduced in accordance with Clause 1.2(a)(xiii) (Construction).
8.4
Repayment of Additional Facility Loans
Each Borrower which has drawn an Additional Facility Loan which is not a Revolving Facility Loan shall repay that Loan in accordance with the provisions of the relevant Additional Facility Accession Agreement, which shall provide for repayment of the relevant Additional Facility to be made:
(a)
in full on the relevant Termination Date; or
(b)
by payment of instalments (each a Repayment Instalment) on any date or dates up to and including the relevant Termination Date. Each Repayment Instalment shall be in the amount and on the date or dates set out in or calculated in accordance with the relevant Additional Facility Accession Agreement.
9.
ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

61
63529049_1



9.1
Illegality
If at any time it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or any Ancillary Facility Document respectively or to make, fund, issue or maintain its participation in any Loan or, in the case of an Ancillary Facility Lender, any utilisation under any Ancillary Facility:
(a)
that Lender, shall promptly notify the Facility Agent upon becoming aware of that event;
(b)
upon the Facility Agent notifying the Company, the Commitment of that Lender will be immediately cancelled; and
(c)
to the extent that the Lender’s participation has not been transferred pursuant to Clause 27.13 (Replacement of Lender), each Borrower shall repay:
(i)
that Lender’s participation in the Loans made to that Borrower (together with accrued interest on and all other amounts owing to that Lender under the Finance Documents) on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law); and/or
(ii)
each amount payable or, as the case may be, provide full cash cover in respect of each contingent liability under each Ancillary Facility of that Ancillary Facility Lender on the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).
9.2
Illegality in Relation to an L/C Bank
If it becomes unlawful in any relevant jurisdiction for an L/C Bank to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Documentary Credit (an “Affected Documentary Credit”):
(a)
that L/C Bank shall promptly notify the Facility Agent upon becoming aware of that event;
(b)
upon the Facility Agent notifying the Company, that L/C Bank shall not be obliged to issue any future Documentary Credit that would give rise to such unlawfulness; and

62
63529049_1



(c)
upon the Facility Agent notifying the Company, each relevant Borrower shall use its best endeavours to procure the release of any Affected Documentary Credit.
9.3
Voluntary prepayment of Loans
A Borrower may, if it or the Company gives the Facility Agent not less than three Business Days’ (or such shorter period as agreed by the Company and the Facility Agent) 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 €1,000,000).Any voluntary prepayment made under this paragraph will be applied against the Facilities in such proportion and manner as may be specified by the Company, acting in its sole discretion, in the notice of prepayment.
9.4
Right of cancellation and repayment in relation to a single Lender
(a)
If:
(i)
any sum payable to any Lender or Ancillary Facility Lender or L/C Bank by an Obligor is required to be increased under paragraph (c) of Clause 16.2 (Tax gross-up); or
(ii)
any Lender or Ancillary Facility Lender or L/C Bank claims indemnification from the Company or an Obligor under Clause 16.3 (Tax indemnity) or Clause 17.1 (Increased costs);
(iii)
any Lender or Ancillary Facility Lender or L/C Bank invokes Clause 14.3 (Market disruption),
then, subject to paragraph (c) below:
(iv)
if the circumstance relates to a Lender, the Company may:
(A)
arrange for the transfer or assignment in accordance with this Agreement of the whole (but at par only) of that Lender’s Commitment and participation in the Loans to a new or existing Lender willing to accept that transfer or assignment; or
(B)
give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans, whereupon the Commitment of that Lender shall immediately be reduced to zero;
(v)
if the circumstance relates to an L/C Bank, the Company may give the Facility Agent notice of repayment of any outstanding Documentary Credit issued by such L/C Bank and cancellation of the appointment of such L/C Bank as an L/C Bank under this Agreement in relation to any Documentary Credit to be issued in

63
63529049_1



the future or the provision of full cash cover in respect of such L/C Bank’s maximum contingent liability under each outstanding Documentary Credit; and
(vi)
if the circumstance relates to an Ancillary Facility Lender, the Company may give the Facility Agent notice of cancellation of that Ancillary Facility Lender’s Ancillary Commitment and the Company’s intention to procure the repayment of the utilisations of any Ancillary Facility granted by that Ancillary Facility Lender, whereupon the Ancillary Commitment of that Ancillary Facility Lender shall immediately be reduced to zero.
(b)
On the last day of each Interest Period which ends after the Company has given notice under paragraph (a)(iv)(B), (a)(v) or (a)(vi) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan or utilisation of an Ancillary Facility is outstanding shall repay that Lender’s participation in that Loan or the utilisation of the Ancillary Facility granted by that Ancillary Facility Lender together with all interest and other amounts accrued under the Finance Documents, or, as the case may be, provide full cash cover in respect of (or otherwise repay) any Documentary Credit issued by that L/C Bank or any contingent liability under an Ancillary Facility.
(c)
The Company may only exercise its rights under paragraphs (a)(i) and (a)(ii) above if the circumstance giving rise to the requirement or indemnifications continues.
(d)
The replacement of a Lender pursuant to paragraph (a)(iv)(A) above shall be subject to the following conditions:
(i)
no Finance Party shall have any obligation to find a replacement Lender;
(ii)
any replaced Lender shall not be required to refund, or to pay or surrender to any other Lender, any of the fees or other amounts received by that replaced Lender under any Finance Document; and
(iii)
any replacement of a Lender which is the Facility Agent shall not affect its role as the Facility Agent.
(e)
Prepayments made pursuant to this Clause 9.4 (Right of cancellation and repayment in relation to a single Lender) shall be applied against the outstanding Loans pro rata.
9.5
Right of cancellation in relation to a Defaulting Lender

64
63529049_1



(a)
If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent 3 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 Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.
9.6
Automatic Cancellation
The unutilised amount of a Facility at the end of its Availability Period shall be automatically cancelled.
9.7
Voluntary cancellation
The Company may, if it gives the Facility Agent not less than three Business Days’ (or such shorter period as agreed by the Company and the Agent) prior notice, cancel the whole or any part (being a minimum amount of €1,000,000) of the Available Facility. Any cancellation under this Clause 9.7 shall (subject to the provisions of Clause 6.1(f) (Utilisation of Ancillary Facilities) reduce the Commitments of the Lenders rateably under the Facilities.

10.
MANDATORY PREPAYMENT
(a)
The Company shall promptly notify the Facility Agent if it becomes aware of any Change of Control (as defined in Schedule 16 (Definitions) of this Agreement) or the occurrence of a UPC Exchange Transaction (as defined in Schedule 16 (Definitions) of this Agreement).
(b)
Upon the occurrence of a Change of Control or a UPC Exchange Transaction (as defined in Schedule 16 (Definitions) of this Agreement), each Lender may, by notice to the Company and the Facility Agent within 30 days following receipt by it of the notification referred to in paragraph (a) above:
(i)
cancel that Lender’s Available Commitment; and
(ii)
declare that Lender’s participation in all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents and owed to that Lender, to be due and payable, and the Company shall prepay such Loans and amounts within ten days of receipt of such notice from any such Lender;

65
63529049_1



subject to the foregoing, any notice will take effect in accordance with its terms.
11.
RESTRICTIONS
11.1
Notices of Cancellation or Prepayment
Any notice of cancellation or prepayment given by any Party under Clause 9 (Illegality, Voluntary Prepayment and Cancellation) or Clause 10 (Mandatory Prepayment) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment, provided that a notice or prepayment or cancellation may be conditional and not irrevocable provided that the Company or a Borrower shall within 10 Business Days’ notice from the Facility Agent indemnify any Lender in respect, and in the amount, of such Lender’s Break Costs as specified in such notice from the Facility Agent should cancellation or prepayment not occur on the date or dates specified in the notice of cancellation or prepayment.
11.2
Interest and other amounts
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
11.3
Reborrowing of Facilities
(a)
Any voluntary prepayment of a Revolving Facility Loan under Clause 8.2 (Voluntary prepayment of Loans) may be re-borrowed on the terms of this Agreement.
(b)
No Borrower may re-borrow any part of any other Additional Facility (which is not a Revolving Facility) unless otherwise agreed in the Additional Facility Accession Agreement.
11.4
Prepayment in accordance with Agreement
No Borrower shall repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
11.5
No reinstatement of Commitments
Subject to Clause 2.5 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
11.6
Agent’s receipt of Notices

66
63529049_1



If the Facility Agent receives a notice under Clause 9 (Illegality, Voluntary Prepayment and Cancellation) or Clause 10 (Mandatory Prepayment) it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.
12.
INTEREST
12.1
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)
(in the case of a Loan denominated in euros) EURIBOR; or
(c)
(in the case of a Loan denominated in US Dollars or an Additional Currency) LIBOR.
12.2
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 six Months, on the dates falling at six-Monthly intervals after the first day of the Interest Period).
12.3
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 1% higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 12.3 shall be immediately payable by the Obligor on demand by the Facility Agent.
(b)
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
(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 1% higher than the rate which would have applied if the overdue amount had not become due.

67
63529049_1



(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.
12.4
Interest on Additional Facilities
The rate of interest on any Additional Facility and the timing of payment of such interest shall be regulated by the relevant Additional Facility Accession Agreement.
12.5
Notification of rates of interest
(a)
The Facility Agent shall promptly notify the relevant Lenders and the relevant Borrower (or the Company) of the determination of a rate of interest under this Agreement and any change to the proposed length of an Interest Period under Clause 14.
(b)
The Facility Agent shall promptly notify the relevant Borrower (or the Company) of each Funding Rate relating to a Loan.
13.
INTEREST PERIODS
13.1
Selection of Interest Periods
(a)
A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan is a Term Loan and has already been borrowed) in a Selection Notice.
(b)
Each Selection Notice for a Term Loan is irrevocable and must be delivered to the Facility Agent by the Borrower (or the Company on behalf of the Borrower) to which that Term Loan was made not later than the Specified Time.
(c)
If a Borrower (or the Company) fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will be the Interest Period selected in the most recently delivered Utilisation Request or Selection Notice (as applicable) for the relevant Term Loan.
(d)
Subject to this Clause 13, a Borrower (or the Company) may select an Interest Period of:
(i)
in relation to a Revolving Facility, any number of days from and including one day to and including 30 days or one, two, three or six Months or any other period (subject to no minimum term) as agreed between the Company and the Facility Agent (without seeking any further consent or instructions from the Lenders); and
(ii)
in relation to a Term Facility, one, two, three or six Months or any other period (subject to no minimum term) as agreed between the Company and the Facility Agent (without seeking any further

68
63529049_1



consent or instructions from the Lenders), provided that any Interest Period that would otherwise end during the month preceding or extend beyond a repayment date relating to the Term Facility shall be of such duration that it shall end on that repayment date if necessary to ensure that there are Loans under the relevant Term Facility with Interest Periods ending on the relevant repayment date in a sufficient aggregate amount to make the repayment due on that repayment date.
(e)
An Interest Period for a Loan shall not extend beyond the Termination Date.
(f)
Each Interest Period for a Term Loan shall start on the Utilisation Date or, if already made, on the last day of its preceding Interest Period.
(g)
Each Revolving Facility Loan has one Interest Period only.
13.2
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).
13.3
Consolidation and Division of Term Facility Loans
(a)
Subject to paragraph (b) below, if two or more Interest Periods:
(i)
relate to Term Facility Loans under the same Term Facility made to the same Borrower in the same currency; and
(ii)
end on the same date,
those Term Facility Loans will, unless that Borrower (or the Company on its behalf) specifies to the contrary for the next Interest Period, be consolidated into, and treated as, a single Term Facility Loan on the last day of the Interest Period.
(b)
Subject to the requirements of Clause 13.1 (Selection of Interest Periods), a Borrower (or the Company on its behalf) may, by no later than 9:30 a.m. on the date falling three Business Days before the first day of the relevant Interest Period, direct that any Term Facility Loan borrowed by it shall, at the beginning of the next Interest Period relating to it, be divided into (and thereafter, save as otherwise provided in this Agreement, be treated in all respects as) two or more Loans in such amounts (equal in aggregate to the amount of the Term Facility Loan being so divided) as shall be specified by that Borrower or the Company in such direction provided that no such direction may be made if:
(i)
as a result of so doing, there would be more than 10 Loans outstanding under the relevant Term Facility; or

69
63529049_1



(ii)
any Term Facility Loan thereby coming into existence would have a Euro equivalent amount of less than €1,000,000.
14.
CHANGES TO THE CALCULATION OF INTEREST
14.1
Unavailability of Screen Rate
(a)
Interpolated Screen Rate: If no Screen Rate is available for LIBOR or EURIBOR for the Interest Period of that Loan, the applicable LIBOR or EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.
(b)
Shortened Interest Period: If no Screen Rate is available for LIBOR or EURIBOR for the required currency or Interest Period of that Loan and it is not possible to calculate the Interpolated Screen Rate, the Interest Period of that Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable LIBOR or applicable EURIBOR for that shortened Interest Period shall be determined pursuant to the definition of “LIBOR” or “EURIBOR” (as applicable).
(c)
Shortened Interest Period and Historic Screen Rate: If the Interest Period of a Loan is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for LIBOR or EURIBOR for the required currency or Interest Period of that Loan and it is not possible to calculate the Interpolated Screen Rate, then the applicable LIBOR or applicable EURIBOR shall be the Historic Screen Rate for a period equal in length to the Interest Period of that Loan.
(d)
Shortened Interest Period and Interpolated Historic Screen Rate: If paragraph (c) above applies but no Historic Screen Rate is available for the Interest Period of that Loan, the applicable LIBOR or the applicable EURIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan.
(e)
Reference Bank Rate: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Screen Rate for that Loan, the Interest Period of that Loan shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable LIBOR or the applicable EURIBOR shall be calculated as the Reference Bank Rate as of the Specified Time on the Quotation Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.
(f)
Alternative Reference Bank Rate: If paragraph (e) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period the applicable LIBOR or the applicable EURIBOR shall be the Alternative Reference Bank

70
63529049_1



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.
(g)
Cost of funds: If paragraph (f) above applies but no Alternative Reference Bank Rate is available for the relevant currency or Interest Period there shall be no LIBOR or EURIBOR for that Loan and Clause 14.4 (Cost of funds) shall apply to that Loan for that Interest Period.
14.2
Calculation of Reference Bank Rate and Alternative Reference Bank Rate
(a)
Subject to paragraph (b) below, if LIBOR or EURIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.
(b)
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
(c)
Subject to paragraph (d) below, if LIBOR or EURIBOR is to be determined on the basis of an Alternative Reference Bank Rate but an Alternative Reference Bank does not supply a quotation by the Specified Time, the Alternative Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Alternative Reference Banks.
(d)
If before close of business in London on the date falling one Business Day after the Quotation Day none or only one of the Alternative Reference Banks supplies a quotation, there shall be no Alternative Reference Bank Rate for the relevant Interest Period.
14.3
Market Disruption
(a)
If LIBOR or EURIBOR is determined otherwise than on the basis of an Alternative Reference Bank Rate and before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in that Loan exceed 40 per cent. 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 LIBOR or EURIBOR then the applicable LIBOR or EURIBOR shall be the Alternative Reference Bank Rate as of the Specified Time for the currency of the Loan and for a period equal in length to the Interest Period of that Loan and if no Alternative Reference Bank Rate is available for the relevant currency or Interest Period there shall be no LIBOR or EURIBOR for that Loan and Clause 14.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.
(b)
If LIBOR or EURIBOR is determined on the basis of an Alternative Reference Bank Rate and before close of business in London on the date falling 1 Business

71
63529049_1



Day after the Quotation Day for the relevant Interest Period of that Loan the Facility Agent receives notifications from a Lender or Lenders (whose participations in that Loan exceed 40 per cent. 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 LIBOR or EURIBOR then Clause 14.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.
14.4
Cost of Funds
(a)
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender’s share of that Loan for the relevant Interest Period shall be the rate per annum which is the sum of:
(i)
the Margin; and
(ii)
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event within one Business Day of the first day of that Interest Period (or, if earlier, on the date falling five Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.
(b)
If a Market Disruption Event occurs and the Facility Agent or the Company so requires, the Facility Agent and the Company shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.
(c)
Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.
(d)
If this Clause 14.4 applies pursuant to Clause 14.3 (Market Disruption): and
(i)
a Lender’s Funding Rate is less than LIBOR or 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 purpose of paragraph (a) above, to be LIBOR or EURIBOR.
(e)
If this Clause 14.4 applies pursuant to Clause 14.1 (Unavailability of Screen Rate) but any Lender does not supply a quotation by the time specified in paragraph (a)(ii) above the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.

72
63529049_1



14.5
Notification to Company
If Clause 14.4 (Cost of funds) applies or if LIBOR or EURIBOR is to be determined on the basis of an Alternative Reference Bank Rate the Facility Agent shall, as soon as is practicable, notify the Company.
14.6
Break Costs
(a)
Each Borrower shall, within ten Business Days of demand by a Finance Party (acting through the Facility Agent), pay to that Finance Party its Break Costs (if any) attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
(b)
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
15.
FEES
15.1
Commitment fee
(a)
The Company shall pay to the Facility Agent (for the account of each Lender (other than an Ancillary Facility Lender) under the Original Revolving Facility) a fee in euro computed at the rate of 40% of the applicable Margin per annum (or such other rate as the Lenders and the Obligors’ Agent agree) on that Lender’s Available Commitment under the Original Revolving Facility (other than in relation to any Ancillary Facility).
(b)
The commitment fee payable under the Original Revolving Facility will begin accruing from the date of this Agreement and is payable in arrears on each successive 3 month anniversary of the date of this Agreement, on the last day of the Original Revolving Facility Availability Period and on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.
(c)
If specified in the relevant Additional Facility Accession Agreement, the Company shall pay to the Facility Agent (for the account of each Lender under the relevant Additional Facility) a fee computed at the rate specified in the relevant Additional Facility Accession Agreement on that Lender’s Available Commitment under that Additional Facility.
(d)
No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.
15.2
Agency fee

73
63529049_1



The Company shall pay to the Facility Agent (for its own account) an agency fee in the amount and at the times agreed in a letter between the Facility Agent and the Obligors dated on or before the first Utilisation Date.
15.3
Documentary Credit Fee
Each Borrower shall, in respect of each Documentary Credit issued on its behalf pay (or procure the payment of) to the Facility Agent for the account of each L/C Lender (for distribution in proportion to each L/C Lender’s L/C Proportion of such Documentary Credit) a documentary credit fee in the currency in which the relevant Documentary Credit is denominated at a rate equal to the applicable Margin applied on the Outstanding L/C Amount in relation to such Documentary Credit (less any amount which has been repaid or prepaid). Such documentary credit fee shall be paid in arrears on each Quarter Date during the Term of the relevant Documentary Credit and on the relevant Expiry Date (or the date of its repayment, prepayment or cancellation, if earlier) for that Documentary Credit.
15.4
L/C Bank Fee
Each relevant Borrower shall pay (or procure the payment of) to any other L/C Bank a fronting fee in respect of each Documentary Credit requested by it and issued by that L/C Bank, in the amount and at the times agreed in any letter entered into between such L/C Bank and such Borrower.
15.5
Security Trustee fee
The Company shall pay to the Security Trustee (for its own account) the Security Trustee fee in the amount and at the times agreed in a letter between the Security Trustee and the Obligors dated on or before the first Utilisation Date.
16.
TAX GROSS UP AND INDEMNITIES
16.1
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.
Qualifying Lender means, in respect of a jurisdiction, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is (a) a Lender that is entitled under the provisions of a double taxation treaty to receive payments of interest from a person resident in such a jurisdiction without a Tax Deduction (whether or not such entitlement depends on the prior completion of any reasonable procedural formalities) or (b) a Lender which is able

74
63529049_1



under the domestic law of the Borrower’s jurisdiction to receive source interest of that jurisdiction free of a Tax Deduction (if any) imposed by that jurisdiction.
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 16.2 (Tax gross-up) or a payment under Clause 16.3 (Tax indemnity).
Unless a contrary indication appears, in this Clause 16, a reference to determines or determined means a determination made in the discretion of the person making the determination acting reasonably and in good faith.
16.2
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 or by a binding decision of a tax authority or court.
(b)
The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Company and that Obligor.
(c)
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d)
An Obligor is not required to make an increased payment under paragraph (c) to a Lender, if on the date on which the payment falls due:
(i)
the payment could have been made to the relevant Lender without a Tax Deduction if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change in (or in the interpretation, administration, or application of) any law or double taxation treaty, or any published practice or concession of any relevant tax authority after the date the Lender became a Lender under this Agreement or as a result of any Obligor changing its residence for Tax purposes; or
(ii)
the relevant Lender is a Qualifying Lender and the Obligor is able to demonstrate that the payment could have been made to the

75
63529049_1



Lender without the Tax Deduction, had the Lender complied with its obligations under paragraph (g).
(e)
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.
(f)
In the case of a deduction or withholding made by the Obligor, the Obligor shall furnish, if reasonably possible, to the Facility Agent on behalf of the Finance Party concerned, within the period for payment permitted by the relevant law, either:
(i)
an official receipt of the relevant taxation or other authorities involved in respect of all amounts so deducted or withheld; or
(ii)
if such receipts are not issued by the taxation or other authorities concerned on payment to them of amounts so deducted or withheld, a certificate of deduction or equivalent evidence of the relevant deduction or withholding.
(g)
A Qualifying Lender and any Obligor owing a payment to that Qualifying Lender shall co-operate in completing any reasonable procedural formalities necessary for that Obligor in order to obtain authorisation to make in accordance with the relevant law the payment without a Tax Deduction.
16.3
Tax indemnity
(a)
The Company shall (within ten Business Days of written demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party reasonably determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a payment of an Obligor.
(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,

76
63529049_1



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 16.2 (Tax gross-up); or
(B)
would be compensated for by an increased payment under Clause 16.2(c) (Tax gross-up) but is not so actually compensated for solely as a result of one of the exclusions in paragraph (ii) of Clause 16.2 (Tax gross-up).
(c)
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Company.
(d)
A Protected Party shall, on receiving a payment from an Obligor under this Clause 16.3, notify the Facility Agent.
16.4
Tax Credit
If and to the extent that the Obligor pays any additional amount under Clause 16.2 (Tax gross-up) or Clause 16.3 (Tax indemnity) and any Finance Party receives and retains the benefit of a refund of Tax or credit against Tax on its overall net income which is identified by the Finance Party as attributable to the tax that was withheld or deducted (a Tax Credit), then that Finance Party shall reimburse to the Obligor such amount as it shall determine so as to leave that Finance Party after that reimbursement, in no better or worse position than it would have been in if payment of the relevant additional amount had not been required. Each Finance Party shall have absolute discretion as to whether to claim any Tax Credit and, if it does so claim, the extent, order and manner in which it does so and which reliefs and credits are to be regarded as used for these purposes. Such reimbursement shall be made as soon as reasonably practicable after such Finance Party shall have made any such determination. No Finance Party shall be obliged to disclose any information regarding its tax affairs or computations to the Obligor.
16.5
Stamp taxes
The Company shall pay and, within ten Business Days of demand, indemnify each Secured Party and Mandated Lead Arrangers against any cost, loss or liability that Secured Party or Mandated Lead Arrangers incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
16.6
Value added tax

77
63529049_1



(a)
All consideration expressed to be payable under a Finance Document by any Party to a Finance Party shall be deemed to be exclusive of any VAT and no Party shall exercise any potential option for waiving a VAT exemption. Subject to paragraph (b) below, if VAT is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT, unless the VAT charge is caused by the Finance Party’s option to waive a VAT exemption, and in either case concurrently against the issue of an appropriate invoice.
(b)
If VAT is chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) in connection with a Finance Document, and any Party other than the Recipient (the Subject Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration), (i) if the Supplier is required to account for the VAT, the Subject Party must also pay to the Supplier and, (ii) if the Recipient is required to account for the VAT the Subject Party must pay to the Recipient, (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. Where paragraph (i) applies, the Recipient must promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of the VAT chargeable on that supply. Where paragraph (ii) applies, the Subject Party must only pay to the Recipient an amount equal to the amount of such VAT to the extent that the Recipient reasonably determines that it is not entitled to a credit or repayment from the relevant tax authority in respect of that VAT.
(c)
Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of the VAT.
(d)
Any reference in this Clause 16.6 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 representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994 or in the relevant legislation of any jurisdiction having implemented Council Directive 2006/112/EC on the common system of value added tax).
(e)
If VAT is chargeable on any supply made by a Finance Party to any Party under a Finance Document and if reasonably requested by the Finance Party, that Party

78
63529049_1



must give the Finance Party details of its VAT registration number and any other information as is reasonably requested in connection with the Finance Party’s reporting requirements for the supply and at such time that the Finance Party may reasonably request it.
16.7
Tax Administration Formalities
The Finance Parties and the Obligor shall co-operate in good faith in completing any procedural steps (including, but not limited to, giving any required confirmation or providing any relevant information) necessary for the Obligor to make payments to the Finance Party without any withholding or deduction for any Taxes. In particular, the Obligor agrees to provide such information in respect of itself as may be reasonably requested by the Finance Parties in order for the Finance Parties to comply with any administrative formalities required for the Finance Parties to be exempt from withholding or deduction for any Taxes under any applicable international treaty.
Similarly, each Finance Party undertakes to provide any tax certificate or other document as may be reasonably requested by the Obligor in writing in order for the Obligor to be exempt from withholding or deduction for any Taxes under any applicable international treaty.
16.8
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;
(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;
(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.

79
63529049_1



(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 paragraphs (a)(i) or (a)(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 a Borrower is a US Tax Obligor or the Facility 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 an Original Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
(ii)
where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date;
(iii)
the date a new US Tax Obligor accedes as a Borrower; or
(iv)
where a Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
supply to the Facility Agent:
(A)
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
(B)
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
(f)
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower.

80
63529049_1



(g)
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility 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 Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.
(h)
The Facility 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 Facility Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.
16.9
FATCA Deductions
(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 payments and, in addition, shall notify the Company and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
17.
INCREASED COSTS
17.1
Increased costs
(a)
Subject to Clause 17.3 (Exceptions) the Company shall, within ten Business Days of a written demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement.
(b)
In this Agreement Increased Costs means:
(i)
a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
(ii)
an additional or increased cost; or

81
63529049_1



(iii)
a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.
17.2
Increased cost claims
(a)
A Finance Party intending to make a claim pursuant to Clause 17.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.
(b)
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its or any of its Affiliate’s Increased Costs and setting out in reasonable detail the circumstances giving rise to such claim and its calculations in relation to such Increased Costs.
17.3
Exceptions
(a)
Clause 17.1 (Increased costs) does not apply to the extent any Increased Cost is:
(i)
attributable to a Tax Deduction required by law to be made by an Obligor;
(ii)
compensated for by Clause 16.3 (Tax indemnity) (or would have been compensated for under Clause 16.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 16.3 (Tax indemnity) applied);
(iii)
attributable to the gross negligence of or wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;
(iv)
suffered by a Finance Party and in respect of which that Finance Party intends to make a claim pursuant to paragraph (a) of Clause 17.2 (Increased cost claims), is not (and its claim under paragraph (a) of Clause 17.2 (Increased cost claims) is not) notified by that Finance Party to the Facility Agent within 30 days of that Finance Party becoming aware that it had suffered the relevant Increased Cost;or
(v)
is attributable to the implementation 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 (“Basel II”) or any other

82
63529049_1



law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, relevant Finance Party or any of its Affiliates);
(vi)
attributable to a FATCA Deduction required to be made by a Party;
(vii)
attributable to any Bank Levy but only to the extent that such Bank Levy is no more onerous than in respect of:
(A)
a Bank Levy not yet enacted into law, any draft of such proposed Bank Levy as at the date of this Agreement; or
(B)
any other Bank Levy, as set out under existing law as at the date of this Agreement; or
(viii)
attributable to the implementation or application of, or compliance with, Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV to the extent that a Finance Party knew about or could reasonably be expected to have known about the relevant Increased Cost on or prior to the later of the 2017 Amendment Effective Date and the date on which it became a Finance Party.
(b)
In this Clause 17.3 (Exceptions):
Tax Deduction” has the same meaning given to the term in Clause 16.1 (Definitions).
Basel III” means: (a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; (b) the rules for global systematically important banks contained in “Global systematically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended supplemented or restated; and (c) any further guidance or standards published by the Basel Committee on Banking Supervision relating to implementing or modifying “Basel III” (in each case, whether such implementations, application or compliance is by a government, regulator, a Finance Party or any of its Affiliates).
CRD IV” means: (a) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and (b) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the

83
63529049_1



activity of credit institutions and the prudential supervision of credit institutions and the prudential supervision of credit institutions and investment firms.
18.
OTHER INDEMNITIES
18.1
Currency indemnity
(a)
If any sum due from an Obligor under the Finance Documents (a Sum), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the First Currency) in which that Sum is payable into another currency (the Second Currency) for the purpose of:
(i)
making or filing a claim or proof against that Obligor; or
(ii)
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three Business Days of demand, indemnify the Mandated Lead Arrangers and each other Secured Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
(b)
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
18.2
Other indemnities
The Company shall (or shall procure that an Obligor will) within ten Business Days of demand, indemnify the Mandated Lead Arrangers and each other Secured Party against any cost, loss or liability incurred by it as a result of:
(a)
the occurrence of any Event of Default;
(b)
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 30 (Sharing Among the Finance Parties);
(c)
funding, or making arrangements to fund (i) its participation in a Loan requested by a Borrower in a Utilisation Request, (ii) any Ancillary Facility made available by it, or (iii) making arrangements to issue a Documentary Credit requested by a Borrower in a Utilisation Request but not made by reason of the operation of

84
63529049_1



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 a Borrower or the Company.
18.3
Indemnity to the Facility Agent
The Company shall within ten Business Days of demand indemnify the Facility Agent against any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of:
(a)
investigating any event which it reasonably believes is a Default; or
(b)
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
18.4
Indemnity to the Security Trustee
(a)
Each Obligor shall within ten Business Days of demand indemnify the Security Trustee (for its own account) and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:
(i)
the taking, holding, protection or enforcement of the Transaction Security,
(ii)
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; and
(iii)
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents.
(b)
The Security Trustee 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 18.4 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.
19.
MITIGATION BY THE LENDERS
19.1
Mitigation
(a)
Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 (Illegality), Clause 16 (Tax Gross up and Indemnities) or Clause 16.9

85
63529049_1



(FATCA Deductions) 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.
19.2
Limitation of liability
(a)
The Company shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 19.1 (Mitigation).
(b)
A Finance Party is not obliged to take any steps under Clause 19.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
20.
COSTS AND EXPENSES
20.1
Transaction expenses
The Company shall within ten Business Days of demand pay the Facility Agent, the Mandated Lead Arrangers and the Security Trustee the amount of all costs and expenses (including legal fees, subject to any agreed caps) 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, syndication and perfection of:
(a)
this Agreement and any other documents referred to in this Agreement and the Transaction Security and any other Finance Document;
(b)
any other Finance Documents executed after the date of this Agreement.
20.2
Amendment costs
If an Obligor requests an amendment, waiver or consent the Company shall, within ten Business Days of demand, reimburse each of the Facility Agent and the Security Trustee for the amount of all costs and expenses (including legal fees subject to agreed caps) reasonably incurred by the Facility Agent and 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.
20.3
Security Trustee’s ongoing costs
(a)
In the event of (i) a Default or (ii) the Security Trustee, acting reasonably, considering it necessary or expedient or (iii) the Security Trustee being requested by an Obligor or the Majority Lenders to undertake duties which the Security Trustee and the Company agree to be of an exceptional nature and/or outside the scope of the normal duties of the Security Trustee under the Finance Documents,

86
63529049_1



the Company shall pay to the Security Trustee any additional remuneration that may be agreed between them.
(b)
If the Security Trustee and the Company fail to agree upon the nature of the duties or upon any additional remuneration, that dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Trustee and approved by the Company or, failing approval, nominated (on the application of the Security Trustee) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Company) and the determination of any investment bank shall be final and binding upon the parties to this Agreement.
20.4
Enforcement and preservation costs
The Company shall, within ten Business Days of demand, pay to the Mandated Lead Arrangers and each other Secured Party the amount of all costs and expenses (including legal and accountants fees) incurred by it 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 or any other Secured Party as a consequence of taking or holding the Transaction Security or enforcing or preserving these rights.
21.
GUARANTEE AND INDEMNITY
21.1
Guarantee and Indemnity
Subject to the limitations set out in Clause 21.10 (German Guarantee Limitations) and Clause 21.13 (Additional Guarantee Limitations), each Guarantor irrevocably and unconditionally jointly and severally:
(a)
guarantees to each Finance Party punctual performance by each Obligor of all that Obligor’s obligations under the Finance Documents;
(b)
undertakes with each Finance Party that whenever an Obligor does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand of the Facility Agent pay that amount as if it were the principal obligor; and
(c)
indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance Party if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.
21.2
Continuing Guarantee

87
63529049_1



Each guarantee pursuant to Clause 21.1 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.
21.3
Reinstatement
If any payment by an Obligor or any discharge given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event:
(a)
the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and
(b)
each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.
21.4
Waiver of defences
The obligations of each Guarantor under this Clause 21 will not be affected by an act, omission, matter or thing which, but for this Clause 21, would reduce, release or prejudice any of its obligations under this Clause 21 (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;
(e)
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

88
63529049_1



(f)
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
(g)
any insolvency or similar proceedings.
21.5
Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 21. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
21.6
Appropriations
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:
(a)
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
(b)
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 21.
21.7
Deferral of Guarantors’ rights
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 21:
(a)
to claim by way of contribution or indemnity in relation to any of the obligations of each Borrower under any of the Finance Documents;
(b)
to claim or prove as a creditor of any Borrower or any other person or its estate in competition with the Finance Parties of any of them;
(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;

89
63529049_1



(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 21.1 (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 Facility Agent or as the Facility Agent may direct for application in accordance with Clause 31 (Payment Mechanics).
21.8
Release of Guarantors’ right of contribution
If any Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor or resigns in accordance with Clause 28.6 (Resignation of a 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.
21.9
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.
21.10
German Guarantee Limitations
(a)
In this Clause 21.10:

90
63529049_1



(i)
German Guarantor means any Guarantor incorporated in Germany as (x) a limited liability company (Gesellschaft mit beschränkter Haftung - GmbH) (a German GmbH Guarantor) or (y) a limited partnership (Kommanditgesellschaft) with a limited liability company as sole general partner (a German GmbH & Co. KG Guarantor) in relation to whom the Security Trustee intends to enforce the provisions of Clause 21 (Guarantee and Indemnity); and
(ii)
Net Assets means the relevant company’s assets (Section 266 sub-section (2) A, B, C, D and E of the German Commercial Code (Handelsgesetzbuch) less (i) its non-distributable assets (Sections 253 sub-section (6) and 268 sub-section (8) of the German Commercial Code), (ii) the aggregate of its liabilities (Section 266 sub-section (3) B, C (but disregarding, for the avoidance of doubt, any provisions in respect of its obligations under Clause 21 (Guarantee and Indemnity)), D and E of the German Commercial Code) and (iii) its stated share capital (Stammkapital).
(b)
Each of the Finance Parties agrees not to enforce the provisions of Clause 21 (Guarantee and Indemnity) (and not to request the Security Trustee to enforce the provisions of Clause 21 (Guarantee and Indemnity)), if and to the extent that the provisions of Clause 21 (Guarantee and Indemnity) guarantees obligations or the payment is to be applied in satisfaction of any liability of an Obligor which is an affiliate of that German Guarantor (other than the German Guarantor’s Subsidiaries) (the Guaranteed Obligor) and if and to the extent that such enforcement would cause such German Guarantor’s (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) Net Assets to be reduced below zero or further reduced if already below zero.
(c)
For the purposes of the calculation of the Net Assets the following balance sheet items shall be adjusted as follows:
(i)
the amount of any increase of the stated share capital (Erhöhungen des Stammkapitals) after the date of this Agreement (excluding any such increase of stated share capital permitted pursuant to the Finance Documents) (A) that has been effected without the prior written consent of the Facility Agent, or (B) to the extent that it is not fully paid up, shall be deducted from the stated share capital;
(ii)
the Net Assets shall take into account reasonable costs of the Auditor’s Determination (as defined below), either as a reduction of assets or an increase of liabilities; and

91
63529049_1



(iii)
loans provided to the relevant German Guarantor in violation of the Finance Documents shall be disregarded.
(d)
The relevant German Guarantor shall deliver to the Security Trustee, within fifteen Business Days after receipt from the Security Trustee of a notice stating that the Security Trustee intends to enforce the provisions of Clause 21 (Guarantee and Indemnity) (the Enforcement Notice), its up-to-date balance sheet, or in the case of a German GmbH & Co. KG Guarantor of its partnership and its general partner, together with a detailed calculation of the amount of its Net Assets (or, as applicable, its general partner’s Net Assets) taking into account the adjustments set forth in paragraph (c) above (the Management Determination).
(e)
Following the Security Trustee’s receipt of the Management Determination, upon request by the Security Trustee (acting reasonably), the relevant Guarantor shall deliver to the Security Trustee within twenty-five Business Days of such request its up-to-date balance sheet, or in the case of a German GmbH & Co. KG Guarantor of that partnership and its general partner, drawn-up by one of the Auditors together with a detailed calculation of the amount of the Net Assets taking into account the adjustments set forth in paragraph (c) above (the Auditors’ Determination). Such balance sheet and Auditors’ Determination shall be prepared in accordance with German generally accepted accounting principles pursuant to the German Commercial Code (Handelsgesetzbuch) as consistently applied. The Auditors’ Determination shall be prepared with respect to the date of receipt of the Enforcement Notice. The amount determined as available for enforcement in the Auditors’ Determination shall be (except for manifest error) binding for all parties.
(f)
The Security Trustee shall be entitled to enforce the provisions of Clause 21 (Guarantee and Indemnity) in an amount which would, in accordance with the Management Determination or, if applicable and taking into account any previous enforcement in accordance with the Management Determination, the Auditor’s Determination, not cause the German Guarantor’s Net Assets, or in the case of a German GmbH & Co. KG Guarantor, its general partner’s Net Assets, to be reduced below zero or further reduced if already below zero. If and to the extent the Net Assets as determined by the Auditors’ Determination to be enforceable are lower than the amount enforced in accordance with the Management Determination, the Security Trustee shall promptly release to the relevant German Guarantor (or in case of a German GmbH & Co. KG Chargor to its general partner) such excess enforcement proceeds. The Security Trustee may withhold any amount received pursuant to the enforcement of the provisions of Clause 21 (Guarantee and Indemnity) until final determination of the amount of the enforceable Net Assets pursuant to the Auditors’ Determination.

92
63529049_1



(g)
In addition, any German Guarantor shall without undue delay and in any event within two months after the Enforcement Notice dispose of, to the extent legally permitted, in a situation where after enforcement of the provisions of Clause 21 (Guarantee and Indemnity) the German GmbH Guarantor, or in the case of a German GmbH & Co. KG Guarantor, its general partner, would not have Net Assets in excess of zero, any and all of its assets that are shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of the asset if such asset is not necessary for the relevant German Guarantor to continue its, or, where the guarantor is a German GmbH & Co. KG Guarantor, its general partner’s existing business (betriebsnotwending). After the realisation the German Guarantor shall, within five (5) Business Days, notify the Security Trustee of the amount of the proceeds from the sale and submit a statement with a new calculation of the amount of the Net Assets of the German GmbH Guarantor or, in case of a German GmbH & Co. KG Guarantor, of its general partner, taking into account such proceeds. Such calculation shall, upon the Security Trustee’s request, be confirmed by an Auditor within a period of twenty-five Business Days following the respective request.
(h)
The restriction under paragraph (b) above shall not apply:
(i)
to the extent that the provisions of Clause 21 (Guarantee and Indemnity) guarantee any claims under the Loans that have been on-lent or otherwise made available to the relevant German Guarantor, that have not been repaid and are still outstanding on the date of enforcement of the provisions of Clause 21 (Guarantee and Indemnity);
(ii)
for so long as the relevant German Guarantor has not complied with its obligations pursuant to (d), (e) and/or (g) (inclusive) above;
(iii)
if the German Guarantor (as dominated entity) is subject to a domination and/or profit and loss pooling agreement (Beherrschungs- und/oder Gewinnabführungsvertrag) (a DPLPA) with the Guaranteed Obligor, whether directly or indirectly through an uninterrupted chain of DPLPAs between each company and its shareholder (or in case of a German GmbH & Co. KG Guarantor between its general partner and its shareholder) on the date of the enforcement of the provisions of Clause 21 (Guarantee and Indemnity); or
(iv)
if and to extent the German Guarantor holds on the date of enforcement of the provisions of Clause 21 (Guarantee and Indemnity) a fully recoverable indemnity or claim for refund (vollwertiger Gegenleistungs- oder Rückgewähranspruch) within the meaning of Section 30 (1) sentence 2 of the German

93
63529049_1



Limited Liability Companies Act against its shareholder covering at least the relevant amount enforced under this guarantee.
21.11
German Parallel Debt
(a)
For purposes of (i) creating a Security in or subject to the laws of Germany and any other jurisdiction whose laws permit Security to be granted to the Security Trustee only to secure obligations directly owing to the Security Trustee and (ii) ensuring the initial and continuing validity of each such Security, each Obligor, the Finance Parties and the Security Trustee, agree that notwithstanding anything to the contrary contained in this Agreement or any Finance Document:
(i)
for purposes of this Clause 21.11, Principal Obligations shall mean, with respect to any Obligor, all obligations of such Obligor owing by it to the Finance Parties under any Finance Document;
(ii)
each Obligor shall irrevocably and unconditionally be obligated to the Security Trustee in an amount equal to, and in the same currency of, its Principal Obligations as and when the same become due and payable under this Agreement or any Finance Document (the Parallel Debt); provided that the total amount of the Parallel Debt of any Obligor shall never exceed the total amount of the Principal Obligations of such Obligor;
(iii)
the rights of the Finance Parties to receive payment of the Principal Obligations are several (separate and independent from) from the rights of the Security Trustee to receive payment of the Parallel Debt;
(iv)
the Security Trustee shall have an independent right, in its own name and stead, to demand payment of the Parallel Debt by the Obligors;
(v)
the (separate and independent) discharge of (i) the Parallel Debt owing to the Security Trustee in accordance with this Clause 21.11 or (ii) any “parallel debt” in accordance with Clause 18 of Schedule 6 of the Intercreditor Agreement (in each case whether through direct payment by the relevant Obligor or enforcement of any Security held by the Security Trustee securing the Parallel Debt or any “parallel debt” created under the Intercreditor Agreement or otherwise) shall discharge the corresponding Principal Obligations of such Obligor and, similarly, the discharge of the Principal Obligations (whether through direct payment by an Obligor or enforcement of any Security held by the Security Trustee securing the Principal Obligations or otherwise) shall discharge the corresponding Parallel Debt owed to the Security

94
63529049_1



Trustee under this Clause 21.11 and any corresponding “parallel debt” owed to the Security Trustee under Clause 18 Schedule 6 of the Intercreditor Agreement; and
(vi)
nothing in this Clause 21.11 shall in any way limit the Security Trustee’s right to act in the protection or preservation of, the rights under, or to enforce, any Transaction Security Document as contemplated by this Agreement or any Transaction Security Document.
(b)
Nothing in this Clause 21.11 shall in any way negate or affect the obligations of the Obligors to the Finance Parties under this Agreement or the Transaction Security Documents.
(c)
For purposes of this Clause 21.11, the Security Trustee acts in its own name and stead and not as agent or trustee of any Finance Party and the security granted under any Security Document to the Security Trustee to secure the Parallel Debt is granted to the Security Trustee in its capacity as a direct creditor in respect of the Parallel Debt, and not as a trustee or agent for the Finance Parties. The Security Trustee undertakes to pay to the Finance Parties an amount equal to any amount collected or received by it which it has applied in reduction of the Parallel Debt as if the corresponding Principal Obligations had not been discharged pursuant to Clause (a)(v).
(d)
Each Finance Party (other than the Security Trustee) hereby relieves the Security Trustee from the restrictions pursuant to Section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other law, in each case to the extent legally possible to it. A Finance Party that is barred by its constitutional documents or by-laws from granting such exemption shall notify the Security Trustee accordingly.
21.12
Guarantor Intent
Without prejudice to the generality of Clause 21.4 (Waiver of Defences), and subject to applicable law restrictions, 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 for the purposes of or in connection with any of the following:  business 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.
21.13
Additional Guarantee Limitations

95
63529049_1



In this Clause 21.13:
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. §1 et. seq.), as amended from time to time and any successor statute.
Excluded Swap Obligation” means, with respect to any Obligor, (a) any obligation to pay or perform under any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act (each such obligation, a “Swap Obligation”), if, and to the extent that, all or a portion of the guarantee of such Obligor of, or the grant by such Obligor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Obligor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to any “keepwell, support or other agreement” for the benefit of such Obligor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act) at the time the guarantee of (or grant of such security interest by, as applicable) such Obligor becomes or would become effective with respect to such Swap Obligation, or (b) any other Swap Obligation that relates to a swap between an Obligor and a Hedge Counterparty and such Hedge Counterparty notifies the Facility Agent in writing that it elects not to hold the benefit of such guarantee or such security interest with respect to such swap. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest becomes excluded in accordance with the first sentence of this definition.
Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Obligor that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Swap Obligation” has the meaning specified in the definition of “Excluded Swap Obligation”.
Notwithstanding any term or provision of this Clause 21.13 or any other term in this Agreement or any Finance Document:
(a)
Each Finance Party agrees that each US Obligor’s liability under this Clause 21, without the requirement of amendment or any other formality, shall be limited to a maximum aggregate amount equal to the largest amount that would not render its liability hereunder subject to avoidance as a fraudulent transfer or

96
63529049_1



conveyance under Section 548 of Title 11 of the United States Bankruptcy Code or any comparable provision of any similar federal or state law; and
(b)
no non-Qualified ECP Guarantor shall be required to guarantee or provide security for Excluded Swap Obligations, and any reference in any Finance Document with respect to such non-Qualified ECP Guarantor guaranteeing or providing security for the Obligations shall be deemed to be all Obligations other than the Excluded Swap Obligations.
22.
REPRESENTATIONS