EX-10.5 6 d122309dex105.htm EX-10.5 EX-10.5

Exhibit 10.5

Dated 17 November 2020

SENIOR FACILITIES AGREEMENT

SPORTRADAR MANAGEMENT LTD

(as the Company)

arranged by

J.P. MORGAN SECURITIES PLC, CITIGROUP GLOBAL MARKETS LIMITED,

CREDIT SUISSE INTERNATIONAL, GOLDMAN SACHS BANK USA,

UBS AG, LONDON BRANCH and UBS SWITZERLAND AG

(as Mandated Lead Arrangers)

with

J.P. MORGAN AG

(as Agent)

and

LUCID TRUSTEE SERVICES LIMITED

(as Security Agent)

KIRKLAND & ELLIS INTERNATIONAL LLP

30 St. Mary Axe

London EC3A 8AF

Tel: +44 (0)20 7469 2000

Fax: +44 (0)20 7469 2001

www.kirkland.com


TABLE OF CONTENTS

 

          Page  

1.

   Definitions and Interpretation      1  

2.

   The Facilities      71  

3.

   Purpose      82  

4.

   Conditions of Utilisation      83  

5.

   Utilisation – Loans      88  

6.

   Utilisation – Letters of Credit      90  

7.

   Letters of Credit      96  

8.

   Optional Currencies      102  

9.

   Ancillary Facilities      102  

10.

   Repayment      115  

11.

   Illegality, Voluntary Prepayment and Cancellation      118  

12.

   Mandatory Prepayment      122  

13.

   Restrictions      129  

14.

   Interest      130  

15.

   Interest Periods      132  

16.

   Changes to the Calculation of Interest      135  

17.

   Fees      136  

18.

   Taxes      141  

19.

   Increased Costs      157  

20.

   Other Indemnities      160  

21.

   Mitigation by the Lenders      163  

22.

   Costs and Expenses      163  

23.

   Guarantees and Indemnity      164  

24.

   Representations and Warranties      172  

25.

   Information Undertakings      179  

26.

   Financial Covenant      186  

27.

   General Undertakings      204  

28.

   Events of Default      212  

29.

   Changes to the Lenders      219  

30.

   Debt Purchase Transactions      231  

31.

   Changes to the Obligors      237  

32.

   Role of the Agent, the Mandated Lead Arrangers, the Issuing Bank and Others      242  

33.

   Conduct of Business by the Finance Parties      254  

34.

   Sharing among the Finance Parties      255  

35.

   Payment Mechanics      256  

36.

   Set-Off      260  

37.

   Notices      261  

38.

   Calculations and Certificates      264  

39.

   Partial Invalidity      265  

40.

   Remedies and Waivers      265  

41.

   Amendments and Waivers      265  

42.

   Confidentiality      277  

43.

   Acknowledgement Regarding Any Supported QFCS      282  

44.

   Counterparts      283  

45.

   Governing Law      284  

 

i


46.

   Enforcement      284  

SCHEDULE 1 The Original Parties

     286  

SCHEDULE 2 Conditions Precedent

     288  

SCHEDULE 3 Requests and Notices

     293  

SCHEDULE 4 Form of Transfer Certificate

     300  

SCHEDULE 5 Form of Assignment Agreement

     305  

SCHEDULE 6 Form of Accession Deed

     310  

SCHEDULE 7 Form of Resignation Letter

     314  

SCHEDULE 8 Forms of Compliance Certificate

     316  

SCHEDULE 9 Timetables

     319  

SCHEDULE 10 Form of Letter of Credit

     323  

SCHEDULE 11 Agreed Security Principles

     326  

SCHEDULE 12 Form of Increase Confirmation

     337  

SCHEDULE 13 Forms of Notifiable Debt Purchase Transaction Notice

     341  

SCHEDULE 14 Forms of Additional Facility Notifications

     343  

SCHEDULE 15 Information Undertakings

     349  

SCHEDULE 16 General Undertakings

     352  

SCHEDULE 17 Events of Default

     404  

SCHEDULE 18 Certain New York Law Defined Terms

     407  

 

ii


THIS AGREEMENT is dated ___ November 2020.

BETWEEN:

 

(1)

SPORTRADAR MANAGEMENT LTD, a private limited liability company incorporated under the laws of Jersey, registered with the Jersey Companies Registry under number 132409 and having its registered office at Aztec Group House, 11-15 Seaton Place, St Helier JE4 0QH, Jersey (the Company);

 

(2)

SPORTRADAR CAPITAL S.À R.L., a private limited liability company (société à responsabilité limitée) incorporated under the laws of Luxembourg, registered with the Commercial Register under number RCS B247717 and having its registered office at 1A, Heienhaff, L-1736 Senningerberg, Grand-Duchy of Luxembourg as original borrower (the Original Borrower);

 

(3)

THE ENTITIES listed in Part I (The Original Obligors) of Schedule 1 (The Original Parties) as original guarantors (the Original Guarantors);

 

(4)

J.P. MORGAN SECURITIES PLC, CITIGROUP GLOBAL MARKETS LIMITED, CREDIT SUISSE INTERNATIONAL, GOLDMAN SACHS BANK USA, UBS AG, LONDON BRANCH and UBS SWITZERLAND AG (the Mandated Lead Arrangers);

 

(5)

THE FINANCIAL INSTITUTIONS listed in Part II (The Original Lenders) of Schedule 1 (The Original Parties) as Lenders (the Original Lenders);

 

(6)

J.P. MORGAN AG as agent of the other Finance Parties (the Agent); and

 

(7)

LUCID TRUSTEE SERVICES LIMITED as security agent for the Secured Parties (the Security Agent).

IT IS AGREED as follows:

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

Definitions

In this Agreement:

Acceptable Bank means:

 

  (a)

a bank or financial institution which has a long term unsecured credit rating of at least BBB- by S&P or Fitch or at least Baa3 by Moody’s or a comparable rating from an internationally recognised credit rating agency, or any bank or financial institution which (having previously satisfied such requirement) ceases to satisfy the foregoing ratings requirement for a period of not more than three (3) Months;

 

  (b)

any Finance Party or any Affiliate of a Finance Party;

 

1


  (c)

any other bank or financial institution included in the Approved List or which otherwise provides banking services to the Group and is notified in writing to the Agent on or before the Closing Date; and

 

  (d)

any other bank or financial institution approved by the Agent (acting reasonably) or providing banking services to a business or entity acquired by a member of the Group.

Acceptable Funding Sources means without duplication:

 

  (a)

Proceeds of asset dispositions described in paragraphs (i) to (xxii) of the definition of Asset Disposition (and other proceeds of Asset Dispositions to the extent not required to be applied in prepayment of the Facilities);

 

  (b)

Equity Contributions;

 

  (c)

Permitted Indebtedness;

 

  (d)

Retained Cash;

 

  (e)

IPO Proceeds;

 

  (f)

Closing Overfunding; and

 

  (g)

cash and Cash Equivalent Investments held by members of the Group, provided that such cash and Cash Equivalent Investments would otherwise have been able to be used at that time to make a Permitted Payment,

in each case to the extent any such amount is Not Otherwise Applied.

Accession Deed means a document substantially in the form set out in Schedule 6 (Form of Accession Deed) or any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably).

Accounting Principles means, in respect of any Reporting Entity or a member of any Reporting Entity Group or the Group (as applicable), at its election, IFRS or generally accepted accounting principles in its jurisdiction of incorporation, in each case to the extent applicable to the relevant financial statements and as applied by such Reporting Entity or that member of the Reporting Entity Group or Group (as applicable) from time to time.

Accounting Reference Date means 31 December, or otherwise, the accounting reference date of the relevant Reporting Entity (in each case as adjusted at the election of the Company consistent with past practice of any acquired entity) or such other date arising from an alteration permitted under this Agreement.

Acquired Indebtedness has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Acquired Person or Asset means:

 

2


  (a)

a person or any of its Subsidiaries that becomes a Restricted Subsidiary after the Closing Date;

 

  (b)

a person that merges with or into or consolidates or otherwise combines with any Restricted Subsidiary after the Closing Date; or

 

  (c)

assets of, or shares (or other ownership interests) in, any person listed in paragraphs (a) or (b) above, or otherwise acquired after the Closing Date.

Additional Borrower means a person which becomes a Borrower in accordance with Clause 31 (Changes to the Obligors).

Additional Facility means one or more additional facilities made available pursuant to Clause 2.2 (Additional Facilities) which are documented under this Agreement including as new or existing facility commitment(s) and/or as an additional tranche or class of, or an increase of, or an extension of, any existing Facility or a previously incurred Additional Facility.

Additional Facility Borrower means any member of the Group which is specified as a borrower under an Additional Facility in the applicable Additional Facility Notice and which (a) is a Borrower under this Agreement or (b) accedes as an Additional Borrower in accordance with Clause 31 (Changes to the Obligors), unless, in each case, it has ceased to be a Borrower in accordance with Clause 31 (Changes to the Obligors).

Additional Facility Commencement Date means in respect of an Additional Facility, the date, as elected by the Obligors’ Agent, specified as the Additional Facility Commencement Date (being any date when the relevant Additional Facility is committed or available for utilisation) in the Additional Facility Notice relating to that Additional Facility.

Additional Facility Commitment means:

 

  (a)

in relation to an Additional Facility Lender, the amount in the Base Currency set out in each Additional Facility Notice signed by that Additional Facility Lender and the amount of any other Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase),

to the extent:

 

  (i)

not cancelled, reduced or transferred by it under this Agreement; and

 

  (ii)

not deemed to be zero pursuant to Clause 30 (Debt Purchase Transactions).

 

3


Additional Facility Lender means any Lender or other bank, trust financial institution, fund, entity or other person which signs an Additional Facility Notice and confirms its willingness to provide all or a part of an Additional Facility.

Additional Facility Lender Accession Notice means a notice substantially in the form set out in Part I (Form of Additional Facility Lender Accession Notice) of Schedule 14 (Forms of Additional Facility Notifications) or any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably).

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

Additional Facility Notice means, in respect of an Additional Facility, a notice substantially in the form set out in Part II (Form of Additional Facility Notice) of Schedule 14 (Forms of Additional Facility Notifications) (or any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably)) delivered by the Obligors’ Agent to the Agent in accordance with Clause 2.2 (Additional Facilities).

Additional Guarantor means an entity which becomes an Additional Guarantor in accordance with Clause 31 (Changes to the Obligors).

Additional Obligor means an Additional Borrower or an Additional Guarantor.

Additional Revolving Facility means any Additional Facility which is designated as a Revolving Facility in an Additional Facility Notice.

Additional Revolving Facility Borrower means any member of the Group which is specified as a borrower under an Additional Revolving Facility in the applicable Additional Facility Notice and which (a) is a Borrower under this Agreement or (b) accedes as an Additional Borrower under the Revolving Facility in accordance with Clause 31 (Changes to the Obligors), unless, in each case, it has ceased to be a Revolving Facility Borrower in accordance with Clause 31 (Changes to the Obligors).

Additional Revolving Facility Commitment means:

 

  (a)

in relation to an Additional Revolving Facility Lender, the amount in the Base Currency set out in each Additional Facility Notice signed by that Additional Revolving Facility Lender and the amount of any other Additional Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any Additional Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase),

to the extent:

 

  (i)

not cancelled, reduced or transferred by it under this Agreement; and

 

  (ii)

not deemed to be zero pursuant to Clause 30 (Debt Purchase Transactions).

 

4


Additional Revolving Facility Lender means any Lender or other bank, financial institution, fund, entity or other person which signs an Additional Facility Notice and confirms its willingness to provide all or a part of an Additional Revolving Facility.

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

Additional Revolving Facility Utilisation means an Additional Revolving Facility Loan or a Letter of Credit issued or to be issued under an Additional Revolving Facility.

Additional Term Facility means any Additional Facility which is not an Additional Revolving Facility.

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.

Agent’s Spot Rate of Exchange means the Agent’s spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11.00 a.m. (local time) on a particular day.

Agreed Certain Funds Obligor means any member of the Group and/or any third party security provider which is a Holding Company of the Company designated as an Agreed Certain Funds Obligor by the Obligors’ Agent and specified in a notice delivered by the Obligors’ Agent to the Agent in accordance with the provisions of Clause 4.6 (Utilisations during an Agreed Certain Funds Period).

Agreed Certain Funds Period means:

 

  (a)

in respect of any Revolving Facility to which the provisions of Clause 4.6 (Utilisations during an Agreed Certain Funds Period) apply, the period specified in a notice delivered by the Obligors’ Agent to the Agent which, if longer than six (6) Months from any date specified by the Obligor’s Agent, is agreed with the Majority Revolving Facility Lenders; and

 

  (b)

in respect of an Additional Facility to which the provisions of Clause 4.6 (Utilisations during an Agreed Certain Funds Period) apply, the period specified in the relevant Additional Facility Notice or any other notice delivered by the Obligors’ Agent to the Agent which, if longer than six (6) Months from such specified date, is agreed with the Majority Lenders determined in accordance with paragraph (a) of the definition thereof by reference only to the Commitments of the Lenders in such Additional Facility.

Agreed Certain Funds Utilisation means:

 

  (a)

in respect of any Revolving Facility to which the provisions of Clause 4.6 (Utilisations during an Agreed Certain Funds Period) apply, a Utilisation made or to be made under the relevant Revolving Facility during the Agreed Certain Funds Period; and

 

  (b)

in respect of an Additional Facility to which the provisions of Clause 4.6 (Utilisations during an Agreed Certain Funds Period) apply, a Utilisation made or to be made under the relevant Additional Facility during the Agreed Certain Funds Period.

 

5


Agreed Co-Investor means any co-investor which has been notified in writing to the Mandated Lead Arrangers and which becomes a co-investor no later than twelve (12) Months following the Closing Date, provided that such co-investor is a limited partner in one or more of the Initial Investors’ funds participating in the Transaction.

Agreed Security Principles means the principles set out in Schedule 11 (Agreed Security Principles).

Amortising Facility means:

 

  (a)

an Additional Term Facility which is repayable by instalments; and

 

  (b)

any Facility if any Lender under the applicable Facility has accepted repayment by instalments in accordance with paragraph (c)(ii) of Clause 27.16 (Controlled Debt).

Amortising Facility Loan means a Loan made or to be made under an Amortising Facility.

Amortising Facility Repayment Date means:

 

  (a)

in respect of an Additional Facility which is an Amortising Facility, each date set out in the relevant Additional Facility Notice for that Additional Facility (including the Termination Date in respect of that Additional Facility); and

 

  (b)

in respect of an Amortising Facility under paragraph (b) of that definition, each date determined in accordance with paragraph (c)(ii) Clause 27.16 (Controlled Debt).

Amortising Facility Repayment Instalment means:

 

  (a)

in respect of an Additional Facility which is an Amortising Facility, each repayment instalment in relation to that Additional Facility calculated and payable in accordance with the provisions of paragraph (a)(i) of Clause 10.2 (Repayment of Additional Term Facility Loans) and the applicable Additional Facility Notice; and

 

  (b)

in respect of an Amortising Facility under paragraph (b) of that definition, each repayment instalment determined in accordance with paragraph (c)(ii) of Clause 27.16 (Controlled Debt),

in each case as amended pursuant to Clause 10.4 (Effect of Cancellation and Prepayment on Scheduled Repayments or reallocated pursuant to Clause 10.5 (Allocation of Amortising Facility Repayment Instalments).

Ancillary Commencement Date means, in relation to an Ancillary Facility or Fronted Ancillary Facility (as the case may be), the date on which that Ancillary Facility or Fronted Ancillary Facility (as the case may be) is first made available whether or not drawn, which date shall be a Business Day within the Availability Period for the relevant Revolving Facility.

 

6


Ancillary Commitment means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 9 (Ancillary Facilities), in each case as notified by the Ancillary Lender to the Agent pursuant to Clause 9.2 (Availability) to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.

Ancillary Document means each document relating to or evidencing the terms of an Ancillary Facility or a Fronted Ancillary Facility (as the case may be).

Ancillary Facility has the meaning given to that term in Clause 9.2 (Availability).

Ancillary Lender means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 9 (Ancillary Facilities) acting in its capacity as a provider of that Ancillary Facility.

Ancillary Outstandings means, at any time:

 

  (a)

in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) in the Base Currency of the following amounts outstanding under that Ancillary Facility:

 

  (i)

the principal amount under each overdraft facility and on demand short term loan facility (provided that, for the purposes of this definition, any amount of any outstanding utilisation under any BACS facility, other intra-day exposure facilities (or similar) made available by an Ancillary Lender shall, with the prior consent of that Ancillary Lender, be excluded, unless, in relation to that Ancillary Facility, otherwise agreed between the Obligors’ Agent and the relevant Ancillary Lender);

 

  (ii)

the principal face value amount of each guarantee, bond and letter of credit under that Ancillary Facility; and

 

  (iii)

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

 

  (b)

in relation to a Fronted Ancillary Facility and Fronting Ancillary Lender or Fronted Ancillary Lender, the aggregate amounts (in the Base Currency as calculated by the relevant Fronting Ancillary Lender or Fronted Ancillary Lender) outstanding as referred to in paragraphs (a)(i), (a)(ii) and (a)(iii) above (where, for this purpose, references in paragraph (a) above to Ancillary Lender shall be read as Fronting Ancillary Lender and Fronted Ancillary Lender, and references to Ancillary Facility should be read as Fronted Ancillary Facility) under that Fronted Ancillary Facility,

 

7


in each case net of any credit balances on any account of any Borrower of an Ancillary Facility or Fronted Ancillary Facility with the Ancillary Lender or Fronting Ancillary Lender making available that Ancillary Facility or Fronted Ancillary Facility to the extent that the credit balances are freely available to be set-off by that Ancillary Lender or Fronting Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility or Fronted Ancillary Facility and in each case as determined by such Ancillary Lender or Fronting Ancillary Lender and Fronted Ancillary Lender(s), acting reasonably and in accordance with the relevant Ancillary Document, or (if not provided for in the relevant Ancillary Document), after consultation with the relevant Borrower, in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.

For the purposes of this definition:

 

  (A)

in relation to any Utilisation denominated in the Base Currency, the amount of that Utilisation (determined as described in paragraphs (a) and (b) above) shall be used; and

 

  (B)

in relation to any Utilisation not denominated in the Base Currency, the equivalent (calculated as specified in the relevant Ancillary Document or, if not so specified, as the relevant Ancillary Lender or Fronting Ancillary Lender may specify, in each case in accordance with its usual practice at that time for calculating that equivalent in the Base Currency (acting reasonably)) of the amount of that Utilisation (determined as described in paragraphs (a) and (b) above) shall be used.

Annual Compliance Certificate means a certificate substantially in the form set out in Part II (Form of Annual Compliance Certificate) of Schedule 8 (Forms of Compliance Certificate) (or in any other form agreed between the Company and the Agent (each acting reasonably)) and delivered by the Obligors’ Agent to the Agent under paragraph (c) of Clause 25.2 (Provision and contents of Compliance Certificates).

Annual Financial Statements means the reports provided pursuant to paragraph (a) of Section 1 of Schedule 15 (Information Undertakings).

Anti-Corruption Laws means all laws of any jurisdiction applicable to an Obligor from time to time prohibiting bribery or corruption or money laundering (including the Bribery Act 2010 and the United States Foreign Corrupt Practices Act of 1977).

Applicable Metric means any financial covenant, ratio, permission, test, basket or threshold in any Finance Document (including any financial definition or component thereof and any financial covenant, ratio, permission, test, basket or threshold directly or indirectly calculated by reference to Consolidated EBITDA, Consolidated Pro Forma EBITDA, LTM EBITDA, the Senior Secured Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio or the Fixed Charge Coverage Ratio) any Default, Event of Default or other relevant breach of a Finance Document.

 

8


Applicable Test Date means, in relation to determining or testing any Applicable Metric for the purposes of any Finance Document:

 

  (a)

other than with respect to the incurrence of Indebtedness or the making of any distribution or other payment contemplated in Section 2 (Limitation on Restricted Payments) of Schedule 16 (General Undertakings), at the election of the Obligors’ Agent (with such date being the Applicable Reporting Date), either:

 

  (i)

if no Financial Statements have yet been delivered since the Closing Date, the Closing Date, with such Applicable Metric determined by reference to the financial information set out in the Base Case Model;

 

  (ii)

the most recent Quarter Date for which Financial Statements have been delivered pursuant to the terms of this Agreement, with such Applicable Metric determined by reference to such Financial Statements; or

 

  (iii)

the last date of the most recently completed Relevant Period for which the Group has sufficient available information to be able to determine such Applicable Metric, with such Applicable Metric determined by reference to such available information, provided that such information is provided to the Agent);

 

  (b)

with respect to the incurrence of Indebtedness and if applicable, any Lien securing such Indebtedness, at the election of the Obligors’ Agent, either:

 

  (i)

the most recent Applicable Reporting Date elected by the Obligors’ Agent prior to:

 

  (A)

in relation to any such Indebtedness (including Indebtedness described in paragraph (B) below):

 

  (1)

the date of any letter or agreement (conditional or otherwise (including any documentation condition)) entered into by a member of the Group or an Affiliate thereof in relation to the provision of all or part of the applicable Additional Facility or other Permitted Indebtedness;

 

  (2)

the date of any debt instrument (subject to the terms and conditions therein) constituting, documenting or evidencing all or part of the applicable Additional Facility or other Permitted Indebtedness;

 

  (3)

the Additional Facility Commencement Date in respect of all or part of the applicable Additional Facility; and/or

 

  (4)

the date of any incurrence of all or part of the applicable Additional Facility or other Permitted Indebtedness, as the case may be; and/or

 

  (B)

in relation to all or part of the applicable Additional Facility or other Permitted Indebtedness incurred to finance (in whole or part) an acquisition (including of any assets or shares (or other ownership interests)), assumed by the Company or any

 

9


  Restricted Subsidiary, or Indebtedness of persons that are to be acquired by, or merged with or into or amalgamated or consolidated or otherwise combines with, the Company or Restricted Subsidiaries (or assumed in connection therewith), the date of:

 

  (1)

any letter or agreement (conditional or otherwise (including any documentation condition)) entered into in relation to the making of such acquisition;

 

  (2)

in connection with an acquisition to which the United Kingdom City Code of Takeovers and Mergers (the City Code) or similar law or practices in other jurisdictions apply, the date on which a Rule 2.7 announcement of a firm intention to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the City Code in respect of a target company is made in compliance with the City Code or similar laws or practices in other jurisdictions);

 

  (3)

the sale and purchase agreement in relation to that acquisition; and/or

 

  (4)

occurrence of the acquisition; and/or

 

  (ii)

as otherwise determined in accordance with Schedule 16 (General Undertakings); and

 

  (c)

with respect to the making of any distribution or other payment or an Investment contemplated in Section 2 (Limitation on Restricted Payments) of Schedule 16 (General Undertakings) (for the purposes of this paragraph (c), a Distribution), at the election of the Obligors’ Agent, the most recent Applicable Reporting Date elected by the Obligors’ Agent prior to:

 

  (i)

the date on which any applicable Distribution is committed (conditionally or unconditionally) or declared to be paid;

 

  (ii)

the date on which any applicable Distribution is paid or completed; and/or

 

  (iii)

as otherwise determined in accordance with Schedule 16 (General Undertakings),

provided that the Obligors’ Agent may revoke such determination and/or make an alternate determination at any time and from time to time and provided further that in each case any reference to an Event of Default being or not being continuing on the Applicable Test Date shall be deemed to refer to an Event of Default being or not being continuing on the applicable date set out in paragraphs (b) or (c) above (and not the most recent Applicable Reporting Date elected by the Obligors’ Agent prior thereto).

 

10


Approved Existing Ancillary Facility means the ancillary facilities or other facilities of the type described in Clause 9.1 (Type of Facility) made available to the Group by a Lender which, prior to the Closing Date, are agreed and designated in writing as Approved Existing Ancillary Facilities by the Obligors’ Agent and the Lender which will provide those ancillary facilities as Ancillary Facilities under this Agreement in place of a corresponding part of that Lender’s unutilised Revolving Facility Commitments and promptly notified to the Agent.

Approved List means the list of lenders and potential lenders agreed by the Obligors’ Agent and the Majority Arrangers before the first Utilisation Date and held by the Agent (as the same may be amended from time to time pursuant to paragraph (c) of Clause 29.3 (Conditions of assignment or transfer)).

Asset Disposition has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Assignment Agreement means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee, provided that if that other form does not contain an undertaking substantially similar to the undertaking set out in the form set out in Schedule 5 (Form of Assignment Agreement) it shall not be a Creditor/Agent Accession Undertaking as defined in, and for the purposes of, the Intercreditor Agreement.

Auditors means any firm of independent accountants appointed by the Company as its auditors from time to time.

Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration, in each case required by any applicable law or regulation.

Availability Period means:

 

  (a)

in relation to Facility B, the period from and including the date of this Agreement to (and including) the date falling twenty Business Days after the date of this Agreement;

 

  (b)

in relation to the Original Revolving Facility, the period from (and including) the Closing Date to (and including) the date falling one Month prior to the Termination Date applicable to the Original Revolving Facility; and

 

  (c)

in relation to any Additional Facility Commitments, the period specified in the notice delivered by the Obligors’ Agent in accordance with Clause 2.2 (Additional Facilities) for those Additional Facility Commitments.

Available Ancillary Commitment means in relation to an Ancillary Facility or a Fronted Ancillary Facility, an Ancillary Lender’s Ancillary Commitment or a Fronted Ancillary Lender’s Fronted Ancillary Commitment or a Fronting Ancillary Lender’s Fronting Ancillary Commitments (which in the case of a multi-account overdraft, for the purpose of this definition, shall be the Designated Net Amount, unless, in relation to any Ancillary Commitment, Fronted Ancillary Commitment or Fronting Ancillary Commitment, otherwise agreed between the Obligors’ Agent and the relevant Ancillary Lender, Fronted Ancillary Lender or Fronting Ancillary Lender) less the Ancillary Outstandings in relation to that Ancillary Facility or, in the case of a Fronted Ancillary Facility, that Fronted Ancillary Lender’s or Fronting Ancillary Lender’s proportion of the Ancillary Outstandings.

 

11


Available Commitment means, in relation to a Facility, a Lender’s Commitment under that Facility minus (subject to Clause 9.8 (Affiliates of Lenders) and as set out below):

 

  (a)

the Base Currency Amount of its participation in any outstanding Utilisations under that Facility and, in the case of a Revolving Facility only, the Base Currency Amount of the aggregate of its (and its Affiliate’s) Ancillary Commitments, Fronted Ancillary Commitments and Fronting Ancillary Commitments; and

 

  (b)

in relation to any proposed Utilisation, the Base Currency Amount of its participation in any other Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date and, in the case of a Revolving Facility only, the Base Currency Amount of its (and its Affiliate’s) Ancillary Commitment, Fronted Ancillary Commitments and Fronting Ancillary Commitments (which in the case of a multi-account overdraft, for the purpose of this definition, shall be the Designated Net Amount) in relation to any new Ancillary Facility or Fronted Ancillary Facility that is due to be made available on or before the proposed Utilisation Date.

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

 

  (i)

that Lender’s (or its Affiliate’s) participation in any Revolving Facility Utilisations that are due to be repaid or prepaid on or before the proposed Utilisation Date; and

 

  (ii)

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

Available Facility means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.

Bank Levy means any amount payable by any Finance Party or any of its Affiliates on the basis of, or in relation to:

 

  (a)

its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof (including the United Kingdom bank levy as set out in the Finance Act 2011 (as amended), the French taxe pour le financement du fonds de soutien aux collectivités territoriales as set out in Article 235 ter ZE bis of the French Tax Code, the German bank levy as set out in the German Restructuring Fund Act 2010 (Restrukturierungsfondsgesetz), the Dutch bankenbelasting as set out in the Dutch bank levy act (Wet bankenbelasting), the Austrian bank levy as set out in the Austrian Stability Duty Act (Stabilitätsgesetz), the Spanish bank levy (Impuesto sobre los Depósitos en las Entidades de Crédito) as set out in the

 

12


  Law 16/2012 of 27 December 2012, the Swedish bank levy as set out in the Swedish Precautionary Support Act (Sw. lag (2015:1017) om förebyggande statligt stöd till kreditinstitut) (as amended)) and any other levy or tax in any jurisdiction levied on a similar basis or for a similar purpose; or

 

  (b)

any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated 22 February 2011 or the Single Resolution Mechanism established by EU Regulation 806/2014 of 15 July 2014 which has been enacted or which has been formally announced as proposed as at the date of this Agreement or (if applicable), in respect of a New Lender, as at the date that New Lender accedes as a New Lender to this Agreement.

Base Case Model means the financial model relating to the Group in the agreed form and delivered to the Agent pursuant to Clause 4.1 (Initial conditions precedent).

Base Currency means:

 

  (a)

for Facility B and the Original Revolving Facility, euro; and

 

  (b)

in relation to any Additional Facility, as agreed between the Obligors’ Agent and the applicable Additional Facility Lenders.

Base Currency Amount means:

 

  (a)

in relation to a Utilisation of a Facility, the amount specified in the Utilisation Request delivered by a Borrower for that Utilisation (or, if the amount requested is not denominated in the Base Currency for that Facility, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request in accordance with the terms of this Agreement);

 

  (b)

in relation to an Ancillary Commitment, Fronted Ancillary Commitment or Fronting Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Obligors’ Agent pursuant to Clause 9.2 (Availability) (or, if the amount specified is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Ancillary Commencement Date for that Ancillary Facility or Fronted Ancillary Facility or, if later, the date the Agent receives the notice of the Ancillary Commitment or Fronted Ancillary Commitment and Fronting Ancillary Commitment in accordance with the terms of this Agreement); and

 

  (c)

in relation to an Additional Facility Commitment, the amount specified as such in the Additional Facility Notice delivered to the Agent by the Obligors’ Agent pursuant to Clause 2.2 (Additional Facilities) (or, if the amount specified is not denominated in the Base Currency, that amount of the Additional Facility converted into the Base Currency at the spot rate of exchange on the relevant date (as elected and determined by the Obligors’ Agent acting reasonably) and notified to the Agent or if the Obligors’ Agent has not notified to the Agent, such conversion rate at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Additional Facility Commencement Date for that Additional Facility or, if later, the Applicable Test Date in relation thereto),

 

13


as adjusted to reflect any repayment, prepayment, consolidation or division of a Utilisation, or utilisation under an Ancillary Facility or Fronted Ancillary Facility or (as the case may be) cancellation or reduction of an Ancillary Facility or Fronted Ancillary Facility.

Board of Directors means:

 

  (a)

with respect to the Company or any company or corporation, the board of directors or managers, as applicable, of that company or corporation, or any duly authorised committee thereof;

 

  (b)

with respect to any limited liability company, the sole member, sole manager, board of managers or other governing body, as applicable, of that limited liability company, or any duly authorised committee thereof;

 

  (c)

with respect to any partnership, the board of directors or other governing body of the general partner of that partnership or any duly authorised committee thereof, except if a manager or a board of managers have been appointed in accordance with the constitutional documents of such partnership, in which case paragraph (a) above shall apply; and

 

  (d)

with respect to any other person, the board or any duly authorised committee of that person serving a similar function.

Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall, subject to any specific limitations and/or requirements by law or regulation or as set out in the constitutional documents of the relevant person, be deemed to have been taken or made if approved by a majority of the directors, managers, governing body or committee or equivalent (excluding employee representatives, if any) on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting (or equivalent) or as a formal board approval (or equivalent)).

Borrower means:

 

  (a)

in the case of Facility B, a Facility B Borrower;

 

  (b)

in the case of a Revolving Facility, a Revolving Facility Borrower;

 

  (c)

in the case of an Additional Facility, the relevant Additional Facility Borrower(s); and

 

  (d)

in the case 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 Lender pursuant to Clause 9.9 (Affiliates of Borrowers).

 

14


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

 

  (a)

EURIBOR or LIBOR (as applicable), if positive and disregarding any interest rate floor, which a Lender should have received, for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

 

  (b)

the amount (if positive) which that Lender would be able to obtain by placing an amount equal to the principal amount of that Loan 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.

Bridging Debt means any Indebtedness which is incurred with an initial maturity of or about one (1) year or less:

 

  (a)

as interim indebtedness to be refinanced by long term indebtedness which is not prohibited by the terms of this Agreement;

 

  (b)

as a bridge to the incurrence of any other indebtedness which is not prohibited by the terms of this Agreement which is in the form of bonds, notes or other equivalent security issuance, and which shall be repaid in full with the proceeds of such bonds, notes or other equivalent securities; and/or

 

  (c)

converted or exchanged on or about (or prior to) one (1) year from the incurrence of the relevant Bridging Debt on terms customary for an instrument of this type into term loans or other bonds, notes or other equivalent securities.

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Luxembourg, Jersey, New York and Zurich and:

 

  (a)

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

 

  (b)

(in relation to any date for payment or purchase of euro) any TARGET Day; and

 

  (c)

(in relation to any date for payment by a Borrower (other than a Borrower incorporated in England and Wales or Luxembourg)) in that Borrower’s jurisdiction of incorporation,

provided that, for the purposes of any Utilisation in connection with a payment due under an acquisition document in respect of a Permitted Acquisition, the Obligors’ Agent may elect by notice to the Agent that any day which is a “business day” (or any equivalent term) under that acquisition document shall also constitute a Business Day under the Finance Documents.

Capital Stock has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

 

15


Cash Equivalent Investments means, at any time when held by a member of the Group, any Cash Equivalents (as defined in Schedule 18 (Certain New York Law Defined Terms) and (without double counting)):

 

  (a)

debt securities or other investments in marketable debt obligations issued or guaranteed by the United States of America, the United Kingdom, Switzerland, Japan, any member state of the European Union, Australia or any agency thereof and having not more than one year to final maturity;

 

  (b)

certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;

 

  (c)

any investment in marketable debt obligations issued or guaranteed by any government of a country which has a rating for its short term unsecured and non-credit enhanced debt obligations of A 1 or higher by S&P or F1 or higher by Fitch or P 1 or higher by Moody’s or by an instrumentality or agency of any such government having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;

 

  (d)

commercial paper not convertible or exchangeable to any other security:

 

  (i)

for which a recognised trading market exists;

 

  (ii)

which matures within one year after the relevant date of calculation; and

 

  (iii)

which has a credit rating of either A 1 or higher by S&P or F1 or higher by Fitch or P 1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its short term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

  (e)

bills of exchange issued in the United States of America, the United Kingdom, Switzerland, Japan, any member state of the European Union, Australia or any agency thereof and eligible for rediscount at the relevant central bank and accepted by a bank (or their dematerialised equivalent);

 

  (f)

any investment which:

 

  (i)

is an investment in money market funds:

 

  (A)

with a credit rating of either A 1 or higher by S&P or F1 or higher by Fitch or P 1 or higher by Moody’s; or

 

  (B)

which invests substantially all their assets in securities of the types described in paragraphs (a) to (e) above;

 

  (ii)

is any other money market investment (including repurchase agreements) and substantially all of the assets or collateral in respect of that investment have a credit rating of either A 1 or higher by S&P or F1 or higher by Fitch or P 1 or higher by Moody’s; or

 

16


  (iii)

can be turned into cash on not more than thirty (30) days’ notice;

 

  (g)

Temporary Cash Investments or Investment Grade Securities; or

 

  (h)

any other debt security approved by the Majority Lenders,

in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than a Permitted Lien).

CEO means the chief executive officer of the Group or, if no chief executive officer is appointed, such other person fulfilling the functions of chief executive officer of the Group.

Certain Funds Entities means the Company and (to the extent any Major Default, Major Representation and/or Major Undertaking (as applicable) applies to it only) Topco.

Certain Funds Period means the period beginning on (and including) the date of this Agreement and ending at 11.59 p.m. (in London) on the date falling ten (10) Business Days after the Closing Date, as such time and date may be extended from time to time with the consent of the Mandated Lead Arrangers (each acting reasonably and in good faith).

Certain Funds Utilisation means a Utilisation made or to be made during the Certain Funds Period.

CFO means the chief financial officer or finance director of the Group or, if no chief financial officer or finance director is appointed, such other person fulfilling the functions of chief financial officer or finance director of the Group.

Change of Control has the meaning given to that term in Clause 12.1 (Exit and Listing).

Charged Property has the meaning given to that term in the Intercreditor Agreement.

Clean-Up Period has the meaning given to it in Clause 28.7 (Clean-up Period).

Closing Date means the date on which the first utilisation of Facility B occurs.

Closing Overfunding means the aggregate amount invested in the Company by way of Equity Contribution on or around the Closing Date and identified as “Closing Overfunding” or similar in the Funds Flow Statement, plus the amount of cash on the balance sheet of the Group as at the Closing Date, as certified by the Obligors’ Agent to the Agent following the Closing Date or otherwise in the first Compliance Certificate delivered under the terms of this Agreement to the extent Not Otherwise Applied.

Commitment means a Facility B Commitment, an Original Revolving Facility Commitment and an Additional Facility Commitment.

Compliance Certificate means an Annual Compliance Certificate or a Quarterly Compliance Certificate.

 

17


Confidential Information means all information relating to Topco, any Obligor, the Group, the Investors, the Transaction Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

  (a)

Topco, any member of the Group, any Investor or any of their respective advisers; or

 

  (b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from Topco, any member of the Group, any Investor or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

 

  (i)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 42 (Confidentiality);

 

  (ii)

is identified in writing at the time of delivery as non confidential by Topco, any member of the Group or any of its advisers; or

 

  (iii)

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with Topco or the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA on the date of this Agreement or in any other form agreed between the Obligors’ Agent and the Agent, and in any case capable of being relied upon by, and not capable of being materially amended without the consent of, the Obligors’ Agent.

Consolidated EBITDA has the meaning given to that term in Clause 26.1 (Financial definitions).

Consolidated Financial Interest Expenses has the meaning given to that term in Clause 26.1 (Financial definitions).

Consolidated Pro Forma EBITDA has the meaning given to that term in Clause 26.1 (Financial definitions).

Consolidated Senior Secured Net Debt has the meaning given to that term in Clause 26.1 (Financial definitions).

Consolidated Senior Secured Net Leverage Ratio has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

 

18


Consolidated Total Net Leverage Ratio has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Constitutional Documents means the constitutional documents of the Company.

Controlled Debt means Indebtedness arising under a facility which is:

 

  (a)

an Additional Facility which is a euro-denominated term loan facility incurred after the Closing Date; or

 

  (b)

a broadly syndicated, floating rate and euro-denominated term loan facility incurred after the Closing Date pursuant to paragraphs (b)(i)(B) or (b)(i)(C) of Section 1 (Limitation on Indebtedness) of Schedule 16 (General Undertakings),

and, in each case, is:

 

  (i)

secured only on the Transaction Security and subject to the Intercreditor Agreement as Senior Secured Liabilities (as defined in the Intercreditor Agreement) (for the avoidance of doubt, ranking pari passu with Facility B); and

 

  (ii)

not Bridging Debt.

CTA means the UK Corporation Tax Act 2009.

Debt Purchase Transaction means, in relation to a person, a transaction where such person:

 

  (a)

purchases by way of assignment or transfer;

 

  (b)

enters into any sub-participation in respect of; or

 

  (c)

enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,

any Commitment or amount outstanding under this Agreement.

Debt Transfer has the meaning given in paragraph (a) of Clause 31.7 (Debt Transfer).

Debt Transfer Notice has the meaning given in paragraph (a)(iii) of Clause 31.7 (Debt Transfer).

Declared Default means the giving of notice by the Agent under paragraphs (a)(i), (a)(ii), (b)(i) or (b)(ii) of Clause 28.6 (Acceleration) and such notice has not been withdrawn, cancelled or otherwise ceased to have effect.

Deconsolidation Statement has the meaning given to that term in paragraph 6(b) of Schedule 15 (Information Undertakings).

 

19


Default means an Event of Default or an event or circumstance which would (with the expiry of a grace period, the making of a determination, or the giving of notice provided for in Clause 28 (Events of Default), Schedule 17 (Events of Default) or any combination of the foregoing) be an Event of Default, provided that any such event or circumstance which requires the satisfaction of a condition or determination (including as to materiality) before it becomes an Event of Default shall not be a Default unless that condition or that determination is satisfied.

Defaulting Lender means any Lender (other than a Lender which is a member of the Group or an Investor Affiliate):

 

  (a)

which has failed to make its participation in a Loan available or has notified the Agent or the Obligors’ 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 Clause 7.3 (Indemnities) or has failed to provide cash collateral (or has notified the Issuing Bank or the Obligors’ Agent that it will not provide cash collateral) in accordance with Clause 7.4 (Cash collateral by Non Acceptable L/C Lender);

 

  (b)

which has otherwise disaffirmed, rescinded or repudiated a Finance Document or any term thereof;

 

  (c)

which is a Non Consenting Lender and which has failed to assist with any step required to implement the Obligors’ Agent right to prepay that Non Consenting Lender or to replace that Non Consenting Lender pursuant to and as contemplated by Clause 41.5 (Replacement of Lender) within three (3) Business Days of a request to do so by the Obligors’ Agent; or

 

  (d)

with respect to which (or any Holding Company of which) an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

 

  (i)

and in respect of a participation in a Loan other than a Certain Funds Utilisation or an Agreed Certain Funds Utilisation, its failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within three (3) 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,

in each case, provided that the Agent may assume that (A) any Lender which has notified the Agent that it has become (or notified by the Obligors’ Agent to the Agent as having become) a Defaulting Lender and (B) any Lender in relation to which it is aware (including by way of notification from the Obligors’ Agent) that any of the events or circumstances referred to in this definition has occurred, is a Defaulting Lender unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.

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

Designated Gross Amount has the meaning given to that term in Clause 9.2 (Availability).

 

20


Designated Net Amount has the meaning given to that term in Clause 9.2 (Availability).

Designation Date has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Disqualified Stock has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

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.

EBITDA based basket has the meaning given to that term in paragraph (a) of Clause 1.5 (Baskets and Basket Testing).

Effective Yield means, in respect of any Indebtedness, the sum of (without double counting):

 

  (a)

the EURIBOR floor, if any, with respect to the such Indebtedness on the date of determination;

 

  (b)

the interest rate margin with respect to such Indebtedness on the date of determination, provided that in determining the Effective Yield applicable to Facility B in the case of any MFN Facility, the relevant interest rate margin shall be the higher of:

 

  (i)

the highest actual Margin for Facility B under this Agreement as at the Closing Date; and

 

  (ii)

the highest actual or potential Margin for Facility B under this Agreement as at the Applicable Test Date; and

 

21


  (c)

the amount of any applicable original issue discount and upfront fees paid on the such Indebtedness (converted to yield assuming a three-year average life and without any present value discount) but excluding the effect of any arrangement, structuring, syndication, underwriting or other fees payable in connection therewith that are not shared with all lenders or holders of such new or replacement loans.

Election Option has the meaning given to that term in paragraph (d)(i) of the definition of “IFRS”.

Equity Contribution has the meaning given to that term in Clause 26.1 (Financial definitions).

Equity Documents means the Constitutional Documents and any document evidencing an Equity Contribution as described in paragraph (b) of the definition of “Equity Contribution”.

EURIBOR means, in relation to any Loan in euro:

 

  (a)

the applicable Screen Rate;

 

  (b)

(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or

 

  (c)

if:

 

  (i)

no Screen Rate is available for the Interest Period of that Loan; and

 

  (ii)

it is not possible to calculate an Interpolated Screen Rate for that Loan,

the Reference Bank Rate,

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for euro and for a period equal in length to the Interest Period of that Loan and, if any such rate applicable to:

 

  (A)

a Facility B Loan or an Original Revolving Facility Loan is below zero, EURIBOR for such Loan will be deemed to be zero; and

 

  (B)

an Additional Facility Loan is below any percentage agreed with the relevant Additional Facility Lenders in the Additional Facility Notice for those Additional Facility Commitments, EURIBOR will be deemed to be such percentage rate specified in such Additional Facility Notice.

Event of Default means any event or circumstance specified as such in Clause 28 (Events of Default).

Excess Cash Flow has the meaning given to that term in Clause 26.1 (Financial definitions).

Excess Cash Flow De Minimis means, in relation to a Financial Year, the aggregate of:

 

22


  (a)

€20.5 million or, if higher, an amount equal to 25% of LTM EBITDA; and

 

  (b)

the Carry Forward Excess Cash Amount (as defined in Clause 12.2 (Excess Cash Flow)) for the previous Financial Year.

Exchange Act has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Excluded Jurisdiction has the meaning given to that term in paragraph 6 (Excluded Jurisdictions) of Schedule 11 (Agreed Security Principles).

Existing Debt means the outstanding Indebtedness (and any interest, coupon, premia, fees, costs or expenses accrued or accruing thereon, including after the Closing Date) under (i) any Existing Debt Document and (ii) any hedging agreement or related or ancillary agreement entered into in connection with any Existing Debt Document which, in each case, are to be terminated and repaid or redeemed on or about the Closing Date as set out in the Funds Flow Statement.

Existing Debt Documents means the Existing Senior Facilities Agreement and the “Finance Documents” thereunder.

Existing Lender has the meaning given to that term in Clause 29.2 (Assignments and Transfers by Lenders).

Existing Senior Facilities Agreement means the €300 million credit facility agreement between, among others, Sportradar Holding AG as company and UBS Switzerland AG as agent and security agent.

Exit Event has the meaning given to that term in Clause 12.1 (Exit and Listing).

Expiry Date means, for a Letter of Credit, the last day of its Term.

Facility means a Term Facility, a Revolving Facility and any Additional Facility.

Facility B means the term loan facility made available under this Agreement as described in paragraph (a)(i) of Clause 2.1 (The Facilities).

Facility B Borrower means each Original Borrower and any Additional Borrowers in respect of Facility B.

Facility B Commitment means:

 

  (a)

in relation to an Original Lender, the amount in euro set out in Part II (The Original Lenders) of Schedule 1 (The Original Parties) as its Facility B Commitment and the amount of any other Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase); and

 

  (b)

in relation to any other Lender, the amount in euro of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase), to the extent:

 

23


  (i)

not cancelled, reallocated, reduced or transferred by it under this Agreement; and

 

  (ii)

not deemed to be zero pursuant to Clause 30 (Debt Purchase Transactions).

Facility B Lender means any Lender who makes available a Facility B Commitment or a Facility B Loan.

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

Facility Office means the office or offices notified by a Lender, Finance Party or the Issuing Bank to the Agent in writing on or before the date it becomes a Lender, Finance Party or the Issuing Bank (or, following that date, by not less than five (5) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

FATCA means:

 

  (a)

sections 1471 to 1474 of the Internal Revenue Code or any associated regulations or other official guidance (or any amended or successor version that is substantially comparable);

 

  (b)

any treaty, law, regulation or other official guidance 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 Internal Revenue 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 Internal Revenue Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), the first date from which such payment may become subject to a deduction or withholding required by FATCA; or

 

  (c)

in relation to a “passthru payment” described in section 1471(d)(7) of the Internal Revenue Code not falling within paragraphs (a) or (b) above, the first date from which such payment may have become subject to a deduction or withholding required by FATCA.

 

24


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)

the fee letter(s) entered between Mandated Lead Arrangers and the Company prior to the date of this Agreement (the Arrangement Fee Letter);

 

  (b)

any fee letter or other agreement dated on or prior to the date of this Agreement between any Finance Party (or any of its Affiliates) and a member of the Group, setting out any of the fees referred to in Clause 17 (Fees) and designated therein as a “Fee Letter”; and

 

  (c)

any agreement setting out fees payable to a Finance Party referred to in paragraph (n) of Clause 2.2 (Additional Facilities), paragraph (e) of Clause 2.3 (Increase), Clause 17.4 (Agent and Security Agent fees) or Clause 17.6 (Interest, commission and fees on Ancillary Facilities and Fronted Ancillary Facilities) of this Agreement or under or in relation to any other Finance Document and designated therein as a “Fee Letter”.

Finance Document means this Agreement, any Accession Deed, any Ancillary Document, any Compliance Certificate, any Fee Letter, each Increase Confirmation, each Additional Facility Notice and Additional Facility Lender Accession Notice, the Intercreditor Agreement, any Resignation Letter, any Selection Notice, any Debt Transfer Notice, any Transaction Security Document, any Utilisation Request and any other document designated as a Finance Document by the Agent and the Obligors’ Agent.

Finance Party means the Agent, each Mandated Lead Arranger, the Security Agent, a Lender, the Issuing Bank, or any Ancillary Lender, Fronting Ancillary Lender or Fronted Ancillary Lender.

Financial Quarter has the meaning given to that term in Clause 26.1 (Financial definitions).

Financial Statements means Annual Financial Statements or Quarterly Financial Statements.

Financial Year has the meaning given to that term in Clause 26.1 (Financial definitions).

Fitch has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Fixed Charge Coverage Ratio has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

 

25


Fronted Ancillary Commitment means, in relation to a Fronted Ancillary Lender and a Fronted Ancillary Facility, the maximum Base Currency Amount of the Revolving Facility Commitment of that Fronted Ancillary Lender that is fronted under the Fronted Ancillary Facility as notified by the Fronting Ancillary Lender to the Agent pursuant to Clause 9.2 (Availability), such Fronted Ancillary Portion being equal to the proportion borne by that Fronted Ancillary Lender’s Available Commitment to the Available Facility (in each case in relation to the applicable Revolving Facility) on the date of such notification, to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Fronted Ancillary Facility.

Fronted Ancillary Lender has the meaning given to that term in Clause 9.2 (Availability).

Fronted Ancillary Facility has the meaning given to that term in Clause 9.2 (Availability).

Fronted Ancillary Facility Fee has the meaning given to that term in Clause 17.6 (Interest, commission and fees on Ancillary Facilities and Fronted Ancillary Facilities).

Fronted Ancillary Facility Fee Period has the meaning given to that term in Clause 17.6 (Interest, commission and fees on Ancillary Facilities and Fronted Ancillary Facilities).

Fronted Ancillary Portion means, in relation to a Fronted Ancillary Lender, the proportion which that Fronted Ancillary Lender’s commitment under a Fronted Ancillary Facility bears to all commitments under that Fronted Ancillary Facility.

Fronting Ancillary Commitment means, in relation to a Fronting Ancillary Lender and a Fronted Ancillary Facility, the maximum Base Currency Amount of that Fronted Ancillary Facility for which it is not indemnified by other Fronted Ancillary Lenders pursuant to paragraph (b) of Clause 9.15 (Fronted Ancillary Commitment Indemnities), as notified by the Fronting Ancillary Lender to the Agent pursuant to Clause 9.2 (Availability) to the extent that amount is not increased, cancelled or reduced under this Agreement or the Ancillary Documents relating to that Fronted Ancillary Facility.

Fronting Ancillary Lender has the meaning given to that term in Clause 9.2 (Availability).

Funds Flow Statement means any funds flow statement relating to the Transaction which is delivered to the Agent pursuant to Clause 4.1 (Initial conditions precedent).

Gross Outstandings means, in relation to a multi-account overdraft, the Ancillary Outstandings of that multi-account overdraft but calculated on the basis that the wording in the definition of “Ancillary Outstandings” permitting the netting of credit balances were deleted.

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

Group Initiative has the meaning given to that term in Clause 26.1 (Financial definitions).

Group Structure Chart means any structure chart of the Group (assuming the Closing Date has occurred) which is delivered to the Agent pursuant to Clause 4.1 (Initial conditions precedent).

 

26


Guarantee Limitations means, in respect of any Obligor and any payments such Obligor is required to make in its capacity as a guarantor or as the provider of an indemnity or as debtor of costs or disbursements or with respect to any other payment obligation under this Agreement or any other Finance Document, the limitations and restrictions applicable to such entity pursuant to Clause 23.11 (Guarantee Limitations: General) to Clause 23.15 (Additional Guarantee Limitations) (inclusive) and the relevant Accession Deed applicable to such Additional Guarantor or any other Finance Document.

Guarantor means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 31 (Changes to the Obligors).

Guarantor Coverage Test means confirmation that the aggregate (without double counting) earnings before interest, tax, depreciation and amortization (calculated on an LTM basis on the same basis as Consolidated EBITDA but taking each entity on an unconsolidated basis and excluding goodwill, all intra Group items and investments in Subsidiaries of any member of the Group) (EBITDA) of the members of the Group which are Guarantors equals or exceeds eighty 80% of Consolidated EBITDA of the Group (excluding for these purposes, any adjustments made to Consolidated EBITDA pursuant to paragraphs (a)(viii) and (a)(ix) of the definition thereof), provided that, for the purposes of calculating the Guarantor Coverage Test only:

 

  (a)

to the extent any Guarantor generates negative EBITDA, such Guarantor shall be excluded from the numerator, for the purpose of calculating the numerator of the Guarantor Coverage Test; and

 

  (b)

unless otherwise elected by the Obligors’ Agent, to the extent that any member of the Group:

 

  (i)

is not a Guarantor; and

 

  (ii)

is incorporated in an Excluded Jurisdiction and/or is otherwise not required to (or is unable to) become a Guarantor in accordance with the Agreed Security Principles,

such member of the Group shall be deemed to have zero EBITDA, for the purpose of calculating the denominator of the Guarantor Coverage Test.

Hedge Counterparty means each person which is party to the Intercreditor Agreement as a “Hedge Counterparty”.

Hedging Agreement has the meaning given to that term in the Intercreditor Agreement.

Hedging Obligations has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Holdco Financing means any debt or equity financing (howsoever borrowed or incurred) provided to any Holding Company of the Company by any person, including any vendor or third party financing.

 

27


Holdco Financing Major Terms means the following terms:

 

  (a)

the issuer or borrower of the Holdco Financing is a Holding Company of the Company;

 

  (b)

the net cash proceeds of the Holdco Financing are (directly or indirectly) contributed to the Company (including on a non-cash rollover basis) as equity (including by way of premium and/or contribution to capital reserve and on a cash or cashless basis) by its immediate Holding Company or, by shareholder loan, notes, bonds or like instruments to the Company by its immediate Holding Company, provided that such shareholder loan, notes, bonds or like instruments constitute “Subordinated Liabilities” as defined in the Intercreditor Agreement or are otherwise subordinated to the Facilities on terms acceptable to the Agent (acting reasonably);

 

  (c)

the scheduled final maturity date of the Holdco Financing (if any) falls after the Termination Date in respect of Facility B (as at the date of this Agreement);

 

  (d)

no guarantees or Security are provided by a member of the Group, or over any shares, stocks or partnership interests of a member of the Group, as credit support for such Holdco Financing; and

 

  (e)

the issuer or borrower of such Holdco Financing shall, on and prior to the Termination Date in respect of Facility B (as at the date of this Agreement), have the option in its sole discretion to pay all accrued interest on such Holdco Financing in kind, provided that nothing in this Agreement shall prohibit the issuer or borrower making any payment of accrued or capitalised interest in cash which is directly or indirectly funded from (i) any proceeds of such Holdco Financing which are retained by such issuer or borrower and are not contributed to a member of Group or (ii) dividends, restricted payments and/or other permitted distributions not prohibited in accordance with this Agreement.

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

IFRS has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Impaired Agent means the Agent at any time when:

 

  (a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment, unless:

 

  (i)

its failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within three (3) Business Days of its due date; or

 

  (ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question;

 

  (b)

the Agent otherwise disaffirms, rescinds or repudiates a Finance Document or any term thereof;

 

28


  (c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraphs (a) or (b) of the definition of Defaulting Lender; or

 

  (d)

an Insolvency Event has occurred and is continuing with respect to the Agent.

Increase Confirmation means a confirmation substantially in the form set out in Schedule 12 (Form of Increase Confirmation) or in any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably).

Increase Lender has the meaning given to that term in Clause 2.3 (Increase).

Indebtedness has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Industry Competitor means:

 

  (a)

any person or entity (or any of its Affiliates or Related Funds or any person acting on its behalf) which is a competitor of a member of the Group or whose business is similar or related to a member of the Group or any Initial Investor or is a supplier or sub-contractor of a member of the Group or any Initial Investor and, in each case, any controlling shareholder of such persons, provided that this shall not include any person or entity (or any of its Affiliates or Related Funds) which is a bank, financial institution or trust; and

 

  (b)

a private equity sponsor (including any fund which is managed or advised by it or any of its Affiliates or Related Funds, and any of their respective Affiliates or Related Funds), provided that this shall not include any person whose principal business is investing in debt and which is:

 

  (i)

acting on the other side of appropriate information barriers implemented or maintained as required by law or regulation from the person that would otherwise constitute a private equity sponsor; and

 

  (ii)

managed and controlled fully separately from the person that would otherwise constitute a private equity sponsor and has separate personnel responsible for its interests under the Finance Documents, such personnel being fully independent from the interests of the entity, division or desk constituting the private equity sponsor, and no information provided under the Finance Documents is disclosed or otherwise made available to any personnel responsible for the interests of the entity, division or desk constituting the private equity sponsor.

Information Memorandum means the document in the form approved by the Obligors’ Agent concerning the Group in relation to the Facilities and distributed by the Mandated Lead Arrangers on a confidential basis in connection with the syndication of Facility B.

Initial Investors means:

 

  (a)

Canada Pension Plan Investment Board and its Affiliates (together, the CPPIB Funds) and individually or collectively, one or more investment funds, co-investment vehicles, limited partnerships and/or other similar vehicles or accounts or other entities, in each case advised or managed by the general partner, manager or advisor to the CPPIB Funds;

 

29


  (b)

TCMI, Inc. and its Affiliates (together, the TCV Funds) and individually or collectively, one or more investment funds, co-investment vehicles, limited partnerships and/or other similar vehicles or accounts or other entities, in each case advised or managed by the general partner, manager or advisor to the TCV Funds;

 

  (c)

one Carsten Koerl;

 

  (d)

any director, officer or member of the management of the Group having a (direct or indirect) interest in the Company (including by way of reinvestment on a non-cash basis);

 

  (e)

any successor, Affiliate or Related Fund of any person listed in paragraph (a) or (b) above (but excluding, in each case, any portfolio company in which any person listed in paragraph (a) or (b) above or any successor, Affiliate, Related Fund or investor thereof, holds an investment);

 

  (f)

an Agreed Co-Investor; and/or

 

  (g)

any other co-investor approved by the Majority Lenders (acting reasonably).

Inside Maturity Basket means an amount equal to the greater of (x) €40.5 million and (y) 50% of LTM EBITDA.

Insolvency Event means, in relation to a Finance Party, the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, custodian or other similar officer in respect of that Finance Party or all or substantially all of that Finance Party’s assets or any analogous procedure or step being taken in any jurisdiction with respect to that Finance Party.

Intellectual Property means:

 

  (a)

any patents, utility models, trademarks, service marks, designs, business names, copyrights, database rights, design rights, sports rights licenses, registered designs, domain names, moral rights, inventions, confidential information, trade secrets, knowhow and all other intellectual property rights and interests throughout the world (which may now or in the future subsist), whether registered or unregistered; and

 

  (b)

the benefit of all applications (and all goodwill associated with such applications) and rights to use such assets of each member of the Group, including all rights under any agreements relating to the use or exploitation of any such rights, which may now or in the future subsist.

Intercreditor Agreement means the intercreditor agreement to be entered into on or around the date of this Agreement and made between, among others, the Company, the Original Debtors (as defined therein), the Agent, the Security Agent and the Original Lenders.

 

30


Interest Period means, in relation to a Loan, each period determined in accordance with Clause 15 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 14.3 (Default interest).

Internal Revenue Code means the US Internal Revenue Code of 1986, as amended.

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

 

  (a)

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

 

  (b)

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

each as of the Specified Time for the currency of that Loan.

Investment has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Investors means the Initial Investors and any other person holding (directly or indirectly) any issued share capital of the Company from time to time.

Investor Affiliate means (i) any Investor and each of its Affiliates, (ii) any sponsor, limited partnerships or entities managed or advised by an Investor or any of its Affiliates, (iii) any trust of an Investor or any of its Affiliates or any of its direct or indirect Subsidiaries or in respect of which any such persons are a trustee, (iv) any partnership of an Investor or any of its Affiliates or in respect of which any such persons are a partner and (v) any trust, fund or other entity which is managed by, or is under the control of, an Investor or any of its Affiliates, but excluding (in each case) (A) any fund or entity that is affiliated with or managed and/or advised by any Investor where the principal business of such affiliated fund or entity is investing in debt, (B) any Unrestricted Subsidiary; and (C) any member of the Group.

IPO Proceeds means the cash proceeds received by members of the Group or any Holding Company of the Company from a Listing or a primary issue of shares in connection with such a Listing, after deducting:

 

  (a)

all taxes incurred and required to be paid or reserved against (as reasonably determined by the Obligors’ Agent on the basis of their existing rates) by the seller in relation to a Listing (including any Taxes incurred as a result of the transfer of any cash consideration intra-Group);

 

  (b)

fees, costs and expenses (including, for the avoidance of doubt, reasonable legal fees, reasonable agents’ commission, reasonable auditors’ fees, reasonable out of pocket reorganisation costs (including redundancy, closure and other restructuring costs, both preparatory to, and in consequence of, a Listing));

 

  (c)

any amount required to be applied in repayment or prepayment of any Indebtedness other than the Facilities (including to an entity the subject of a disposal, amounts to be repaid or prepaid to the entity disposed of in respect of intra-Group indebtedness and any third party debt secured on the assets disposed of which is to be repaid or prepaid out of those proceeds) or amounts owed to partners in permitted joint ventures as a consequence of that Listing; and

 

31


any reasonable amounts retained to cover indemnities, contingent and other liabilities in connection with the Listing.

Issuing Bank means any Lender which has notified the Agent that it has agreed to the Obligors’ Agent’s request to be an Issuing Bank pursuant to the terms of this Agreement (and if more than one Lender has so agreed, such Lenders shall be referred to, whether acting individually or together, as the Issuing Bank), provided that, in respect of a Letter of Credit issued or to be issued pursuant to the terms of this Agreement, the Issuing Bank shall be the Issuing Bank which has issued or agreed to issue that Letter of Credit.

ITA means the UK Income Tax Act 2007.

L/C Proportion means, in relation to a Revolving Facility Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender’s Available Commitment to the relevant Available Facility (in each case) under a Revolving Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender, including pursuant to Clause 9.11 (Adjustments required in relation to Ancillary Facilities).

Legal Opinion means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or under Clause 31 (Changes to the Obligors) or at any other time in connection with the Finance Documents.

Legal Reservations means:

 

  (a)

the principle that certain remedies (including equitable remedies and remedies that are analogous to equitable remedies in the applicable jurisdiction) may be granted or refused at the discretion of the court, the principles of reasonableness and fairness, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and secured creditors and similar principles or limitations under the laws of any applicable jurisdiction;

 

  (b)

the time barring of claims under applicable limitation laws (including the Limitation Acts) and defences of acquiescence, set-off or counterclaim and the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void and defences of set-off, counterclaim or acquiescence and similar principles or limitations under the laws of any applicable jurisdiction;

 

  (c)

the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that Security purported to be constituted as an assignment may be recharacterised as a charge;

 

32


  (d)

the principle that additional or default interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

 

  (e)

the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant;

 

  (f)

the principle that the creation or purported creation of Security over (i) any asset not beneficially owned by the relevant charging company at the date of the relevant security document or (ii) any contract or agreement which is subject to a prohibition on transfer, assignment or charging, may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which Security has purportedly been created;

 

  (g)

the possibility that a court may strike out a provision of a contract for rescission or oppression, undue influence or similar reason;

 

  (h)

the principle that a court may not give effect to any parallel debt provisions, covenants to pay the Security Agent or other similar provisions;

 

  (i)

the principle that certain remedies in relation to regulated entities may require further approval from government or regulatory bodies or pursuant to agreements with such bodies;

 

  (j)

similar principles, rights and defences under the laws of any relevant jurisdiction;

 

  (k)

the principles of private and procedural laws of the Relevant Jurisdiction which affect the enforcement of a foreign court judgment;

 

  (l)

the principle that in certain circumstances pre-existing Security purporting to secure an Additional Facility, further advances or any Facility following a Structural Adjustment may be void, ineffective, invalid or unenforceable;

 

  (m)

any other matters which are set out as qualifications or reservations (however described) as to matters of law in the Legal Opinions; and

 

  (n)

mandatory provisions (lois de police) of Luxembourg or other applicable law.

Lender means:

 

  (a)

an Original Lender; or

 

  (b)

any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.2 (Additional Facilities), Clause 2.3 (Increase) or Clause 29 (Changes to the Lenders),

which in each case has not ceased to be a Lender in accordance with the terms of this Agreement and provided that (among other things as provided by this Agreement) upon (i) termination in full of all Commitments of any Lender in relation to any Facility and (ii) payment in full of all amounts which are then due and payable to such Lender under that Facility, such Lender shall not be regarded as a Lender for that Facility for the purpose of determining whether any provision which requires consultation, consent, agreement or vote with any Lender (or any class thereof) has been complied with.

 

33


Letter of Credit means:

 

  (a)

a letter of credit, substantially in the agreed form set out in Schedule 10 (Form of Letter of Credit) or in any other form requested by the Obligors’ Agent and agreed by the Issuing Bank; or

 

  (b)

any guarantee, indemnity or other instrument in a form requested by a Borrower (or the Obligors’ Agent on its behalf) and agreed by the Issuing Bank.

Liabilities has the meaning given to that term in the Intercreditor Agreement.

LIBOR means, in relation to any Loan (other than for a Loan denominated in EUR):

 

  (a)

the applicable Screen Rate;

 

  (b)

(if no Screen Rate is available for the currency or Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or

 

  (c)

if:

 

  (i)

no Screen Rate is available for the currency or Interest Period of that Loan; and

 

  (ii)

it is not possible to calculate an Interpolated Screen Rate for that Loan,

 

  the

Reference Bank Rate,

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for the currency of that Loan and a period equal in length to the Interest Period of that Loan and if any such rate applicable to:

 

  (A)

an Original Revolving Facility Loan is below zero, LIBOR for such Loan will be deemed to be zero; or

 

  (B)

an Additional Facility Loan is below any percentage agreed with the relevant Additional Facility Lenders in the Additional Facility Notice for those Additional Facility Commitments, LIBOR will be deemed to be such percentage rate specified in such Additional Facility Notice.

Lien has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Limitation Acts means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.

Listing means the listing or the admission to trading of all or any part of the share capital of any member of the Group or any Holding Company (the only material assets of which are shares or other investments (directly or indirectly in the Group)) of

 

34


a member of the Group (other than the Initial Investors) on any recognised investment exchange (as that term is used in the Financial Services and Markets Act 2000) or in or on any other exchange or market in any jurisdiction or country or any other sale or issue by way of listing, flotation or public offering or any equivalent circumstances in relation to any member of the Group or any such Holding Company of any member of the Group (other than the Initial Investors and their Holding Companies) in any jurisdiction or country.

LMA means the Loan Market Association.

Loan means a Term Loan or a Revolving Facility Loan.

Loan to Own/Distressed Investor means any person (including an Affiliate or a Related Fund of a Lender or any transferee which satisfies the requirements set out under paragraph (b) of Clause 29.3 (Conditions of assignment or transfer)) whose principal business or material activity is:

 

  (a)

investing in distressed debt or the purchase of loans or other debt securities with the intention of (or view to) owning the equity or gaining control of a business (directly or indirectly);

 

  (b)

investing in equity and/or acquiring control of, or an equity stake in, a business (directly or indirectly); and/or

 

  (c)

exploiting holdout or blocking positions,

provided that:

 

  (i)

any Affiliate of such persons which are a deposit taking financial institution authorised by a financial services regulator to carry out the business of banking which holds a minimum rating equal to or better than BBB+ or Baa1 (as applicable) according to at least two of Moody’s, S&P or Fitch which are managed and controlled independently to any such person who meets any of the criteria referred to in sub-paragraphs (a) to (c) above and provided that any information made available under the Finance Documents shall not be disclosed or made available to such person or its other Affiliates; and

 

  (ii)

any Original Lender,

shall not, in each case, be a Loan to Own/Distressed Investor.

LTM means last twelve Months.

LTM EBITDA has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Luxembourg means the Grand Duchy of Luxembourg.

Luxembourg Borrower means a Borrower incorporated or organised in Luxembourg.

Luxembourg Guarantor means a Guarantor incorporated or organised in Luxembourg.

 

35


Luxembourg Obligor means a Luxembourg Borrower and/or a Luxembourg Guarantor.

Major Default means any event or circumstance constituting an Event of Default that is continuing under:

 

  (a)

paragraph (a) of Section 1 of Schedule 17 (Events of Default);

 

  (b)

paragraph (b) of Section 1 of Schedule 17 (Events of Default);

 

  (c)

paragraph (c) of Section 1 of Schedule 17 (Events of Default) insofar as it relates to a breach of any Major Undertaking;

 

  (d)

paragraph (e) of Section 1 of Schedule 17 (Events of Default);

 

  (e)

Clause 28.3 (Misrepresentation) insofar as it relates to a breach of any Major Representation in any material respect; or

 

  (f)

Clause 28.4 (Invalidity and Unlawfulness),

in each case as it relates to:

 

  (i)

in the case of a Certain Funds Utilisation, the Certain Funds Entities only (and excluding: (x) any procurement obligations on the part of the Certain Funds Entities with respect to any member of the Group; and (y) any failure to comply, breach or Default by or resulting from (in whole or in part) the actions of any other member of the Group); and

 

  (ii)

in the case of any other acquisition or investment not prohibited by the terms of this Agreement or an Agreed Certain Funds Utilisation, the applicable Agreed Certain Funds Obligor(s) only (and excluding: (x) any procurement obligations on the part of the Agreed Certain Funds Obligor with respect to any other member of the Group; and (y) any failure to comply, breach or Default by or resulting from (in whole or in part) the actions of any other member of the Group).

Major Representation means a representation or warranty under:

 

  (a)

Clause 24.1 (Status);

 

  (b)

Clause 24.2 (Binding Obligations);

 

  (c)

Clause 24.3 (Non-conflict with other obligations);

 

  (d)

Clause 24.4 (Power and authority);

 

  (e)

Clause 24.6 (Governing law and enforcement); and

 

  (f)

Clause 24.19 (Insolvency),

in each case as it relates to:

 

36


  (i)

in the case of a Certain Funds Utilisation, the Certain Funds Entities only (and excluding: (x) any procurement obligations on the part of the Certain Funds Entities with respect to any member of the Group; and (y) any failure to comply, breach or Default by or resulting from (in whole or in part) the actions of any other member of the Group); and

 

  (ii)

in the case of any other acquisition or investment not prohibited by the terms of this Agreement or an Agreed Certain Funds Utilisation, the applicable Agreed Certain Funds Obligor(s) only (and excluding: (x) any procurement obligations on the part of the Agreed Certain Funds

Obligor with respect to any other member of the Group; and (y) any failure to comply, breach or Default by or resulting from (in whole or in part) the actions of any other member of the Group).

Major Undertaking means an undertaking under:

 

  (a)

Section 1 (Limitation on Indebtedness) of Schedule 16 (General Undertakings);

 

  (b)

Section 2 (Limitation on Restricted Payments) of Schedule 16 (General Undertakings);

 

  (c)

Section 3 (Limitation on Liens) of Schedule 16 (General Undertakings); and

 

  (d)

Section 8 (Merger and Consolidation—Company) of Schedule 16 (General Undertakings),

in each case as it relates to:

 

  (i)

in the case of a Certain Funds Utilisation, the Certain Funds Entities only (and excluding: (x) any procurement obligations on the part of the Certain Funds Entities with respect to any member of the Group; and (y) any failure to comply, breach or Default by or resulting from (in whole or in part) the actions of any other member of the Group); and

 

  (ii)

in the case of any other acquisition or investment not prohibited by the terms of this Agreement or an Agreed Certain Funds Utilisation, the applicable Agreed Certain Funds Obligor(s) only (and excluding: (x) any procurement obligations on the part of the Agreed Certain Funds Obligor with respect to any other member of the Group; and (y) any failure to comply, breach or Default by or resulting from (in whole or in part) the actions of any other member of the Group).

Majority Arrangers means, a Mandated Lead Arranger or Mandated Lead Arrangers whose Facility B Commitments (together with the Facility B Commitments of its or their Affiliates who are not Mandated Lead Arrangers) aggregate more than 50 per cent. of the Total Facility B Commitments as at the date of this Agreement.

Majority Lenders means, subject to paragraph (f) of Clause 41.4 (Other exceptions):

 

  (a)

other than in connection with the exercise of any rights under Clause 28.6 (Acceleration), a Lender or Lenders whose Commitments aggregate more than 50% of the Total Commitments (or, if the Total Commitments have been reduced to zero (0), aggregated more than 50% of the Total Commitments immediately prior to that reduction); and

 

37


  (b)

in connection with the exercise of any rights under Clause 28.6 (Acceleration), a Lender or Lenders whose Commitments aggregate more than 6623% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 6623% of the Total Commitments immediately prior to that reduction),

provided that, in each case, for this purpose the amount of an Ancillary Lender’s Revolving Facility Commitments shall not be reduced by the amount of its Ancillary Commitment, Fronted Ancillary Commitment or Fronting Ancillary Commitment.

Majority Revolving Facility Lenders means, subject to paragraph (f) of Clause 41.4 (Other exceptions):

 

  (a)

other than in connection with the exercise of any rights under Clause 28.6 (Acceleration), a Lender or Lenders whose Commitments aggregate more than 50% of (i) the Total Original Revolving Facility Commitments and (ii) the Total Additional Facility Commitments in respect of any Additional Revolving Facility which benefits from the requirements of Clause 26.2 (Financial Condition) to the extent specified in the relevant Additional Facility Notice (or, if both the Total Original Revolving Facility Commitments and the Total Additional Facility Commitments under each applicable Additional Revolving Facility have been reduced to zero (0), aggregated more than 50% of the Total Original Revolving Facility Commitments and the Total Additional Facility Commitments under each applicable Additional Revolving Facility immediately prior to that reduction); and

 

  (b)

in connection with the exercise of any rights under Clause 28.6 (Acceleration), a Lender or Lenders whose Commitments aggregate more than 6623% of (i) the Total Original Revolving Facility Commitments and (ii) the Total Additional Facility Commitments in respect of any Additional Revolving Facility which benefits from the requirements of Clause 26.2 (Financial Condition) to the extent specified in the relevant Additional Facility Notice (or, if both the Total Original Revolving Facility Commitments and the Total Additional Facility Commitments under each applicable Additional Revolving Facility have been reduced to zero, aggregated more than 6623% of the Total Original Revolving Facility Commitments and the Total Additional Facility Commitments under each applicable Additional Revolving Facility immediately prior to that reduction),

provided that, in each case, for this purpose the amount of an Ancillary Lender’s Revolving Facility Commitments shall not be reduced by the amount of its Ancillary Commitment, Fronted Ancillary Commitment or Fronting Ancillary Commitment.

Margin means:

 

  (a)

in relation to any Facility B Loan, 4.25% per annum;

 

  (b)

in relation to any Original Revolving Facility Loan, 3.75% per annum;

 

38


  (c)

in relation to any Additional Facility Loan, the percentage rate per annum specified by the Obligors’ Agent in the relevant Additional Facility Notice;

 

  (d)

in relation to any Unpaid Sum relating or referable to a Facility, the rate per annum specified above for that Facility; and

 

  (e)

in relation to any other Unpaid Sum, the highest rate specified above,

but from the first day following the third complete Financial Quarter following the Closing Date:

 

  (i)

the Margin for each Loan under Facility B and the Original Revolving Facility will be the percentage per annum set out below in the column in the relevant table for the applicable Facility opposite that range:

 

Senior Secured Net Leverage Ratio

   Facility B Margin
(% per annum)
 

Greater than 4.50:1.00

     4.25  

Greater than 4.00:1.00 but equal to or less than 4.50:1.00

     4.00  

Greater than 3.50:1.00 but equal to or less than 4.00:1.00

     3.75  

Equal to or less than 3.50:1.00

     3.50  

Senior Secured Net Leverage Ratio

   Original Revolving Facility
Margin

(% per annum)
 

Greater than 4.50:1.00

     3.75  

Greater than 4.00:1.00 but equal to or less than 4.50:1.00

     3.50  

Greater than 3.50:1.00 but equal to or less than 4.00:1.00

     3.25  

Greater than 3.00:1.00 but equal to or less than 3.50:1.00

     3.00  

Equal to or less than 3.00:1.00

     2.75  

and

 

  (ii)

the Margin for each Additional Facility Loan and Additional Revolving Facility Utilisation will be the percentage per annum agreed with the Additional Facility Lenders and as indicated for that range in the Additional Facility Notice for those Additional Facility Commitments.

 

39


However:

 

  (A)

any increase or decrease in the Margin for a Loan shall take effect on the date of receipt by the Agent of the Compliance Certificate for that Relevant Period pursuant to Clause 25.2 (Provision and contents of Compliance Certificates), provided that in the event that any such Compliance Certificate is not delivered in accordance with Clause 25.2 (Provision and contents of Compliance Certificates) or does not set out (in reasonable detail) computations as to the calculation of the Margin, the Margin for each Loan under each of Facility B and the Original Revolving Facility shall be the highest percentage per annum set out above for a Loan under that Facility (or, in respect of any Additional Facility, the highest percentage rate per annum set out in the applicable Additional Facility Notice in respect of the relevant Additional Facility Commitments) until such time as a Compliance Certificate setting out (in reasonable detail) computations as to the calculation of the Margin is delivered;

 

  (B)

if, following receipt by the Agent of the Annual Financial Statements and related Compliance Certificate, those statements and Compliance Certificate demonstrate that (1) the Margin should have been reduced in accordance with the above table or as indicated in the applicable Additional Facility Notice or (2) the Margin should not have been reduced or should have been increased in accordance with the above table or as indicated in the applicable Additional Facility Notice, the next payment of interest under the relevant Facility shall be adjusted in accordance with paragraph (b) of Clause 14.2 (Payment of interest). The Agent’s determination (acting reasonably and in good faith) of the adjustments payable shall be prima facie evidence of such adjustments and the Agent shall, if so requested by the Obligors’ Agent, provide the Obligors’ Agent with reasonable details of the calculation of such adjustments;

 

  (C)

while an Event of Default under any of paragraphs (a), (b), (c) (but only in relation to a failure to comply with paragraphs (b)(ii)(B) or (c)(ii)(B) (as applicable) of Clause 25.2 (Provision and contents of Compliance Certificates), in each case such that the Margin cannot be determined) or (e) of Section 1 of Schedule 17 (Events of Default) (a Margin Event of Default) is continuing, the Margin for each Loan under each of Facility B and the Original Revolving Facility shall be the highest percentage per annum set out above for a Loan under that Facility (or, in respect of any Additional Facility, the highest percentage rate per annum set out in the applicable Additional Facility Notice in respect of the relevant Additional Facility

 

40


  Commitments). Once that Margin Event of Default has been remedied or waived, the Margin for each Loan will be re-calculated on the basis of the most recently delivered Compliance Certificate and the terms of this definition “Margin” shall apply (on the assumption that on the date of the most recently delivered Compliance Certificate, no Margin Event of Default had occurred or was continuing) with any reduction in Margin resulting from such recalculation taking effect from the date of such remedy or waiver and the terms of this definition “Margin” shall apply (on the assumption that no such Margin Event of Default has occurred or was continuing) with any reduction in Margin resulting from such recalculation taking effect from the date of such remedy or waiver; and

 

  (D)

for the purpose of determining the Margin, the Senior Secured Net Leverage Ratio and Relevant Period shall be determined in accordance with Clause 26.1 (Financial definitions).

Material Adverse Effect means any event or circumstance which in each case after taking into account all mitigating factors or circumstances including, any warranty, indemnity or other resources available to the Group or right of recourse against any third party with respect to the relevant event or circumstance and any obligation of any person in force to provide any additional equity investment:

 

  (a)

has a material adverse effect on:

 

  (i)

the consolidated business, assets or financial condition of the Group (taken as a whole); or

 

  (ii)

the ability of the Group (taken as whole) to perform its payment obligations under the Finance Documents; or

 

  (b)

subject to the Legal Reservations and any Perfection Requirements, affects the validity or the enforceability of any of the Finance Documents to an extent which is materially adverse to the interests of the Finance Parties under the Finance Documents taken as a whole,

and if capable of remedy, is not remedied within twenty (20) Business Days of the earlier of (i) the Obligors’ Agent becoming aware of the issue and (ii) the giving to the Obligors’ Agent of written notice of the issue by the Agent.

Material Subsidiary means, at any time:

 

  (a)

each Original Obligor;

 

  (b)

Sportradar AG; and

 

  (c)

each wholly-owned member of the Group which has earnings before interest, tax, depreciation and amortisation (calculated (I) on an unconsolidated basis, (B) by excluding goodwill, intra-Group items and investments in subsidiaries (in each case to the extent applicable) and (III) otherwise on the same basis as Consolidated EBITDA but excluding for this purpose any adjustments made pursuant to paragraphs (a)(viii) and (a)(ix) of the definition thereof) representing 5% or more of Consolidated Pro Forma EBITDA, provided that:

 

41


  (i)

such calculation shall be determined by reference to the most recent Annual Compliance Certificate supplied by the Obligors’ Agent in respect of the latest Annual Financial Statements delivered to the Agent;

 

  (ii)

any entity having negative earnings before interest, tax, depreciation and amortisation shall be deemed to have zero earnings before interest, tax, depreciation and amortisation;

 

  (iii)

each member of the Group which is incorporated in an Excluded Jurisdiction and/or is otherwise not required to (or is unable to) become a Guarantor in accordance with the Agreed Security Principles will not be considered a Material Subsidiary for the purpose of Clause 27.7 (Guarantees and Security) or Schedule 11 (Agreed Security Principles); and

 

  (iv)

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

MFN Facility means Controlled Debt arising under an Additional Facility which is:

 

  (a)

is a euro denominated floating rate broadly syndicated term loan facility to be drawn in euro and is incurred after the Closing Date pursuant to paragraphs (b)(i)(B) or (b)(i)(C) of Section 1 (Limitation on Indebtedness) of Schedule 16 (General Undertakings);

 

  (b)

is drawn within twelve (12) Months of the Closing Date;

 

  (c)

has a final maturity date falling on or after the Termination Date in respect of Facility B but not later than twelve (12) Months after the Termination Date in respect of Facility B (as at the date of this Agreement);

 

  (d)

is secured only on the Transaction Security and subject to the Intercreditor Agreement as Senior Secured Liabilities (as defined in the Intercreditor Agreement) (for the avoidance of doubt, ranking pari passu with Facility B); and

 

  (e)

is not: (i) Bridging Debt, Acquired Indebtedness or Acquisition Indebtedness; (ii) incurred in connection with an acquisition, joint venture or any other investment; or (iii) applied in full in refinancing any indebtedness.

MFN Threshold means the greater of (x) €40.5 million and (y) 50% of LTM EBITDA (or such other amount as agreed between the Company and the Majority Lenders).

MFN Yield Cap means a percentage rate per annum equal to the aggregate of:

 

  (a)

1.00% per annum; plus

 

42


  (b)

the Effective Yield for Facility B under this Agreement as at the Applicable Test Date.

Month means a period starting on one (1) 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 rules in paragraphs (a) to (c) above will only apply to the last month of any period.

Moody’s has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Net Cash Proceeds has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Net Outstandings means, in relation to a multi-account overdraft, the Ancillary Outstandings of that multi-account overdraft.

New Debt Financing has the meaning given to that term in the Intercreditor Agreement.

New Lender has the meaning given to that term in Clause 29.2 (Assignments and Transfers by Lenders).

Non Acceptable L/C Lender means a Lender under a Revolving Facility which:

 

  (a)

is not an Acceptable Bank within the meaning of paragraph (a) of the definition of Acceptable Bank (other than (i) a Mandated Lead Arranger, (ii) an Original Lender (or its Affiliates) or (iii) a Lender which the relevant Issuing Bank (acting reasonably) has agreed is acceptable to it notwithstanding that fact);

 

  (b)

is a Defaulting Lender; or

 

  (c)

has failed to make (or has notified the Agent that it will not make) a payment to be made by it under Clause 7.3 (Indemnities) or Clause 32.11 (Lenders’ indemnity to the 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 paragraphs (i) and (ii) of the definition of Defaulting Lender.

 

43


Non Consenting Lender means any Lender, where:

 

  (a)

the Obligors’ Agent or the Agent (at the request of the Obligors’ Agent) has requested the Lenders (or any group of Lenders) to give a consent in relation to, or to agree to a release, waiver or amendment of, any provisions of the Finance Documents or other vote of the Lenders (or any group of Lenders) under the terms of this Agreement (the Applicable Consent);

 

  (b)

the Majority Lenders have consented to the Applicable Consent; and

 

  (c)

such Lender has not consented to the Applicable Consent by 5.00pm on the date falling ten (10) Business Days after the date of such request, or any other period of time specified by the Obligors’ Agent (but if shorter than ten (10) Business Days, agreed by the Agent) of the date of such request.

Not Otherwise Applied means, in relation to any amount which is proposed to be included, applied, designated or taken into account, that such amount has not been (and is not simultaneously being), included, applied, designated or taken into account in respect of, any other calculation, use, event, transaction or permission.

Notice Date has the meaning given to that term in Clause 17.6 (Interest, commission and fees on Ancillary Facilities and Fronted Ancillary Facilities).

Notifiable Debt Purchase Transaction has the meaning given to that term in paragraph (i) of Clause 30 (Debt Purchase Transactions).

Obligor means a Borrower or a Guarantor.

Obligors’ Agent means the Company or such other person appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.6 (Obligors’ Agent).

OFAC means the Office of Foreign Assets Control of the United States Department of the Treasury (or any successor thereto).

Officer means, with respect to any person:

 

  (a)

the chairman of the Board of Directors, the CEO, the president, the CFO, any vice president, the treasurer, any director, managing director or the company secretary (or, in each case, any person holding a similar or equivalent role):

 

  (i)

of such person; and/or

 

  (ii)

if such person is owned or managed or represented by a single entity, of such entity; and/or

 

  (b)

any other individual designated as an “Officer” by the Board of Directors of such person.

Officer’s Certificate means, with respect to any person, a certificate signed by one Officer of such person.

 

44


Optional Currency means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies).

Original Financial Statements means the audited financial statements of the Group for the financial year ended 31 December 2019.

Original Obligor means an Original Borrower or an Original Guarantor.

Original Revolving Facility means the revolving credit facility made available under this Agreement as described in paragraph (a)(ii) of Clause 2.1 (The Facilities).

Original Revolving Facility Borrower means each Original Borrower and any member of the Group which accedes as an Additional Borrower under the Revolving Facility in accordance with Clause 31 (Changes to the Obligors), unless it has ceased to be a Revolving Facility Borrower in accordance with Clause 31 (Changes to the Obligors).

Original Revolving Facility Commitment means:

 

  (a)

in relation to an Original Lender, the amount in the Base Currency set out in Part II (The Original Lenders) of Schedule 1 (The Original Parties) as its Original Revolving Facility Commitment and the amount of any other Original Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase); and

 

  (b)

in relation to any other Lender, the amount in the Base Currency of any Original Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase),

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

Original Revolving Facility Lender means any Lender who makes available an Original Revolving Facility Commitment or an Original Revolving Facility Loan.

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

Original Revolving Facility Utilisation means an Original Revolving Facility Loan or a Letter of Credit issued or to be issued under the Original Revolving Facility.

Other Reporting Financial Quarter means a Financial Quarter, other than the Relevant Reporting Financial Quarter.

Other Reporting Financial Year means a Financial Year, other than the Relevant Reporting Financial Year.

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

Party means a party to this Agreement.

 

45


Perfection Requirements means the making or the procuring of the appropriate registrations, filing, endorsements, notarisation, stampings, notifications and/or acknowledgements of or under the Transaction Security Documents and/or the Security created thereunder and any other actions or steps, necessary in any jurisdiction or under any laws or regulations in order to create or perfect any Security or the Transaction Security Documents or to achieve the relevant priority expressed therein.

Permitted Acquisition means any Permitted Investment under paragraphs (a)(ii) or (b) of the definition of Permitted Investment or any other acquisition or investment not prohibited by (or otherwise approved under) the terms of this Agreement.

Permitted Collateral Lien has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Permitted Holders has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Permitted Indebtedness means Indebtedness not prohibited by the terms of this Agreement.

Permitted Investment has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Permitted Liens has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Permitted Payment means any dividend, distribution, payment, repayment, prepayment, purchase, repurchase, redemption, defeasance, discharge, exchange, other acquisition, retirement or Investment not prohibited by the terms of this Agreement or any payment constituting or contemplated by a Permitted Transaction.

Permitted Reorganization has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Permitted Structural Adjustment means a Structural Adjustment not prohibited by this Agreement.

Permitted Transaction means:

 

  (a)

any step, circumstance, payment, event, reorganisation or transaction contemplated by or relating to the Transaction Documents, the Funds Flow Statement, the Tax Structure Memorandum (other than any exit steps described therein) or any Topco Proceeds Loan (and related documentation) and any intermediate steps or actions necessary to implement the steps, circumstances, payments or transactions described in each such document;

 

  (b)

a Permitted Reorganization or any merger or consolidation permitted pursuant to the terms of this Agreement, including as permitted pursuant to Sections 8

 

  (Merger

and Consolidation—Company) and/or 9 (Merger and Consolidation—Guarantors) of Schedule 16 (General Undertakings);

 

  (c)

[Reserved];

 

46


  (d)

any step, circumstance or transaction which is mandatorily required by law (including arising under an order of attachment or injunction or similar legal process);

 

  (e)

any conversion of a loan, credit or any other indebtedness outstanding into distributable reserves, share capital, share premium or other equity interests of any member of the Group or any other capitalisation, forgiveness, waiver, release or other discharge of any loan, credit or other indebtedness, in each case on a cashless basis;

 

  (f)

any repurchase of shares in any person upon the exercise of warrants, options or other securities convertible into or exchangeable for shares, if such shares represent all or a portion of the exercise price of such warrants, options or other securities convertible into or exchangeable for shares as part of a cashless exercise;

 

  (g)

any transfer of the shares in, or issue of shares by, a member of the Group or any step, action or transaction including share issue or acquisition or consumption of debt, for the purpose of creating the group structure for effecting the Transaction as set out in the Tax Structure Memorandum (other than any exit steps described therein), including inserting any Holding Company or incorporating or inserting any Subsidiary in connection therewith, provided that after completion of such steps no Change of Control shall have occurred;

 

  (h)

the formation and maintenance of any consolidated tax grouping, accounting or cash pooling or cash management transactions in the ordinary course of business and any closure of bank accounts in the ordinary course of business;

 

  (i)

any Liabilities Acquisition (as defined in the Intercreditor Agreement);

 

  (j)

any intermediate steps or actions necessary to implement steps, circumstances, payments or transactions not prohibited by this Agreement; and

 

  (k)

any transaction to which the Agent (acting on the instructions of the Majority Lenders) shall have given prior written consent.

Preferred Stock has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Pro Forma Acquisition Cost Savings has the meaning given to that term in Clause 26.1 (Financial definitions).

Pro Forma Disposal Cost Savings has the meaning given to that term in Clause 26.1 (Financial definitions).

Pro Forma Group Initiative Cost Savings has the meaning given to that term in Clause 26.1 (Financial definitions).

Qualifying IPO Condition has the meaning given to that term in paragraph (d) of Clause 27.13 (Qualifying Listing / Ratings Trigger).

Quarter Date has the meaning given to that term in Clause 26.1 (Financial definitions).

 

47


Quarterly Compliance Certificate means a compliance certificate substantially in the agreed form set out in Part I (Form of Quarterly Compliance Certificate) of Schedule 8 (Forms of Compliance Certificate) (or in any other form agreed between the Company and the Agent (each acting reasonably)) and delivered by the Obligors’ Agent to the Agent under paragraph (a) of Clause 25.2 (Provision and contents of Compliance Certificates).

Quarterly Financial Statements means the reports provided pursuant to paragraph (b) of Section 1 of Schedule 15 (Information Undertakings).

Quotation Day means, in relation to any period for which an interest rate is to be determined:

 

  (a)

(if the currency is Sterling) the first day of that period;

 

  (b)

(if the currency is euro) two TARGET Days before the first day of that period; or

 

  (c)

(for any other currency) two Business Days before the first day of that period,

unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given on more than one (1) day, the Quotation Day will be the last of those days).

Receiver means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

Reconciliation Statement has the meaning given to such term in paragraph (c) of Clause 25.4 (Agreed Accounting Principles).

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

 

  (a)

in relation to EURIBOR, as the rate at which the relevant Reference Bank could borrow funds in the European interbank market; and

 

  (b)

in relation to LIBOR, 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 a reasonable market size in that currency and for that period.

Reference Banks means, in relation to EURIBOR or LIBOR, up to three Lenders as may be appointed by the Agent in consultation with the Obligors’ Agent (provided that no Finance Party shall be appointed as a Reference Bank without its consent).

Refinancing means the refinancing of the Existing Debt.

 

48


Refinancing Indebtedness has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Register has the meaning given to that term in Clause 29.10 (The Register).

Related Fund in relation to a fund or account (the first fund), means a fund or account which is managed or advised directly or indirectly by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

Release Condition has the meaning given to that term in Clause 27.13 (Qualifying Listing / Ratings Trigger).

Released Amounts has the meaning given to that term in paragraph (c) of Clause 27.13 (Qualifying Listing / Ratings Trigger).

Relevant Action has the meaning given to that term in Clause 26.3 (Calculations).

Relevant Interbank Market means:

 

  (a)

in relation to euro, the European interbank market; and

 

  (b)

in relation to any other currency, the London interbank market.

Relevant Jurisdiction means, in relation to an Obligor:

 

  (a)

its jurisdiction of incorporation; and

 

  (b)

the jurisdiction whose laws govern any of the Transaction Security Documents entered into by it.

Relevant Period has the meaning given to that term in Clause 26.1 (Financial definitions).

Relevant Reporting Financial Quarter means the first complete Financial Quarter ending after the Closing Date.

Relevant Reporting Financial Year means the first Financial Year ending after the Closing Date.

Renewal Request means a written notice delivered the Agent in accordance with Clause 6.6 (Renewal of a Letter of Credit).

Repeating Representations has the meaning given to it in paragraph (b) of Clause 24.20 (Repetition).

Replaced Lender has the meaning given to that term in paragraph (a) of Clause 41.5 (Replacement of Lender).

Replacement Notice has the meaning given to that term in paragraph (a) of Clause 41.5 (Replacement of Lender).

 

49


Reports means the Tax Structure Memorandum and each other due diligence report designated as a “Report” by the Company prior to the Closing Date.

Reporting Entity means (i) the Company; (ii) an IPO Entity; or (iii) any Holding Company thereof (as determined at the sole discretion of the Company).

Reporting Entity Group means the applicable Reporting Entity and each of its Subsidiaries (or in the case of Subsidiaries of the Company, limited to Restricted Subsidiaries) from time to time.

Representative means any delegate, agent, manager, authorised signatory, administrator, nominee, attorney, trustee or custodian.

Resignation Letter means a document substantially in the form set out in Schedule 7 (Form of Resignation Letter) or any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably).

Restricted Subsidiary has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Restructuring Costs has the meaning given to that term in Clause 26.1 (Financial definitions).

Retained Cash has the meaning given to that term in Clause 26.1 (Financial definitions).

Retained Cash Flow has the meaning given to that term in Clause 26.1 (Financial definitions).

Retained Excess Cash has the meaning given to that term in Clause 26.1 (Financial definitions).

Revolving Facility means the Original Revolving Facility or an Additional Revolving Facility.

Revolving Facility Borrower means an Original Revolving Facility Borrower or an Additional Revolving Facility Borrower.

Revolving Facility Commitment means an Original Revolving Facility Commitment or an Additional Revolving Facility Commitment.

Revolving Facility Lender means an Original Revolving Facility Lender or an Additional Revolving Facility Lender.

Revolving Facility Loan means:

 

  (a)

in relation to any Utilisation under the Original Revolving Facility, an Original Revolving Facility Loan; and

 

  (b)

in relation to any Utilisation under the relevant Additional Revolving Facility, an Additional Revolving Facility Loan.

 

50


Revolving Facility Utilisation means:

 

  (a)

in relation to any Utilisation under the Original Revolving Facility, an Original Revolving Facility Utilisation; and

 

  (b)

in relation to any Utilisation under the relevant Additional Revolving Facility, an Additional Revolving Facility Utilisation.

Rollover Loan means one or more Revolving Facility Loans:

 

  (a)

made or to be made on the same day that:

 

  (i)

a maturing Revolving Facility Loan is due to be repaid; or

 

  (ii)

a demand by the Agent pursuant to a drawing in respect of a Letter of Credit or payment of outstandings under an Ancillary Facility or a Fronted Ancillary Facility is due to be met; and

 

  (b)

the aggregate amount of which is equal to or less than the amount of the maturing Revolving Facility Loan or Ancillary Facility Utilisation or the relevant claim in respect of that Letter of Credit;

 

  (c)

in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 8.2 (Unavailability of a currency)) or the relevant claim in respect of that Letter of Credit or an Ancillary Facility Utilisation; and

 

  (d)

made or to be made to the same Borrower (or, if applicable in the case of an Ancillary Facility Utilisation, that Borrower’s Affiliate) for the purpose of:

 

  (i)

refinancing that maturing Revolving Facility Loan or Ancillary Facility Utilisation; or

 

  (ii)

satisfying the relevant claim in respect of that Letter of Credit.

S&P has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Sanctioned Country means, at any time, a country or territory which itself is, or whose government is, the target of comprehensive Sanctions.

Sanctioned Person means any person that is (or persons that are):

 

  (a)

listed on, or owned or controlled (as such terms are defined and interpreted by the relevant Sanctions) by a person listed on any Sanctions List; or

 

  (b)

resident in or incorporated under the laws of any Sanctioned Country, or to the best of the Obligors’ Agent’s knowledge otherwise a target of Sanctions,

provided that, in the case of either of paragraphs (a) or (b) above, a person shall not be deemed to be a Sanctioned Person if transactions or dealings with such person are not prohibited under applicable Sanctions or under a licence, licence exemption or other authorisation of a Sanctions Authority.

 

51


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

Sanctions Authority means (a) the United States of America, (b) the United Nations Security Council, (c) the European Union and any EU member state, (d) the United Kingdom and (e) the respective governmental institutions of any of the foregoing which administer Sanctions, including OFAC, the US State Department and the US Department of the Treasury.

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

Screen Rate means:

 

  (a)

in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and

 

  (b)

in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson 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 Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Obligors’ Agent.

Secured Debt Document has the meaning given to that term in the Intercreditor Agreement.

Secured Parties means each Finance Party from time to time party to this Agreement and any Receiver or Delegate.

Security means a mortgage, charge, pledge, lien, security assignment, security transfer of title or other security interest having a similar effect.

Selection Notice means a notice substantially in the form set out in Part III (Form of Selection Notice) of Schedule 3 (Requests and Notices) given in accordance with Clause 15 (Interest Periods) in relation to a Term Facility.

 

52


Senior Secured Indebtedness has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Senior Secured Net Leverage Ratio has the meaning given to that term in Clause 26.1 (Financial definitions).

Separate Loan has the meaning given to that term in paragraph (d) of Clause 10.3 (Repayment of Revolving Facility Loans).

Specified Time means a day or time determined in accordance with Schedule 9 (Timetables).

Structural Adjustment means:

 

  (a)

an amendment, waiver or variation of the terms of some or all of the Finance Documents that results in or is intended to result from or has the effect of changing or which relates to:

 

  (i)

an extension to the availability, change to the date of payment or redenomination of any amount under the Finance Documents;

 

  (ii)

a reduction in the Margin (other than in accordance with the definition of Margin) or a reduction in the amount of any payment of principal, interest, fees, or commission or other amounts owing or payable to a Lender under the Finance Documents;

 

  (iii)

the currency of payment of any amount under the Finance Documents;

 

  (iv)

a redenomination of a Commitment or participation of any Finance Party into another currency;

 

  (v)

a re-tranching of any or all of the Facilities;

 

  (vi)

an increase in, or addition or a grant of, any Commitment or participation of any Finance Party or the Total Commitments (other than in accordance with Clause 2.3 (Increase)); or

 

  (vii)

the introduction of an additional loan, commitment, tranche or facility into the Finance Documents ranking pari passu with or junior to any of the Facilities,

in each case, other than in respect of an Additional Facility established pursuant to Clause 2.2 (Additional Facilities); or

 

  (b)

an amendment or waiver of a term of a Finance Document and any change (including changes to, the taking of or release coupled with the retaking of Security and/or guarantees and changes to and/or additional intercreditor arrangements) that is consequential on, incidental to, or required to implement or effect or reflect any of the amendments or waivers listed in paragraph (a) above.

 

53


Structural Intercompany Receivable means:

 

  (a)

any receivable in respect of any intercompany loan entered into between (i) Topco (as lender) and the Company (as borrower) pursuant to any Topco Proceeds Loan or Subordinated Liabilities (as defined in the Intercreditor Agreement) or (ii) the Original Borrower (as lender) and the Company (as borrower) pursuant to any Subordinated Liabilities (as defined in the Intercreditor Agreement); and

 

  (b)

the receivable in respect of any other intercompany loan entered into between an Obligor (as lender) and any member of the Group which is a Material Subsidiary and/or Sportradar AG (in each case, as borrower) pursuant to any Subordinated Liabilities or which are funded from Utilisations, but excluding any intercompany loan which is outstanding for a period of less than 120 days.

Subordinated Indebtedness has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Subsidiary means, in relation to any person, any entity which is controlled directly or indirectly by that person and any entity (whether or not so controlled) treated as a subsidiary in the latest financial statements of that person from time to time, and control for this purpose means the direct or indirect ownership of the majority of the voting share capital of such entity or the right or ability to direct management to comply with the type of material restrictions and obligations contemplated in this Agreement or to determine the composition of a majority of the Board of Directors (or like board) of such entity, in each case, whether by virtue of ownership of share capital, contract or otherwise provided that notwithstanding anything to the contrary no Unrestricted Subsidiary shall be deemed to be a member of the Group.

Super Majority Lenders means, subject to paragraph (f) of Clause 41.4 (Other exceptions), a Lender or Lenders whose Commitments aggregate 6623% or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 6623% or more of the Total Commitments immediately prior to that reduction) and provided that for this purpose the amount of an Ancillary Lender’s Revolving Facility Commitments shall not be reduced by the amount of its Ancillary Commitment, Fronted Ancillary Commitment or Fronting Ancillary Commitment.

Swiss Obligor means an Obligor incorporated in or organised under the laws of Switzerland, or, if different, an Obligor which is treated as resident in Switzerland for Swiss Withholding Tax purposes.

Swiss Withholding Tax means taxes imposed under the Swiss Withholding Tax Act.

Swiss Withholding Tax Act means the Swiss Federal Act on the Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), together with the related ordinances, regulations and guidelines, all as amended and applicable from time to time..

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

 

54


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) imposed or levied by any government or other taxing authority.

Tax Structure Memorandum means the tax structure memorandum provided to the Agent referred to in paragraph 4 of Part I (Conditions Precedent to the Closing Date) of Schedule 2 (Conditions Precedent).

Term means each period determined under this Agreement for which the Issuing Bank is under a liability under a Letter of Credit.

Term Facility means Facility B and any Additional Term Facility.

Term Loan means (i) a Facility B Loan and (as the case may be) (ii) an Additional Facility Loan under an Additional Term Facility.

Termination Date means:

 

  (a)

in respect of Facility B, the date falling 84 Months after the Closing Date;

 

  (b)

in respect of the Original Revolving Facility, the date falling 78 Months after the Closing Date; and

 

  (c)

in respect of any Additional Facility Commitments, the date specified in the relevant Additional Facility Notice (provided that such date is in accordance with paragraph (b)(ii) of Clause 2.2 (Additional Facilities)).

Third Parties Act has the meaning given to that term in Clause 1.6 (Third Party Rights).

Topco means Sportradar Jersey Holding Ltd, a private limited liability company incorporated under the laws of Jersey, registered with the Jersey Companies Registry under number 132410 and having its registered office at Aztec Group House, 11-15 Seaton Place, St Helier JE4 0QH, Jersey.

Topco Proceeds Loan means any unsecured loan made by Topco to the Company of the proceeds of any Topco Liabilities (as defined in the Intercreditor Agreement).

Topco Share SIA has the meaning given to that term in paragraph 2(d) of Part I (Conditions Precedent to the Closing Date) of Schedule 2 (Conditions Precedent).

Total Additional Facility Commitments means the aggregate amount of the applicable and designated Additional Facility Commitments under any applicable Additional Facility Notice, being zero at the date of this Agreement.

Total Additional Revolving Facility Commitments means the aggregate amount of the applicable and designated Additional Revolving Facility Commitments under any applicable Additional Facility Notice, being zero at the date of this Agreement.

 

55


Total Commitments means the aggregate of the Total Facility B Commitments, the Total Original Revolving Facility Commitments and the Total Additional Facility Commitments.

Total Facility B Commitments means the aggregate of the Facility B Commitments, being €420 million at the date of this Agreement.

Total Revolving Facility Commitments means the Total Original Revolving Facility Commitments and the Total Additional Revolving Facility Commitments, as the context requires.

Total Original Revolving Facility Commitments means the aggregate of the Original Revolving Facility Commitments, being €110 million at the date of this Agreement.

Transaction has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Transaction Documents means the Equity Documents and the Finance Documents.

Transaction Security means the Security created or expressed to be created in favour of the Security Agent and/or the Secured Parties (represented by the Security Agent, as the case may be) pursuant to the Transaction Security Documents.

Transaction Security Documents means:

 

  (a)

each of the security documents listed as being a Transaction Security Document in paragraph 2(d) of Part I (Conditions Precedent to the Closing Date) of Schedule 2 (Conditions Precedent);

 

  (b)

any document entered into by Topco and/or any member of the Group creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any member of the Group under any of the Finance Documents;

 

  (c)

any “Security Document” (other than a “Topco Independent Transaction Security Document”) and any “Transaction Security Document” (each as defined in the Intercreditor Agreement); and

 

  (d)

any other document designated as a “Transaction Security Document” by the Obligors’ Agent and the Agent (or the Security Agent) in writing.

Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Obligors’ Agent.

Transfer Date means, in relation to an assignment or a 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 Agent executes the relevant Assignment Agreement or Transfer Certificate.

 

56


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

Unrestricted Subsidiary has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

US means the United States of America.

Utilisation means a Loan or a Letter of Credit.

Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made or the relevant Letter of Credit is to be issued.

Utilisation Request means a notice substantially in the relevant form set out in Part I (Form of Utilisation Request – Loans) or Part II (Form of Utilisation Request – Letters of Credit) of Schedule 3 (Requests and Notices) or any other form agreed between the Agent (acting reasonably) and the Company.

VAT means:

 

  (a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax as amended (EC Directive 2006/112) and any national legislation implementing that Directive or any predecessor to it or supplemental to that Directive; 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.

Voting Stock has the meaning given to that term in Schedule 18 (Certain New York Law Defined Terms).

Waived Amount has the meaning given to that term in paragraph (c) of Clause 12.4 (Right to Refuse Prepayment).

Working Capital has the meaning given to that term in Clause 26.1 (Financial definitions).

 

1.2

Construction

 

  (a)

Unless a contrary indication appears, a reference in this Agreement to:

 

  (i)

the Agent, the Company, any Finance Party, any Issuing Bank, any Lender, any Mandated Lead Arranger, any Obligor, any Party, any Secured Party, the Security Agent or any other person shall be construed so as to include its successors in title (including the surviving entity of any merger involving that person), permitted assigns and permitted transferees and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

 

57


  (ii)

a document in agreed form is a document (A) which is previously agreed in writing by or on behalf of the Agent and the Obligors’ Agent; or (B) if such document is to be delivered pursuant to Clause 4.1 (Initial conditions precedent) or specified in Schedule 2 (Conditions Precedent) in the form required or contemplated by those provisions;

 

  (iii)

an amendment includes any amendment, supplement, variation, novation, modification, replacement, restatement or amendment and restatement (however fundamental), and amend and amended shall be construed accordingly;

 

  (iv)

assets includes properties, assets, businesses, undertakings, revenues and rights of every kind (including uncalled share capital), present and future, actual or contingent and any interest in any of the foregoing;

 

  (v)

available for utilisation in respect of any indebtedness means that indebtedness being committed pursuant to the terms of an executed commitment letter, credit agreement, indenture, notes or other documentation notwithstanding that any documentary, drawdown or other substantive event including the execution of a long form credit agreement, the completion of an acquisition (or other transaction) or condition to utilisation or issue thereof has not been satisfied including (if any of the proceeds are to be applied in connection with an acquisition or other transaction) the date on which the applicable acquisition agreement is signed or such other date on which the Group enters into a legally binding commitment for the relevant acquisition or such other transaction (or, in the case of a public-to-private transaction, the date on which the Group makes an announcement in respect of the relevant acquisition equivalent to Rule 2.7 of the City Code or such other transaction) which will be funded by the proceeds of such indebtedness;

 

  (vi)

a consent includes an authorisation, permit, approval, consent, exemption, licence, order, filing, registration, recording, notarisation, permission or waiver;

 

  (vii)

a disposal or an asset sale includes any sale, transfer, grant, lease, licence or other disposal, whether voluntary or involuntary and in whole or in part, and dispose will be construed accordingly;

 

  (viii)

fair market value may be conclusively established by means of an Officer’s Certificate or a resolution of the Board of Directors of the Obligors’ Agent setting out such fair market value as determined by such Officer or such Board of Directors in good faith;

 

  (ix)

a Finance Document or a Transaction Document or any other agreement or instrument is (unless expressed to be a reference to such document, agreement or instrument in its original form or form as at a particular date) a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated (howsoever fundamentally) and includes any increase in, addition to or extension of or other change to any facility under such agreement or instrument, in each case to the extent not prohibited by the terms of this Agreement;

 

58


  (x)

a finance lease or a capital lease is any lease which at the time of determination would, in accordance with the Election Option, be treated as a finance or capital lease or otherwise required to be accounted for as a lease liability on the balance sheet; and operating lease will be construed accordingly as any lease which is not a finance or capital lease;

 

  (xi)

a guarantee includes:

 

  (A)

an indemnity, counter-indemnity, guarantee or similar assurance against loss in respect of any indebtedness of any other person; and

 

  (B)

any other obligation of any other person, whether actual or contingent, to pay, purchase, provide funds (whether by the advance of money to, the purchase of or subscription for shares, partnership interests or other investments in, any other person, the purchase of assets or services, the making of payments under an agreement or otherwise) for the payment of, to indemnify against the consequences of default in the payment of, or otherwise be responsible for, any indebtedness of any other person;

and guaranteed and guarantor shall be construed accordingly;

 

  (xii)

including means including without limitation, and includes and included shall be construed accordingly;

 

  (xiii)

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

 

  (xiv)

losses includes losses, actions, damages, claims, proceedings, costs, demands, expenses (including legal and other fees) and liabilities of any kind, and loss shall be construed accordingly;

 

  (xv)

a Default (including an Event of Default) is continuing if it has not been remedied or waived and a Declared Default is continuing unless the relevant demand or notice has been revoked or withdrawn by the Agent (acting on the instructions of the Majority Lenders) or otherwise ceased to have effect. In addition, (i) if a Default (including an Event of Default) has occurred but is no longer continuing (a Remedied Default), any other Default or Event of Default which would not have arisen but for the Remedied Default having occurred, shall be deemed not to be continuing automatically upon, and simultaneous with the remedy, cure or waiver of the Remedied Default. In addition and for the avoidance of doubt, (i) if a Default (including an Event of Default) occurs for a failure to report or failure to deliver a required certificate, notice or other

 

59


  document or information in connection with another default (an Initial Default) then at the time such Initial Default is remedied or waived, such Default (including an Event of Default) for a failure to report or failure to deliver a required certificate, notice or other document in connection with the Initial Default will also be cured without any further action and (ii) any Default for the failure to comply with the time periods prescribed in Clause 25 (Information Undertakings) or Schedule 15 (Information Undertakings), or otherwise to deliver any notice, certificate or other document, as applicable, even though such delivery is not within the prescribed period specified in this Agreement or any other Finance Document shall be deemed to be cured and remedied upon the delivery of any such report or statements or information required by such covenant or notice, certificate or other document or performance of such obligation, as applicable, even though such delivery is not within the prescribed period specified in this Agreement or any other Finance Document;

 

  (xvi)

references to any transaction being in the “ordinary course of business” of a member of the Group shall be construed to include any transaction that is consistent with industry practice in the industries in which the Group operates or consistent with past practice of any member of the Group;

 

  (xvii)

references to any matter being permitted under this Agreement or any other Finance Document or other agreement shall include references to such matters not being prohibited or otherwise being approved under this Agreement or such Finance Document or such other agreement;

 

  (xviii)

a Lender’s participation in relation to a Letter of Credit, shall be construed as a reference to the relevant amount that is or may be payable by a Lender in relation to that Letter of Credit;

 

  (xix)

a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, fund, joint venture, consortium, partnership or other entity, in each case whether or not having separate legal personality;

 

  (xx)

Indebtedness ranking pari passu with Facility B, the Original Revolving Facility or the Facilities (as the case may be) means Indebtedness constituting Senior Secured Indebtedness and Indebtedness ranking junior to Facility B, the Original Revolving Facility or the Facilities (as the case may be) means Indebtedness that is subject to the Intercreditor Agreement, secured on the Transaction Security and does not constitute Senior Secured Indebtedness (as the case may be);

 

  (xxi)

a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having force of law which are binding or customarily complied with) of any governmental, intergovernmental or supranational body, agency or department or of any regulatory, self-regulatory or other authority or organisation;

 

60


  (xxii)

a sub-participation means any sub-participation or sub-contract (whether written or oral) or any other agreement or 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;

 

  (xxiii)

sufficient available information means financial information selected and determined by the Obligors’ Agent in good faith in order to test the applicable condition or ratio, including, but not limited to, information required to be delivered to the Agent under this Agreement as well as other information including monthly management accounts and other internal Group accounts and financial information;

 

  (xxiv)

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

 

  (xxv)

a time of day is a reference to London time;

 

  (xxvi)

unless expressly stated to the contrary, a reference in any Finance Document to the Agent or the Security Agent (an Applicable Agent) being “authorised”, “instructed” and/or “directed” to take any action by a Finance Party by the terms of such Finance Document shall mean irrevocably and unconditionally authorised, instructed or directed (as applicable) to take such action without any further consent, authorisation, instruction or direction from any Finance Party or any of their Affiliates and shall require the Applicable Agent to take such action promptly, without unreasonable delay and without requesting any further consent, authorisation, instruction or direction from any Finance Party or any of their Affiliates. The Applicable Agent will not have any liability for any such action taken pursuant to this paragraph (xxvi); and

 

  (xxvii)

where an Applicable Agent is required to act “reasonably”, or in a “reasonable” manner, or is coming to an opinion or determination that is “reasonable” (or any similar or analogous wording is used) under the terms of any Finance Document (other than this paragraph (xxvii)) and the Applicable Agent has not been instructed or directed by the requisite Finance Parties in respect of such matter in accordance with the terms of the relevant Finance Document to take such action:

 

  (A)

if the Applicable Agent determines that any instruction is or may be required by from any Finance Party or any group of Finance Parties, it shall notify the Obligors’ Agent as soon as reasonably practicable after making such determination;

 

61


  (B)

the Applicable Agent shall first (prior to seeking, or notifying any Finance Party that it intends to seek, such instruction) consult with the Obligors’ Agent (acting reasonably and in good faith) in order to determine (1) whether any instruction from the requisite Finance Parties is required under the terms of the applicable Finance Document and (2) the period of time in which such instructions may be sought, provided that the Obligors’ Agent must make themselves available on reasonable notice at reasonable times to enable to the Applicable Agent to engage in such consultation, and if the Applicable Agent (acting reasonably) determines that the Obligors’ Agent has not made themselves available within a reasonable time, the Applicable Agent will be entitled to seek or notify any Finance Party that it intends to seek instructions;

 

  (C)

if, after such consultation, there is no agreement between the Obligors’ Agent and the Applicable Agent and/or the Applicable Agent determines (acting reasonably, in good faith and in accordance with the terms of the Finance Documents) that it is required to seek instructions from the required Finance Parties in accordance with the terms of the applicable Finance Document, it shall notify the Finance Parties from whom it is seeking such instruction of the requested instructions, together with, to the extent applicable, its proposed opinion, determination or other course of action and the period of time within which such instructions must be provided (acting reasonably and in good faith and taking into account such consultation with the Obligors’ Agent);

 

  (D)

unless such Finance Parties (acting reasonably, in good faith and in accordance with the terms of the Finance Documents) otherwise instruct or direct the Applicable Agent within the period of time within which such instructions were requested to be provided, the Applicable Agent shall act in accordance with its proposed opinion, determination or other course of action notified to the applicable Finance Parties in accordance with paragraph (C) above; and

 

  (E)

if the Applicable Agent complies with this paragraph (xxvii), it shall (1) be deemed to have been acting on the instructions of the requisite Finance Parties, (2) be under no obligation to determine the reasonableness of any instructions from any Finance Party, (3) be under no obligation to determine whether, in giving such instructions, the Finance Party is acting in a reasonable manner and (4) not be responsible for any liability arising from such instructions, notices and opinions or any delay or failure in the giving of such instructions, notices and opinions, and each other Finance Party by becoming a Party to this Agreement acknowledges and agrees to the actions of the Applicable Agent under this paragraph (xxvii).

 

62


  (b)

The determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

  (c)

Section, Clause and Schedule headings are for ease of reference only.

 

  (d)

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

  (e)

A Borrower provides cash cover for a Letter of Credit or Ancillary Facility or Fronted Ancillary Facility if it pays an amount in the currency of the Letter of Credit or Ancillary Facility or Fronted Ancillary Facility (as the case may be) to an interest-bearing account in the name of the Borrower and the following conditions are met:

 

  (i)

the account is with the Agent, or the relevant Issuing Bank (if the cash cover is to be provided in respect of a Letter of Credit), or with the relevant Ancillary Lender or Fronting Ancillary Lender (if the cash cover is to be provided in respect of an Ancillary Facility or Fronted Ancillary Facility);

 

  (ii)

subject to Clause 7.5 (Cash cover by Borrower), until no amount is or may be outstanding under that Letter of Credit or Ancillary Facility or Fronted Ancillary Facility (as the case may be), withdrawals from the account (other than in respect of accrued interest) may only be made (I) to pay the relevant Issuing Bank, Ancillary Lender or Fronting Ancillary Lender (as applicable) amounts due and payable to it under this Agreement in respect of that Letter of Credit or Ancillary Facility or Fronted Ancillary Facility as the case may be, (II) if the Security Agent, the Agent, Issuing Bank, Ancillary Lender, or Fronting Ancillary Lender (as the case may be) determine (acting reasonably) that the amount standing to the credit or such account exceeds the face value amount outstanding under that Letter of Credit, or as applicable the Ancillary Outstandings; or (III) as contemplated by paragraph (d) of Clause 17.5 (Fees payable in respect of Letters of Credit) and for the purposes of this Agreement, a Letter of Credit or Ancillary Outstanding (as applicable) shall be deemed to be cash covered to the extent of any such provision of cash cover in respect of that Letter of Credit or Ancillary Outstanding (as applicable); and

 

  (iii)

if requested by the relevant Issuing Bank, Ancillary Lender or Fronting Ancillary Lender (as the case may be), the Borrower has executed and delivered a security document (in accordance with the Agreed Security Principles and in substantially the same form as an existing Transaction Security Document) over that account, which creates first ranking Security over that account.

 

63


  (f)

Notwithstanding anything to the contrary in any Finance Document, nothing in the Finance Documents shall prohibit a non cash contribution of any asset (including any participation, claim, commitment, rights, benefits and/or obligations in respect of any indebtedness borrowed or issued by any member of the Group from time to time) by a person that is not a member of the Group to the Company, provided that to the extent such transaction results in any indebtedness or claim being outstanding from the Company to any of its direct or indirect shareholders, such indebtedness or claim is subordinated as “Subordinated Liabilities” pursuant to the Intercreditor Agreement or otherwise in a manner satisfactory to the Agent acting reasonably.

 

  (g)

A Letter of Credit or Ancillary Outstandings are repaid or prepaid (or any derivative form thereof) to the extent that:

 

  (i)

a Borrower or any other Obligor provides cash cover for that Letter of Credit or in respect of the Ancillary Outstandings;

 

  (ii)

in the case of a Letter of Credit, a Borrower has made a payment of that amount under paragraph (b) of Clause 7.2 (Claims under a Letter of Credit) in respect of that Letter of Credit or a Borrower has made a reimbursement of that amount in respect of that Letter of Credit under Clause 7.3 (Indemnities);

 

  (iii)

the maximum amount payable under the Letter of Credit, Ancillary Facility or Fronted Ancillary Facility (as the case may be) is reduced or cancelled in accordance with its terms in a manner satisfactory to the Issuing Bank in respect of such Letter of Credit or Ancillary Lender in respect of such Ancillary Facility or Fronting Ancillary Lender in respect of such Fronted Ancillary Facility (as the case may be), in each case, acting reasonably;

 

  (iv)

the Letter of Credit or relevant Ancillary Facility or Fronted 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;

 

  (v)

the Issuing Bank, Ancillary Lender or Fronting Ancillary Lender (as the case may be) (acting reasonably) is satisfied that it has no further or a reduced liability under that Letter of Credit or Ancillary Facility or Fronted Ancillary Facility (as the case may be) and accordingly all of (or such proportion of) the obligations are released or reduced, and has confirmed the same to the Agent accordingly; or

 

  (vi)

a bank or financial institution having a long term credit rating from any of Moody’s, S&P or Fitch at least equal to Baa3/BBB- (as applicable or such other rating as the Agent and the applicable Issuing Bank, Ancillary Lender or Fronting Ancillary Lender (as the case may be) may agree), or by any other institution satisfactory to the applicable Issuing Bank having issued an unconditional and irrevocable guarantee, indemnity, counter-indemnity or similar assurance against financial loss in respect of all amounts due under that Letter of Credit or Ancillary Facility or Fronted Ancillary Facility,

 

64


in each case, unless it is otherwise agreed between the Obligors’ Agent and:

 

  (A)

the Issuing Bank that such Letters of Credit will remain outstanding on a bilateral basis and, in each case, such Letters of Credit will be treated as repaid for the purpose of the Finance Documents and no Lender will be required to provide any counter indemnity in respect thereof; or

 

  (B)

the Ancillary Lender or Fronting Ancillary Lender that such Ancillary Facility or Fronted Ancillary Facility (as applicable) will remain outstanding on a bilateral basis and, in each case, such Ancillary Facility will be treated as repaid for the purpose of the Finance Documents and no Lender will be required to provide any counter indemnity in respect thereof,

the amount by which a Letter of Credit is, or Ancillary Outstandings are, repaid or prepaid under paragraphs (i) to (vi) above is the amount of the relevant cash cover, payment, release, cancellation, reduction or assurance.

 

  (h)

An amount borrowed includes any amount utilised by way of Letter of Credit or under an Ancillary Facility or Fronted Ancillary Facility.

 

  (i)

A Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit.

 

  (j)

An outstanding amount of a Letter of Credit at any time is the maximum principal face value amount that is or may be payable by the relevant Borrower in respect of that Letter of Credit at that time.

 

  (k)

Subject to Clause 1.4 (Exchange rate fluctuations), references to the equivalent of an amount specified in a particular currency (the specified currency amount) shall be construed as a reference to the amount of any other relevant currency which can be purchased with the specified currency amount

 

  to

the Agent’s Spot Rate of Exchange on the date on which the calculation falls to be made for spot delivery, as determined by the Agent.

 

  (l)

Subject to Clause 1.4 (Exchange rate fluctuations), unless a contrary indication appears, a reference to a basket amount, threshold or limit expressed in euros includes the equivalent of such amount, threshold or limit in other currencies.

 

  (m)

In ascertaining the Majority Lenders or the Super Majority Lenders or whether any given percentage of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents or for the purpose of the allocation of any repayment or prepayment or for the purposes of taking any step, decision, direction or exercise of discretion which is calculated by reference to drawn amounts any Commitments not denominated in euro (Non-euro Commitments) shall be deemed to be converted into euro at the rate for the conversion of euro into the relevant currency of the Non-euro Commitment which the Obligors’ Agent (acting reasonably and in good faith) has used and has notified to the Agent for the purposes of calculating the incurrence of any Additional Facility, or if the

 

65


  Obligors’ Agent has not notified the Agent of such conversion rate, the Agent’s Spot Rate of Exchange on the date on which that Commitment was provided under this Agreement or, if earlier, the date the aggregate amount of the Non-euro Commitment of the Additional Facility was determined.

 

  (n)

Any adjustment (including any increase, decrease, sum or inclusion) pursuant to the terms and paragraphs of any financial definition or component thereof (including Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Fixed Charge Coverage Ratio and LTM EBITDA) or pursuant to any other provision of a Finance Document shall be available and be determined by the Board of Directors of the Company acting in good faith at such time in each case without regard to whether or how such adjustment had been previously made or to the Accounting Principles (to the extent relevant).

 

  (o)

From:

 

  (i)

the Closing Date until the date falling 120 days after the Closing Date;

 

  (ii)

the due date for delivery of the Annual Financial Statements until the date by which the Guarantor Coverage Test is required to be met by reference to those Annual Financial Statements; and

 

  (iii)

the date of any Permitted Acquisition until the date falling 180 days after the date of such Permitted Acquisition,

(the end of each such period, the Relevant Date), any member of the Group which the Company intends will accede as a Guarantor on or prior to a Relevant Date (including, in the case of sub-paragraphs (i) and (ii) above, each Material Subsidiary that is required to become a Guarantor by the Relevant Date and each other member of the Group that is required to accede as a Guarantor by the Relevant Date to satisfy the Guarantor Coverage Test) shall for the purposes of any specified provision of any Debt Document, at the Company’s option, be deemed to be an Obligor provided that following the accession of Sportradar AG, for the purposes of Clause 27.10 (Intellectual Property), the Company shall ensure that (other than in relation to or pursuant to a Permitted Transaction) the Material Intellectual Property of the Group is held by one or more members of the Group that is actually a Guarantor at such time without giving effect to this paragraph (o).

 

  (p)

A Borrower’s obligation on Utilisations becoming due and payable includes the Borrower repaying any Letter of Credit in accordance with paragraph (g) above.

 

  (q)

The knowledge of 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.

 

  (r)

The obligations of the Obligors and any member of the Group (including any procurement obligation), including but not limited to, the making of any payment, any representation or warranty, general undertaking, any information undertaking or financial covenant under or pursuant to the Finance Documents (other than in relation to the utilisation of the Facilities pursuant to Clause 2

 

66


  (The Facilities) to Clause 9 (Ancillary Facilities), any representation or warranty, general undertaking or event of default referred to in the definitions of Major Default, Major Representation or Major Undertaking (as applicable), Clause 11.1 (Illegality), Clause 12.1 (Exit and Listing) and Clause 15 (Interest Periods)), shall not become effective or take effect until and from the date of the first Utilisation in accordance with the terms of this Agreement. This paragraph shall not apply to any term or obligation arising under paragraph (b) of Clause 17.1 (No deal, No fees), Clause 20.2 (Other indemnities), Clause 20.3 (Indemnity to the Agent) and Clause 22.1 (Transaction expenses).

 

  (s)

Any corporation into which the Security Agent may be merged or converted, or any corporation with which the Security Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Security Agent shall be a party, or any corporation, including affiliated corporations, to which the Security Agent shall sell or otherwise transfer:

 

  (i)

all or substantially all of its assets; or

 

  (ii)

all or substantially all of its corporate trust business,

shall, on the date when the merger, conversion, consolidation or transfer becomes effective and to the extent permitted by any applicable laws and subject to any credit rating requirements set out in this Agreement become the successor Security Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties to this Agreement, unless otherwise required by the Obligors’ Agent, and after the said effective date all references in this Agreement to the Security Agent shall be deemed to be references to such successor corporation. Written notice of any such merger, conversion, consolidation or transfer shall immediately be given to the Obligors’ Agent by the Security Agent.

 

  (t)

Unless a contrary indication appears, where a request for consent is required from a member of the Group, when determining whether to grant such consent, that member of the Group may act in its sole discretion (which may be given, withheld, conditioned or delayed in its sole and absolute discretion and shall not, under any circumstances, be deemed given).

 

  (u)

This Agreement is not intended, nor shall it be construed, to create a partnership or joint venture relationship between or among any of the parties hereto.

 

  (v)

No transaction or arrangement between persons which are not members of the Group (whether or not such persons are Affiliates of the Group) shall be deemed to constitute an action (whether direct or indirect) by any member of the Group.

 

1.3

Currency Symbols and Definitions

 

  (a)

, euro and EUR mean the single currency unit of the Participating Member States.

 

  (b)

£, GBP and Sterling means the lawful currency for the time being of the United Kingdom.

 

67


  (c)

$, USD and Dollars mean the lawful currency for the time being of the United States of America.

 

1.4

Exchange rate fluctuations

 

  (a)

Subject to paragraph (c) below, when applying any monetary limits, thresholds and other exceptions to the representations and warranties, undertakings and Events of Default under the Finance Documents, the equivalent of an amount in a currency other than the Base Currency to such an amount in the Base Currency shall be calculated, at the option of the Obligors’ Agent, at (i) the rate for the conversion of the Base Currency into the relevant currency of the non-Base Currency which the Obligors’ Agent (acting reasonably and in good faith) has used and has notified to the Agent or (ii) at the Agent’s Spot Rate of Exchange, in each case, as at the date such monetary limit, threshold or other exception is tested in accordance with this Agreement.

 

  (b)

No Default, breach of any representation and warranty or undertaking under this Agreement or the other Finance Documents shall arise merely as a result of a subsequent change in the Base Currency equivalent or any other currency equivalent specified for any basket due to fluctuations in exchange rates.

 

  (c)

Paragraphs (a) and (b) above shall not apply to any financial definitions, calculations and/or ratios to the extent that other provisions of this Agreement are expressed to apply to any calculation, including in respect of the calculation of the Senior Secured Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, the Fixed Charge Coverage Ratio, Consolidated EBITDA, Consolidated Pro Forma EBITDA, LTM EBITDA or for the purpose of testing any financial covenant in Clause 26.2 (Financial Condition).

 

1.5

Baskets and Basket Testing

 

  (a)

Any amounts incurred on the basis of any basket, test or permission where an element is set by reference to a percentage of LTM EBITDA (EBITDA based basket) shall (provided that such amounts are, at the time of incurrence, duly and properly incurred in accordance with the relevant basket, test or permission) be treated as having been duly and properly incurred without the occurrence of a Default or an Event of Default even in the event that such EBITDA based basket subsequently decreases by virtue of operation of that calculation.

 

  (b)

Unless an EBITDA based basket is otherwise specifically provided for in this Agreement, any other basket, test or permission set by reference to a fixed amount shall also be deemed to include an additional EBITDA based basket, if higher, set by reference to a percentage of LTM EBITDA calculated as an amount equal to the ratio of such fixed amount to Opening Consolidated EBITDA expressed as a percentage.

 

  (c)

In the event that any amount or transaction meets the criteria of more than one of the baskets or exceptions set out in this Agreement, the Obligors’ Agent, in its sole discretion, will classify and may from time to time reclassify that amount or transaction to a particular basket or exception and will only be required to include that amount or transaction in one of those baskets or exceptions (and, for the avoidance of doubt, an amount or transaction may at the option of the Obligors’ Agent be split between different baskets or exceptions).

 

68


  (d)

If (i) a proposed action, matter, transaction or amount (or a portion thereof) is incurred or entered into pursuant to a fixed basket or the grower component of any other basket and (ii) at a later time would subsequently be permitted under a ratio-based basket, unless otherwise elected by the Company, such action, matter, transaction or amount (or a portion thereof) shall automatically be reclassified to such ratio-based basket.

 

  (e)

Any reference in this Agreement to an Applicable Metric shall be deemed to be a reference to such Applicable Metric as determined at the Applicable Test Date.

 

  (f)

For any relevant basket set by reference to a Financial Year, fiscal year or calendar year (each an Annual Period):

 

  (i)

at the option of the Obligors’ Agent, the maximum amount so permitted under such basket during such Annual Period may be increased by:

 

  (A)

an amount equal to 100% of the difference (if positive) between the permitted amount in the immediately preceding Annual Period and the amount thereof actually used or applied by the Group during such preceding Annual Period (the Carry Forward Amount); and/or

 

  (B)

an amount equal to 100% of the permitted amount in the immediately following Annual Period and the permitted amount in such immediately following Annual Period shall be reduced by such corresponding amount (the Carry Back Amount); and

 

  (ii)

to the extent that the maximum amount so permitted under such basket during such Annual Period is increased in accordance with paragraph (i) above, any usage of such basket during such Annual Period shall be deemed to be applied in the following order:

 

  (A)

firstly against the Carry Forward Amount;

 

  (B)

secondly against the maximum amount so permitted during such Annual Period prior to any increase in accordance with paragraph (i) above; and

 

  (C)

thirdly against the Carry Back Amount.

 

  (g)

To the extent that any Additional Facility or other Permitted Indebtedness satisfies any Applicable Metric or other condition (pro forma for its incurrence) on the Applicable Test Date, such condition is deemed to have been satisfied, including on the date of its incurrence and irrespective of any facts or circumstances (including financial condition) thereafter .

 

69


1.6

Third Party Rights

 

  (a)

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

 

  (b)

Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to amend, rescind or vary any Finance Document at any time.

 

1.7

Intercreditor Agreement

This Agreement is subject to, and has the benefit of, the Intercreditor Agreement. In the event of any inconsistency between this Agreement and the Intercreditor Agreement, the Intercreditor Agreement shall prevail.

 

1.8

No Investor Recourse

No Finance Party will have any recourse to any Investor that is not party to a Finance Document (and to the extent an Investor is a party to a Finance Document there shall only be recourse to the extent of its liability under the terms of such Finance Document) in respect of any term of any Finance Document, any statements by Investors, or otherwise.

 

1.9

Personal Liability

Where any natural person gives a certificate or other document or otherwise gives a representation or statement on behalf of any of the parties to the Finance Documents pursuant to any provision thereof and such certificate or other document, representation or statement proves to be incorrect, the individual shall incur no personal liability in consequence of such certificate, other document, representation or statement being incorrect save where such individual acted fraudulently in giving such certificate, other document, representation or statement (in which case any liability of such individual shall be determined in accordance with applicable law) and each such individual may rely on this Clause 1.9 subject to Clause 1.6 (Third Party Rights) and the provisions of the Third Parties Act.

 

1.10

Non-wholly owned Subsidiaries

 

  (a)

Where any member of the Group (the first person) is required under this Agreement or any other Finance Document to ensure or procure certain acts, events or circumstances in relation to any other person (the second person) and the first person owns less than 51% in aggregate of the issued voting share capital (or instruments providing equivalent control) in the second person, the first person shall only be obliged to use its reasonable efforts, subject to all limitations and restrictions on the influence it may exercise as a shareholder over the second person, pursuant to any agreement with the other shareholders or pursuant to any applicable law which requires the consent of the other shareholders, and its obligation to ensure or procure shall not be construed as a guarantee for such acts, events or circumstances.

 

70


  (b)

For the purposes of determining if any subsidiary of the Company is wholly- owned for the purposes of the Finance Documents, any shares in Sportradar AG owned by in Investor shall be treated as if they were owned by the Company.

 

1.11

Cashless Rolls

Notwithstanding anything to the contrary in any Finance Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its participations in any Utilisation or Ancillary Outstandings by means of a “cashless roll”, such extension, replacement, renewal or refinancing shall be deemed to satisfy any requirement in any Finance Document that such payment be made in a given currency, in “immediately available funds”, in “cash” or any other similar requirement.

 

1.12

Luxembourg terms

In this Agreement, where it relates to a person incorporated in or organised under the laws of Luxembourg, a reference to:

 

  (a)

a “guarantee” includes any guarantee which is independent from the debt to which it relates and excludes any suretyship (cautionnement) within the meaning of Articles 2011 and seq. of the Luxembourg Civil Code;

 

  (b)

by-laws” or “constitutional documents” includes its articles of association (statuts);

 

  (c)

a “director” and/or a “manager” includes a gérant or an administrateur; and

 

  (d)

an “attachment” includes a saisie.

 

1.13

Jersey Terms

In each Finance Document (including the schedules to this Agreement), where it relates to a person incorporated, formed, resident or carrying on business in Jersey, a reference to a liquidator, receiver, administrative receiver or administrator includes, without limitation, the Viscount of the Royal Court of Jersey or any other person performing the same function of the foregoing.

 

2.

THE FACILITIES

 

2.1

The Facilities

 

  (a)

Subject to the terms of this Agreement:

 

  (i)

the Facility B Lenders make available to the Facility B Borrowers a term loan facility in euro, in an aggregate amount equal to the Total Facility B Commitments (Facility B); and

 

  (ii)

the Original Revolving Facility Lenders make available to the Original Revolving Facility Borrowers a multicurrency revolving credit facility in an aggregate amount the Base Currency Amount of which is equal to the Total Original Revolving Facility Commitments (the Original Revolving Facility).

 

71


  (b)

Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender or Fronted Ancillary Lender and Fronting Ancillary Lender may make available an Ancillary Facility or a Fronted Ancillary Facility to any of the Revolving Facility Borrowers in place of all or part of its Commitment under a Revolving Facility.

 

2.2

Additional Facilities

 

  (a)

Subject to this Clause 2.2, the Obligors’ Agent may, at any time and from time to time following the Closing Date by delivering to the Agent a duly completed Additional Facility Notice complying with paragraphs (b) below, establish an Additional Facility under this Agreement including by way of (i) the introduction of a new additional commitment or facility as a Facility under this Agreement or (ii) as an additional tranche of or increase in an existing Facility (including any previously incurred Additional Facility).

 

  (b)

No consent of any Finance Party is required to establish an Additional Facility at any time (other than the Additional Facility Lenders making available the applicable Additional Facility), provided that (unless otherwise agreed by the Majority Lenders) each of the following applicable conditions is met:

 

  (i)

Controlled Debt: in respect of an Additional Facility that constitutes Controlled Debt, such Additional Facility complies with Clause 27.16 (Controlled Debt);

 

  (ii)

Permitted Indebtedness: in respect of an Additional Facility, any Indebtedness thereunder shall constitute Permitted Indebtedness on the Applicable Test Date; and

 

  (iii)

Ranking: in respect of an Additional Facility that is secured on the Transaction Security and subject to the Intercreditor Agreement, such Additional Facility shall rank pari passu with or junior to Facility B and the Original Revolving Facility.

 

  (c)

The Additional Facility Notice shall not be regarded as having been duly completed unless it is signed by each party thereto and specifies the following matters in respect of such Additional Facility:

 

  (i)

the proposed borrower(s) and guarantor(s) in respect of the Additional Facility;

 

  (ii)

the person(s) to become Additional Facility Lenders in respect of the Additional Facility and the amount of the commitments of such Additional Facility allocated to each Additional Facility Lender;

 

  (iii)

the aggregate amount of the commitments of the Additional Facility and the currency being made available and any other or optional currency or currencies which are available for utilisation under such Additional Facility;

 

  (iv)

the rate of interest applicable to the Additional Facility (including any applicable margin, interest basis and/or margin ratchet);

 

72


  (v)

the Additional Facility Commencement Date and Availability Period for the Additional Facility; and

 

  (vi)

the Termination Date, ranking and related provisions, repayment profile, amortisation schedule and any mandatory prepayment provisions (including whether the Additional Facility will share rateably or less than rateably in mandatory prepayments),

and such Additional Facility Notice shall be deemed to have been duly completed if it is signed by the Obligors’ Agent and specifies the matters in paragraphs (i) to (vi) above in respect of such Additional Facility, and prior to the applicable Additional Facility Commencement Date, without prejudice to the rights of the Agent to request any other information which the Agent or Security Agent may reasonably require in relation to such Additional Facility.

 

  (d)

Subject to the conditions set out in paragraph (b) above being satisfied, following receipt by the Agent of a duly completed Additional Facility Notice and with effect from the relevant Additional Facility Commencement Date (or any later date on which the conditions set out in paragraph (e) below are satisfied) the relevant Additional Facility shall come into effect and be established in accordance with its terms and:

 

  (i)

the Additional Facility Lenders participating in the relevant Additional Facility shall make available that Additional Facility in the aggregate amount set out in the Additional Facility Notice;

 

  (ii)

each of the Obligors and each Additional Facility Lender shall assume such obligations towards one another and/or acquire such rights against one another as the Obligors and such Additional Facility Lenders would have assumed and/or acquired had the Additional Facility Lenders been Original Lenders;

 

  (iii)

in relation to an Additional Facility Lender which is not already a Lender, each Additional Facility Lender under the relevant Additional Facility shall become a Party to this Agreement as a Lender;

 

  (iv)

each Additional Facility Lender under the relevant Additional Facility and each of the other Finance Parties shall assume such obligations towards one another and acquire such rights against one another as those Additional Facility Lenders and those Finance Parties would have assumed and/or acquired had the Additional Facility Lenders been Original Lenders in respect of the relevant Additional Facility; and

 

  (v)

the Commitments of the other Lenders shall continue in full force and effect.

 

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  (e)

The establishment of an Additional Facility will only be effective on:

 

  (i)

the execution of the Additional Facility Notice relating to such Additional Facility by the Obligors’ Agent, the relevant Borrower(s) and the relevant Additional Facility Lender(s) and delivery of such executed notice to the Agent;

 

  (ii)

in relation to an Additional Facility Lender which is not already a Lender, receipt by the Agent of an Additional Facility Lender Accession Notice from each person referred to in the relevant Additional Facility Notice as an Additional Facility Lender and accession of each Additional Facility Lender to the Intercreditor Agreement in the capacity of a “Senior Lender”, a “Second Lien Lender”, a “Topco Lender” or (following the Designation Date) a “Super Senior Lender” (each as defined in the Intercreditor Agreement); and

 

  (iii)

in relation to an Additional Facility Lender which is not already a Lender, the performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that Additional Facility Lender making available an Additional Facility, the completion of which the Agent shall promptly notify to the Obligors’ Agent,

and (unless agreed otherwise with the applicable Additional Facility Lender) no Utilisation Request in relation to an Additional Facility shall be valid unless prior to (or simultaneously with) the delivery of the relevant Utilisation request in relation to such Additional Facility, the requirements of this Clause 2.2 have been satisfied provided that the Company may deliver a Utilisation Request in respect of an Additional Facility that is conditional on such requirements being satisfied on the Utilisation Date in respect of that Additional Facility.

 

  (f)

Each Obligor irrevocably authorises, empowers and instructs the Obligors’ Agent to sign each Additional Facility Notice on its behalf.

 

  (g)

Each Finance Party irrevocably authorises, empowers and instructs:

 

  (i)

the Agent promptly (upon request of (and as reasonably requested by) the Obligors’ Agent) to acknowledge, execute and confirm acceptance of each Additional Facility Notice; and

 

  (ii)

the Agent and the Security Agent (promptly upon request of (and as reasonably requested by) the Obligors’ Agent) to acknowledge, execute and confirm acceptance of each Additional Facility Lender Accession Notice and if applicable, the documentation required for the Additional Facility Lender to accede to the Intercreditor Agreement and to execute any necessary additional Transaction Security, amendments, confirmations, supplements or revisions to any Finance Document as may be required to ensure that the Additional Facility ranks in accordance with the provisions set out in the Additional Facility Notice.

 

  (h)

The Agent and the Security Agent shall as soon as reasonably practicable send to the Obligors’ Agent a copy of each executed Additional Facility Notice and, if applicable, Additional Facility Lender Accession Notice and if applicable, the documentation required for the Additional Facility Lender to accede to the Intercreditor Agreement.

 

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  (i)

Except to the extent provided in paragraph (b) above, the terms applicable to any Additional Facility (including ranking, security and intercreditor rights) will be those agreed by the Additional Facility Lenders in respect of that Additional Facility and the Obligors’ Agent. If there is any inconsistency between any such term agreed in respect of an Additional Facility and any other term of a Finance Document, the term agreed in respect of the Additional Facility shall prevail with respect to such Additional Facility (subject to the conditions in paragraph (b) above). Notwithstanding any provision of a Finance Document to the contrary, there shall be no obligation or requirement to enter into any hedging arrangement or other derivative transaction in relation to any Additional Facility and the maximum amount of Indebtedness permitted to be Incurred as an Additional Facility shall be increased by the aggregate amount of any Facility or other Permitted Indebtedness which is permanently repaid, prepaid, redeemed, defeased, repurchased, cancelled or otherwise discharged (and not available for re-borrowing) and provided that Indebtedness under such Additional Facility does not rank senior (with respect to the right to receive proceeds from an enforcement of the Transaction Security or right of payment) to such Facility or other Permitted Indebtedness.

 

  (j)

Each Additional Facility Lender, by executing the relevant Additional Facility Notice confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any consent, release, waiver or amendment 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 relevant Additional Facility becomes effective and that it is bound by that decision and by the operations of any other provisions of this Agreement in relation to such consent, release, waiver or amendment.

 

  (k)

No Lender will have any obligation to participate in an Additional Facility unless it has executed and delivered an Additional Facility Lender Accession Notice or otherwise become an Additional Facility Lender in respect of that Additional Facility. By signing an Additional Facility Notice as an Additional Facility Lender, each such entity agrees to commit the Additional Facility Commitments set out against its name in that Additional Facility Notice.

 

  (l)

The Agent and Security Agent shall not disclose any of the terms of the Additional Facility Notice to any Finance Parties that are not Additional Facility Lenders under that Additional Facility (unless such disclosure is requested by a Finance Party and the Obligor’s Agent consents thereto).

 

  (m)

Clause 29.6 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Additional Facility Lender as if references in that Clause to:

 

  (i)

an Existing Lender were references to all the Lenders immediately prior to the establishment of the relevant Additional Facility;

 

  (ii)

the New Lender were references to that Additional Facility Lender; and

 

  (iii)

a re-transfer and re-assignment were references to respectively a transfer and assignment.

 

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  (n)

Any member of the Group may pay to an Additional Facility Lender a fee in the amount and at the times agreed between any member of the Group and the Additional Facility Lender in a Fee Letter.

 

  (o)

The Finance Parties shall be required to enter into any amendment to the Finance Documents (including in relation to any changes to, the taking of, or the release coupled with the retaking of, Transaction Security in accordance with the Intercreditor Agreement) required by the Company in order to facilitate or reflect any of the matters contemplated by this Clause 2.2. The Agent and the Security Agent are each authorised and instructed by each Finance Party (without any consent, sanction, authority or further confirmation from them) to execute any such amended or replacement Finance Documents (and shall do so on the request of and at the cost of the Company).

 

  (p)

Each Obligor confirms that its guarantee and indemnity recorded in Clause 23 (Guarantees and Indemnity) (or any applicable Accession Deed or other Finance Document) and all Transaction Security granted by it will, subject only to any applicable limitations on such guarantee and indemnity referred to in Clause 23 (Guarantees and Indemnity) and any Accession Deed pursuant to which it became an Obligor or the terms of the Transaction Security Documents, extend to include the Additional Facility Loans and any other obligations arising under or in respect of the Additional Facility Commitments.

 

  (q)

The establishment, terms or conditions or use of proceeds of any Additional Facility shall be governed by this Clause 2.2 which shall apply irrespective and notwithstanding any other provision of this Agreement (including Clause 11 (Illegality, Voluntary Prepayment and Cancellation), Clause 35.6 (Partial payments), Clause 41 (Amendments and Waivers) and Schedule 11 (Agreed Security Principles)) and whether such Additional Facility is in place prior to the Additional Facility Commencement Date for the purposes of this Agreement.

 

  (r)

If an Additional Facility is established in order to increase the Commitments under an existing Revolving Facility in accordance with this Clause 2.2, immediately upon such Additional Facility becoming available for Utilisation (but prior to the relevant Additional Facility Lender(s) participating in any Utilisation), the Agent shall recalculate each Lender’s (including the Additional Facility Lender’s) participation in each outstanding Letter of Credit under such existing Revolving Facility (as increased by such Additional Facility) and shall notify the applicable Issuing Bank, the Obligors’ Agent and each Lender under that Revolving Facility of its revised participation in each such Letter of Credit as soon as reasonably practicable thereafter.

 

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2.3

Increase

 

  (a)

The Obligors’ Agent may by giving prior notice to the Agent by no later than the date falling thirty (30) Business Days’ after the effective date of a cancellation of:

 

  (i)

the Available Commitments of a Defaulting Lender in accordance with Clause 11.7 (Right of cancellation in relation to a Defaulting, Non Consenting or Non-Acceptable L/C Lender); or

 

  (ii)

the Commitments of a Lender in accordance with Clause 11.6 (Right of cancellation and repayment in relation to a single Lender or Issuing Bank);

 

  (iii)

the Commitments of a Lender in accordance with Clause 11.1 (Illegality); or

 

  (iv)

the Commitments of a Lender in accordance with Clause 41.5 (Replacement of Lender),

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

 

  (A)

the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an Increase Lender) selected by the Obligors’ Agent (each of which shall not be a member of the Group, and which satisfies all the Agent’s ‘know your customer’ or similar checks referred to in paragraph (b)(ii)(B) below, and 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 (for the avoidance of doubt, no Party shall be obliged to assume the obligations of a Lender pursuant to this paragraph (A) without the prior consent of that Party));

 

  (B)

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

 

  (C)

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

 

  (D)

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

 

  (E)

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

 

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  (b)

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

 

  (i)

the execution by the Agent of an Increase Confirmation from the relevant Increase Lender;

 

  (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 in the applicable capacity; and

 

  (B)

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

 

  (iii)

in the case of an increase in the Total Revolving Facility Commitments, the Issuing Bank consenting to that increase.

 

  (c)

Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

  (d)

Unless the Agent otherwise agrees or the increased Commitment is assumed by an Existing Lender, the Obligors’ Agent shall, on the date upon which the increase takes effect, pay (or procure there is paid) to the Agent (for its own account) a fee of €2,000 and the Obligors’ Agent shall within five (5) Business Days of demand pay to the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them (and/or any Receiver or Delegate) in connection with any increase Commitments under this Clause 2.3.

 

  (e)

The Obligors’ Agent may pay to the Increase Lender a fee in the amount and at the times agreed between any member of the Group and the Increase Lender in a Fee Letter.

 

  (f)

Clause 29.6 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to an Increase Lender as if references in that Clause to:

 

  (i)

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

 

  (ii)

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

 

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  (iii)

a re-transfer and re-assignment were references to respectively a transfer and assignment.

 

  (g)

The Finance Parties shall be required to enter into any amendment to the Finance Documents (including in relation to any changes to, the taking of, or the release coupled with the retaking of, Transaction Security in accordance with the Intercreditor Agreement) required by a Borrower in order to facilitate or reflect any of the matters contemplated by this Clause 2.3. The Agent and the Security Agent are each authorised and instructed by each Finance Party to execute any such amended or replacement Finance Documents (and shall do so on the request of and at the cost of the Borrower).

 

2.4

Finance Parties’ rights and obligations

 

  (a)

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

 

  (b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

  (c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

2.5

Lender Affiliates

 

  (a)

A Lender may nominate (by written notice to the Agent and the Obligors’ Agent) a branch or Affiliate (a Designated Affiliate) to discharge its obligations to participate in one or more Loans (a Designated Loan):

 

  (i)

as set out in paragraph (c) below; or

 

  (ii)

in the Transfer Certificate or Assignment Agreement pursuant to which such Lender becomes a party.

 

  (b)

Any branch or Affiliate nominated by a Lender to participate in a Loan shall:

 

  (i)

participate therein in compliance with the terms of this Agreement;

 

  (ii)

be entitled, to the extent of its participation, to all the rights and benefits of a Lender under the Finance Documents, provided that such rights and benefits shall be exercised on its behalf by its nominating Lender save where law or regulation requires the branch or Affiliate to do so; and

 

79


  (iii)

in the case of an Affiliate, become party to the Intercreditor Agreement as a “Senior Lender” by delivery of a duly completed “Creditor/Agent Accession Undertaking” (as defined in the Intercreditor Agreement).

 

  (c)

Each Lender shall remain liable and responsible for the performance of all obligations assumed by a Designated Affiliate on its behalf under this Clause 2.5 and non-performance of a Lender’s obligations by its Designated Affiliate following a nomination under this Clause 2.5 shall not relieve such Lender from its obligations under this Agreement (but without prejudice to a Lender’s rights under Clause 29 (Changes to the Lenders)).

 

  (d)

No Obligor shall be liable to pay (i) any amount otherwise required to be paid by an Obligor under Clause 18 (Taxes) or Clause 19.1 (Increased costs) (arising as a result of laws or regulations in force or known to be coming into force on the date the relevant branch or Affiliate was nominated) or (ii) any cash repayment of a Loan to the extent that paragraph (b) of Clause 10.3 (Repayment of Revolving Facility Loans) would otherwise apply to such Loan, in each case in excess of the amount it would have been obliged to pay if that Lender had not nominated its branch or Affiliate to participate in the Facility or, to the extent that such Lender nominated such branch or Affiliate for particular Loans in the Transfer Certificate or Assignment Agreement pursuant to which such Lender became a Party, in excess of the amount which it would have been obliged to pay had that Lender continued to make only those particular Loans through that branch or Affiliate. Each Lender shall promptly notify the Agent and the Obligors’ Agent of the Tax jurisdiction from which its branch or Affiliate will participate in the relevant Loans and such other information regarding that branch or Affiliate as the Obligors’ Agent may reasonably request.

 

  (e)

Any notice or communication to be made to a branch or an Affiliate of a Lender pursuant to Clause 37 (Notices):

 

  (i)

may be served directly upon the branch or Affiliate, at the address supplied to the Agent by the nominating Lender pursuant to its nomination of such branch or Affiliate, where the Lender or the relevant branch or Affiliate requests this in order to mitigate any legal obligation to deduct Tax from any payment to such branch or Affiliate or any payment obligation which might otherwise arise pursuant to Clause 18 (Taxes) or Clause 19 (Increased Costs); or

 

  (ii)

in any other circumstance, may be delivered to the Facility Office of the Lender, who will act as the representative of any Affiliate it nominates for all administrative purposes under this Agreement.

 

  (f)

If a Lender nominates an Affiliate, that Lender and that Affiliate:

 

  (i)

will be treated as having a single Commitment (being the Commitment of that Lender) but for all other purposes (other than those referred to in paragraphs (c) and (e)(i) above and paragraph (ii) below) will be treated as separate Lenders; and

 

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  (ii)

will be regarded as a single Lender for the purpose of:

 

  (A)

voting in relation to any matter in connection with a Finance Document; and

 

  (B)

compliance with Clause 29.2 (Assignments and Transfers by Lenders).

 

  (g)

The Obligors, the Agent, the Security Agent and the other Finance Parties will be entitled to deal only with the designating Lender, except all payments of principal, interest, fees, costs, taxes and commissions in connection with a Designated Loan shall be for the account of the relevant Designated Affiliate. For the avoidance of doubt, this shall not apply to any commitment fee which shall be for the account of the relevant Lender.

 

  (h)

A Lender that has made a nomination in accordance with paragraphs (a) to (g) above may revoke such nomination in relation to any future Loans by giving the Agent at least five (5) Business Days’ written notice.

 

  (i)

Upon such Designated Affiliate ceasing to be a Designated Affiliate, the Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Designated Affiliate.

 

  (j)

This Clause 2.5 is without prejudice to a Lender’s right to transfer its Commitments to an Affiliate under Clause 29 (Changes to the Lenders).

 

2.6

Obligors’ Agent

 

  (a)

To the extent permitted under any applicable law, each Obligor (other than the Obligors’ Agent), by its execution of this Agreement or an Accession Deed, irrevocably (to the extent permitted by law) appoints the Obligors’ Agent to act severally on its behalf as its agent in relation to the Finance Documents and irrevocably (to the extent permitted by law) authorises:

 

  (i)

the Obligors’ Agent 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 and/or Selection Notices), to execute on its behalf any Accession Deed, to agree to any Additional Facility terms, to deliver Additional Facility Notices, 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

 

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  (ii)

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Obligors’ Agent, and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including any Utilisation Requests and/or Selection Notices) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication and each Finance Party may rely on any action taken by the Obligors’ Agent on behalf of that Obligor.

 

  (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 (to the extent permitted by law)). 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)

For the purpose of this Clause 2.6 each Obligor (to the extent necessary under applicable law) shall grant a specific power of attorney (notarized and apostilled) to the Obligors’ Agent and comply with any necessary formalities in connection therewith.

 

  (d)

For all purposes of the Finance Documents, including for the purpose of this Clause 2.6, each Swiss Obligor herewith explicitly approves any self-contracting (Selbstkontrahieren) and/or double representation (Doppelvertretung) under Swiss law by the Obligors’ Agent or any Finance Party and unconditionally releases the Obligors’ Agent and any Finance Party from any restriction in connection therewith.

 

3.

PURPOSE

 

3.1

Purpose

 

  (a)

Each Facility B Borrower shall apply all amounts borrowed by it under Facility B in or towards (directly or indirectly):

 

  (i)

refinancing, replacing, cash collateralising, back-stopping or otherwise discharging Existing Debt (including by way of making a dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition or retirement to (or with) a Holding Company of the Original Borrower in order to refinance or otherwise discharge any such Existing Debt) and paying any related breakage costs, redemption premium, make-whole costs and other fees, costs and expenses payable in connection with such refinancing, replacing, cash collateralising, back-stopping or discharge;

 

  (ii)

financing or refinancing the payment of Transaction Costs and all other fees, costs, expenses and other amounts incurred in connection with the Transaction;

 

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  (iii)

any other purpose contemplated by the Funds Flow Statement or the Tax Structure Memorandum; and/or

 

  (iv)

to the extent not applied for a purpose set out in paragraphs (i) to (iii) above, financing, refinancing funding, refunding or prefunding the general corporate purposes and/or working capital requirements of the Group (including, without limitation, any purpose set out in paragraph (b) below).

 

  (b)

Each Borrower shall apply all amounts drawn by it under the Original Revolving Facility in or towards (directly or indirectly):

 

  (i)

financing or refinancing the general corporate purposes and/or working capital requirements of the Group; and/or

 

  (ii)

any other purpose contemplated by the Funds Flow Statement or the Tax Structure Memorandum.

 

  (c)

Each Additional Facility Borrower shall apply all amounts borrowed by it under an Additional Facility towards the purposes specified in the Additional Facility Notice relating to the relevant Additional Facility Commitments.

 

3.2

Monitoring

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

 

4.

CONDITIONS OF UTILISATION

 

4.1

Initial conditions precedent

 

  (a)

In relation to any Utilisation on the Closing Date, the Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to any such Utilisation if on or before the Utilisation Date for that Utilisation the Agent has received (or waived the requirement to receive) all of the documents and other evidence listed in Part I (Conditions Precedent to the Closing Date) of Schedule 2 (Conditions Precedent) and (unless specified therein to be in another form or substance or not required to be in form and substance satisfactory to the Agent or any other Finance Party) such documents or other evidence are in form and substance satisfactory to the Agent (acting reasonably and acting on the instructions of:

 

  (i)

the Majority Arrangers (acting reasonably); or

 

  (ii)

the Majority Lenders (acting reasonably).

 

  (b)

The Agent shall notify the Obligors’ Agent and the Lenders promptly upon being so satisfied.

 

  (c)

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

 

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4.2

Further conditions precedent

Subject to Clause 4.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to a Utilisation other than one to which Clause 4.5 (Utilisations during the Certain Funds Period) or Clause 4.6 (Utilisations during an Agreed Certain Funds Period) applies, if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (a)

in the case of a Rollover Loan, no Declared Default is continuing; and

 

  (b)

in the case of any other Utilisation:

 

  (i)

no Event of Default is continuing or would result from the proposed Utilisation; and

 

  (ii)

in relation to such a Utilisation on the Closing Date, all the representations and warranties in Clause 24 (Representations and Warranties) which are made or deemed to be made or repeated on such date are true, and in relation to any other Utilisation, the Repeating Representations are true in all material respects (or, to the extent a materiality test applies, all respects) and will remain true in all material respects (or, to the extent a materiality test applies, all respects) immediately after such Utilisation.

 

4.3

Conditions relating to Optional Currencies

 

  (a)

A currency will constitute an Optional Currency if it is:

 

  (i)

in the case of the Original Revolving Facility, USD or GBP;

 

  (ii)

in the case of an Additional Facility, any currencies specified in the Additional Facility Notice relating to those Additional Facility Commitments; or

 

  (iii)

with the consent of all of the Lenders participating in the relevant Utilisation under the Facility concerned (each acting reasonably), any other currency readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market on the Quotation Day and the Utilisation Date for that Utilisation.

 

  (b)

If by the Specified Time the Agent has received a written request from the Obligors’ Agent for a currency to be approved under paragraph (a) above, the Agent will confirm to the Obligors’ Agent by the Specified Time:

 

  (i)

whether or not the Lenders under the relevant Facility have granted their approval; and

 

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  (ii)

if approval has been granted, the minimum amount for any subsequent Utilisation in that currency.

 

4.4

Maximum number of Utilisations

 

  (a)

A Borrower (or the Obligors’ Agent) may not deliver a Utilisation Request in respect of Facility B if, as a result of the proposed Utilisation, more than 10 Facility B Loans would be outstanding or such higher number as may be agreed by the Company and the Agent (acting reasonably) (provided that this paragraph (a) shall not apply in respect of any Additional Facility that is implemented by way of an increase to Facility B).

 

  (b)

A Borrower (or the Obligors’ Agent) may not deliver a Utilisation Request in respect of an Original Revolving Facility Loan if as a result of the proposed Utilisation more than 30 Original Revolving Facility Loans (or such higher number as may be agreed by the Obligors’ Agent and the Agent (in its sole discretion)) would be outstanding.

 

  (c)

A Borrower (or the Obligors’ Agent) may not deliver a Utilisation Request in respect of an Additional Facility if as a result of the proposed Utilisation more than the maximum number of Utilisations of that Additional Facility (as specified in such notice or as agreed between the Obligors’ Agent and the Agent) would be outstanding.

 

  (d)

Any Loan made by a single Lender under Clause 8.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.4.

 

  (e)

Any Separate Loan shall not be taken into account in this Clause 4.4.

 

4.5

Utilisations during the Certain Funds Period

 

  (a)

Subject to Clause 4.1 (Initial conditions precedent), during the Certain Funds Period, a Lender will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to a Certain Funds Utilisation if on the proposed Utilisation Date:

 

  (i)

no Change of Control has occurred;

 

  (ii)

it is not unlawful in any applicable jurisdiction for that Lender to perform any of its obligations to lend or participate, or to maintain its Commitment or participation in any Utilisation; and

 

  (iii)

no Major Default is continuing or would result from the proposed Certain Funds Utilisation.

 

  (b)

During the Certain Funds Period (save in respect of a Lender in circumstances where, pursuant to paragraph (a) above, that Lender is not obliged to comply with Clause 5.4 (Lenders’ participation)), none of the Finance Parties shall be entitled to:

 

  (i)

cancel any of its Commitments;

 

85


  (ii)

rescind, terminate or cancel this Agreement or any of the Facilities or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;

 

  (iii)

refuse to participate in the making of a Certain Funds Utilisation;

 

  (iv)

exercise any right of set-off or counterclaim in respect of a Utilisation to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;

 

  (v)

cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document (including declaring that cash cover in respect of any outstanding Letter of Credit is payable on demand) or exercise any enforcement rights under any Transaction Security Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;

 

  (vi)

take any other action or make or enforce any claim (in its capacity as a Lender) to the extent that such action, claim or enforcement would directly or indirectly prevent or limit the making of a Certain Funds Utilisation or

 

  (vii)

declare that cash cover in relation to a Letter of Credit or an Ancillary Facility is immediately due and payable on demand,

provided that immediately upon the expiry of the Certain Funds Period (provided that there is no other Certain Funds Period in operation) all such rights, remedies and entitlements shall be available to the Finance Parties notwithstanding that they may not have been used or been available for use during the Certain Funds Period.

 

4.6

Utilisations during an Agreed Certain Funds Period

 

  (a)

Subject to Clause 4.1 (Initial conditions precedent), during the relevant Agreed Certain Funds Period, a Revolving Facility Lender or Additional Facility Lender (as the case may be) will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to the relevant Agreed Certain Funds Utilisation if:

 

  (i)

the Obligors’ Agent and each of the Revolving Facility Lenders or relevant Additional Facility Lenders (as the case may be) have agreed that the Revolving Facility or relevant Additional Facility shall be made available on a “certain funds basis“the purposes of financing an acquisition (including any related costs and expenses and refinancing of any existing indebtedness) or other transaction not prohibited by this Agreement for such period and on such terms or conditions (if any) as the Company and those Revolving Facility Lenders or relevant Additional Facility Lenders (as the case may be) shall agree and notify to the the Agent in writing prior to the date of the Utilisation Request; and

 

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  (ii)

on the proposed Utilisation Date:

 

  (A)

no Change of Control has occurred;

 

  (B)

it is not unlawful in any applicable jurisdiction for that Lender to perform any of its obligations to lend or participate, or to maintain its Commitment or participation in any Utilisation;

 

  (C)

no Major Default is continuing or would result from the proposed Agreed Certain Funds Utilisation; and

 

  (D)

solely in relation to the Agreed Certain Funds Utilisation under an Additional Facility or Revolving Facility, the additional conditions or events (if any) specified in the relevant Additional Facility Notice or other notice in relation to that Agreed Certain Funds Period and Agreed Certain Funds Utilisation are complied with or satisfied.

 

  (b)

During the Agreed Certain Funds Period (save in respect of a Revolving Facility Lender or the relevant Additional Facility Lender (as the case may be) in circumstances where, pursuant to paragraph (a) above, that Revolving Facility Lender or Additional Facility Lender (as the case may be) is not obliged to comply with Clause 5.4 (Lenders’ participation)), none of the Revolving Facility Lenders or relevant Additional Facility Lenders (as the case may be) shall be entitled in respect of an Agreed Certain Funds Utilisation (and the corresponding Commitments to which it relates) to:

 

  (i)

cancel any of its Revolving Facility Commitments or Additional Facility Commitments;

 

  (ii)

rescind, terminate or cancel the applicable Revolving Facility or Additional Facility or exercise any similar right or remedy to the extent to do so would prevent or limit the making of an Agreed Certain Funds Utilisation;

 

  (iii)

refuse to participate in the making of an Agreed Certain Funds Utilisation to the extent to do so would prevent or limit the making of an Agreed Certain Funds Utilisation;

 

  (iv)

exercise any right of set-off or counterclaim in respect of an Agreed Certain Funds Utilisation to the extent to do so would prevent or limit the making of an Agreed Certain Funds Utilisation;

 

  (v)

cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document (including declaring that cash cover in respect of any outstanding Letter of Credit is payable on demand) in respect of a Facility to which the provisions of this Clause 4.6 apply to the extent to do so would prevent or limit the making of an Agreed Certain Funds Utilisation;

 

  (vi)

take any other action or make or enforce any claim (in its capacity as a Lender) to the extent that such action, claim or enforcement would directly or indirectly prevent or limit the making of an Agreed Certain Funds Utilisation; or

 

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  (vii)

declare that cash cover in relation to a Letter of Credit or an Ancillary Facility is immediately due and payable on demand,

provided that:

 

  (A)

immediately upon the expiry of the relevant Agreed Certain Funds Period all such rights, remedies and entitlements shall be available to the Finance Parties notwithstanding that they may not have been used or been available for use during the applicable Agreed Certain Funds Period; and

 

  (B)

this Clause 4.6 shall be without prejudice to, and shall not prevent or limit the exercise of, any rights of any of the Finance Parties in respect of any other Facility, Loan, Utilisation or Commitment.

 

5.

UTILISATION – LOANS

 

5.1

Delivery of a Utilisation Request

A Borrower (or the Obligors’ Agent on its behalf) may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time (or such later time as the Agent may agree) (acting reasonably).

 

5.2

Completion of a Utilisation Request for Loans

 

  (a)

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

 

  (i)

it identifies the Facility to be utilised;

 

  (ii)

it identifies the relevant Borrower;

 

  (iii)

the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

 

  (iv)

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

 

  (v)

the proposed Interest Period complies with Clause 15 (Interest Periods).

 

  (b)

Multiple Utilisations may be requested in a Utilisation Request where the proposed Utilisation Date is the Closing Date. Only one Utilisation may be requested in each other Utilisation Request.

 

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5.3

Currency and amount

 

  (a)

The currency specified in a Utilisation Request must be:

 

  (i)

in relation to the Original Revolving Facility, the Base Currency or an Optional Currency;

 

  (ii)

in relation to Facility B, the applicable Base Currency; and

 

  (iii)

in relation to an Additional Facility, as agreed by the relevant Additional Facility Lenders and specified in the applicable Additional Facility Notice.

 

  (b)

The amount of a proposed Utilisation of Facility B must be in a minimum amount of €500,000 or, if less, the Available Facility and in any event such that its Base Currency Amount is less than or equal to the Available Facility.

 

  (c)

The amount of a proposed Original Revolving Facility Utilisation must be in a minimum amount of:

 

  (i)

€500,000 for Original Revolving Facility Utilisations in EUR;

 

  (ii)

$500,000 for Original Revolving Facility Utilisations in USD;

 

  (iii)

£500,000 for Original Revolving Facility Utilisations in GBP; or

 

  (iv)

for Original Revolving Facility Utilisations in any Optional Currency other than USD or GBP, the equivalent of €500,000,

or, in each case, if less, the Available Facility.

 

5.4

Lenders’ participation

 

  (a)

If the conditions set out in this Agreement have been met, and subject to Clause 10.3 (Repayment of Revolving Facility Loans), each Lender shall make its participation in each Loan available on the Utilisation Date through its Facility Office.

 

  (b)

Other than as set out in paragraph (c) below, 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 in each case in relation to the relevant Facility immediately prior to making the Loan.

 

  (c)

If a Utilisation is made to repay Ancillary Outstandings, each Lender’s participation in that Utilisation will be in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the Utilisations then outstanding bearing the same proportion to the aggregate amount of the Loans then outstanding as its Commitment bears to the Total Commitments under the applicable Facility.

 

  (d)

The Agent shall determine the Base Currency Amount of each Revolving Facility Loan which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Base Currency Amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in cash by the Specified Time.

 

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5.5

Limitations on Utilisations

 

  (a)

The Original Revolving Facility may not be utilised unless Facility B has been utilised (but, for the avoidance of doubt, the Original Revolving Facility may be utilised contemporaneously with Facility B, including on the Closing Date).

 

  (b)

An Additional Facility may not be utilised unless the Closing Date has occurred and Facility B has been utilised (but, for the avoidance of doubt, an Additional Facility may be utilised contemporaneously with Facility B).

 

5.6

Cancellation of Commitment

 

  (a)

The Facility B Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility B.

 

  (b)

The Original Revolving Facility Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for the Original Revolving Facility or if the Closing Date has not occurred prior to the end of the Certain Funds Period, at the end of the Certain Funds Period.

 

  (c)

The Additional Facility Commitments which are unutilised at the end of the Availability Period for those Additional Facility Commitments shall be immediately cancelled at the end of the Availability Period for those Additional Facility Commitments or, if the Closing Date has not occurred prior to the end of the Certain Funds Period, at the end of the Certain Funds Period.

 

6.

UTILISATION – LETTERS OF CREDIT

 

6.1

Revolving Facility

 

  (a)

A Revolving Facility may be utilised by a Revolving Facility Borrower by way of Letters of Credit.

 

  (b)

Other than Clauses 5.5 (Limitations on Utilisations) and 5.6 (Cancellation of Commitment), Clause 5 (Utilisation – Loans) does not apply to utilisations by way of Letters of Credit.

 

6.2

Delivery of a Utilisation Request for Letters of Credit

A Revolving Facility Borrower (or the Obligors’ Agent on its behalf) may request a Letter of Credit to be issued by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

6.3

Completion of a Utilisation Request for Letters of Credit

Each Utilisation Request for a Letter of Credit is irrevocable and will not be regarded as having been duly completed unless:

 

  (a)

it specifies that it is for a Letter of Credit;

 

  (b)

it identifies the Borrower of the Letter of Credit;

 

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  (c)

it identifies the relevant Issuing Bank which has agreed to issue the Letter of Credit;

 

  (d)

the proposed Utilisation Date is a Business Day within the Availability Period applicable to the relevant Revolving Facility;

 

  (e)

the currency and amount of the Letter of Credit comply with Clause 6.4 (Currency and amount);

 

  (f)

the form of Letter of Credit is attached;

 

  (g)

the Expiry Date of the Letter of Credit falls on or before the Termination Date in relation to the relevant Revolving Facility (unless cash cover is provided in respect of such Letter of Credit prior to the Termination Date or unless the applicable Revolving Facility Borrower agrees Clause 6.11 (Effect of Termination Date) shall apply);

 

  (h)

the delivery instructions for the Letter of Credit are specified; and

 

  (i)

subject to paragraph (c) of Clause 6.5 (Issue of Letters of Credit), the Issuing Bank is not precluded from issuing a Letter of Credit by law or regulation or its internal policies to the beneficiary of the Letter of Credit.

 

6.4

Currency and amount

 

  (a)

The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.

 

  (b)

The amount of the proposed Letter of Credit must be an amount which is not more than the Available Facility.

 

6.5

Issue of Letters of Credit

 

  (a)

If the conditions set out in this Agreement have been met, the Issuing Bank shall issue the Letter of Credit on the Utilisation Date.

 

  (b)

Subject to Clause 4.1 (Initial conditions precedent) the Issuing Bank will only be obliged to comply with paragraph (a) above in relation to a Letter of Credit other than one to which paragraph (c) below applies, if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:

 

  (i)

in the case of a Letter of Credit to be renewed in accordance with paragraphs (a) or (b) of Clause 6.6 (Renewal of a Letter of Credit), no Declared Default is continuing;

 

  (ii)

in the case of any other Utilisation other than one to which paragraph (c) below applies,

 

  (A)

no Event of Default is continuing or would result from the proposed Utilisation; and

 

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  (B)

the Repeating Representations to be made are true in all material respects (or, to the extent a materiality test applies, all respects).

 

  (c)

Subject to Clause 4.1 (Initial conditions precedent) and notwithstanding the conditions of paragraph (b) above:

 

  (i)

during the Certain Funds Period, the Issuing Bank will only be obliged to comply with paragraph (a) above in relation to a Letter of Credit which is a Certain Funds Utilisation if, on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (A)

the Agent has made the notification contemplated by Clause 4.1 (Initial conditions precedent);

 

  (B)

no Change of Control has occurred;

 

  (C)

it is not unlawful in any applicable jurisdiction for the Issuing Bank to perform any of its obligations or to issue or maintain the proposed Letter of Credit; and

 

  (D)

no Major Default is continuing or would result from the proposed Certain Funds Utilisation; and

 

  (ii)

during any Agreed Certain Funds Period, the Issuing Bank will only be obliged to comply with paragraph (a) above in relation to a Letter of Credit which is an Agreed Certain Funds Utilisation if, on the date of the Utilisation Request and on the proposed Utilisation Date:

 

  (A)

no Change of Control has occurred;

 

  (B)

no Major Default is continuing or would result from the proposed Agreed Certain Funds Utilisation;

 

  (C)

it is not unlawful in any applicable jurisdiction for the Issuing Bank to perform any of its obligations or to issue or maintain the proposed Letter of Credit; and

 

  (D)

solely in relation to an Agreed Certain Funds Utilisation under an Ancillary Facility, a Fronted Ancillary Facility or a Revolving Facility, the additional conditions or events (if any) specified in the relevant Additional Facility Notice or other notice in relation to that Agreed Certain Funds Period and Agreed Certain Funds Utilisation are complied with or satisfied.

 

  (d)

During the Certain Funds Period (save in circumstances where, pursuant to paragraph (c)(i) above, the Issuing Bank is not obliged to comply with paragraph (a) above), the Issuing Bank shall not be entitled to:

 

  (i)

rescind, terminate or cancel this Agreement or the relevant Revolving Facility or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have;

 

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  (ii)

refuse to issue a Letter of Credit which is a Certain Funds Utilisation;

 

  (iii)

exercise any right of set-off or counterclaim in respect of Letter of Credit to the extent to do so would prevent or limit the issuing of a Letter of Credit which is a Certain Funds Utilisation;

 

  (iv)

cancel, accelerate, cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document (including declaring that cash cover in respect of any outstanding Letter of Credit is payable on demand) or exercise any enforcement rights under any Transaction Security Document to the extent to do so would prevent or limit the issuing of a Letter of Credit which is a Certain Funds Utilisation;

 

  (v)

take any other action or make or enforce any claim (in its capacity as Issuing Bank) to the extent that such action, claim or enforcement would directly or indirectly prevent or limit the issuing of a Letter of Credit which is a Certain Funds Utilisation; or

 

  (vi)

declare that cash cover in relation to a Letter of Credit is immediately due and payable on demand,

provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Issuing Bank notwithstanding that they may not have been used or been available for use during the Certain Funds Period.

 

  (e)

During any Agreed Certain Funds Period (save in circumstances where, pursuant to paragraph (c)(ii) above, the Issuing Bank is not obliged to comply with paragraph (a) above), the Issuing Bank shall not be entitled to in respect of an Agreed Certain Funds Utilisation (and the corresponding commitments to which it relates):

 

  (i)

rescind, terminate or cancel the relevant Revolving Facility or relevant Additional Facility or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have;

 

  (ii)

refuse to issue a Letter of Credit which is an Agreed Certain Funds Utilisation;

 

  (iii)

exercise any right of set-off or counterclaim in respect of Letter of Credit to the extent to do so would prevent or limit the issuing of a Letter of Credit which is an Agreed Certain Funds Utilisation;

 

  (iv)

cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document (including declaring that cash cover in respect of any outstanding Letter of Credit is payable on demand) in respect of a Facility to which

 

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  the provisions of this Clause 6.5 apply to the extent to do so would prevent or limit the making of an Agreed Certain Funds Utilisation; or

 

  (v)

take any other action or make or enforce any claim (in its capacity as a Lender) to the extent that such action, claim or enforcement would directly or indirectly prevent or limit the making of an Agreed Certain Funds Utilisation,

provided that:

 

  (A)

immediately upon the expiry of the relevant Agreed Certain Funds Period all such rights, remedies and entitlements shall be available to the Issuing Bank notwithstanding that they may not have been used or been available for use during the relevant Agreed Certain Funds Period; and

 

  (B)

this Clause 6.5 shall be without prejudice to, and shall not prevent or limit the exercise of, any rights of any of the Finance Parties in respect of any other Facility, Loan, Utilisation or Commitment.

 

  (f)

The amount of each Lender’s participation in each Letter of Credit will be equal to its L/C Proportion.

 

  (g)

The Agent shall determine the Base Currency Amount of each Letter of Credit which is to be issued in an Optional Currency and shall notify the Issuing Bank and each Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.

 

6.6

Renewal of a Letter of Credit

 

  (a)

A Borrower (or the Obligors’ Agent on its behalf) may request that any Letter of Credit issued on behalf of that Borrower be renewed by delivery to the Agent of a Renewal Request in substantially similar form to a Utilisation Request for a Letter of Credit by the Specified Time.

 

  (b)

The Finance Parties shall treat any Renewal Request in the same way as a Utilisation Request for a Letter of Credit except that the conditions set out in paragraph (f) of Clause 6.3 (Completion of a Utilisation Request for Letters of Credit) shall not apply.

 

  (c)

The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:

 

  (i)

its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and

 

  (ii)

its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

 

  (d)

If the conditions set out in this Agreement have been met, the Issuing Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.

 

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6.7

Reduction of a Letter of Credit

 

  (a)

If, on the proposed Utilisation Date of a Letter of Credit any of the Lenders under a Revolving Facility is a Non Acceptable L/C Lender and:

 

  (i)

that Lender has failed to provide cash collateral to the Issuing Bank in accordance with Clause 7.4 (Cash collateral by Non Acceptable L/C Lender) following such request by the Issuing Bank; and

 

  (ii)

either (A) the Issuing Bank has not required the relevant Borrower to provide cash cover pursuant to Clause 7.5 (Cash cover by Borrower) or (B) the relevant Borrower has failed to provide cash cover to the Issuing Bank in accordance with Clause 7.5 (Cash cover by Borrower),

then, the Issuing Bank may refuse to issue that Letter of Credit or, with the agreement of the Obligors’ Agent, shall reduce the amount of that Letter of Credit by an amount equal to the amount of the participation of that Non Acceptable L/C Lender in respect of that Letter of Credit and that Non Acceptable L/C Lender shall be deemed not to have any participation (or obligation to indemnify the Issuing Bank) in respect of that Letter of Credit for the purposes of the Finance Documents.

 

  (b)

The Issuing Bank shall notify the Agent and the Obligors’ Agent of each reduction made pursuant to this Clause 6.7.

 

  (c)

This Clause 6.7 shall not affect the participation of each other Lender in that Letter of Credit.

 

6.8

Revaluation of Letters of Credit

 

  (a)

If any Letter of Credit is denominated in an Optional Currency, the Agent shall on the last day of each Financial Year recalculate the Base Currency Amount of each Letter of Credit by notionally converting into the Base Currency the outstanding amount of that Letter of Credit on the basis of the Agent’s Spot Rate of Exchange on the date of calculation.

 

  (b)

A Revolving Facility Borrower (or the Obligors’ Agent on its behalf) shall, if so requested by the Agent or the Issuing Bank, within five (5) Business Days of any calculation under paragraph (a) above, ensure that within three (3) Business Days sufficient Letters of Credit are prepaid, or Loans prepaid, to prevent the Base Currency Amount of all Utilisations of the relevant Revolving Facility from exceeding the relevant Revolving Facility Commitments (after deducting the total Ancillary Commitments, Fronting Ancillary Commitments and Fronted Ancillary Commitments) following any adjustment to a Base Currency Amount under paragraph (a) above.

 

6.9

Reduction or expiry of Letter of Credit

If the amount of any Letter of Credit is wholly or partially reduced or it is repaid or prepaid or it expires prior to its Expiry Date, the relevant Issuing Bank and the Borrower that requested (or on behalf of which the Obligors’ Agent requested) the issue of that Letter of Credit shall promptly notify the Agent of the details upon becoming aware of them.

 

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6.10

Appointment of additional Issuing Banks

Any Lender which has agreed to the Obligors’ Agent’s request to be an Issuing Bank pursuant to the terms of this Agreement shall become an Issuing Bank for the purposes of this Agreement upon notifying the Agent and the Obligors’ Agent that it has so agreed to be an Issuing Bank and acceding to this Agreement and the Intercreditor Agreement as an Issuing Bank and on making that notification that Lender shall become bound by the terms of this Agreement as an Issuing Bank.

 

6.11

Effect of Termination Date

Each Letter of Credit shall be repaid by the Borrower of that Letter of Credit (or the Obligors’ Agent on its behalf) on the Termination Date applicable to the relevant Revolving Facility, (or such earlier date in accordance with this Agreement), provided that if any Letter of Credit has an Expiry Date ending on or after the Termination Date applicable to the applicable Revolving Facility, without prejudice to the repayment obligation in Clause 6.8 (Revaluation of Letters of Credit), on such Termination Date each such Letter of Credit shall be repaid unless, in the case of a Letter of Credit with an Expiry Date falling after such Termination Date:

 

  (a)

the relevant Issuing Bank agrees that such Letter of Credit shall continue as between that Issuing Bank, and the relevant member of the Group on a bilateral basis and not as part of or under the Finance Documents; and

 

  (b)

save for any rights and obligations against any other Finance Party under the Finance Documents arising prior to such Termination Date applicable to the relevant Revolving Facility, no rights and obligations in respect of the Letter of Credit shall, as between the Finance Parties, continue, any cash cover or other collateral provided by any Lender in relation to such Letter of Credit shall be released on the Termination Date, and the Transaction Security shall not (following release thereof by the Security Agent) support any such Letter of Credit in respect of any claims that arise after such Termination Date and, in such circumstances, from the Termination Date pursuant to paragraph (b) of Clause 7.3 (Indemnities) and Clause 7.4 (Cash collateral by Non Acceptable L/C Lender) shall not apply to any such Letter of Credit or to any claim made or purported to be made under a Letter of Credit made after the Termination Date applicable to the relevant Revolving Facility.

 

7.

LETTERS OF CREDIT

 

7.1

Immediately payable

 

  (a)

If a Letter of Credit or any amount outstanding under a Letter of Credit is expressed to be immediately payable, the Borrower that requested (or on behalf of which the Obligors’ Agent requested) the issue of that Letter of Credit shall repay or prepay that amount immediately.

 

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  (b)

The Issuing Bank shall immediately notify the Agent of any demand received by it under and in accordance with any Letter of Credit (including details of the Letter of Credit under which such demand has been received and the amount demanded). The Agent shall immediately on receipt of any such notice notify the Obligors’ Agent, the Borrower for whose account that Letter of Credit was issued and each of the Lenders under that Facility.

 

7.2

Claims under a Letter of Credit

 

  (a)

Each Borrower irrevocably and unconditionally authorises the Issuing Bank to pay any claim made or purported to be made under a Letter of Credit requested by it (or requested by the Obligors’ Agent on its behalf) and which claim appears on its face to comply with the terms of that Letter of Credit and to be in order (in this Clause 7.2, a claim).

 

  (b)

Each Borrower shall within five (5) Business Days of demand pay to the Issuing Bank an amount equal to the amount of any claim or, provided that no Declared Default is continuing and no cash collateral has been provided in respect of that claim, may elect by notice from the relevant Borrower (or the Obligors’ Agent on its behalf) to the Agent to have that claim deemed to have been converted into a Loan under the relevant Revolving Facility notwithstanding any other condition herein. The Utilisation Date of such Loan shall be the date of such notice and the currency and the amount of such Loan shall be the same as the amount of that claim, with an Interest Period of one Month, unless otherwise notified by the relevant Borrower (or the Obligors’ Agent on its behalf).

 

  (c)

Each Borrower acknowledges that the Issuing Bank:

 

  (i)

is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim (including any solvency investigation); and

 

  (ii)

deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

 

  (d)

The obligations of a Borrower under this Clause 7 will not be affected by:

 

  (i)

the sufficiency, accuracy or genuineness of any claim or any other document; or

 

  (ii)

any incapacity of, or limitation on the powers of, any person signing a claim or other document.

 

7.3

Indemnities

 

  (a)

Each Borrower shall within five (5) Business Days of demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit requested by (or on behalf of) that Borrower.

 

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  (b)

Each Lender under the relevant Revolving Facility shall (according to its L/C Proportion) immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit (unless the Issuing Bank has been reimbursed by an Obligor pursuant to a Finance Document).

 

  (c)

If any Revolving Facility Lender is not permitted (by its constitutional documents or any applicable law) to comply with paragraph (b) above, then that Lender will not be obliged to comply with paragraph (b) and shall instead be deemed to have taken, on the date the Letter of Credit is issued (or if later, on the date the Lender’s participation in the Letter of Credit is transferred or assigned to the Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Letter of Credit in an amount equal to its L/C Proportion of that Letter of Credit. On receipt of demand from the Agent, that Lender shall pay to the Agent (for the account of the Issuing Bank) an amount equal to its L/C Proportion of the amount demanded.

 

  (d)

The Borrower which requested (or on behalf of which the Obligors’ Agent requested) a Letter of Credit shall immediately on demand reimburse any Lender for any payment it makes to the Issuing Bank under this Clause 7.3 in respect of that Letter of Credit.

 

  (e)

The obligations of each Lender or Borrower under this Clause 7.3 are continuing obligations and will extend to the ultimate balance of sums payable by that Lender or Borrower in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.

 

  (f)

The obligations of any Lender or Borrower under this Clause 7.3 will not be affected by any act, omission, matter or thing which, but for this Clause 7.3, would reduce, release or prejudice any of its obligations under this Clause 7.3 (whether or not known to it or any other person) including:

 

  (i)

any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or any other person;

 

  (ii)

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

 

  (iii)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Letter of Credit or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument (other than the relevant Letter of Credit) 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 Letter of Credit or any other person;

 

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  (v)

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document or any other document or security including any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Finance Document or other document or security;

 

  (vi)

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Letter of Credit or any other document or security; or

 

  (vii)

any insolvency or similar proceedings.

 

7.4

Cash collateral by Non Acceptable L/C Lender

 

  (a)

If, at any time, a Lender under a Revolving Facility is a Non Acceptable L/C Lender, the Issuing Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling five (5) Business Days after the request by the Issuing Bank, an amount equal to that Lender’s L/C Proportion of the outstanding amount of a Letter of Credit and in the currency of that Letter of Credit to an interest bearing account held in the name of that Lender with the Issuing 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 Issuing Bank but consistent with the principles in paragraph (e)(iii) of Clause 1.2 (Construction) in respect of the provisions of cash cover, as collateral for any amounts due and payable under the Finance Documents by that Lender to the Issuing Bank in respect of that Letter of Credit.

 

  (c)

Subject to paragraph (f) below, until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay to the Issuing Bank amounts due and payable to the Issuing Bank by the Non Acceptable L/C Lender under the Finance Documents in respect of that Letter of Credit or as contemplated by Clause 6.11 (Effect of Termination Date).

 

  (d)

Each Lender under a Revolving Facility shall notify the Agent:

 

  (i)

other than in the case of an Original Lender, on any date on which such Lender becomes such a Lender in accordance with Clause 2.3 (Increase) or Clause 29 (Changes to the Lenders), whether it is a Non Acceptable L/C Lender within paragraph (a) of the definition thereof; and

 

  (ii)

as soon as practicable upon becoming aware of the same, that it has become a Non Acceptable L/C Lender,

and as indicated in Part II (The Original Lenders) of Schedule 1 (The Original Parties), in a Transfer Certificate, in an Assignment Agreement or in an Increase Confirmation to that effect will constitute a notice under paragraph (d)(i) above to the Agent.

 

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  (e)

Any notice received by the Agent pursuant to paragraph (d) above shall constitute notice to the Issuing Bank of that Lender’s status and the Agent shall, upon receiving each such notice, promptly notify the Issuing 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:

 

  (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 Letter of Credit,

that Lender may, at any time it is not a Non Acceptable L/C Lender, by notice to the Issuing Bank request that an amount equal to the amount of the cash provided by it as collateral in respect of that Letter of Credit (together with any accrued interest) standing to the credit of the relevant account held with the Issuing Bank be returned to it and the Issuing Bank shall pay that amount to the Lender within five (5) 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

Cash cover by Borrower

 

  (a)

If a Lender which is a Non Acceptable L/C Lender fails to provide cash collateral (or notifies the Issuing Bank or Agent that it will not provide cash collateral) in accordance with Clause 7.4 (Cash collateral by Non Acceptable L/C Lender) and the Issuing Bank notifies the Obligors’ Agent of such event (with a copy to the Agent), the Borrower of the relevant Letter of Credit or proposed Letter of Credit may (in the case of a Letter of Credit not yet issued) elect to or (in the case of a Letter of Credit that has already been issued) shall provide cash cover to an account with the Issuing Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Letter of Credit and in the currency of that Letter of Credit and that Borrower shall do so within three (3) Business Days after (as the case may be) such election or the notice is given.

 

  (b)

Notwithstanding paragraph (e) of Clause 1.2 (Construction), the Issuing Bank may agree to the withdrawal of amounts up to the level of that cash cover from the account if:

 

  (i)

it is satisfied that the relevant Lender is no longer a Non Acceptable L/C Lender; or

 

  (ii)

the relevant Lender’s obligations in respect of the relevant Letter of 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 Letter of Credit.

 

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  (c)

To the extent that a Borrower has provided cash cover in accordance with this Clause 7.5, the relevant Lender’s L/C Proportion in respect of that Letter of Credit will remain (but that Lender’s obligations in relation to that Letter of Credit may be satisfied in accordance with paragraph (e)(ii) of Clause 1.2 (Construction)). However, the relevant Borrower’s obligation to pay any Letter of Credit fee in relation to the relevant Letter of Credit to the Agent (for the account of that Lender) in accordance with paragraph (b) of Clause 17.5 (Fees payable in respect of Letters of Credit) 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 Issuing Bank shall promptly notify the Agent of the extent to which a Borrower provides cash cover pursuant to this Clause 7.5 and of any change in the amount of cash cover so provided.

 

7.6

Rights of contribution

No Obligor or the Obligors’ Agent will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7.

 

7.7

Lender as Issuing Bank

A Lender which is also an Issuing Bank shall be treated as a separate entity in those capacities and capable, as a Lender, of contracting with itself as an Issuing Bank.

 

7.8

Existing Letters of Credit

 

  (a)

Notwithstanding any provision of this Agreement to the contrary, a Borrower (or the Obligors’ Agent on its behalf) may by notice in writing to the Agent prior to the Closing Date (including in any Utilisation Request) request that any Existing Letter of Credit issued by the Issuing Bank be deemed a Letter of Credit issued and established under a Revolving Facility and with effect from the date specified in such notice (being a date falling within the Availability Period of the relevant Revolving Facility) that any such Existing Letter of Credit shall be a Letter of Credit for all purposes under this Agreement, subject to the Agent having received notification in writing from the Issuing Bank that it agrees to the Existing Letter of Credit being a Letter of Credit for all purposes under this Agreement.

 

  (b)

For the purpose of this Clause 7.8:

Existing Letter of Credit means any letter of credit, bank guarantee, other instrument falling within the definition of Letter of Credit or similar term which is issued on or prior to the Closing Date on behalf of a member of the Group by a Lender which is an Issuing Bank under this Agreement or any of its Affiliates, and which is designated in writing as an Existing Letter of Credit by that Issuing Bank and the Obligors’ Agent and promptly notified to the Agent.

 

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8.

OPTIONAL CURRENCIES

 

8.1

Selection of currency

A Borrower (or the Obligors’ Agent on its behalf) shall select the currency of a Revolving Facility Utilisation or an Additional Facility Loan in a Utilisation Request.

 

8.2

Unavailability of a currency

If before the applicable Specified Time:

 

  (a)

a Lender notifies the Agent that an Optional Currency requested under paragraph (a) of Clause 4.3 (Conditions relating to Optional Currencies) is not readily available to it in the amount required; or

 

  (b)

a Lender notifies the Agent that compliance with its obligation to participate in a Loan in an Optional Currency requested under paragraph (a)(iii) of Clause 4.3 (Conditions relating to Optional Currencies) would contravene a law or regulation applicable to it,

the Agent will give notice to the relevant Borrower (or the Obligors’ Agent on its behalf) to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 8.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount, or in respect of a Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.

 

8.3

Agent’s calculations

Each Lender’s participation in a Loan will be determined in accordance with paragraph (b) of Clause 5.4 (Lenders’ participation).

 

9.

ANCILLARY FACILITIES

 

9.1

Type of Facility

An Ancillary Facility or Fronted Ancillary Facility may be by way of any of the following (or any combination of the following):

 

  (a)

an overdraft, cheque clearing, automatic payment or other current account or similar facility;

 

  (b)

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

 

  (c)

a short term loan facility;

 

  (d)

a derivatives or hedging facility;

 

  (e)

a foreign exchange facility;

 

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  (f)

a credit card facility;

 

  (g)

an automated payments or other current account facility; and

 

  (h)

any other facility or accommodation as may be required or desirable in connection with the business of the Group and which is agreed by the Obligors’ Agent and the relevant Ancillary Lender or Fronting Ancillary Lender (as the case may be).

 

9.2

Availability

 

  (a)

Without prejudice to Clause 9.8 (Affiliates of Lenders) and Clause 9.9 (Affiliates of Borrowers), if a Borrower (or the Obligors’ Agent on its behalf) and a Lender agree and except as otherwise provided in this Agreement:

 

  (i)

the Lender may provide an Ancillary Facility on a bilateral basis in place of all or part of its unutilised Revolving Facility Commitment (an Ancillary Facility); or

 

  (ii)

the Lender (such Lender in this capacity a Fronting Ancillary Lender) may provide an Ancillary Facility (a Fronted Ancillary Facility) on a bilateral basis to that Borrower in place of all or any part of its unutilised Revolving Facility Commitment and (without any requirement for their agreement, provided that, for the avoidance of doubt, no person shall be required to become a Fronting Ancillary Lender) the unutilised Revolving Facility Commitments of other Lenders (together Fronted Ancillary Lenders),

and such Revolving Facility Commitments shall, in each case and except for the purposes of determining the Majority Lenders or any other voting class involving Lenders under the Revolving Facility or fees (but not for voting, the denominator of the Test Condition, or otherwise as the context otherwise determines), be reduced by the amount of the Ancillary Commitment or Fronting Ancillary Commitment and Fronted Ancillary Commitments under that Ancillary Facility or Fronted Ancillary Facility (as the case may be).

 

  (b)

Except for the Approved Existing Ancillary Facilities which shall be made available on and from the Closing Date as Ancillary Facilities or Fronted Ancillary Facilities without any further notice or delivery of information (but, for the avoidance of doubt, will otherwise be subject to the terms of this Clause 9), an Ancillary Facility or Fronted Ancillary Facility (as the case may be) shall not be made available unless at least five (5) Business Days prior to the Ancillary Commencement Date for that Ancillary Facility or Fronted Ancillary Facility (as the case may be), the Agent has received from the Obligors’ Agent notice in writing of the establishment of that Ancillary Facility or Fronted Ancillary Facility (as the case may be) and specifying:

 

  (i)

the Revolving Facility Borrower(s) (or, subject to Clause 9.9 (Affiliates of Borrowers), Affiliate(s) of a Revolving Facility Borrower) which may use that Ancillary Facility or Fronted Ancillary Facility (as the case may be);

 

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  (ii)

the Ancillary Commencement Date and expiry date of that Ancillary Facility or Fronted Ancillary Facility (as the case may be);

 

  (iii)

the type or types of Ancillary Facility or Fronted Ancillary Facility (as the case may be) to be provided;

 

  (iv)

the Ancillary Lender or the Fronting Ancillary Lender and Fronted Ancillary Lenders (as the case may be) and any Affiliate of a Lender which will become an Ancillary Lender, Fronting Ancillary Lender or Fronted Ancillary Lender under and in accordance with Clause 9.8 (Affiliates of Lenders);

 

  (v)

the amount of the Ancillary Commitment or Fronted Ancillary Commitments and Fronting Ancillary Commitment (as the case may be), the maximum amount of the Ancillary Facility or the Fronted Ancillary Facility (as the case may be) and, if the Ancillary Facility or the Fronted Ancillary Facility (as the case may be) 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

 

  (vi)

the currency or currencies of that Ancillary Facility or the Fronted Ancillary Facility (as the case may be) (if not denominated in the Base Currency),

without prejudice to the rights of the Agent to so request, any other information which the Agent may reasonably request in relation to that Ancillary Facility or the Fronted Ancillary Facility (as the case may be).

 

  (c)

The Agent shall promptly notify each Lender under the relevant Revolving Facility of the establishment of an Ancillary Facility or the Fronted Ancillary Facility (as the case may be).

 

  (d)

No amendment or waiver of any term of an Ancillary Facility or the Fronted Ancillary Facility (as the case may be) shall require the consent of any Finance Party other than the relevant Ancillary Lender or Fronting Ancillary Lender (as the case may be) unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause 9). In such a case, the provisions of this Agreement with regard to amendments and waivers will apply.

 

  (e)

Subject to compliance with paragraph (b) above:

 

  (i)

the Lender concerned will become an Ancillary Lender or Fronting Ancillary Lender (as the case may be), and in the case of a Fronted Ancillary Facility only, the relevant Lender under the Revolving Facility will become a Fronted Ancillary Lender; and

 

  (ii)

the Ancillary Facility or the Fronted Ancillary Facility (as the case may be) will be available,

 

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with effect from the date agreed by the Obligors’ Agent and the Ancillary Lender.

 

9.3

Terms of Ancillary Facilities and Fronted Ancillary Facilities

 

  (a)

Except as provided below and subject to this Clause 9, the terms of any Ancillary Facility or Fronted Ancillary Facility (as the case may be) will be those agreed by the Ancillary Lender or the Fronting Ancillary Lender (as the case may be) and the Obligors’ Agent or relevant Borrower.

 

  (b)

However, those terms:

 

  (i)

to the extent relating to the rate of interest, fees and other remuneration in respect of that Ancillary Facility or Fronted Ancillary Facility, must be based upon the normal market rates and terms at that (except as varied by this Agreement);

 

  (ii)

may only allow Revolving Facility Borrowers (or Affiliates of Revolving Facility Borrowers nominated pursuant to Clause 9.9 (Affiliates of Borrowers)) to use that Ancillary Facility or Fronted Ancillary Facility (as the case may be);

 

  (iii)

may not allow:

 

  (A)

the applicable Ancillary Outstandings to exceed the Ancillary Commitment or the aggregate of the relevant Fronting Ancillary Commitment and Fronted Ancillary Commitments (as the case may be); or

 

  (B)

the Lender’s (or its Affiliate’s) Ancillary Commitments, Fronting Ancillary Commitments or Fronted Ancillary Commitments (as the case may be) to exceed that Lender’s Available Commitment relating to the relevant Revolving Facility (before taking into account the effect of the Ancillary Facilities and/or Fronted Ancillary Facilities (as the case may be) on that Available Commitment);

except as a result of currency fluctuations for an excess amounting to not more than 5% of the amount of the respective Ancillary Commitment or the aggregate of the relevant Fronting Ancillary Commitment and Fronted Ancillary Commitments (as the case may be) unless the excess over such 5% threshold is reduced in accordance with its terms; and

 

  (iv)

must, subject to Clause 9.14 (Continuation of Ancillary Facilities and Fronted Ancillary Facilities), require that the Ancillary Commitment or Fronting Ancillary Commitments and Fronted Ancillary Commitments (as the case may be) are reduced to zero, and that all Ancillary Outstandings are repaid (or cash cover provided in respect of all the Ancillary Outstandings) not later than the Termination Date applicable to the relevant Revolving Facility.

 

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  (c)

If there is any inconsistency between any term of an Ancillary Facility or Fronted Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for (i) Clause 38.3 (Day count convention) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility or Fronted Ancillary Facility; (ii) an Ancillary Facility or Fronted Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent necessary to permit the netting of balances on those accounts; and (iii) where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.

 

  (d)

Interest, commission and fees on Ancillary Facilities are dealt with in Clause 17.6 (Interest, commission and fees on Ancillary Facilities and Fronted Ancillary Facilities).

 

9.4

Repayment of Ancillary Facility or Fronted Ancillary Facility

 

  (a)

Subject to paragraph (c) below, and to Clause 9.14 (Continuation of Ancillary Facilities and Fronted Ancillary Facilities), an Ancillary Facility or a Fronted Ancillary Facility (as the case may be) shall cease to be available on the Termination Date in relation to the relevant Revolving Facility or, for the avoidance of doubt, such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of the relevant Ancillary Facility or Fronted Ancillary Facility (as the case may be).

 

  (b)

Subject to paragraph (c) below, if and to the extent an Ancillary Facility or a Fronted Ancillary Facility (as the case may be) expires or is otherwise cancelled (in whole or in part) in accordance with its terms or is otherwise cancelled in accordance with this Agreement, the Ancillary Commitment or Fronting Ancillary Commitment and Fronted Ancillary Commitments of the Ancillary Lender or the Fronting Ancillary Lender and Fronted Ancillary Lenders (as the case may be) shall be reduced to zero (or by such amount that expires or has been cancelled) (and the relevant Revolving Facility Commitment of that Ancillary Lender or Fronting Ancillary Lender and the Fronted Ancillary Lenders (as the case may be) shall immediately be increased accordingly by the same amount).

 

  (c)

No Ancillary Lender, Fronting Ancillary Lender or Fronted Ancillary Lender may demand repayment or prepayment of, or cash cover for, any Ancillary Outstandings prior to the scheduled final expiry date of the relevant Ancillary Facility or Fronted Ancillary Facility (as the case may be), or otherwise take any action (without the consent of the Obligors’ Agent) to terminate prior to its scheduled final expiry date any Ancillary Facility or Fronted Ancillary Facility (as the case may be) unless it is permitted to do so under the relevant Ancillary Documents and if it gives the Obligors’ Agent and the relevant Borrower not less than five (5) Business Days’ notice and (unless otherwise agreed by the relevant Borrower) unless:

 

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  (i)

required to reduce the Gross Outstandings of an Ancillary Facility provided by way of a multi-account overdraft to or towards an amount equal to its Net Outstandings;

 

  (ii)

the relevant Total Revolving Facility Commitments have been cancelled in full, or all outstanding Utilisations under the relevant Revolving Facility have become or have been declared due and payable in accordance with the terms of this Agreement or the expiry date of the Ancillary Facility or Fronted Ancillary Facility occurs;

 

  (iii)

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

 

  (iv)

the Ancillary Outstandings (if any) under that Ancillary Facility or Fronted Ancillary Facility (as the case may be) can be refinanced in full by a Revolving Facility Utilisation under the Revolving Facility pursuant to which that Ancillary Outstanding was incurred and the Ancillary Lender or Fronting Ancillary Lender gives sufficient notice to enable such a Revolving Facility Utilisation to be made to refinance those Ancillary Outstandings.

 

  (d)

For the purposes of determining whether or not the Ancillary Outstandings under an Ancillary Facility or Fronted Ancillary Facility (as the case may be) mentioned in paragraph (c)(iv) above or in Clause 9.6 (Voluntary cancellation of Ancillary Facilities and Fronted Ancillary Facilities) can be refinanced by a Utilisation under the Revolving Facility pursuant to which that Ancillary Outstanding was incurred:

 

  (i)

the relevant Revolving Facility Commitment of the Ancillary Lender will be increased by the amount of its Ancillary Commitment, Fronted Ancillary Commitment or Fronting Ancillary Commitment (as the case may be); and

 

  (ii)

the Utilisation may (so long as paragraph (c)(i) above does not apply) be made irrespective of whether a Default is outstanding or any applicable condition precedent is not satisfied (but only to the extent that the proceeds are applied in refinancing those Ancillary Outstandings) and irrespective of whether Clause 4.4 (Maximum number of Utilisations) or paragraph (a)(iv) of Clause 5.2 (Completion of a Utilisation Request for Loans) applies.

 

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  (e)

On the making of a Utilisation of a Revolving Facility to refinance all or part of any Ancillary Outstandings under the same Revolving Facility:

 

  (i)

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

 

  (ii)

the relevant Ancillary Facility or Fronted Ancillary Facility shall be cancelled to the extent of such refinancing.

 

  (f)

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

 

9.5

Ancillary Outstandings

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

 

  (a)

the Ancillary Outstandings under any Ancillary Facility or Fronted Ancillary Facility shall not exceed the Ancillary Commitment or aggregate of the relevant Fronting Ancillary Commitment and Fronted Ancillary Commitments (as the case may be) applicable to that Ancillary Facility or Fronted Ancillary Facility; and

 

  (b)

in relation to an overdraft facility comprising more than one account:

 

  (i)

such Ancillary Outstandings shall not exceed the Designated Net Amount applicable to that overdraft; and

 

  (ii)

the Gross Outstandings shall not exceed the Designated Gross Amount applicable to that overdraft.

 

9.6

Voluntary cancellation of Ancillary Facilities and Fronted Ancillary Facilities

The Obligors’ Agent may at any time by written notice to the Agent or each applicable Ancillary Lender and/or Fronting Ancillary Lender:

 

  (a)

immediately cancel the whole or any part of an undrawn Ancillary Facility or Fronted Ancillary Facility; or

 

  (b)

by not less than three (3) Business Days’ notice, prepay the whole or any part of a drawn Ancillary Facility or Fronted Ancillary Facility, whether by refinancing by a Utilisation under the relevant Revolving Facility in accordance with paragraph (d) of Clause 9.4 (Repayment of Ancillary Facility or Fronted Ancillary Facility) or otherwise,

 

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in which event on the date specified in the notice, the respective Ancillary Commitment or Fronting Ancillary Commitment and Fronted Ancillary Commitments of the relevant Ancillary Lender or Fronting Ancillary Lender and Fronted Ancillary Lenders shall be cancelled or prepaid and cancelled (as applicable) in the amount specified and, in each case, immediately converted into a relevant Revolving Facility Commitment. In the case of (i) any partial cancellation of a Fronted Ancillary Facility, the Fronting Ancillary Commitment of the Fronting Ancillary Lender and the Fronted Ancillary Commitments of the Fronted Ancillary Lenders shall be reduced rateably; and (ii) any partial prepayment of a Fronted Ancillary Facility, the Fronting Ancillary Lender and Fronted Ancillary Lenders shall be prepaid pro rata their Fronting Ancillary Commitment or Fronted Ancillary Commitments (as applicable).

 

9.7

Information

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

 

9.8

Affiliates of Lenders

 

  (a)

Subject to the terms of this Agreement, an Affiliate of a Revolving Facility Lender may become an Ancillary Lender, a Fronted Ancillary Lender or a Fronting Ancillary Lender (as the case may be). In such case, other than for the purpose of any clause referring to Tax (including, but not limited to, Clause 11.6 (Right of cancellation and repayment in relation to a single Lender or Issuing Bank), Clause 18 (Taxes) and Clause 21 (Mitigation by the Lenders)) to the extent such clauses expressly deal with Tax matters, the Revolving Facility Lender and its Affiliate shall be treated as a single Revolving Facility Lender whose Revolving Facility Commitment is the amount of such Lender’s Revolving Facility Commitment under the relevant Revolving Facility. For the purposes of calculating the Lender’s Available Commitment with respect to the relevant Revolving Facility, the Lender’s Commitment under the relevant Revolving Facility shall be reduced to the extent of the aggregate of the Ancillary Commitments, Fronting Ancillary Commitments and Fronted Ancillary Commitments of its Affiliates.

 

  (b)

The relevant Borrower (or the Obligors’ Agent on its behalf) shall specify any relevant Affiliate of a Revolving Facility Lender in any notice delivered by it to the Agent pursuant to paragraph (a) of Clause 9.2 (Availability).

 

  (c)

An Affiliate of a Revolving Facility Lender which becomes an Ancillary Lender, a Fronted Ancillary Lender or Fronting Ancillary Lender shall accede to the Intercreditor Agreement and any person who so accedes to the Intercreditor Agreement shall, at the same time, become a party to this Agreement, as an Ancillary Lender, a Fronted Ancillary Lender or Fronting Ancillary Lender (as applicable) in accordance with clause 21.9 (Creditor/Agent Accession Undertaking) of the Intercreditor Agreement.

 

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  (d)

If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (as defined in Clause 29 (Changes to the Lenders)), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.

 

  (e)

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

 

9.9

Affiliates of Borrowers

 

  (a)

Subject to the terms of this Agreement, a member of the Group which is an Affiliate of a Revolving Facility Borrower may with the approval of the relevant Ancillary Lender or Fronting Ancillary Lender become a borrower with respect to an Ancillary Facility or a Fronted Ancillary Facility (as the case may be).

 

  (b)

The relevant Borrower (or the Obligors’ Agent on its behalf) shall specify any relevant Affiliate of a Revolving Facility Borrower in any notice delivered by the Obligors’ Agent to the Agent pursuant to paragraph (a) of Clause 9.2 (Availability).

 

  (c)

If a Borrower ceases to be a Revolving Facility Borrower under this Agreement in accordance with Clause 31.4 (Resignation of an Obligor), its Affiliate shall cease to have any rights under this Agreement or any Ancillary Document. If an Affiliate of a Revolving Facility Borrower ceases to be an Affiliate of such Revolving Facility Borrower, it shall cease to have any rights under this Agreement or any Ancillary Document.

 

  (d)

Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility or a Fronted Ancillary Facility (as the case may be) 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 Document.

 

9.10

Revolving Facility Commitment Amounts

Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Revolving Facility Commitment (ignoring for this purpose any reduction in its Revolving Facility Commitment arising out of such Lender providing an Ancillary Facility or a Fronted Ancillary Facility pursuant to this Clause 9) is not less than the aggregate of:

 

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  (a)

its Ancillary Commitment and its Fronting Ancillary Commitment and its Fronted Ancillary Commitment (if any); and

 

  (b)

the Ancillary Commitment and Fronting Ancillary Commitment and Fronted Ancillary Commitment of its Affiliates (if any),

in each case under the applicable Revolving Facility.

 

9.11

Adjustments required in relation to Ancillary Facilities

The Agent may (and shall at the request of the Obligors’ Agent), by notice in writing to the relevant Revolving Facility Lenders, reallocate drawn and undrawn Revolving Facility Commitments at the end of an Interest Period among relevant Revolving Facility Lenders as may be necessary to ensure that any relevant Revolving Facility Lender that intends to enter into an Ancillary Facility has an undrawn Commitment under the relevant Revolving Facility sufficient to allow it to enter into such Ancillary Facility, provided that for the avoidance of doubt no such reallocation may increase any Revolving Facility Lender’s Revolving Facility Commitment.

 

9.12

Adjustment for Ancillary Facilities upon acceleration

 

  (a)

In this Clause 9.12:

Revolving Outstandings means, in relation to a Lender, the aggregate of the equivalent in the Base Currency of (i) its participation in each Revolving Facility Utilisation then outstanding under a particular Revolving Facility (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender under such Revolving Facility), and (ii) if the Lender is also an Ancillary Lender or Fronted Ancillary Lender or Fronting Ancillary Lender (as the case may be), the Ancillary Outstandings in respect of the Ancillary Facilities or the Fronted Ancillary Facilities, attributable to that Ancillary Lender (or its Affiliate) or to its Fronting Ancillary Commitment or Fronting Ancillary Commitment (together with the aggregate amount of all accrued interest, fees and commission owed (or attributable) to it or to its Affiliate in such capacity).

Total Revolving Outstandings means the aggregate of all Revolving Outstandings.

 

  (b)

If a Declared Default occurs, each Lender, each Ancillary Lender and each Fronting Ancillary Lender or Fronted Ancillary Lender shall promptly adjust (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Revolving Outstandings) their claims in respect of amounts outstanding to them under the relevant Revolving Facility, each Ancillary Facility and each Fronted Ancillary Facility to the extent necessary to ensure that after such transfers the Revolving Outstandings of each Lender bear the same proportion to the relevant Total Revolving Outstandings as such Lender’s relevant Revolving Facility Commitment bears to the relevant Total Revolving Facility Commitments, each as at the date the notice of such Declared Default is served under Clause 28.6 (Acceleration)

 

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  (c)

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

 

  (d)

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

 

  (e)

All calculations to be made pursuant to this Clause 9.12 shall be made by the Agent based upon information provided to it by the Lenders, Ancillary Lenders, Fronted Ancillary Lenders or Fronting Ancillary Lenders.

 

9.13

Existing Ancillary Facilities

Notwithstanding any provision of this Agreement to the contrary, a Borrower (or the Obligors’ Agent on its behalf) may by notice in writing to the Agent prior to the Closing Date (including in any Utilisation Request) request that any Approved Existing Ancillary Facility made available by a Lender be deemed to be an Ancillary Facility established under a Revolving Facility (and in place of corresponding commitments of that Lender under the relevant Revolving Facility) and with effect from the date specified in such notice (being a date falling within the Availability Period for the relevant Revolving Facility) that Approved Existing Ancillary Facility shall be an Ancillary Facility for all purposes under this Agreement, subject to the Agent having received notification in writing from the Ancillary Lender concerned (or, as the case may be, the Affiliate of the Lender concerned) that it agrees to that Approved Existing Ancillary Facility being an Ancillary Facility for all purposes under this Agreement.

 

9.14

Continuation of Ancillary Facilities and Fronted Ancillary Facilities

 

  (a)

Each Ancillary Facility and Fronted Ancillary Facility shall be prepaid and cancelled on the Termination Date applicable to the relevant Revolving Facility (or such earlier date in accordance with this Agreement), provided that a Borrower and an Ancillary Lender or Fronting Ancillary Lender and/or Fronted Ancillary Lender (as the case may be) may, as between themselves only, agree that any Ancillary Facilities or Fronted Ancillary Facilities will continue to remain available on a bilateral basis following the Termination Date applicable to the relevant Revolving Facility or, as the case may be, the date the relevant Revolving Facility Commitments are otherwise cancelled under this Agreement.

 

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  (b)

If any arrangement contemplated in paragraph (a) above is to occur, each relevant Borrower and the Ancillary Lender, Fronted Ancillary Lender or, as the case may be, the Fronting Ancillary Lender shall each confirm that to be the case in writing to the 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 arising 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 or, as the case may be, Fronted Ancillary Facility shall, as between the Finance Parties (including in their capacity as Fronting Ancillary Lenders), continue and the Transaction 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.

 

9.15

Fronted Ancillary Commitment Indemnities

 

  (a)

A Borrower must, within five (5) Business Days of demand, indemnify each Fronting Ancillary Lender against any loss or liability which that Fronting Ancillary Lender incurs in acting as the Fronting Ancillary Lender under any Fronted Ancillary Facility requested by it (or any of its Affiliates), except to the extent that the loss or liability is caused by the gross negligence or wilful misconduct of, or breach of the terms of the Finance Documents by, that Fronting Ancillary Lender.

 

  (b)

Each Fronted Ancillary Lender must promptly on demand indemnify the Fronting Ancillary Lender (according to its Fronted Ancillary Portion) against any loss or liability which the Fronting Ancillary Lender incurs in acting as the Fronting Ancillary Lender under any Fronted Ancillary Facility and which at the date of demand has not been paid for by an Obligor, except to the extent that the loss or liability is caused by the gross negligence or wilful misconduct of, or breach of the terms of any Finance Document by, the Fronting Ancillary Lender.

 

  (c)

The relevant Borrower which requested for itself or for one of its Affiliates (or on behalf of which the Obligors’ Agent requested) the Fronted Ancillary Facility must, within five (5) Business Days of demand, reimburse any Fronted Ancillary Lender for any payment it makes to the Fronting Ancillary Lender under paragraph (b) above except to the extent arising out of the gross negligence or wilful misconduct of, or breach of the terms of any Finance Document by, such Fronted Ancillary Lender.

 

  (d)

The obligations of each Borrower and each Fronted Ancillary Lender under this Clause 9.15 are continuing obligations and will extend to the ultimate balance of all sums payable by that Borrower or Fronted Ancillary Lender in respect of any Fronted Ancillary Facility, regardless of any intermediate payment or discharge in whole or in part.

 

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  (e)

The obligations of any Fronted Ancillary Lender or Borrower under this Clause 9.15 will not be affected by any act, omission, matter or thing which, but for this Clause 9.15, would reduce, release or prejudice any of its obligations under this Clause 9.15 (whether or not known to it or any other person) including:

 

  (i)

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

 

  (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 or other person;

 

  (iv)

any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

  (v)

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

 

  (vi)

any amendment (however fundamental) or replacement of a Finance Document, or any other document or security, unless in the case of amendments to the terms of a Fronted Ancillary Facility or any instrument issued thereunder, the relevant Borrower (or the Obligors’ Agent on its behalf) and/or Fronting Ancillary Lender had not provided their consent to such amendment(s);

 

  (vii)

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

 

  (viii)

any insolvency or similar proceedings.

 

9.16

Settlement Conditional/Subrogation

 

  (a)

Any settlement or discharge between a Fronted Ancillary Lender and the Fronting Ancillary Lender shall be conditional upon no security or payment to the Fronting Ancillary Lender by a Fronted Ancillary Lender or any other person on behalf of the Fronted Ancillary Lender being avoided or reduced by virtue of any laws relating to bankruptcy, insolvency, liquidation or similar laws of general application and, if any such security or payment is so avoided or reduced, the Fronting Ancillary Lender shall be entitled to recover the value or amount of such security or payment from such Fronted Ancillary Lender subsequently as if such settlement or discharge had not occurred.

 

  (b)

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 9.16.

 

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9.17

Exercise of Rights

The Fronting Ancillary Lender shall not be obliged before exercising any of the rights, powers or remedies conferred upon it in respect of any Fronted Ancillary Lender by this Agreement or by law:

 

  (a)

to take any action or obtain judgment in any court against any Obligor;

 

  (b)

to make or file any claim or proof in a winding up or dissolution of any Obligor; or

 

  (c)

to enforce or seek to enforce any other security taken in respect of any of the obligations of any Obligor under this Agreement.

 

10.

REPAYMENT

 

10.1

Repayment of Facility B Loans

 

  (a)

Each Facility B Borrower shall repay, or procure the repayment of, the aggregate outstanding principal amount of each Facility B Loan borrowed by it in full on the Termination Date in respect of Facility B in euro.

 

  (b)

The Borrowers may not reborrow any part of a Facility B Loan which is repaid.

 

10.2

Repayment of Additional Term Facility Loans

 

  (a)

Each Borrower of an Additional Facility Loan borrowed by it under an Additional Term Facility shall repay, or procure the repayment of, the aggregate outstanding principal amount of that Additional Facility Loan borrowed by it:

 

  (i)

in relation to an Amortising Facility, subject to Clause 10.5 (Allocation of Amortising Facility Repayment Instalments) below on each Amortising Facility Repayment Date in respect of that Additional Facility Loan by an amount equal to the applicable Amortising Facility Repayment Instalment; and

 

  (ii)

in relation to an Additional Facility which is not an Amortising Facility, in full on the Termination Date applicable to that Additional Facility.

 

  (b)

The Borrowers may not reborrow any part of an Additional Facility Loan made available under an Additional Term Facility which is repaid.

 

10.3

Repayment of Revolving Facility Loans

 

  (a)

Subject to paragraph (b) below, each Borrower which has drawn a Revolving Facility Loan shall repay that Revolving Facility Loan on the last day of its Interest Period.

 

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  (b)

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

 

  (i)

on the same day that a maturing Revolving Facility Loan is due to be repaid by that Revolving Facility Borrower;

 

  (ii)

in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 8.2 (Unavailability of a currency)); and

 

  (iii)

in whole or in part for the purpose of refinancing the maturing Revolving Facility Loan,

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

 

  (A)

if the aggregate amount of the maturing Revolving Facility Loan exceeds the aggregate amount of the new Revolving Facility Loans:

 

  (1)

the relevant Revolving Facility Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

 

  (2)

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

 

  (B)

if the aggregate amount of the maturing Revolving Facility Loan is equal to or less than the aggregate amount of the new Revolving Facility Loans:

 

  (1)

the relevant Revolving Facility Borrower will not be required to make any payment in cash; and

 

  (2)

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

 

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  (c)

If:

 

  (i)

any Revolving Facility Loan is not repaid on the last day of its Interest Period;

 

  (ii)

the applicable Borrower (or the Obligors’ Agent on its behalf) has not notified the Agent that it intends to repay such Revolving Facility Loan on the last day of its interest period; and

 

  (iii)

no notice of a Declared Default has been given,

a Rollover Loan shall be deemed to have been drawn on the last day of the Interest Period for that Revolving Facility Loan and applied in repayment of that Revolving Facility Loan.

 

  (d)

At any time when a Revolving Facility 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.

 

  (e)

A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving five (5) Business Days’ prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (e) to the Defaulting Lender concerned as soon as practicable on receipt.

 

  (f)

Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower (or the Obligors’ Agent on its behalf) by the time and date specified by the 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.

 

  (g)

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

 

10.4

Effect of Cancellation and Prepayment on Scheduled Repayments

 

  (a)

To the extent that any Amortising Facility Repayment Instalment is determined:

 

  (i)

prior to the Utilisation of that Amortising Facility, by reference to a fixed number; or

 

  (ii)

in full or in part by reference any Available Commitment in respect of that Amortising Facility,

 

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if the whole or any part of an Available Commitment in respect of that Amortising Facility in cancelled (other than to the extent that the Available Commitment under that Amortising Facility is subsequently increased by not less than the amount of such cancellation pursuant to Clause 2.3 (Increase)), such cancellation shall reduce each Amortising Facility Repayment Instalment in respect of that Amortising Facility on a pro rata basis.

 

  (b)

If the whole or any part of an Amortising Facility Loan is repaid or prepaid, such cancellation shall reduce each Amortising Facility Repayment Instalment in respect of that Amortising Facility as elected by the Obligors’ Agent or the applicable Borrower (in each case, in its sole discretion).

 

10.5

Allocation of Amortising Facility Repayment Instalments

If more than one Loan is outstanding under any Amortising Facility, the Obligors’ Agent may (in its sole discretion) reallocate all or part of Amortising Facility Repayment Instalment due in respect of a Loan under such Amortising Facility (the First Loan) to any other Loan under such Amortising Facility (the Second Loan), such that:

 

  (a)

the Amortising Facility Repayment Instalment due in respect of the First Loan shall be reduced by the amount elected by the Obligors’ Agent; and

 

  (b)

the Amortising Facility Repayment Instalment due in respect of the Second Loan shall be increased by the amount by which the Amortising Facility Repayment Instalment in respect of the First Loan is reduced pursuant to paragraph (a) above.

 

11.

ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

 

11.1

Illegality

If after the date of this Agreement (or, if later, the date the relevant Lender became a Party) it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its Commitment or participation in any Utilisation:

 

  (a)

that Lender, shall promptly notify the Agent upon becoming aware of that event, setting out the details thereof (such notice a Lender Illegality Notice);

 

  (b)

upon the Agent notifying the Obligors’ Agent, the Commitment of that Lender will be immediately cancelled; and

 

  (c)

to the extent that Lender’s participation has not been transferred pursuant to Clause 41.5 (Replacement of Lender), each Borrower shall repay that Lender’s participation in the Utilisations made to that Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Obligors’ Agent or, if earlier, the date specified by the Lender in the Lender Illegality Notice (being no earlier than the last day of any applicable grace period permitted by law).

 

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11.2

Illegality in relation to Issuing Bank

If after the date of this Agreement (or, if later, the date on which the relevant Letter of Credit is issued) it becomes unlawful for an Issuing Bank to issue or leave outstanding any Letter of Credit, then:

 

  (a)

that Issuing Bank shall promptly notify the Agent upon becoming aware of that event, setting out the details thereof (such notice an Issuing Bank Illegality Notice);

 

  (b)

upon the Agent notifying the Obligors’ Agent, the Issuing Bank shall not be obliged to issue any Letter of Credit to the extent that such issuance would be unlawful;

 

  (c)

to the extent it would be unlawful for any such Letter of Credit to remain outstanding, the Obligors’ Agent shall procure that the relevant Borrower shall use all reasonable endeavours to procure the release of each Letter of Credit issued by that Issuing Bank and outstanding at such time on the date specified by the Issuing Bank in the Issuing Bank Illegality Notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law); and

 

  (d)

unless any other Lender is or has agreed to be an Issuing Bank pursuant to the terms of this Agreement, a Revolving Facility under which the relevant Lender was the Issuing Bank shall cease to be available for the issue of Letters of Credit until such time as another Lender agrees to be an Issuing Bank.

 

11.3

Voluntary cancellation

 

  (a)

The Obligors’ Agent may, by notice to the Agent:

 

  (i)

immediately cancel the whole or any part of an Available Facility; or

 

  (ii)

immediately upon any prepayment in accordance with Clause 11.5 (Voluntary prepayment of Revolving Facility Utilisations) cancel the whole or any part of any Revolving Facility Commitments subject to such prepayment.

 

  (b)

The amount of any partial cancellation of an Available Facility must:

 

  (i)

if Facility B or (unless set out to the contrary in the relevant Additional Facility Notice) an Additional Facility denominated in euros is being cancelled, be a minimum of €500,000 or, if less, the Available Facility;

 

  (ii)

if the Original Revolving Facility is being cancelled, be in a minimum of €500,000 or, if less, the Available Facility; or

 

  (iii)

if any other Additional Facility is being cancelled, be in a minimum amount agreed by the relevant Additional Facility Lenders and specified in the applicable Additional Facility Notice or, if less, the Available Facility.

 

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  (c)

Any cancellation under this Clause 11.3 shall reduce the Commitments of the Lenders rateably under that Facility.

 

11.4

Voluntary prepayment of Term Loans

 

  (a)

Subject to Clause 17.7 (Prepayment Fees), a Borrower to which a Term Loan has been made may in its sole discretion:

 

  (i)

if it or the Obligors’ Agent gives the Agent not less than three (3) Business Days’ (or such shorter period as the Agent (acting on the instructions of the Majority Lenders under the relevant Facility (each acting reasonably)) may agree) prior notice; or

 

  (ii)

immediately upon a Change of Control,

 

  prepay

the whole or any part of that Term Loan.

 

  (b)

The amount of any partial prepayment of a Term Loan must:

 

  (i)

if Facility B or (unless set out to the contrary in the relevant Additional Facility Notice) an Additional Facility denominated in euros is being prepaid, be a minimum of €500,000 or, if less, the Available Facility; or

 

  (ii)

if any other Additional Facility is being prepaid, be in a minimum amount agreed by the relevant Additional Facility Lenders and specified in the applicable Additional Facility Notice or, if less, the Available Facility.

 

  (c)

The Obligors’ Agent or a Borrower may elect to apply a prepayment of Term Loans made under this Clause 11.4 against any or all of the Terms Loans in such proportions as it selects in its sole discretion.

 

11.5

Voluntary prepayment of Revolving Facility Utilisations

A Borrower to which a Revolving Facility Utilisation has been made may in its sole discretion:

 

  (a)

if it or the Obligors’ Agent gives the Agent not less than three (3) Business Days’ (or such shorter period as the Majority Lenders under the relevant Revolving Facility (acting reasonably) may agree) prior notice; or

 

  (b)

immediately upon a Change of Control.

prepay the whole or any part of a Revolving Facility Utilisation.

 

11.6

Right of cancellation and repayment in relation to a single Lender or Issuing Bank

 

  (a)

If:

 

  (i)

any sum payable to any Lender by an Obligor is required to be increased under Clause 18.2 (Tax Gross Up);

 

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  (ii)

any Lender or Issuing Bank claims indemnification from an Obligor under Clause 18.3 (Tax Indemnity) or Clause 19.1 (Increased costs); or

 

  (iii)

any Lender requests payment from an Obligor based on the occurrence of a Market Disruption Event,

the Obligors’ Agent may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice:

 

  (A)

(if such circumstances relate to a Lender) of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender’s participation in the Utilisations; or

 

  (B)

(if such circumstances relate to the Issuing Bank) of repayment of any outstanding Letter of Credit issued by it and cancellation of its appointment as an Issuing Bank under this Agreement in relation to any Letters of Credit to be issued in the future.

 

  (b)

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

 

  (c)

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

 

11.7

Right of cancellation in relation to a Defaulting, Non Consenting or Non-Acceptable L/C Lender

If any Lender becomes a Defaulting Lender, a Non Consenting Lender or a Non-Acceptable L/C Lender, the Obligors’ Agent may, at any time whilst that Lender continues to be a Defaulting Lender, a Non Consenting Lender or a Non-Acceptable L/C Lender (as applicable), immediately cancel some or all of the Available Commitments of that Lender.

 

11.8

Right of prepayment in relation to a Defaulting, Non Consenting or Non-Acceptable L/C Lender

If any Lender becomes a Defaulting Lender, a Non Consenting Lender or a Non-Acceptable L/C Lender, the Obligors’ Agent may, within ninety (90) days after the date on which that Lender is deemed to be a Defaulting Lender, a Non Consenting Lender or a Non-Acceptable L/C Lender (as applicable), prepay and cancel all or part of the Commitments of such Lender, provided that, in the case of a Non Consenting Lender only, any such prepayment is funded from Acceptable Funding Sources.

 

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12.

MANDATORY PREPAYMENT

 

12.1

Exit and Listing

 

  (a)

If (A) a Change of Control or (B) a Listing which results in a Change of Control occurs (each an Exit Event):

 

  (i)

the Obligors’ Agent shall promptly notify the Agent upon becoming aware of that Exit Event and the Agent shall promptly notify the Lenders and Issuing Bank accordingly; and

 

  (ii)

each Lender shall be entitled to cancel its Commitments and require repayment of all of its share of the Utilisations and payment of all amounts owing to it under the Finance Documents and each Issuing Bank shall be entitled to require that any Letters of Credit issued by it are prepaid and cancelled, in each case by notification to the Agent within twenty-five (25) days of the Obligors’ Agent notifying the Agent of the Exit Event, whereupon:

 

  (A)

the undrawn Commitments of such Lender shall, by no less than three (3) Business Days’ prior notice to the Obligors’ Agent (or in the case of a Change of Control which results from a Listing, on the settlement date in respect of that Listing), be cancelled and such Lender shall have no obligation to fund or participate in any new Utilisation or utilisation of an Ancillary Facility or Fronted Ancillary Facility (in each case other than (1) a Rollover Loan, (2) a Letter of Credit issued or to be issued pursuant to a Renewal Request or (3) a Utilisation or utilisation of an Ancillary Facility or Fronted Ancillary Facility to refinance any amount falling due under an Ancillary Facility or a Fronted Ancillary Facility) and, in the case of an Issuing Bank, such Issuing Bank shall have no obligation to issue any new Letter of Credit (other than a Letter of Credit issued or to be issued pursuant to a Renewal Request); and

 

  (B)

on the date falling twenty-five (25) days after such Lender or Issuing Bank (as the case may be) provides notification to the Agent, all outstanding Utilisations provided by such Lender and Ancillary Outstandings of such Lender (and/or, in the case of an Issuing Bank, all Letters of Credit provided by that Issuing Bank), together with accrued interest, and all other amounts accrued or owing to such Lender (or Issuing Bank, as the case may be) under the Finance Documents shall become immediately due and payable (or in the case of a Change of Control which results from a Listing, on the settlement date in respect of that Listing), and the relevant Borrower will immediately prepay all Utilisations and amounts provided by or owing to that Lender and procure that any cash collateral provided by that Lender is released and (unless otherwise agreed between the Obligors’ Agent and that Lender) any Letter of Credit, Ancillary Facility or Fronted Ancillary Facility provided by that Lender (or Issuing Bank, as the case may be) is prepaid and cancelled.

 

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If a Lender or Issuing Bank has not notified the Agent in accordance with the provisions of this paragraph (a) within twenty-five (25) days of being notified of such Exit Event by the Agent in accordance with this paragraph (a), in respect of that Exit Event (only), that Lender shall not be able to cancel its Commitments or require repayment of all or any part of its share of the Utilisations and the prepayment of any other amount owing to it under the Finance Document and an Issuing Bank shall not be entitled to require that any Letter of Credit issued by it are repaid and cancelled, in each case pursuant to this paragraph (a).

 

  (b)

For the purposes of this Clause 12.1, Change of Control means:

 

  (i)

the Obligors’ Agent becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date), other than one or more Permitted Holders, being or becoming the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act as in effect on the Closing Date) of more than 50% of the total voting power of the Voting Stock of the Company, other than in connection with any transaction or series of transactions in which the Company shall become the wholly owned subsidiary of a Parent Entity so long as no person or group, as noted above, other than a Permitted Holder, holds more than 50% of the total voting power of the Voting Stock of such Parent Entity;

 

  (ii)

Topco ceasing to directly own 100% of the total issued share capital of the Company (or any successor entity as a result of a merger of the Company); and

 

  (iii)

the sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation, consolidation or other business combination transaction), in one or a series of related transactions, of all or substantially all of the assets of the Group taken as a whole to a person, other than a Restricted Subsidiary or one or more Permitted Holders,

provided that, notwithstanding the foregoing:

 

  (A)

a transaction will not be deemed to involve a Change of Control solely as a result of the Company becoming an indirect wholly-owned subsidiary of a holding company if:

 

  (1)

the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction; or

 

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  (2)

immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company; and

 

  (B)

the right to acquire Voting Stock (so long as such person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto power in connection with the acquisition or disposition of Voting Stock will not be deemed to cause a party to be a beneficial owner.

 

12.2

Excess Cash Flow

 

  (a)

Unless otherwise agreed by the Majority Lenders, the Obligors’ Agent will ensure that as soon as reasonably practicable, and in any event within twenty (20) Business Days of the delivery of the Annual Financial Statements for the relevant Financial Year (commencing with the first complete Financial Year following the Closing Date) but subject to Clause 12.3 (Application of prepayments), an amount (if positive (provided that if such amount is negative, such amount shall be the Carry Forward Excess Cash Amount)) equal to:

 

  (i)

the amount equal to the applicable percentage set out in paragraph (b) below of the Excess Cash Flow for such Financial Year;

less (without double counting and so that any deduction to the extent already deducted in the definition of Excess Cash Flow shall instead be deducted in this paragraph (ii) below);

 

  (ii)

the aggregate of:

 

  (A)

an amount not exceeding the Excess Cash Flow De Minimis (plus an amount equal to the Excess Cash Flow De Minimis for each previous Financial Year to which this Clause 12.2 (Excess Cash Flow) applies that was not deducted pursuant to this paragraph (a)(ii)(A) in each such Financial Year (such amount being the Unused Excess Cash Flow De Minimis); and

 

  (B)

the aggregate of:

 

  (1)

voluntary prepayments, and debt purchase transactions and buy backs of Permitted Indebtedness by the Group;

 

  (2)

the amount of permitted Restricted Payments paid, contemplated, committed or declared;

 

  (3)

an amount equal to the proceeds of any disposal received and permitted to be reinvested, retained or required to be applied in prepayment in accordance with the provisions of this Agreement; and

 

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  (4)

an amount equal to the amounts (x) to fund or refund (directly or indirectly) acquisitions, investments, capital expenditure, joint venture, tax reorganisation, restructuring and cost saving initiatives or payments in connection therewith; or (y) committed or expected to be committed by a member of the Group to be undertaken in respect thereof in any applicable Application Period,

in each case in that Financial Year (or, in respect of (B)(4)(y) above, in any applicable Application Period or during the following Financial Year) and, in each case, if elected by the Obligors’ Agent between the end of that Financial Year and the date on which the prepayment is to be made hereunder (provided that any such amount so deducted may not be deducted in any subsequent calculation),

is applied in prepayment of the Facilities pursuant to Clause 12.3 (Application of prepayments) below.

 

  (b)

The applicable percentage in respect of any mandatory prepayment under paragraph (a) above is set out in the table below opposite the applicable Senior Secured Net Leverage Ratio as demonstrated by the Annual Financial Statements for such Financial Year and, for this purpose, the Senior Secured Net Leverage Ratio shall be calculated taking into account any prepayment made under paragraph (a) above until such time (if any) as such ratio falls to the next or subsequent level, whereupon that applicable percentage shall apply:

 

Senior Secured Net Leverage Ratio    Percentage of Excess Cash Flow  

Greater than 5.00:1

     50

Equal to or less than 4.50:1 but greater than 5.00:1

     25

Equal to or less than 4.50:1

     0

 

12.3

Application of prepayments

 

  (a)

Prepayments made pursuant to Clause 12.2 (Excess Cash Flow) shall be applied in the following order:

 

  (i)

firstly, in cancellation of the Available Commitments under each Term Facility and, at the option of the Obligors’ Agent, any other available commitments which if drawn would constitute Senior Secured Indebtedness, pro rata across such Term Facilities and other available commitments;

 

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  (ii)

secondly, in prepayment of the Loans under each Term Facility and, at the option of the Obligors’ Agent, any other Senior Secured Indebtedness, pro rata across such Term Facilities and other Senior Secured Indebtedness, provided that the Obligors’ Agent may at its election apply such prepayments in prepayment of any Amortising Facility or amortising Senior Secured Indebtedness in priority to any Term Facility which is not an Amortising Facility;

 

  (iii)

thirdly, in cancellation of the Available Commitments under each Revolving Facility and, at the option of the Obligors’ Agent, any other available commitments which if drawn would constitute Senior Secured Indebtedness, pro rata across such Revolving Facilities and other available commitments;

 

  (iv)

fourthly, in permanent prepayment and cancellation of Revolving Facility Utilisations and, at the option of the Obligors’ Agent, any other Senior Secured Indebtedness, pro rata across such Revolving Facilities and other Senior Secured Indebtedness (such that any outstanding Revolving Facility Loans shall be prepaid before outstanding Letters of Credit); and

 

  (v)

then, in prepayment and cancellation of the Ancillary Outstandings and Ancillary Commitments, Fronted Ancillary Commitments and Fronting Ancillary Commitments and, at the option of the Obligors’ Agent, any other Senior Secured Indebtedness, in each case pro rata across such Ancillary Facilities, Fronted Ancillary Facilities and other Senior Secured Indebtedness,

provided that for this purpose an amount (the Prepayment Amount) shall (A) be deemed to be applied against an Available Commitment or other undrawn commitment if such Available Commitment or other undrawn commitment is cancelled in an amount equal to the Prepayment Amount and (B) once deemed to be applied shall not be required to be applied in the further cancellation or prepayment of any indebtedness or commitments.

 

  (b)

Notwithstanding paragraph (a) above, prepayments made pursuant to Clause 12.2 (Excess Cash Flow) may, in the Obligors’ Agent’s sole discretion, be applied pursuant to paragraph (a)(ii) above prior to being applied pursuant to paragraph (a)(i) above.

 

  (c)

A prepayment which is to be applied to prepay the Term Loans under paragraph (a) above shall, subject to Clause 12.4 (Right to Refuse Prepayment) below, be applied in amounts which reduce the relevant Term Loans pro rata.

 

  (d)

The obligation to make a mandatory prepayment under paragraph (a) of Clause 12.1 (Exit and Listing) shall not be subject to any limitation set out under paragraph (e) below.

 

  (e)

Subject to paragraph (d) above, each Obligor shall use all reasonable endeavours and take all reasonable steps to ensure that any transaction giving rise to a prepayment obligation or obligation to provide cash cover is structured in such a way that it will not be unlawful for the Obligors or other members of the Group to move the relevant proceeds received between members of the Group to enable a mandatory prepayment to be lawfully made and the proceeds lawfully applied as provided under this Clause 12 and/or minimize the costs and Taxes of making such mandatory prepayment. If, however, after each Obligor has used all such reasonable endeavours and taken such reasonable steps:

 

  (i)

it will still be unlawful for such a prepayment to be made and the proceeds so applied; or

 

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  (ii)

it will still be unlawful to make funds available to a member of the Group that could make such a prepayment; or

 

  (iii)

it will still result in any member of the Group making funds available to, or receiving funds from, another member of the Group to enable such a prepayment to be made incurring costs or expenses (including any material Tax liabilities) which will exceed 3% of the amount of such prepayment or it gives rise to a risk of liability for the entity concerned or its directors or officers; or

 

  (iv)

it will give rise to a risk of liability for a member of the Group and/or its officers or directors (or gives rise to a risk of breach of fiduciary or statutory duties by any director or officer or a risk of personal liability),

then such prepayment shall not be required to be made, subject to an obligation to use other Group cash which is not subject to similar restrictions to prepay an equivalent amount where the use of such cash would not be materially prejudicial to overall Group liquidity or the availability of Group liquidity to members of the Group requiring funds, provided always that if the restriction preventing such payment/provision of cash cover or giving rise to such liability is subsequently removed, any relevant proceeds will be applied in prepayment and/or the provision of cash cover in accordance with this Clause 12 at the end of the relevant Interest Period(s) to the extent that such payment has not otherwise been made.

 

  (f)

Notwithstanding the above, no member of the Group shall be required to make any prepayment of the Facilities pursuant to Clause 12.2 (Excess Cash Flow) or Section 5 (Limitation on Sales of Assets and Subsidiary Stock) of Schedule 16 (General Undertakings)if a Release Condition has been satisfied (provided that, for the avoidance of doubt, if a Release Condition will be satisfied only following a prepayment pursuant to Clause 12.2 (Excess Cash Flow) or Section 5 (Limitation on Sales of Assets and Subsidiary Stock) of Schedule 16 (General Undertakings), such prepayment shall be required to the extent necessary to satisfy a Release Condition). In respect of any Released Amounts, if all Release Conditions subsequently cease to be satisfied after the date the prepayment would have been required had a Release Condition not been satisfied, the failure to apply the Released Amounts in prepayment shall not result in a breach of any term of this Agreement.

 

  (g)

Notwithstanding anything to the contrary in this Agreement, in the event that any disposal proceeds are received by, or any item is taken into account for the purposes of paragraph (a) of the definition of Excess Cash Flow in respect of, any person the entire issued share capital of which (or any other ownership interest in) is not owned directly or indirectly by the Obligors’ Agent, the

 

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  amount required to be applied in prepayment pursuant to this Agreement in respect of such proceeds or such item (after taking account of all applicable exceptions and exclusions but without double counting any such deduction) (if any) shall be further reduced by a percentage equal to the percentage of the share capital of (or other ownership interests in) that person (the entire share capital of which is not held directly or indirectly by the Obligors’ Agent), and shall then (in respect to such person which is not a member of the Group) be limited to such amounts actually received by the shareholder that is the member of the Group therein.

 

  (h)

Notwithstanding anything to the contrary in any Finance Document (including this Clause 12), any amount required to be applied in prepayment of the Facilities pursuant to Clause 12.2 (Excess Cash Flow) or Section 5 (Limitation on Sales of Assets and Subsidiary Stock) of Schedule 16 (General Undertakings) may instead, at the option of the Obligors’ Agent, be applied in repayment of (or otherwise to reduce) any other Senior Secured Indebtedness of any member of the Group.

 

  (i)

For the avoidance of doubt, there shall be no requirement to apply any amount required to be applied in prepayment of the Facilities pursuant to Clause 12.2 (Excess Cash Flow) or Section 5 (Limitation on Sales of Assets and Subsidiary Stock) of Schedule 16 (General Undertakings) in prepayment of the Revolving Facility.

 

  (j)

If any Term Loans are prepaid in accordance with Clause 11.4 (Voluntary prepayment of Term Loans) then:

 

  (i)

the Obligors’ Agent may, by giving not less than three (3) Business Days’ notice to the Agent, select in the case of a Term Facility, which Borrower or Borrowers (if more than one) under that Term Facility shall effect prepayment of each Loan; or

 

  (ii)

if the Obligors’ Agent does not make an election under this paragraph, each Borrower shall effect such prepayment on a pro rata basis.

 

  (k)

The Obligors’ Agent may elect that any prepayment to be made pursuant to Clause 12.2 (Excess Cash Flow) or Section 5 (Limitation on Sales of Assets and Subsidiary Stock) of Schedule 16 (General Undertakings)be applied in prepayment in accordance with this Agreement on the last day of the Interest Period relating to the relevant Loan(s) to be repaid. If the Obligors’ Agent makes that election then a proportion of the Loan(s) equal to the amount of the relevant prepayment will be due and payable on the last day of its applicable Interest Period.

 

12.4

Right to Refuse Prepayment

 

  (a)

The Agent shall notify the Lenders as soon as practicable of any proposed partial prepayment of Term Loans under Clause 11.4 (Voluntary prepayment of Term Loans) or Clause 12.2 (Excess Cash Flow) or Section 5 (Limitation on Sales of Assets and Subsidiary Stock) of Schedule 16 (General Undertakings) whereupon the Agent shall notify the Lenders accordingly.

 

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  (b)

If a Lender (a Non Accepting Lender) to which the proposed partial prepayment under Clause 11.4 (Voluntary prepayment of Term Loans) or Clause 12.2 (Excess Cash Flow) or Section 5 (Limitation on Sales of Assets and Subsidiary Stock) of Schedule 16 (General Undertakings) would otherwise be made, gives notice to the Agent by 11.00 a.m. on the third Business Day prior to the date on which a prepayment referred to in paragraph (a) above is to be made (or such shorter period as the Majority Lenders may agree), that Lender will waive its right to receive such prepayment to the extent specified in its notice.

 

  (c)

If any Non-Accepting Lender delivers any notice under paragraph (b) above:

 

  (i)

the amount in respect of which that Non-Accepting Lender has waived its right to prepayment (the Waived Amount) shall be offered to the other Lenders under that Facility (pro rata to their respective Commitments under that Facility);

 

  (ii)

to the extent that those Lenders elect not to receive any part of the Waived Amount, the balance of the Waived Amount shall be offered to any Lenders under that Facility that do wish to receive such further part of the Waived Amount (pro rata among them if there is an insufficient amount to meet their wishes); and

 

  (iii)

any balance of the Waived Amount not so distributed to other Lenders in accordance with paragraph (ii) above, shall be retained by the Group or, at the election of the Obligors’ Agent, prepaid to the relevant Non-Accepting Lender.

 

12.5

Excluded proceeds

Any proceeds of an Asset Disposition and Excess Cash Flow shall, pending prepayment under the provisions of this Agreement (and without prejudice to any potential future prepayment obligation) be available for use by the Group for any purposes not prohibited by this Agreement.

 

13.

RESTRICTIONS

 

13.1

Notices of Cancellation or Prepayment

 

  (a)

Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 11 (Illegality, Voluntary Prepayment and Cancellation) or Clause 12.4 (Right to Refuse Prepayment) shall (subject to the terms of those Clauses), unless a contrary indication appears in this Agreement, specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

  (b)

A Borrower shall be permitted to deliver a conditional or revocable notice of voluntary cancellation and/or voluntary prepayment under this Agreement, provided that such Borrower shall be liable for broken funding costs (calculated on the same basis as Break Costs) as a result of that payment not being made (provided that any demand from a Lender for payment of such broken funding costs is accompanied by reasonable calculations and details of the amount demanded).

 

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13.2

Interest and other amounts

Subject to Clause 17.7 (Prepayment Fees) and any Break Costs, any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and without premium or penalty.

 

13.3

No reborrowing of Term Facilities

No Borrower may reborrow any part of a Term Facility which is prepaid.

 

13.4

Reborrowing of Revolving Facility

Unless a contrary indication appears in this Agreement, any part of a Revolving Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

13.5

Prepayment in accordance with Agreement

No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

13.6

No reinstatement of Commitments

Subject to Clause 2.3 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

13.7

Agent’s receipt of Notices

If the Agent receives a notice under Clause 11 (Illegality, Voluntary Prepayment and Cancellation) or an election under Clause 12.4 (Right to Refuse Prepayment), it shall promptly forward a copy of that notice or election to either the Obligors’ Agent or the affected Lender, as appropriate.

 

13.8

Effect of Repayment and Prepayment on Commitments

If all or part of a participation of a Lender in a Term Loan is repaid or prepaid and is not available for redrawing, that Lender’s Commitment under the relevant Facility shall be reduced and cancelled by an amount equal to the amount repaid or prepaid.

 

14.

INTEREST

 

14.1

Calculation of interest

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

 

  (a)

Margin; and

 

  (b)

EURIBOR for Loans in euro and LIBOR for all other Loans.

 

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14.2

Payment of interest

 

  (a)

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six (6) Months, on the dates falling at six (6) Monthly intervals after the first day of the Interest Period).

 

  (b)

If the Annual Financial Statements and related Compliance Certificate received by the Agent show a higher or lower Margin should have applied during a certain period then the next payment of interest under the relevant Facility following receipt of the relevant Annual Financial Statements by the Agent shall be increased or reduced (as the case may be) by such amount as is necessary to put the Agent and the Lenders in the position that they should have been in had the appropriate rate of Margin been applied at the time (provided that any such reduction shall only apply to the extent the Lender which received the overpayment of interest remains a Lender as at the date of such adjustment and, with respect to payments to Lenders, such payments shall only apply to Lenders who were participating in the relevant Facility both at the time to which the adjustments relate and the time when the adjustments are actually made).

 

14.3

Default interest

 

  (a)

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall, to the extent permitted by law, 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 in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 14.3 shall be immediately payable by the applicable Obligor on demand by the Agent.

 

  (b)

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

 

  (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.

 

  (c)

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

 

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14.4

Notification of rates of interest

The Agent shall promptly notify the Lenders, the relevant Borrower and the Obligors’ Agent of the determination of a rate of interest under this Agreement.

 

14.5

Replacement of Screen Rate

 

  (a)

Any amendment or waiver which relates to providing for another benchmark rate to apply in relation to that currency in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that other benchmark rate, including making appropriate adjustments to this agreement for duration, time and periodicity for determination of that other benchmark rate for any Interest Period and making other consequential and/or incidental changes) may be made with the consent of the Majority Lenders and the Obligors’ Agent.

 

  (b)

If, following consultation between the Obligors’ Agent and the Majority Lenders, another benchmark rate cannot be agreed upon by the date which is five Business Days before the end of the current Interest Period (or in the case of a new Utilisation, the date which is five Business Days before the date upon which the Utilisation Request will be served, as notified by the Obligors’ Agent to the Agent), the Screen Rate applicable to any Lender’s share of a Loan shall be replaced by the rate certified to the Agent by that Lender as soon as practicable (and in any event by the date falling two Business Days before the date on which interest is due to be paid in respect of the relevant Interest Period) to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan in the relevant interbank market.

 

  (c)

Notwithstanding the definitions of “EURIBOR”, “LIBOR” or “Screen Rate” in Clause 1.1 (Definitions) or any other term of any Finance Document, the Agent may from time to time (with the prior written consent of the Company) specify an additional or alternative page, service or method for determining EURIBOR or LIBOR for any currency for the purposes of the Finance Documents (including, for the avoidance of doubt, any alternative benchmark, base rate or reference rate which may be available in relation to that currency at the relevant time), and each Lender authorises the Agent to make such specification.

 

15.

INTEREST PERIODS

 

15.1

Selection of Interest Periods and Terms

 

  (a)

A Borrower (or the Obligors’ Agent 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 Agent by the Borrower (or the Obligors’ Agent on behalf of the Borrower) to which that Term Loan was made not later than the Specified Time.

 

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  (c)

If a Borrower (or the Obligors’ Agent on its behalf) fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above or a Rollover Loan is deemed to be made in accordance with paragraph (c) of Clause 10.3 (Repayment of Revolving Facility Loans), the relevant Interest Period for the applicable Loan will be:

 

  (i)

if paragraph (i) below applied in respect of the previous Interest Period for that Loan or the Loan refinanced by that Rollover Loan in accordance with paragraph (c) of Clause 10.3 (Repayment of Revolving Facility Loans) (as applicable), three (3) Months; or

 

  (ii)

otherwise, the same length as the previous Interest Period for that Loan or the Interest Period in respect of the Loan refinanced by that Rollover Loan in accordance with paragraph (c) of Clause 10.3 (Repayment of Revolving Facility Loans) (as applicable).

 

  (d)

Subject to this Clause 15.1, a Borrower (or the Obligors’ Agent on its behalf) may select an Interest Period of 1, (other than in relation to a Loan in euro) 2, 3 or 6 Months or such other period agreed between the Obligors’ Agent and the Agent (acting on the instructions of the Majority Lenders in relation to the relevant Loan).

 

  (e)

An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility.

 

  (f)

Each Interest Period for a Term Loan or as applicable an Additional Facility which is a term facility shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

 

  (g)

A Revolving Facility Loan has one Interest Period only.

 

  (h)

A Borrower (or the Obligors’ Agent on its behalf) may select an Interest Period of less than 1, 2, 3 or 6 Months:

 

  (i)

to align an Interest Period to a Quarter Date;

 

  (ii)

to align an Interest Period to an interest or coupon payment date in respect of any Permitted Indebtedness;

 

  (iii)

to align the first Interest Period for a Loan under an Additional Facility with any Interest Period in respect of any other Loans then outstanding;

 

  (iv)

if necessary or desirable to implement or facilitate any hedging in relation to the Facilities or any payment thereunder;

 

  (v)

in relation to a Term Facility, to facilitate a consolidation of loans in accordance with Clause 15.3 (Consolidation and division of Term Loans);

 

  (vi)

in relation to an Amortising Facility if necessary or desirable to ensure that there are Amortising Facility Loans (with an aggregate Base Currency Amount) equal to or greater than an Amortising Facility Repayment Instalment with an Interest Period ending on an Amortising Facility Repayment Date for an Amortising Facility in order for the Borrowers to make the Amortising Facility Repayment Instalment due on that date;

 

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  (vii)

to facilitate syndication of any Facility; or

 

  (viii)

in relation to a Revolving Facility, to align an Interest Period for a Loan under that Revolving Facility with any Loan under any Term Facility.

 

  (i)

Prior to the earlier of (i) completion of syndication of the Facilities in the manner agreed between the Obligors’ Agent and the Mandated Lead Arrangers on or prior to the date of this Agreement (as notified by the Mandated Lead Arrangers to the Obligors’ Agent) and (ii) the last day of the Certain Funds Period, Interest Periods shall be one or two weeks or such other period as the Agent and the Obligors’ Agent may agree.

 

15.2

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).

 

15.3

Consolidation and division of Term Loans

 

  (a)

If two or more Interest Periods:

 

  (i)

relate to Term Loans to be made to the same Borrower under the same Facility; and

 

  (ii)

end on the same date,

those Term Loans will, unless that Borrower requests to the contrary in a Selection Notice for the next Interest Period or those Term Loans are denominated in different currencies, be consolidated into, and treated as, a single Loan under the applicable Facility on the last day of the Interest Period.

 

  (b)

Subject to Clause 4.4 (Maximum number of Utilisations) and Clause 5.3 (Currency and amount) if a Borrower (or the Obligors’ Agent on its behalf) requests in a Selection Notice that a Term Loan be divided into two or more Term Loans under the relevant Facility, that Term Loan will, on the last day of its Interest Period, be so divided with Base Currency Amounts specified in that Selection Notice, having an aggregate Base Currency Amount equal to the Base Currency Amount of the relevant Term Loan immediately before its division.

 

  (c)

If the Obligors’ Agent requests that part (and not all) of a Term Loan (an Original Loan) become subject to a Debt Transfer in accordance with Clause 31.7 (Debt Transfer), that Original Term Loan will, immediately prior to such Debt Transfer, be so divided into two Term Loans under the same Facility such that:

 

  (i)

the Base Currency Amount of the first such Term Loan shall be equal to the Base Currency Amount of the Original Loan subject to such Debt Transfer (the Transfer Loan); and

 

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  (ii)

the Base Currency Amount of the second such Term Loan shall be equal to the Base Currency Amount of the Original Loan not subject to such Debt Transfer (the Continuing Loan);

 

  (iii)

the Transfer Loan and the Continuing Loan shall be treated as separate Loans under that Facility for all purposes under the Finance Documents; and

 

  (iv)

the Interest Period for the Transfer Loan and the Continuing Loan shall be the same as the Interest Period in respect of the Original Loan immediately prior to such Debt Transfer.