Exhibit 4.3

 

EXECUTION VERSION

 

MU FINANCE PLC

 

$425,000,000
3.79% Guaranteed Senior Secured Notes due June 26, 2027

 

 

NOTE PURCHASE AGREEMENT

 

 

Dated May 27, 2015

 

 

TABLE OF CONTENTS

 

SECTION 1.		Authorization of Notes; Guaranty and Security		1
	Section 1.1.		Authorization of Notes	1
	Section 1.2.		Guaranty and Security	1
	Section 1.3.		Creditor Representative	2
SECTION 2.		Sale and Purchase of Notes		2
SECTION 3.		Closing		2
SECTION 4.		Conditions to Closing		2
	Section 4.1.		Representations and Warranties	3
	Section 4.2.		Performance; No Default	3
	Section 4.3.		Compliance Certificates	3
	Section 4.4.		Opinions of Counsel	3
	Section 4.5.		Purchase Permitted By Applicable Law, Etc.	3
	Section 4.6.		Sale of Other Notes	4
	Section 4.7.		Payment of Special Counsel Fees	4
	Section 4.8.		Private Placement Number	4
	Section 4.9.		Changes in Corporate Structure	4
	Section 4.10.		Funding Instructions	4
	Section 4.11.		Acceptance of Appointment to Receive Service of Process	4
	Section 4.12.		Transaction Security	4
	Section 4.13.		Transaction Documents	4
	Section 4.14.		Rating Requirement	5
	Section 4.15.		Retirement of Certain Indebtedness	5
	Section 4.16.		Absence of Material Adverse Effect	5
	Section 4.17.		Other Deliveries	5
	Section 4.18.		Proceedings and Documents	6
SECTION 5.		Representations and Warranties of the Note Parties		6
	Section 5.1.		Organization; Power and Authority	6
	Section 5.2.		Authorization, Etc.	6
	Section 5.3.		Disclosure	6
	Section 5.4.		Organization and Ownership of Shares of Subsidiaries; Affiliates	7
	Section 5.5.		Financial Statements; Material Liabilities	7
	Section 5.6.		Compliance with Laws, Other Instruments, Etc.	7
	Section 5.7.		Governmental Authorizations, Etc.	8
	Section 5.8.		Litigation; Observance of Agreements, Statutes and Orders	8
	Section 5.9.		Taxes	9
	Section 5.10.		Title to Property; Leases	10
	Section 5.11.		Licenses, Permits, Etc.	10
	Section 5.12.		Compliance with ERISA	10
	Section 5.13.		Private Offering by the Company	11
	Section 5.14.		Use of Proceeds; Margin Regulations	11
	Section 5.15.		Existing Indebtedness; Future Liens	12

 

i

 

	Section 5.16.		Foreign Assets Control Regulations, Etc.	12
	Section 5.17.		Status under Certain Statutes	13
	Section 5.18.		Environmental Matters	13
	Section 5.19.		Ranking of Obligations	14
	Section 5.20.		Solvency	14
	Section 5.21.		Security	14
	Section 5.22.		Accounting Reference Date	15
	Section 5.23.		Centre of Main Interests and Establishments	15
	Section 5.24.		No Adverse Consequences	15
	Section 5.25.		Pensions	15
SECTION 6.		Representations of the Purchasers		16
	Section 6.1.		Purchase for Investment	16
	Section 6.2.		Source of Funds	16
SECTION 7.		Information as to Company		18
	Section 7.1.		Financial and Business Information	18
	Section 7.2.		Officer’s Certificate	21
	Section 7.3.		Visitation	22
	Section 7.4.		Electronic Delivery	22
	Section 7.5.		Limitation on Disclosure Obligation	23
SECTION 8.		Payment and Prepayment of the Notes		24
	Section 8.1.		Maturity	24
	Section 8.2.		Optional Prepayments with Make-Whole Amount	24
	Section 8.3.		Prepayment for Tax Reasons	25
	Section 8.4.		Prepayment in Connection with a Noteholder Sanctions Event	26
	Section 8.5.		Excess Proceeds Prepayment Offer	28
	Section 8.6.		Change of Control Prepayment Offer	28
	Section 8.7.		Allocation of Partial Prepayments	30
	Section 8.8.		Maturity; Surrender, Etc.	30
	Section 8.9.		Purchase of Notes	30
	Section 8.10.		Make-Whole Amount and Modified Make-Whole Amount	30
	Section 8.11.		Payments Due on Non-Business Days	32
SECTION 9.		Affirmative Covenants		32
	Section 9.1.		Compliance with Laws	32
	Section 9.2.		Insurance	32
	Section 9.3.		Maintenance of Properties	33
	Section 9.4.		Payment of Taxes and Claims	33
	Section 9.5.		Corporate Existence, Etc.	33
	Section 9.6.		Books and Records	33
	Section 9.7.		Evidence of Insurance	34
	Section 9.8.		Priority of Obligations	34
	Section 9.9.		Further Assurances	34

 

ii

 

SECTION 10.		Negative Covenants		35
	Section 10.1.		Transactions with Affiliates	35
	Section 10.2.		Merger, Consolidation, Etc.	37
	Section 10.3.		Asset Sales	39
	Section 10.4.		Indebtedness; Preferred Stock	42
	Section 10.5.		Liens	47
	Section 10.6.		Limitations on Sale and Leaseback Transactions	47
	Section 10.7.		Restricted Payments	48
	Section 10.8.		Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	53
	Section 10.9.		Limitation on Issuances of Guarantees of Indebtedness	56
	Section 10.10.		Designation of Restricted and Unrestricted Subsidiaries	57
	Section 10.11.		Limitation on Company Activities	58
	Section 10.12.		Limitation on Holding Company Activities	59
	Section 10.13.		Financial Condition	60
	Section 10.14.		Line of Business	61
	Section 10.15.		Economic Sanctions, Etc.	62
SECTION 11.		Events Of Default		62
SECTION 12.		Remedies on Default, Etc.		65
	Section 12.1.		Acceleration	65
	Section 12.2.		Other Remedies	65
	Section 12.3.		Rescission	66
	Section 12.4.		No Waivers or Election of Remedies, Expenses, Etc.	66
SECTION 13.		Tax Indemnification; FATCA Information		66
SECTION 14.		Registration; Exchange; Substitution of Notes		73
	Section 14.1.		Registration of Notes	73
	Section 14.2.		Transfer and Exchange of Notes	73
	Section 14.3.		Replacement of Notes; No Transfer to Competitors	74
	Section 14.4.		Registrar, Paying Agent and Transfer Agent	74
SECTION 15.		Payments on Notes		74
	Section 15.1.		Place of Payment	74
	Section 15.2.		Payment by Wire Transfer	75
SECTION 16.		Expenses, Etc.		75
	Section 16.1.		Transaction Expenses	75
	Section 16.2.		Certain Taxes	76
	Section 16.3.		Survival	76

 

iii

 

SECTION 17.		Survival of Representations and Warranties; Entire Agreement		76
SECTION 18.		Amendment and Waiver		76
	Section 18.1.		Requirements	76
	Section 18.2.		Solicitation of Holders of Notes	77
	Section 18.3.		Binding Effect, Etc.	78
	Section 18.4.		Notes Held by Company, Etc.	78
SECTION 19.		Notices; English Language		78
SECTION 20.		Reproduction of Documents		79
SECTION 21.		Confidential Information		79
SECTION 22.		Substitution of Purchaser		80
SECTION 23.		Guaranty		81
	Section 23.1.		Guaranty	81
	Section 23.2.		Limitation on Guarantor Liability	82
	Section 23.3.		Releases	83
	Section 23.4.		Release of Guarantors’ Right of Contribution	84
	Section 23.5.		Guarantee Limitations	84
SECTION 24.		Miscellaneous		84
	Section 24.1.		Successors and Assigns	84
	Section 24.2.		Accounting Terms	85
	Section 24.3.		Severability	85
	Section 24.4.		Construction, Etc.	85
	Section 24.5.		Counterparts	86
	Section 24.6.		Governing Law	86
	Section 24.7.		Jurisdiction and Process; Waiver of Jury Trial	86
	Section 24.8.		Obligation to Make Payment in Dollars	87

 

SCHEDULES AND EXHIBITS

 

SCHEDULE A	-	Information Relating to Purchasers
SCHEDULE B	-	Defined Terms
SCHEDULE 5.3	-	Disclosure Materials
SCHEDULE 5.4	-	Organization and Ownership of Subsidiary Stock; Affiliates
SCHEDULE 5.5	-	Financial Statements
SCHEDULE 5.15	-	Existing Debt
SCHEDULE 10.13	-	Table of Values for X
EXHIBIT 1	-	Form of Note
EXHIBIT 2	-	Form of Note Guaranty Joinder Agreement

 

iv

---

 

MU FINANCE PLC
Old Trafford
Sir Matt Busby Way
Manchester M16 0RA
United Kingdom

 

$425,000,000 3.79% Guaranteed Senior
Secured Notes due June 26, 2027

 

May 27, 2015

 

TO EACH OF THE PURCHASERS LISTED IN

THE PURCHASER SCHEDULE HERETO:

 

Ladies and Gentlemen:

 

MU FINANCE PLC (registration number 07088267), a company incorporated in England and Wales with limited liability (the “ Company ” or “ MUF ”), and each of (i) RED FOOTBALL LIMITED (registration number 5370076), a company incorporated in England and Wales with limited liability (“ Parent ”), (ii) MANCHESTER UNITED LIMITED (registration number 02570509), a company incorporated in England and Wales with limited liability (“ MUL ”), (iii) RED FOOTBALL JUNIOR LIMITED (registration number 05370078), a company incorporated in England and Wales with limited liability (“ RFJ ”), and (iv) MANCHESTER UNITED FOOTBALL CLUB LIMITED (registration number 95489), a company incorporated in England and Wales with limited liability (“ MUFC ”, MUFC together with Parent, MUL and RFJ being sometimes referred to herein, each individually, as a “ Guarantor ” and, collectively, as the “ Guarantors ”), hereby agree with you and The Bank of New York Mellon, as Paying Agent as follows:

 

SECTION 1.                                          AUTHORIZATION OF NOTES; GUARANTY AND SECURITY .

 

Section 1.1.                                                 Authorization of Notes . The Company will authorize the issue and sale of $425,000,000 aggregate principal amount of its 3.79% Guaranteed Senior Secured Notes due June 26, 2027 (the “ Notes ”). The Notes shall be substantially in the form set out in Exhibit 1.  Certain capitalized and other terms used in this Agreement are defined in Schedule B and, for purposes of this Agreement, the rules of construction set forth in Section 24.4 shall govern. References to a “ Schedule ” or an “ Exhibit ” are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement.

 

Section 1.2.                                                 Guaranty and Security . The payment by the Company of all amounts due with respect to the Notes, this Agreement and the other Note Documents, and the performance by the Company of its obligations under this Agreement and the other Note Documents, will be absolutely and unconditionally guaranteed by the Guarantors pursuant to Section 23 hereof. The obligations of the Note Parties under the Note Documents will be secured by the Transaction Security under and pursuant to the terms of the Transaction Security Documents.

 

1

 

Section 1.3.                                                 Creditor Representative . The Purchasers shall appoint a Creditor Representative pursuant to the terms of the representative deed (the “ Representative Deed ”) to be entered into on or about the date of the Closing, between the Purchasers and a Creditor Representative to be named therein. Pursuant to the terms of the Representative Deed, the Creditor Representative will (a) execute and deliver the Intercreditor Agreement on behalf of all of the holders from time to time of the Notes, (b) act as the Purchaser’s and each holder of a Note’s agent under and in connection with the Note Documents and (c) exercise the rights, powers, authorities and discretions under and with respect to the Note Documents specifically given to the Creditor Representative under the Representative Deed.

 

SECTION 2.                                          SALE AND PURCHASE OF NOTES .

 

Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3, Notes in the principal amount specified opposite such Purchaser’s name in the Purchaser Schedule at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.

 

SECTION 3.                                          CLOSING .

 

The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of Greenberg Traurig, LLP, 200 Park Avenue, New York New York 10166, commencing at 5:00 a.m., eastern time, at a closing (the “ Closing ”) on June 26, 2015 or on such other Business Day thereafter on or prior to July 15, 2015 as may be agreed upon by the Company and the Purchasers (the “ Closing Date ”).  At the Closing the Company will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least $100,000 as such Purchaser may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to the account identified in the funding instructions letter delivered pursuant to Section 4.10. If at the Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of any of the conditions specified in Section 4 not having been fulfilled to such Purchaser’s satisfaction or such failure by the Company to tender such Notes.

 

SECTION 4.                                          CONDITIONS TO CLOSING .

 

Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the Closing, of the following conditions:

 

2

 

Section 4.1.                                                 Representations and Warranties . The representations and warranties of the Note Parties in this Agreement shall be correct when made and at the Closing.

 

Section 4.2.                                                 Performance; No Default . Each Note Party shall have performed and complied in all Material respects with all agreements and conditions contained in this Agreement and the other Note Documents required to be performed or complied with by it prior to or at the Closing and from the date of this Agreement to the Closing assuming that Sections 9 and 10 are applicable from the date of this Agreement.  From the date of this Agreement until the Closing, before and after giving effect to the issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing. Neither Parent nor any Parent Subsidiary shall have entered into any transaction since the date of the Memorandum that would have been prohibited by Section 10 had such Section applied since such date.

 

Section 4.3.                                                 Compliance Certificates .

 

(a)                                  Officer’s Certificates . Each Note Party shall have delivered to such Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.

 

(b)                                  Secretary’s or Director’s Certificates . Each Note Party shall have delivered to such Purchaser a certificate of its Secretary, an Assistant Secretary, a Director or another appropriate person, dated the date of the Closing, certifying as to (i) the resolutions attached thereto and other corporate proceedings (of each Note Party and any necessary shareholders of any Note Party) relating to the authorization, execution and delivery of (in the case of the Company) the Notes, this Agreement and the other Note Documents, (ii) such Note Party’s organizational documents as then in effect, (iii) a specimen of the signature of each person authorized by the resolutions referred to in clause (i) above in relation to the Note Documents.

 

Section 4.4.                                                 Opinions of Counsel . Such Purchaser shall have received opinions in form and substance satisfactory to such Purchaser, dated the date of the Closing (a) from (i) Latham & Watkins LLP, U.S. special counsel for the Note Parties, and (ii) Latham & Watkins (London) LLP, English special counsel for the Note Parties, substantially in form and substance reasonably satisfactory to the Purchasers and their special counsel (and the Note Parties hereby instruct counsel to deliver such opinions to the Purchasers) and (b) from Greenberg Traurig, LLP, the Purchasers’ special counsel in connection with such transactions, covering such matters incident to such transactions as such Purchaser may reasonably request.

 

Section 4.5.                                                 Purchase Permitted By Applicable Law, Etc . On the date of the Closing such Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any stamp, registration, notarial or similar Taxes or fees under or pursuant to any applicable law or regulation in effect on the date

 

3

 

hereof. If requested by such Purchaser in writing, such Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.

 

Section 4.6.                                                 Sale of Other Notes . Contemporaneously with the Closing, the Company shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in the Purchaser Schedule.

 

Section 4.7.                                                 Payment of Special Counsel Fees . Without limiting Section 16.1, the Company shall have paid on or before the Closing the fees, charges and disbursements of the Purchasers’ special counsel referred to in Section 4.4 to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to the Closing.

 

Section 4.8.                                                 Private Placement Number . A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes.

 

Section 4.9.                                                 Changes in Corporate Structure . The Company shall not have changed its jurisdiction of incorporation or organization, as applicable, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5.

 

Section 4.10.                                          Funding Instructions . At least three Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company confirming the information specified in Section 3 including (i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number/Swift Code/IBAN and (iii) the account name and number into which the purchase price for the Notes is to be deposited.

 

Section 4.11.                                          Acceptance of Appointment to Receive Service of Process . Such Purchaser shall have received evidence of the acceptance by Corporation Service Company of the appointment and designation provided for by Section 24.7(e) for the period from the date of the Closing to June 26, 2028 (and the payment in full of all fees in respect thereof).

 

Section 4.12.                                          Transaction Security . The Transaction Security Documents shall constitute in favor of the Security Trustee for the benefit of the holders of the Notes, a valid and perfected security interest in the Transaction Security intended to be subject thereto.

 

Section 4.13.                                          Transaction Documents . The Company shall have furnished each Purchaser with true, correct and complete copies of each of the following documents in full force and effect and, in the case of (iii) and (viii) to (xi) inclusive only, reasonably satisfactory in form and substance to each Purchaser:

 

(i)                                      the RCF Facilities Agreement;

 

(ii)                                   the Term Facility Agreement;

 

4

 

(iii)                                the Intercreditor Agreement;

 

(iv)                               the English law debenture dated January 29, 2010 between the Parent, RFJ, MUL, MUFC and the Company and J.P. Morgan Europe Limited;

 

(v)                                  the English law mortgage dated January 29, 2010 between MUL and J.P. Morgan Europe Limited;

 

(vi)                               the English law mortgage dated January 29, 2010 between MUFC and J.P. Morgan Europe Limited;

 

(vii)                            the English law mortgage dated April 23, 2010 between MUL and J.P. Morgan Europe Limited;

 

(viii)                         an English law governed supplemental debenture executed by the Note Parties party thereto (the “ Supplemental Debenture ”);

 

(ix)                               an English law governed supplemental mortgage executed by MUL;

 

(x)                                  an English law governed supplemental mortgage executed by MUFC; and

 

(xi)                               an English law governed mortgage executed by MUL.

 

Section 4.14.                                          Rating Requirement . The Notes shall have been assigned an investment grade debt rating of BBB- or higher by DBRS Limited, and each Purchaser shall have received a copy of a letter from DBRS Limited confirming such rating.

 

Section 4.15.                                          Retirement of Certain Indebtedness . On the Closing Date the Note Parties shall have (a) made arrangements satisfactory to the Purchasers for the application of proceeds from the sale of the Notes to the retirement on the Closing Date of all outstanding obligations under the Existing Note Documents and shall provide to the Purchasers evidence of such application and repayment and (b) provided a certificate of a Responsible Officer of the Parent confirming that the Total Commitments under, and as defined in, the Term Loan Facility have been prepaid and cancelled to reduce the outstanding Indebtedness thereunder to an aggregate principal amount of $225 million (or its equivalent) on or prior to the Closing Date.

 

Section 4.16.                                          Absence of Material Adverse Effect . There shall not have occurred any Material Adverse Effect since the date of the most recent audited financial statements referred to in Section 5.5.

 

Section 4.17.                                          Other Deliveries . The Purchasers shall have received copies of the Champions League Adjustment Spreadsheet, the Group Structure Chart, a list of all Specified Contracts (which Specified Contracts shall have been reviewed by the Purchasers’ special counsel) and the Funds Flow Statement.

 

5

 

Section 4.18.                                          Proceedings and Documents . All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to such Purchaser and its special counsel, and such Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such special counsel may reasonably request.

 

SECTION 5.                                          REPRESENTATIONS AND WARRANTIES OF THE NOTE PARTIES.

 

Each Note Party represents and warrants to each Purchaser that:

 

Section 5.1.                                                 Organization; Power and Authority . Each Note Party is a corporation duly organized, validly existing and, where applicable, in good standing under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, in each case, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Note Party has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and (in the case of the Company) the Notes and to perform the provisions hereof and thereof.

 

Section 5.2.                                                 Authorization, Etc . This Agreement has been duly authorized by all necessary corporate action on the part of the Note Parties and the Notes have been duly authorized by all necessary corporate action on the part of the Company. Subject to the Legal Reservations, (i) this Agreement constitutes a legal, valid and binding obligation of the Note Parties enforceable against the Note Parties in accordance with its terms, and (ii) upon execution and delivery thereof as provided herein each Note will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

 

Section 5.3.                                                 Disclosure . The Company, through its agent, Banc of America Merrill Lynch, has delivered to each Purchaser a copy of a Confidential Private Placement Memorandum, dated April 2015 (the “ Memorandum ”), relating to the transactions contemplated hereby. The Memorandum fairly describes, in all material respects, the general nature of the business and principal properties of Parent and the Parent Subsidiaries. This Agreement, the Memorandum, the financial statements listed in Schedule 5.5 and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company prior to May 6, 2015 in connection with the transactions contemplated hereby and identified in Schedule 5.3 (this Agreement, the Memorandum and such documents, certificates or other writings and such financial statements delivered to each Purchaser being referred to, collectively, as the “ Disclosure Documents ”), taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein in light of the circumstances under which they were made not misleading; provided that, with respect to projected financial information, each Note Party represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time in light of all facts and circumstances then existing and known to its Responsible Officers, and on information generally known and available in the industry, it being understood that such

 

6

 

projected financial information is not a guarantee of financial performance and actual results may be different from such projected financial information. Except as disclosed in the Disclosure Documents, since March 31, 2015, there has been no change in the financial condition, operations, business, properties or prospects of Parent or any Parent Subsidiary except changes that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 5.4.                                                 Organization and Ownership of Shares of Subsidiaries; Affiliates .

 

(a)                                  Schedule 5.4 contains (except as noted therein) complete and correct lists of (i) Parent’s Subsidiaries, showing, as to Parent and each Parent Subsidiary, the name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by Parent and each other Parent Subsidiary and whether such Subsidiary is a Guarantor and (ii) Parent’s directors.

 

(b)                                  All of the outstanding shares of capital stock or similar equity interests of each Parent Subsidiary shown in Schedule 5.4 as being owned by Parent and the Parent Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by Parent or a Parent Subsidiary free and clear of any Lien that is prohibited by this Agreement.

 

Section 5.5.                                                 Financial Statements; Material Liabilities . The Company has delivered to each Purchaser copies of the financial statements of MU Cayman and its subsidiaries (including Parent and the Parent Subsidiaries) listed on Schedule 5.5. All of such financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of MU Cayman and its subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in conformity with IFRS as adopted by the European Union, International Financial Reporting Interpretations Committee interpretations and the Companies Act 2006, or GAAP, as applicable, consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). Parent and its Subsidiaries do not have any Material liabilities that are not disclosed in the Disclosure Documents.

 

Section 5.6.                                                 Compliance with Laws, Other Instruments, Etc . The execution, delivery and performance by the Note Parties of this Agreement and by the Company of the Notes will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of Parent or any Parent Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, memorandum of association, articles of association, regulations or by-laws, shareholders agreement or any other agreement or instrument to which Parent or any Parent Subsidiary is bound or by which Parent or any Parent Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to Parent or any Parent Subsidiary or (iii) violate any provision of any

 

7

 

statute or other rule or regulation of any Governmental Authority applicable to Parent or any Parent Subsidiary.

 

Section 5.7.                                                 Governmental Authorizations, Etc .

 

(a)                                  No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or, other than the satisfaction of the Perfection Requirements, performance by the Note Parties of the Note Documents to which they are respectively parties (including without limitation the execution, delivery and performance of the Notes by the Company), including any thereof required in connection with the obtaining of Dollars to make payments under this Agreement, the Notes or the other Note Documents and the payment of such Dollars to Persons resident in the United States of America. Subject to the Legal Reservations, it is not necessary to ensure the legality, validity, enforceability or admissibility into evidence in England and Wales of this Agreement, the Notes or the other Note Documents that any thereof or any other document be filed, recorded or enrolled with any Governmental Authority, or that any such agreement or document be stamped with any stamp, registration or similar transaction tax.

 

(b)                                  Under the laws of England and Wales it is not necessary that the Note Documents be filed, recorded or enrolled with any court or other authority in such jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid upon the execution of the Note Documents or the sale and purchase of the Notes pursuant to this Agreement except any filing, recording or enrolling or any Tax or fee payable in connection with the Transaction Security.

 

(c)                                   Subject to the Legal Reservations, the choice of New York law as the governing law of this Agreement and the Notes will be recognized and enforced in the Relevant Jurisdictions of each Note Party.

 

(d)                                  Subject to the Legal Reservations, any judgment obtained in England and Wales in relation to a Note Document will be recognized and enforced in the Relevant Jurisdictions of each Note Party.

 

Section 5.8.                                                 Litigation; Observance of Agreements, Statutes and Orders .

 

(a)                                  There are no actions, suits, investigations or proceedings pending or, to the knowledge of the Note Parties, threatened against or affecting Parent or any Parent Subsidiary or any property of Parent or any Parent Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(b)                                  Neither Parent nor any Parent Subsidiary is (i) in default under any agreement or instrument to which it is a party or by which it is bound, (ii) in violation of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or (iii) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including Environmental Laws, the USA PATRIOT Act or any

 

8

 

of the other laws and regulations that are referred to in Section 5.16), in each case, which default or violation could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(c)                                   No labor disputes are current or, to each Note Party’s knowledge, threatened against Parent or any Parent Subsidiary which have or could reasonably be expected to have a Material Adverse Effect.

 

Section 5.9.                                                 Taxes .

 

(a)                                  The Note Parties have filed all tax returns that are required to have been filed by them in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments relating to taxes required to be paid by them that are levied upon them or their properties, assets, income or franchises pursuant to applicable law, to the extent such taxes and assessments relating to taxes have become due and payable and before they have become delinquent, except for any taxes and assessments relating to taxes (i) the amount of which, individually or in the aggregate, is not Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which Parent or a Parent Subsidiary, as the case may be, has established adequate reserves in accordance with IFRS or GAAP, as applicable. The charges, accruals and reserves on the books of Parent and its Subsidiaries in respect of federal, national, state or other taxes for all fiscal periods have been calculated in accordance with IFRS or GAAP, as applicable.

 

(b)                                  (i) No liability for any Tax, directly or indirectly, imposed, assessed, levied or collected by or for the account of any Governmental Authority of the United Kingdom or the United States or any political subdivision thereof will be incurred by any Note Party or any holder of a Note as a result of the execution or delivery of this Agreement or the Notes, (ii) no deduction or withholding in respect of Taxes imposed by or for the account of the United Kingdom is required to be made from any payment by the Note Parties under this Agreement or the Notes to any Holder of a Note which is (A) a Qualifying Purchaser falling with paragraph (E) of the definition of “Qualifying Purchaser”, or (B) a Qualifying Purchaser falling within paragraph (B), (C) or (D) of the definition of “Qualifying Purchaser” where the relevant Note Party has a “reasonable belief” as defined for the purposes of section 930 of the ITA, or (C) a Treaty Purchaser and the payment is one specified in a direction given by the Commissioners of Revenue and Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488), (iii) no deduction or withholding in respect of Taxes imposed by or for the account of the United States is required to be made from any payment of interest, principal or premium by the Note Parties under this Agreement or the Notes to any Holder of a Note which is either (A) a U.S. Person that timely provides a properly completed IRS Form W-9 or (B) a holder that is eligible for the benefits of an income tax treaty between the United States and the jurisdiction where such holder is resident for tax purposes which provides a full exemption from withholding taxes on payments of interest and timely provides a properly completed IRS Form W-8BEN-E and (iv) to the knowledge of the Note Parties, no deduction or withholding in respect of Taxes imposed by or for the account of any Taxing Jurisdiction other than the United Kingdom

 

9

 

or the United States is required to be made from any payment by the Note Parties under this Agreement or the Notes.

 

Section 5.10.                                          Title to Property; Leases . Parent and the Parent Subsidiaries have good and marketable title to their respective properties, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by the Company or any Subsidiary after such date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens, except as permitted under the Note Documents and to the extent the failure to have such title or the existence of such liens, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or affect the validity of the security interest in any of the Collateral. All leases to which Parent or any of the Parent Subsidiaries is a party or by which any of them is bound are valid and enforceable against Parent or the Parent Subsidiaries, and are valid and enforceable against the other party or parties thereto and are in full force and effect with only such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 5.11.                                          Licenses, Permits, Etc .

 

(a)                                  Parent and its Subsidiaries own, possess or have the right to use pursuant to license, sublicense, agreement or other permission all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are Material, without known conflict with the rights of others.

 

(b)                                  To the knowledge of the Note Parties, no product or service of the Note Parties infringes in any Material respect any license, permit, franchise, authorization, patent, copyright, proprietary software, service mark, trademark, trade name or other right owned by any other Person.

 

(c)                                   To the knowledge of the Note Parties, there is no Material violation by any Person of any right of Parent or any of its Subsidiaries with respect to any license, permit, franchise, authorization, patent, copyright, proprietary software, service mark, trademark, trade name or other right owned or used by Parent or any of its Subsidiaries.

 

(d)                                  No consent, approval or any other action by, or on behalf of, the Premier League, the Football Association, the Union of European Football Associations or the Federation Internationale de Football Association is required in connection with the Note Parties entering into and performing their respective obligations under the Note Documents.

 

Section 5.12.                                          Compliance with ERISA .

 

(a)                                  Neither the Company nor any ERISA Affiliate maintains, contributes to or is obligated to maintain or contribute to, or has, at any time within the past six years, maintained, contributed to or been obligated to maintain or contribute to, any employee benefit plan which is subject to Title I or Title IV of ERISA or section 4975 of the Code (a “ U.S. Plan ”). Neither the Company nor any ERISA Affiliate is, or has ever been at any

 

10

 

time within the past six years, a “party in interest” (as defined in section 3(14) of ERISA) or a “disqualified person” (as defined in section 4975 of the Code) with respect to any U.S. Plan.

 

(b)                                  All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all laws, regulations and orders applicable thereto, except where failure so to comply could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and any other amounts required by applicable Non-U.S. Plan documents or applicable laws to be paid or accrued by Parent and its Subsidiaries have been paid or accrued as required, except where failure so to pay or accrue could not be reasonably expected to have a Material Adverse Effect.

 

(c)                                   The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of Parent’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by an amount that would reasonably be expected to have a Material Adverse Effect.  The term “ benefit liabilities ” has the meaning specified in section 4001 of ERISA and the terms “ current value ” and “ present value ” have the meaning specified in section 3 of ERISA.

 

(d)                                  The Company and its ERISA Affiliates have not incurred any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect.

 

Section 5.13.                                          Private Offering by the Company . Neither the Company nor anyone acting on its behalf has offered the Notes or any similar Securities for sale to, or solicited any offer to buy the Notes or any similar Securities from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than 15 other Institutional Investors, each of which has been offered the Notes at a private sale for investment. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction, including the jurisdiction of organization of the Company.

 

Section 5.14.                                          Use of Proceeds; Margin Regulations . The Company will apply the proceeds of the sale of the Notes hereunder (i) to the redemption of the Existing Notes, (ii) to the prepayment of the Term Loan Facility to reduce the outstanding Indebtedness thereunder to an aggregate principal amount of $225 million (or its sterling equivalent) and (iii) to the extent any proceeds remain following the use of proceeds in the foregoing clauses (i) and (ii), to the making of Proceeds Loans pursuant to the Proceeds Loan Agreement to MUL for application in turn by MUL for general corporate purposes.  No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any Securities under such circumstances as to involve the Note Parties in a violation of Regulation X of said Board

 

11

 

(12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute more than 5% of the value of the consolidated assets of Parent and its Subsidiaries and the Note Parties do not have any present intention that margin stock will constitute more than 5% of the value of such assets. As used in this Section, the terms “ margin stock ” and “ purpose of buying or carrying ” shall have the meanings assigned to them in said Regulation U.

 

Section 5.15.                                          Existing Indebtedness; Future Liens .

 

(a)                                  Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Indebtedness of Parent and its Subsidiaries as of March 31, 2015 (including descriptions of the obligors and obligees, principal amounts outstanding, any collateral therefor and any Guaranties thereof), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Indebtedness of Parent or its Subsidiaries except as described in the Disclosure Documents. Neither Parent nor any Parent Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of Parent or such Subsidiary and no event or condition exists with respect to any Indebtedness of Parent or any Parent Subsidiary that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment.

 

(b)                                  Except as disclosed in Schedule 5.15, neither Parent nor any Parent Subsidiary has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien that secures Indebtedness not permitted by Section 10.5.

 

(c)                                   Neither Parent nor any Parent Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument evidencing Indebtedness of Parent or such Subsidiary, any agreement relating thereto or any other agreement (including its charter or any other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Indebtedness of any Note Party, except as disclosed in Schedule 5.15.

 

Section 5.16.                                          Foreign Assets Control Regulations, Etc .

 

(a)                                  Neither Parent nor any Controlled Entity (i) is a Blocked Person, (ii) has been notified that its name appears or may in the future appear on a State Sanctions List or (iii) is a target of sanctions that have been imposed by the United Nations or the European Union.

 

(b)                                  Neither Parent nor any Controlled Entity (i) has violated, been found in violation of, or been charged or convicted under, any applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws or (ii) to any Note Party’s knowledge, is under investigation by any Governmental Authority for

 

12

 

possible violation of any U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws.

 

(c)                                   No part of the proceeds from the sale of the Notes hereunder:

 

(i)                                      constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by Parent or any Controlled Entity, directly or indirectly, (A) in connection with any investment in, or any transactions or dealings with, any Blocked Person, (B) for any purpose that would cause any Purchaser to be in violation of any U.S. Economic Sanctions Laws or (C) otherwise in violation of any U.S. Economic Sanctions Laws;

 

(ii)                                   will be used, directly or indirectly, in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Money Laundering Laws; or

 

(iii)                                will be used, directly or indirectly, for the purpose of making any improper payments, including bribes, to any Governmental Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage, in each case which would be in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Corruption Laws.

 

(d)                                  Parent has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that Parent and each Controlled Entity is and will continue to be in compliance with all applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws and Anti-Corruption Laws.

 

Section 5.17.                                          Status under Certain Statutes . Neither Parent nor any Parent Subsidiary is subject to regulation under the Investment Company Act of 1940, as amended.

 

Section 5.18.                                          Environmental Matters .

 

(a)                                  No Note Party has knowledge of any claim or has received any notice of any claim and no proceeding has been instituted asserting any claim against Parent or any of its Subsidiaries or any of their respective real properties or other assets now or formerly owned, leased or operated by any of them, alleging any damage to the environment or violation of any Environmental Laws, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect.

 

(b)                                  No Note Party has knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by any of them or to other assets or their use, except, in each case, such as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

13

 

(c)                                   Neither Parent nor any Parent Subsidiary has stored any Hazardous Materials on real properties now or formerly owned, leased or operated by any of them in a manner which is contrary to any Environmental Law that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

(d)                                  Neither Parent nor any Parent Subsidiary has disposed of any Hazardous Materials in a manner which is contrary to any Environmental Law that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

(e)                                   All buildings on all real properties now owned, leased or operated by Parent or any Parent Subsidiary are in compliance with applicable Environmental Laws, except where failure to comply would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

Section 5.19.                                          Ranking of Obligations . The Note Parties’ payment obligations under this Agreement and the Notes will, upon issuance of the Notes, rank at least pari passu, without preference or priority, with all other unsecured and unsubordinated Indebtedness of the Note Parties. Subject to the Legal Reservations, the terms of the Intercreditor Agreement and to any Lien which is permitted under this Agreement, the Transaction Security will rank in priority as specified in the relevant Transaction Security Document relating thereto and is not subject to any prior ranking or pari passu ranking Lien provided that no representation or warranty is given concerning whether any Transaction Security is of a fixed or floating nature.

 

Section 5.20.                                          Solvency . No:

 

(a)                                  corporate action, legal proceeding or other procedure or step described in Section 11(g); or

 

(b)                                  creditors’ process described in Section 11(h),

 

has been taken or, to the knowledge of the Note Parties, threatened in relation to Parent or any Parent Subsidiary and none of the circumstances described in Section 11(g) applies to Parent or any Parent Subsidiary.

 

Section 5.21.                                          Security .

 

(a)                                  Subject to the Legal Reservations, each Transaction Security Document to which each Note Party is a party validly creates (or will create, upon the completion of any applicable Perfection Requirements) the Lien which is expressed to be created by that Transaction Security Document and evidences the Lien it is expressed to evidence provided that no representation or warranty is given concerning whether any Lien is of a fixed or floating nature.

 

(b)                                  As at the time any Note Party enters into a Transaction Security Document, it is the sole legal and beneficial owner or lessee or licensee of or is otherwise entitled to use all of the Material assets necessary to carry on its business as presently conducted, including, in the case of any shares of any Parent Subsidiary which are the

 

14

 

subject of the Transaction Security (but subject to any registrations required to be made by the board of directors of such Parent Subsidiary), absolute legal and (where relevant) beneficial ownership thereof.

 

(c)                                   As at the time any Note Party enters into a Transaction Security Document the entire share capital of MUL is legally and beneficially owned by Parent and RFJ free from any claims, third party rights or competing interests other than pursuant to the Transaction Security Documents.

 

Section 5.22.                                          Accounting Reference Date . The accounting reference date of Parent and each Parent Subsidiary is the Accounting Reference Date.

 

Section 5.23.                                          Centre of Main Interests and Establishments . Each Note Party incorporated in the European Union has its “centre of main interests” (as that term is used in Article 3(1) of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “ Regulation ”)) in the jurisdiction of its incorporation as at the date hereof and such Note Party has no “establishment” (as that term is used in Article 2(h) of the Regulation) in any other jurisdiction.

 

Section 5.24.                                          No Adverse Consequences .

 

(a)                                  It is not necessary under the laws of the Relevant Jurisdictions of any Note Party:

 

(i)                                      in order to enable any holder of a Note to enforce its rights under any Note Document; or

 

(ii)                                   by reason of the execution of any Note Document or the performance by it of its obligations under any Note Document,

 

that any holder of a Note should be licensed, qualified or otherwise entitled to carry on business in any Relevant Jurisdiction of any Note Party.

 

(b)                                  No holder of a Note is or will be deemed to be resident, domiciled or carrying on business in any Relevant Jurisdiction of any Note Party by reason only of the execution, performance and/or enforcement of any Note Document.

 

Section 5.25.                                          Pensions . Except for the Football League Limited Pension and Life Assurance Scheme and the Professional Footballers’ Pension Scheme (and in the case of Parent only in so far as it is aware):

 

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

 

15

 

(b)                                  neither Parent nor any of its Subsidiaries is or has at any time been “connected” with or an “associate” of (as those terms are used in sections 38 and 43 of the Pensions Act 2004) such an employer.

 

SECTION 6.                                          REPRESENTATIONS OF THE PURCHASERS.

 

Section 6.1.                                                 Purchase for Investment . Each Purchaser severally represents that such Purchaser is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control. Such Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes. Such Purchaser (i) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Notes, (ii) is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), and (iii) acknowledges that it has had the opportunity to discuss the information available to it relating to the sale of the Notes with such advisors as it has deemed appropriate.

 

Section 6.2.                                                 Source of Funds . Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “ Source ”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:

 

(a)                                  the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“ PTE ”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “ NAIC Annual Statement ”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or

 

(b)                                  the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or

 

16

 

(c)                                   the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

 

(d)                                  the Source constitutes assets of an “investment fund” (within the meaning of Part V of PTE 84-14 (the “ QPAM Exemption ”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part V of the QPAM Exemption), no employee benefit plan’s assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent ten percent (10%) or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or

 

(e)                                   the Source constitutes assets of a “plan(s)” (within the meaning of Section IV of PTE 96-23 (the “ INHAM Exemption ”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Section IV(d) of the INHAM Exemption) owns a 10% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or

 

(f)                                    the Source is a governmental plan; or

 

(g)                                   the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or

 

(h)                                  the Source does not include “plan assets” within the meaning of 29 CFR 2510.3-101, as modified by section 3(42) of ERISA.

 

17

 

As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in Section 3 of ERISA.

 

SECTION 7.                                          INFORMATION AS TO COMPANY.

 

Section 7.1.                                                 Financial and Business Information . Parent shall deliver to each Purchaser and each holder of a Note that is an Institutional Investor (and for purposes of this Agreement the information required by this Section 7.1 shall be deemed delivered on the date of delivery of such information in the English language or the date of delivery of an English translation thereof):

 

(a)                                  Interim Statements — within 60 days (or, if earlier, the date on which such financial statements are delivered under any Material Credit Facility) after the end of each quarterly fiscal period in each fiscal year of Parent (other than the last quarterly fiscal period of each such fiscal year), reports containing the following information:

 

(i)                                      an unaudited condensed consolidated balance sheet of Parent and its Subsidiaries as at the end of such fiscal period, and

 

(ii)                                   unaudited condensed consolidated statements of income and cash flows of Parent and its Subsidiaries, for such fiscal period and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter,

 

setting forth in each case in comparative form the figures for the corresponding period in the previous fiscal year, all in reasonable detail, prepared in accordance with IFRS applicable to interim financial statements generally, and certified by a Senior Financial Officer of Parent (other than in a case of delivery in accordance with Section 7.4(a)) as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments, together with condensed footnote disclosure and accompanied by reports containing the following information:

 

(A)                                pro forma income statement and balance sheet information of Parent, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations (excluding acquisitions or dispositions of player registrations) that have occurred since the beginning of the most recently completed fiscal quarter as to which such quarterly report relates, and

 

(B)                                an operating and financial review of the unaudited financial statements (including a discussion by business segment), including a discussion of the consolidated financial condition and results of operations of Parent and any material change between the current quarterly period and the corresponding period of the prior year;

 

18

 

provided, however , that if Parent has designated any Parent Subsidiaries as Unrestricted Subsidiaries and one or more of such Subsidiaries are Significant Subsidiaries, then the interim financial statements and other information required to be furnished pursuant to this Section 7.1(a) will include a reasonably detailed presentation (either on the face of the financial statements, in the footnotes thereto, or by separate delivery) of the financial condition and results of operations of Parent and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of Parent; provided, further , that delivery pursuant to Section 7.4(a) (if such delivery satisfies all of the requirements of this Section 7.1(a)) shall be deemed to satisfy the requirements of this Section 7.1(a) in full, including, but not limited to, the requirement that the financial statements are certified by a Senior Financial Officer of Parent;

 

(b)                                  Annual Statements — within 120 days (or, if earlier, the date on which such financial statements are delivered under any Material Credit Facility) after the end of each fiscal year of Parent, duplicate copies of annual reports containing the following information with a level of detail that is substantially comparable and similar in scope to the most recently generated annual statement delivered to the Purchasers prior to the Closing Date (with appropriate revisions, as reasonably determined by Parent, to reflect segment reporting):

 

(i)                                      an audited consolidated balance sheet of Parent and its Subsidiaries as at the end of such year, and

 

(ii)                                   audited consolidated statements of income and cash flows of Parent and its Subsidiaries for such year,

 

setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with IFRS, and accompanied by (x) an opinion thereon (without any qualification or exception as to the scope of the audit on which such opinion is based) of independent public accountants of recognized international standing, which opinion shall generally indicate that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with IFRS, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances and (y) copies of

 

(A)                                pro forma income statement and balance sheet information of Parent, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations (excluding acquisitions or dispositions of player registrations) that have occurred since the beginning of the most recently completed fiscal year as to which such annual report relates,

 

(B)                                an operating and financial review of the audited financial statements, including a discussion of the results of operations (including a

 

19

 

discussion by business segment), financial condition and liquidity and capital resources, and a discussion of material commitments and contingencies and critical accounting policies, and

 

(C)                                a description of all Material affiliate transactions and a description of all Material debt instruments of Parent and its Restricted Subsidiaries;

 

provided , however , that if Parent has designated any Parent Subsidiaries as Unrestricted Subsidiaries and one or more of such Subsidiaries are Significant Subsidiaries, then the annual financial statements and other information required to be furnished pursuant to this Section 7.1(b) will include a reasonably detailed presentation (either on the face of the financial statements, in the footnotes thereto, or by separate delivery) of the financial condition and results of operations of Parent and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of Parent; provided, further , that delivery pursuant to Section 7.4(a) (if such delivery satisfies all of the requirements of this Section 7.1(b)) shall be deemed to satisfy the requirements of this Section 7.1(b) in full;

 

(c)                                   Certain Other Reports — promptly upon their becoming available, one copy of (i) each financial statement, report, circular, notice, proxy statement or similar document sent by Parent or any Subsidiary (x) to its creditors under any Material Credit Facility (excluding information sent to such creditors in the ordinary course of administration of a credit facility, such as information relating to pricing, borrowing availability, projections and budgeting) or (y) to its public securities holders generally, and (ii) each regular or periodic report, each registration statement (without exhibits except as expressly requested by such Purchaser or holder), and each prospectus and all amendments thereto filed by Parent or any Subsidiary with the SEC or any similar Governmental Authority or securities exchange and of all press releases and other statements made available generally by Parent or any Subsidiary to the public concerning developments that are Material;

 

(d)                                  Notice of Default or Event of Default — promptly, and in any event within 5 days after a Responsible Officer becoming aware of the existence of any Default or Event of Default or that any Person has given any notice or taken any action with respect to a claimed default hereunder or that any Person has given any notice or taken any action with respect to a claimed default of the type referred to in Section 11(f), a written notice specifying the nature and period of existence thereof and what action Parent is taking or proposes to take with respect thereto;

 

(e)                                   Employee Benefits Matters — promptly, and in any event within 5 days after a Responsible Officer becoming aware of the receipt by Parent or any of its Affiliates of notice of the imposition of a Material financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans, (a written notice setting forth the nature thereof and the action, if any, that Parent or any of its Affiliates proposes to take with respect thereto;

 

20

 

(f)                                    Notices from Governmental Authority — promptly, and in any event within 30 days of receipt thereof, copies of any notice to Parent or any Subsidiary from any Governmental Authority relating to any order, ruling, statute or other law or regulation that could reasonably be expected to have a Material Adverse Effect;

 

(g)                                   Resignation or Replacement of Auditors — within 10 days following the date on which Parent’s auditors resign or Parent elects to change auditors, as the case may be, notification thereof, together with such supporting information as the Required Holders may request;

 

(h)                                  Certain Material Transactions — promptly after the closing of any material acquisition, disposition or restructuring of Parent and the Restricted Subsidiaries, taken as a whole (in each case, excluding players unless publicly announced), or any senior management (other than the club manager unless publicly announced) changes at Parent or any other Note Party, or any other material event that Parent announces publicly, in each case, a report containing a description of such event; and

 

(i)                                      Requested Information — with reasonable promptness, such other data and information relating to the business, operations, corporate affairs, financial condition, assets or properties of Parent or any of its Subsidiaries or relating to the ability of any Note Party to perform its obligations hereunder, under the Notes or under any other Note Document as from time to time may be reasonably requested by any such Purchaser or holder of a Note, including information readily available to Parent explaining Parent’s financial statements if such information has been requested by the SVO in order to assign or maintain a designation of the Notes.

 

Section 7.2.                                                 Officer’s Certificate . Each set of financial statements delivered to a Purchaser or a holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer:

 

(a)                                  Covenant Compliance — setting forth the information from such financial statements that is required in order to establish whether Note Parties were in compliance with the requirements of Section 10 during the interim or annual period covered by the financial statements then being furnished (including with respect to each such provision that involves mathematical calculations, the information from such financial statements that is required to perform such calculations), and detailed calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Section, and the calculation of the amount, ratio or percentage then in existence. In the event that Parent or any Subsidiary has made an election to measure any financial liability using fair value (which election is being disregarded for purposes of determining compliance with this Agreement pursuant to Section 24.2) as to the period covered by any such financial statement, such Senior Financial Officer’s certificate as to such period shall include a reconciliation from IFRS with respect to such election;

 

(b)                                  Event of Default — certifying that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of Parent and its Subsidiaries

 

21

 

from the beginning of the interim or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including any such event or condition resulting from the failure of Parent or any Subsidiary to comply with any Environmental Law), specifying the nature and period of existence thereof and what action Parent shall have taken or proposes to take with respect thereto; and

 

(c)                                   Guarantors — setting forth a list of all Parent Subsidiaries that are Guarantors and certifying that each Parent Subsidiary that is required to be a Guarantor pursuant to Section 10.9 is a Guarantor, in each case, as of the date of such certificate of Senior Financial Officer.

 

Section 7.3.                                                 Visitation .  Parent shall permit the representatives of each Purchaser and each holder of a Note that is an Institutional Investor:

 

(a)                                  No Default — if no Default or Event of Default then exists, upon a prior written notice by any such Purchaser or such holder that is not a Competitor and at the expense of the respective participating holders, to visit the principal executive office of Parent, to discuss the affairs, finances and accounts of Parent and its Restricted Subsidiaries with Parent’s Specified Officers and (with the consent of Parent, which consent will not be unreasonably withheld or delayed) to visit the other offices and properties of Parent and each Restricted Subsidiary, all at such reasonable times (during normal business hours (excluding any match days)) within 45 days of such written notice as provided by the Parent pursuant to a written notice to all holders of the Notes that are Institutional Investors and not a Competitor delivered at least ten (10) Business Days’ prior to such visit;  provided , that such visitation rights are limited to no more than one (1) visit per Season (beginning with the Season commencing July 1, 2015) for all holders of the Notes that are Institutional Investors in the aggregate; but, provided further , that, if, at the option of Parent, Parent elects to meet with such holder who provides notice pursuant to this Section 7.3(a) without providing notice to each other holder of the Notes that is an Institutional Investor, then such visit shall not constitute a visit pursuant to this Section 7.3(a); and

 

(b)                                  Default — if a Default or Event of Default then exists, at the reasonable expense of Parent to visit and inspect any of the offices or properties of Parent or any of its Restricted Subsidiaries, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by this provision Parent authorizes said accountants to discuss the affairs, finances and accounts of Parent and its Subsidiaries), all at such reasonable times (during normal business hours (excluding any match days) with three Business Days prior notice being deemed reasonable hereunder) and as often as may be reasonably requested with regard for the need to keep disruption to the business to a minimum.

 

Section 7.4.                                                 Electronic Delivery . Financial statements, opinions of independent certified public accountants, other information and Officer’s Certificates that are required to be

 

22

 

delivered by Parent pursuant to Sections 7.1(a), (b) or (c) and Section 7.2 shall be deemed to have been delivered if Parent satisfies any of the following requirements with respect thereto:

 

(a)                                  such reports satisfying the requirements of Section 7.1(a), Section 7.1(b) or Section 7.1(c) have been filed with the SEC and such reports are publicly available on the SEC’s website or (2) Parent may elect, in lieu of providing the reports referred to in Section 7.1(a), Section 7.1(b) or Section 7.1(c), to make available on the SEC’s website (provided such reports are publicly available) the annual and quarterly reports (for the first three quarters of any fiscal year) of MU Cayman; provided, however, that with respect to any financial statements of MU Cayman, if the audited consolidated financial statements and quarterly consolidated financial statements contain any material differences in the financial condition or results of operations as between MU Cayman and its Subsidiaries on a consolidated basis and Parent and the Parent Subsidiaries on a consolidated basis for such periods (other than differences relating to differences in ownership structure (including any employee equity or incentive plans or arrangements or any Subordinated Shareholder Funding)), Parent shall deliver (in accordance with the methods specified in Section 7.4(b) or Section 7.4(c)) to each Purchaser or holder of a Note (or make available on the SEC’s website) a description of such differences;

 

(b)                                  such financial statements satisfying the requirements of Section 7.1(a) or (b) and related Officer’s Certificate satisfying the requirements of Section 7.2 and any other information required under Section 7.1(c) are delivered to each Purchaser or holder of a Note by e-mail at the e-mail address set forth in such holder’s Purchaser Schedule or as communicated from time to time in a separate writing delivered to Parent; or

 

(c)                                   such financial statements satisfying the requirements of Section 7.1(a) or Section 7.1(b) and related Officer’s Certificate(s) satisfying the requirements of Section 7.2 and any other information required under Section 7.1(c) are timely posted by or on behalf of Parent on IntraLinks or on any other similar website to which each Purchaser or holder of Notes has free access or are made available on its home page on the internet, (which is located at http://www.manutd.com as of the date of this Agreement);

 

provided however , that in no case shall access to such financial statements, other information and Officer’s Certificates be conditioned upon any waiver or other agreement or consent (other than confidentiality provisions consistent with Section 21 of this Agreement); provided further , that (x) in the case of clause (c), Parent shall have given each Purchaser or holder of a Note prior written notice, which may be by e-mail or in accordance with Section 19, of such posting or availability in connection with each delivery; and (y) upon request of any holder to receive paper copies of such forms, financial statements, other information and Officer’s Certificates or to receive them by e-mail, Parent will promptly e-mail them or deliver such paper copies, as the case may be, to such holder.

 

Section 7.5.                                                 Limitation on Disclosure Obligation . Parent shall not be required to disclose the following information pursuant to Section 7.1(c)(i)(x), 7.1(e), 7.1(f), 7.1(h) or 7.3:

 

23

 

(a)                                  information that Parent determines after consultation with counsel qualified to advise on such matters that, notwithstanding the confidentiality requirements of Section 21, it would be prohibited from disclosing by applicable law or regulations without making public disclosure thereof; or

 

(b)                                  information that, notwithstanding the confidentiality requirements of Section 21, Parent is prohibited from disclosing by the terms of an obligation of confidentiality contained in any agreement with any non-Affiliate binding upon Parent and not entered into in contemplation of this clause (b), provided that Parent shall use commercially reasonable efforts to obtain consent from the party in whose favor the obligation of confidentiality was made to permit the disclosure of the relevant information.

 

Promptly after determining that Parent is not permitted to disclose any information as a result of the limitations described in this Section 7.5, Parent will provide each of the holders with an Officer’s Certificate describing generally the requested information that Parent is prohibited from disclosing pursuant to this Section 7.5 and the circumstances under which Parent is not permitted to disclose such information.

 

Section 7.6.                                                 Public Debt Meetings . Parent will invite each holder of Notes to all public calls (to the extent held) for the holders of any Public Debt and give each holder of Notes reasonable notice of such calls, provided that no such holder may speak during such calls other than to register their attendance.

 

SECTION 8.                                          PAYMENT AND PREPAYMENT OF THE NOTES .

 

Section 8.1.                                                 Maturity . As provided therein, the entire unpaid principal balance of each Note shall be due and payable on the Maturity Date thereof.

 

Section 8.2.                                                 Optional Prepayments with Make-Whole Amount . The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes, in an amount not less than 5% of the aggregate principal amount of the Notes then outstanding in the case of a partial prepayment, at 100% of the principal amount so prepaid, and the Make-Whole Amount determined for the prepayment date with respect to such principal amount. The Company will give each holder of Notes written notice of each optional prepayment under this Section 8.2 not less than two Business Days and not more than 60 days prior to the date fixed for such prepayment unless the Company and the Required Holders agree to another time period pursuant to Section 18. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each Note held by such holder to be prepaid (determined in accordance with Section 8.7), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

 

24

 

Section 8.3.                                                 Prepayment for Tax Reasons .

 

(a)                                  If at any time as a result of a Change in Tax Law (as defined below) the Company is or becomes obligated to make any Additional Payments (as defined below) in respect of any payment of interest on account of any of the Notes in an aggregate amount for all affected Notes equal to 5% or more of the aggregate amount of such interest payment on account of all of the Notes, the Company may give the holders of all affected Notes irrevocable written notice (each, a “ Tax Prepayment Notice ”) of the prepayment of such affected Notes on a specified prepayment date (which shall be a Business Day not less than 30 days nor more than 60 days after the date of such notice) and the circumstances giving rise to the obligation of the Company to make any Additional Payments and the amount thereof and stating that all of the affected Notes shall be prepaid on the date of such prepayment at 100% of the principal amount so prepaid together with interest accrued thereon to the date of such prepayment plus an amount equal to the Modified Make-Whole Amount for each such Note, except in the case of an affected Note if the holder of such Note shall, by written notice given to the Company no more than 20 days after receipt of the Tax Prepayment Notice, reject such prepayment of such Note (each, a “ Rejection Notice ”). Such Tax Prepayment Notice shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Modified Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. The form of Rejection Notice shall also accompany the Tax Prepayment Notice and shall state with respect to each Note covered thereby that execution and delivery thereof by the holder of such Note shall operate as a permanent waiver of such holder’s right to receive the Additional Payments arising as a result of the circumstances described in the Tax Prepayment Notice in respect of all future payments of interest on such Note (but not of such holder’s right to receive any Additional Payments that arise out of circumstances not described in the Tax Prepayment Notice or which exceed the amount of the Additional Payment described in the Tax Prepayment Notice), which waiver shall be binding upon all subsequent transferees of such Note. The Tax Prepayment Notice having been given as aforesaid to each holder of the affected Notes, the principal amount of such Notes together with interest accrued thereon to the date of such prepayment plus the Modified Make-Whole Amount shall become due and payable on such prepayment date, except in the case of Notes the holders of which shall timely give a Rejection Notice as aforesaid. Two Business Days prior to such prepayment, the Company shall deliver to each holder of a Note being so prepaid a certificate of a Senior Financial Officer specifying the calculation of such Modified Make-Whole Amount as of such prepayment date.

 

(b)                                  No prepayment of the Notes pursuant to this Section 8.3 shall affect the obligation of the Company to pay Additional Payments in respect of any payment made on or prior to the date of such prepayment. For purposes of this Section 8.3, any holder of more than one affected Note may act separately with respect to each affected Note so held (with the effect that a holder of more than one affected Note may accept such offer with respect to one or more affected Notes so held and reject such offer with respect to one or more other affected Notes so held).

 

25

 

(c)           The Company may not offer to prepay or prepay Notes pursuant to this Section 8.3 until the Company shall have taken commercially reasonable steps to mitigate the requirement to make the related Additional Payments, and any Tax Prepayment Notice given pursuant to this Section 8.3 shall certify to the foregoing and describe such mitigation steps, if any.

 

(d)           For purposes of this Section 8.3: “ Additional Payments ” means additional amounts required to be paid to a holder of any Note pursuant to Section 13 by reason of a Change in Tax Law; and a “ Change in Tax Law ” means (individually or collectively with one or more prior changes) (i) an amendment to, or change in, any law, treaty, rule or regulation of any Taxing Jurisdiction after the date of the Closing, or an amendment to, or change in, an official interpretation or application of such law, treaty, rule or regulation after the date of the Closing, which amendment or change is in force and continuing and meets the opinion requirements described below or (ii) in the case of any other jurisdiction that becomes a Taxing Jurisdiction after the date of the Closing, an amendment to, or change in, any law, treaty, rule or regulation of such jurisdiction, or an amendment to, or change in, an official interpretation or application of such law, treaty, rule or regulation, in any case after such jurisdiction shall have become a Taxing Jurisdiction, which amendment or change is in force and continuing and meets such opinion requirements. No such amendment or change shall constitute a Change in Tax Law unless the same would (as supported by a written opinion of counsel having recognized expertise in the field of taxation in the relevant Taxing Jurisdiction, which shall be delivered to all holders of the Notes prior to or concurrently with the Tax Prepayment Notice in respect of such Change in Tax Law) affect the deduction or require the withholding of any Tax imposed by such Taxing Jurisdiction on any payment payable on the Notes.

 

Section 8.4.                 Prepayment in Connection with a Noteholder Sanctions Event.

 

(a)           Upon the Company’s receipt of notice from any Affected Noteholder that a Noteholder Sanctions Event has occurred (which notice shall refer specifically to this Section 8.4(a) and describe in reasonable detail such Noteholder Sanctions Event), the Company shall promptly, and in any event within 10 Business Days, make an offer (the “ Sanctions Prepayment Offer ”) to prepay the entire unpaid principal amount of Notes held by such Affected Noteholder (the “ Affected Notes ”), together with interest thereon to the prepayment date selected by the Company with respect to each Affected Note but without payment of any Make-Whole Amount or Modified Make-Whole Amount with respect thereto, which prepayment shall be on a Business Day not less than 30 days and not more than 60 days after the date of the Sanctions Prepayment Offer (the “ Sanctions Prepayment Date ”). Such Sanctions Prepayment Offer shall provide that such Affected Noteholder notify the Company in writing by a stated date (the “ Sanctions Prepayment Response Date ”), which date is not later than 10 Business Days prior to the stated Sanctions Prepayment Date, of its acceptance or rejection of such prepayment offer. If such Affected Noteholder does not notify the Company as provided above, then the holder shall be deemed to have accepted such offer.

 

26

 

(b)           Subject to the provisions of subparagraphs (c) and (d) of this Section 8.4, the Company shall prepay on the Sanctions Prepayment Date the entire unpaid principal amount of the Affected Notes held by such Affected Noteholder who has accepted (or has been deemed to have accepted) such prepayment offer (in accordance with subparagraph (a)), together with interest thereon to the Sanctions Prepayment Date with respect to each such Affected Note, but without payment of any Make-Whole Amount or Modified Make-Whole Amount with respect thereto.

 

(c)           If a Noteholder Sanctions Event has occurred but Parent and/or its Controlled Entities have taken such action(s) in relation to their activities so as to remedy such Noteholder Sanctions Event (with the effect that a Noteholder Sanctions Event no longer exists, as reasonably determined by such Affected Noteholder) prior to the Sanctions Prepayment Date, then the Company shall no longer be obliged or permitted to prepay such Affected Notes in relation to such Noteholder Sanctions Event. If Parent and/or its Controlled Entities shall undertake any actions to remedy any such Noteholder Sanctions Event, the Company shall keep the holders reasonably and timely informed of such actions and the results thereof.

 

(d)           If any Affected Noteholder that has given written notice to the Company of its acceptance of (or has been deemed to have accepted) the Company’s prepayment offer in accordance with subparagraph (a) also gives notice to the Company prior to the relevant Sanctions Prepayment Date that it has determined (in its sole discretion) that it requires clearance from any Governmental Authority in order to receive a prepayment pursuant to this Section 8.4, the principal amount of each Note held by such Affected Noteholder, together with interest accrued thereon to the date of prepayment, shall become due and payable on the later to occur of (but in no event later than the Maturity Date of the relevant Note) (i) such Sanctions Prepayment Date and (ii) the date that is 10 Business Days after such Affected Noteholder gives notice to the Company that it is entitled to receive a prepayment pursuant to this Section 8.4 (which may include payment to an escrow account designated by such Affected Noteholder to be held in escrow for the benefit of such Affected Noteholder until such Affected Noteholder obtains such clearance from such Governmental Authority), and in any event, any such delay in accordance with the foregoing clause (ii) shall not be deemed to give rise to any Default or Event of Default.

 

(e)           Promptly, and in any event within 5 Business Days, after the Company’s receipt of notice from any Affected Noteholder that a Noteholder Sanctions Event shall have occurred with respect to such Affected Noteholder, the Company shall forward a copy of such notice to each other Purchaser or holder of Notes.

 

(f)            The Company shall promptly, and in any event within 10 Business Days, give written notice to the Purchasers or holders after Parent or any Controlled Entity having been notified that (i) its name appears or may in the future appear on a State Sanctions List or (ii) it is in violation of, or is subject to the imposition of sanctions under, any U.S. Economic Sanctions Laws, in each case which notice shall describe the facts and circumstances thereof and set forth the action, if any, that Parent or a Controlled Entity proposes to take with respect thereto.

 

27

 

(g)           The foregoing provisions of this Section 8.4 shall be in addition to any rights or remedies available to any Purchaser or holder of Notes that may arise under this Agreement as a result of the occurrence of a Noteholder Sanctions Event; provided , that, if the Notes shall have been declared due and payable pursuant to Section 12.1 as a result of the events, conditions or actions of Parent or its Controlled Entities that gave rise to a Noteholder Sanctions Event, the remedies set forth in Section 12 shall control.

 

Section 8.5.                 Excess Proceeds Prepayment Offer . In the event the Company obtains Excess Proceeds from an Asset Sale in accordance with Section 10.3(c), the Company shall offer to prepay (an “ Excess Proceeds Prepayment Offer ”) each outstanding Note in a principal amount which equals the Ratable Portion for such Note, together with accrued interest thereon to the date of such prepayment, but without any Make-Whole Amount or Modified Make-Whole Amount. The Company shall give written notice of such offer of prepayment to the holders of all outstanding Notes, which notice shall (i) refer specifically to this Section 8.5 and describe in reasonable detail the event or condition giving rise to such offer to prepay the Notes, (ii) specify the Ratable Portion of each Note being offered to be prepaid, (iii) specify a date (which must be a Business Day) for such prepayment not less than 30 days and not more than 60 days after the date of such notice (the “ Disposition Prepayment Date ”) and specify the Disposition Response Date (as defined below) and (iv) offer to prepay on the Disposition Prepayment Date such Ratable Portion of each Note together with interest accrued thereon to the Disposition Prepayment Date. Each holder of a Note shall notify the Company of such holder’s acceptance or rejection of such offer by giving written notice of such acceptance or rejection to the Company ( provided , however , that any holder who fails to so notify the Company shall be deemed to have rejected such offer) on a date at least 10 days prior to the Disposition Prepayment Date (such date 10 days prior to the Disposition Prepayment Date being the “ Disposition Response Date ”), and the Company shall prepay on the Disposition Prepayment Date such Ratable Portion of each Note held by the holders who have accepted such offer in accordance with this Section 8.5, together with accrued interest thereon to the date of such prepayment, but without any Make-Whole Amount or Modified Make-Whole Amount. If, in connection with an Excess Proceeds Prepayment Offer, the Company offers to prepay or prepays any Pari Passu Debt with a make-whole amount, yield maintenance or other premium, then in connection with the Company’s offer to prepay the Notes pursuant to this Section 8.5, the Company shall also include in such offer of prepayment the Make-Whole Amount with respect to the Ratable Portion for each Note ( provided , however , that in the case where the Make-Whole Amount is included in such offer of prepayment, any holder who fails to notify the Company of its acceptance or rejection of such offer shall be deemed to have accepted such offer). In the case where the Make-Whole Amount is included in such offer of prepayment, the notice of offer of prepayment shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such offer of prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes that has accepted (or that has been deemed to have accepted) the offer of prepayment, a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

 

Section 8.6.                 Change of Control Prepayment Offer . Promptly (and in any event within ten (10) Business Days) after a Change of Control has occurred, the Company shall give

 

28

 

written notice (the “ Change of Control Prepayment Notice ”) of such fact to all holders of the Notes.

 

(a)           The Change of Control Prepayment Notice shall (i) describe the facts and circumstances of such Change of Control in reasonable detail, (ii) refer to this Section 8.6 and the rights of the holders hereunder and (iii) contain an offer to prepay the entire unpaid principal amount of Notes held by each holder at 100% of the principal amount of such Notes, together with interest accrued thereon to the prepayment date selected by the Company, but without any Make-Whole Amount or Modified Make-Whole Amount, which prepayment shall be on a date therein specified (the “ Change of Control Prepayment Date ”), which shall be a Business Day following the Change of Control Response Date referred to in subparagraph (c) below and in any event not more than 60 days after the date of such Change of Control Prepayment Notice.

 

(b)           Each holder of a Note will notify the Company of such holder’s acceptance or rejection of the offer to prepay made pursuant to this Section 8.6 by giving written notice of such acceptance or rejection to the Company on or before the date for such notice specified in the Change of Control Prepayment Notice (the “ Change of Control Response Date ”), which specified date shall be not less than 30 days after the date of receipt by such holder of such Change of Control Prepayment Notice. A failure by any holder of Notes to respond to an offer to prepay made pursuant to this Section 8.6 on or before the Change of Control Response Date shall be deemed to constitute a rejection of such offer by such holder. If any holder shall reject (or be deemed to have rejected) such offer with respect to any Note held by such holder on or before the Change of Control Response Date, such holder shall be deemed to have waived its rights under this Section 8.6 to require prepayment of such Note for which such offer was rejected (or deemed rejected) in respect of such Change of Control but not in respect of any subsequent Change of Control.

 

(c)           The Company shall prepay on the Change of Control Prepayment Date all of the Notes held by the holders as to which such offer has been so accepted, at 100% of the principal amount of each such Note, together with interest accrued thereon to the Change of Control Prepayment Date, but without any Make-Whole Amount or Modified Make-Whole Amount.

 

(d)           The Company will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Agreement applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 8.2 hereof with respect to the entire principal amount of the Notes outstanding, unless and until there is a default in payment of the applicable prepayment price.

 

(e)           Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the

 

29

 

consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.

 

Section 8.7.                 Allocation of Partial Prepayments . In the case of each partial prepayment of the Notes pursuant to Section 8.2 or 8.5, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.

 

Section 8.8.                 Maturity; Surrender, Etc . In the case of each prepayment of Notes pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount or Modified Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount or Modified Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.

 

Section 8.9.                 Purchase of Notes . The Company will not and will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except upon the payment or prepayment of the Notes in accordance with this Agreement and the Notes. The Company will promptly cancel all Notes acquired by it or any Affiliate pursuant to any payment or prepayment of Notes pursuant to this Agreement and no Notes may be issued in substitution or exchange for any such Notes.

 

Section 8.10.               Make-Whole Amount and Modified Make-Whole Amount.

 

The terms “ Make-Whole Amount ” and “ Modified Make-Whole Amount ” mean, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that neither the Make-Whole Amount nor the Modified Make-Whole Amount may in any event be less than zero. For the purposes of determining the Make-Whole Amount and/or Modified Make-Whole Amount, the following terms have the following meanings:

 

“ Applicable Percentage ” in the case of a computation of the Modified Make-Whole Amount for purposes of Section 8.3 means 1.00% (100 basis points), and in the case of a computation of the Make-Whole Amount for any other purpose means 0.5% (50 basis points).

 

“ Called Principal ” means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.2, 8.3, 8.4, 8.5 or 8.6 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

 

30

 

“ Discounted Value ” means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.

 

“ Reinvestment Yield ” means, with respect to the Called Principal of any Note, the sum of the (x) Applicable Percentage plus (y) the yield to maturity implied by the “ Ask Yield(s) ” reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “ Page PX1 ” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities (“ Reported ”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the “ Ask Yields ” Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note. If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “ Reinvestment Yield ” means, with respect to the Called Principal of any Note, the sum of (x) the Applicable Percentage plus (y) the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

 

“ Remaining Average Life ” means, with respect to any Called Principal, the number of years obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years, computed on the basis of a 360-day year comprised of twelve 30-day months and calculated to two decimal places, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

 

31

 

“ Remaining Scheduled Payments ” means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2, 8.3, 8.4, 8.5, 8.6 or 12.1.

 

“ Settlement Date ” means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2, 8.3, 8.4, 8.5 or 8.6 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

 

Section 8.11.               Payments Due on Non-Business Days . Anything in this Agreement or the Notes to the contrary notwithstanding, (x) except as set forth in clause (y), any payment of interest on any Note that is due on a date that is not a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; and (y) any payment of principal of or Make-Whole Amount or Modified Make-Whole Amount on any Note (including principal due on the Maturity Date of such Note) that is due on a date that is not a Business Day shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.

 

SECTION 9.               AFFIRMATIVE COVENANTS.

 

From the date of this Agreement until the Closing and thereafter, so long as any of the Notes are outstanding, the Note Parties covenant and agree that:

 

Section 9.1.                 Compliance with Laws . Without limiting Section 10.15, each Note Party will, and Parent will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject (including ERISA, Environmental Laws, the USA PATRIOT Act and the other laws and regulations that are referred to in Section 5.16), and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 9.2.                 Insurance . Each Note Party will (and Parent shall ensure that each member of the Restricted Group will) maintain insurances (other than in respect of permanent disability for players occurring when players are playing, practicing or training for a member of the Restricted Group) on and in relation to its business and assets against those risks and to the extent as is usual for companies carrying on the same or substantially similar business. All insurances must be with reputable independent insurance companies or underwriters.

 

32

 

Section 9.3.                 Maintenance of Properties . Each Note Party will, and Parent will cause each of its Restricted Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section 9.3 shall not prevent Parent or any Restricted Subsidiary from discontinuing the operation and the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and the Board of Directors of Parent has concluded that such discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 9.4.                 Payment of Taxes and Claims . Each Note Party will, and Parent will cause each of its Restricted Subsidiaries to, file all tax returns required to be filed by them in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments relating to taxes, governmental charges, or levies required to be paid by them that are imposed on them or any of their properties, assets, income or franchises pursuant to applicable law, to the extent the same have become due and payable and before they have become delinquent and all claims for which sums have become due and payable that have or might become a Lien on properties or assets of Parent or any of its Restricted Subsidiaries, provided that neither Parent nor any such Restricted Subsidiary need pay any such tax, assessment relating to taxes, charge, levy or claim if (i) the amount, applicability or validity thereof is contested by Parent or such Restricted Subsidiary on a timely basis in good faith and in appropriate proceedings, and Parent or such Restricted Subsidiary has established adequate reserves therefor and for the costs of such contest in accordance with IFRS or GAAP, as applicable, on the books of Parent or such Restricted Subsidiary or (ii) the nonpayment of all such taxes, assessments, charges, levies and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Parent will in any event ensure that (i) no Note Party changes its residence for tax purposes where to do so would be, in the reasonable judgment of the Parent, materially prejudicial to the holders of Notes under the Note Documents and (ii) the Company does not become a U.S. Person.

 

Section 9.5.                 Corporate Existence, Etc. . Subject to Section 10.2, each Note Party will at all times preserve and keep its corporate existence in full force and effect. Subject to Sections 10.2 and 10.3, Parent will at all times preserve and keep in full force and effect the corporate existence of each of its Subsidiaries (unless merged into Parent or a Wholly-Owned Subsidiary) and all rights and franchises of Parent and its Subsidiaries unless, in the good faith judgment of Parent, the termination of or failure to preserve and keep in full force and effect such corporate existence, right or franchise could not, individually or in the aggregate, have a Material Adverse Effect.

 

Section 9.6.                 Books and Records . Parent will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with IFRS or GAAP, as applicable, and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over Parent or such Subsidiary, as the case may be. Parent will, and will cause each of its Subsidiaries to, keep books, records and accounts which, in reasonable detail, accurately reflect all transactions and dispositions of assets.

 

33

 

Section 9.7.                 Evidence of Insurance . Parent shall use all reasonable efforts to procure that the Purchasers are provided with evidence that the Security Trustee has been named, pursuant to Clause 11 of the Supplemental Debenture, the sole loss payee with respect to the policies of insurance required by Section 9.2, within thirty (30) Business Days of the Closing Date.

 

Section 9.8.                 Priority of Obligations . Each Note Party shall ensure that its payment obligations under this Agreement and the Notes, and Parent shall ensure that the payment obligations of each other Guarantor (including each Additional Guarantor, if any), will at all times rank at least pari passu , without preference or priority, with the claims of all of its unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies and the Group’s Football Creditors in relation to matters set out in Rule E.34 (or any equivalent provision) of the “Rules of the Premier League” in the Premier League Handbook.  Subject to the Legal Reservations, each Note Party shall ensure that, subject to the terms of the Intercreditor Agreement and to any Lien which is permitted under this Agreement, the Transaction Security will rank in priority as specified in the relevant Transaction Security Document relating thereto and is not subject to any prior ranking or pari passu ranking Lien; provided , that no undertaking is given concerning whether any Transaction Security is of a fixed or floating nature.

 

Section 9.9.                 Further Assurances .

 

(a)           Each Note Party shall (and Parent shall procure that each member of the Restricted Group shall) at all times promptly do all such acts and execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Required Holders or the Security Trustee may reasonably specify (and in such form as the Required Holders or the Security Trustee may reasonably require in favor of the Security Trustee or its nominee(s)):

 

(i)            to perfect the Security created or intended to be created under or evidenced by the Transaction Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights powers and remedies of the Security Trustee or the holders of the Notes provided by or pursuant to the Note Documents or by law;

 

(ii)           to confer on the Security Trustee or confer on the holders of the Notes over any property and assets of such Note Party or other member of the Restricted Group, as the case may be, located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Transaction Security Documents; and/or

 

(iii)          following the initiation of an enforcement action under Section 12 or otherwise, to facilitate the realization of the assets which are, or are intended to be, the subject of the Transaction Security.

 

34

 

(b)           Each Note Party shall (and Parent shall procure that each member of the Restricted Group shall) at all times take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Trustee or the holders of the Notes by or pursuant to the Note Documents.

 

(c)           Parent need only perform its obligations under paragraphs (a) and (b) above, to the extent it is not unlawful and would not result in personal liability for the directors or other management of the involved member of the Restricted Group.  Each Note Party must use, and must procure that the relevant person uses, all reasonable efforts lawfully available to avoid any such unlawfulness or personal liability.

 

Section 9.10.               Sponsorship Contracts and Arrangements . Parent shall ensure that no Unrestricted Subsidiary of the Parent will (a) enter into any sponsorship contract and/or arrangement; or (b) have transferred, assigned or novated to it any sponsorship contracts and/or arrangements by any member of the Restricted Group. For the avoidance of doubt, sponsorship contracts and/or arrangements shall not include contracts and/or arrangements relating to (i) paragraphs (a) and (c) of the definition of “New Holdco Business” or (ii) the provision or supply of content, services or other products.

 

Section 9.11.               Rating Requirement . On a date not later than the anniversary of the Closing Date in the year 2016 and in each year thereafter, for so long as any Notes shall remain outstanding, the Company shall cause a Major Rating Agency to furnish a written affirmation of the rating of the Notes as of such date to each holder of Notes.

 

Although it will not be a Default or an Event of Default if any Note Party fails to comply with any provision of Section 9 on or after the date of this Agreement and prior to the Closing, if such a failure occurs, then any of the Purchasers may elect not to purchase the Notes on the date of Closing that is specified in Section 3.

 

SECTION 10.            NEGATIVE COVENANTS.

 

From the date of this Agreement until the Closing and thereafter, so long as any of the Notes are outstanding, the Note Parties covenant and agree that:

 

Section 10.1.               Transactions with Affiliates . Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of Parent (each, an “ Affiliate Transaction ”), unless:

 

(a)           the Affiliate Transaction is on terms that are no less favorable to Parent or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by Parent or such Restricted Subsidiary with a Person who is not an Affiliate of Parent or any of its Restricted Subsidiaries; and

 

35

 

(b)           Parent delivers to each holder of Notes:

 

(i)            with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of £10.0 million, a resolution of the Board of Directors of Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 10.1 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of Parent or, if there are no disinterested directors in respect of such Affiliate Transaction, an opinion as to the fairness to Parent or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of international standing; and

 

(ii)           with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of £20.0 million, an opinion as to the fairness to Parent or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of international standing;

 

provided , however , that the following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing provisions of this Section 10.1:

 

(1)           any employment agreement, collective bargaining agreement, consultant agreement, employee benefit arrangements with any employee, consultant, officer or director of Parent or any of its Restricted Subsidiaries, including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into in the ordinary course of business;

 

(2)           transactions between or among Parent and/or its Restricted Subsidiaries;

 

(3)           transactions with a Person (other than an Unrestricted Subsidiary of Parent) that is an Affiliate of Parent solely because Parent owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;

 

(4)           payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors, employees or consultants of Parent or any of its Restricted Subsidiaries;

 

(5)           any issuance of Equity Interests (other than Disqualified Stock) or Subordinated Shareholder Funding of Parent to Affiliates of Parent;

 

36

 

(6)           Restricted Payments that do not violate the provisions of Section 10.7;

 

(7)           Permitted Investments (other than Permitted Investments described in clauses (c), (m) and (o) of the definition thereof);

 

(8)           transactions pursuant to, or contemplated by, any agreement in effect on the Closing Date and transactions pursuant to any amendment, modification or extension to such agreement, so long as such amendment, modification or extension, taken as a whole, is not materially more disadvantageous to the holders of the Notes than the original agreement as in effect on the Closing Date;

 

(9)           transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of the Note Documents that are fair to Parent and its Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of Parent or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;

 

(10)         any payments or other transactions pursuant to a tax sharing agreement or arrangement relating to taxes between Parent and any other Person or a Restricted Subsidiary of Parent and any other Person with which Parent or any of its Restricted Subsidiaries files a consolidated tax return or with which Parent or any of its Restricted Subsidiaries is part of a group for tax purposes or any tax advantageous group contribution made pursuant to applicable legislation; provided , however , that any such tax sharing or arrangement and payment does not permit or require payments in excess of the amounts of tax that would be payable by Parent and its Restricted Subsidiaries on a stand-alone basis; and

 

(11)         Permitted Reorganizations.

 

Section 10.2.               Merger, Consolidation, Etc .

 

(a)           Parent will not, directly or indirectly: (x) consolidate or merge with or into another Person, whether or not Parent is the surviving corporation, or (y) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of Parent and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:

 

(i)            either:

 

37

 

(A)          Parent is the surviving corporation; or

 

(B)          the Person formed by or surviving any such consolidation or merger (if other than Parent) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity organized or existing under the laws of any Permitted Jurisdiction;

 

(ii)           the Person formed by or surviving any such consolidation or merger (if other than Parent) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Parent under the Note Documents to which Parent is a party pursuant to agreements reasonably satisfactory to the Required Holders;

 

(iii)          immediately after such transaction, no Default or Event of Default exists;

 

(iv)          Parent, or the Person formed by or surviving any such consolidation or merger (if other than Parent), or to which such sale, assignment, transfer, conveyance or other disposition has been made, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (i) would be permitted to incur at least £1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 10.4(a) or (ii) the Fixed Charge Coverage Ratio would not be less than it was prior to such transaction; and

 

(v)           Parent delivers to each holder of a Note an Officers’ Certificate and opinion of counsel, in each case, stating that such consolidation, merger or transfer and assumption of obligations under the Note Documents comply with this Section 10.2.

 

(b)           Except as otherwise provided in this Section 10.2, a Guarantor (other than Parent or any Guarantor whose Note Guarantee is to be released in accordance with the Note Documents) may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company, Parent or another Guarantor, unless:

 

(i)            either:

 

(A)          the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (x) is organized under the laws of a Permitted Jurisdiction, (y) assumes all the obligations of that Guarantor under the Note Documents to which such Guarantor is a party pursuant to agreements reasonably satisfactory to the Required Holders and (z) immediately after giving effect to that transaction, no Default or Event of Default exists; or

 

38