SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Report on Form 6-K dated July 5, 2013
(Commission File No. 001-35053)
INTERXION HOLDING N.V.
(Translation of Registrants Name into English)
Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands, +31 20 880 7600
(Address of Principal Executive Office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F x Form 40-F ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ¨
Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7) ): ¨
Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrants home country), or under the rules of the home country exchange on which the registrants securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrants security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.
This Form 6-K contains (i) The press release of Interxion Holding N.V. (Interxion) dated July 1, 2013 announcing the final results for its tender offer and consent solicitation for its 9.50% Senior Secured Notes due 2017, as previously announced on Form 6-K, as filed with the Securities and Exchange Commission (the Commission) on June 3, 2013, (ii) the Indenture dated July 3, 2013, by and among, Interxion, the guarantors thereunder, The Bank of New York Mellon, London Branch, as trustee, principal paying agent and transfer agent, The Bank of New York Mellon (Luxembourg) S.A., as registrar and Luxembourg paying agent and Barclays Bank PLC as security trustee (the Indenture), and (iii) The Intercreditor Agreement dated July 3, 2013, by and among, Interxion, Barclays Bank PLC, as revolving agent, The Bank of New York Mellon, London Branch, as original senior secured notes trustee, the revolving lenders named therein, the original debtors named therein, and Barclays Bank PLC as security trustee (the Intercreditor Agreement).
Indenture
On July 3, 2013, Interxion completed an offering of 325,000,000 aggregate principal amount of 6.00% Senior Secured Notes due 2020 (the Notes). The Notes will pay interest semi-annually on each January 15 and July 15 at a rate of 6.00% per annum, and will mature on July 15, 2020. The Notes were offered and sold to initial purchasers in reliance on the exemption from registration provided by Section 4(2) of the Securities Act of 1933, as amended (the Securities Act). The initial purchasers then sold the Notes to qualified institutional buyers pursuant to exemptions from registration provided by Rule 144A under the Securities Act, and to persons outside the United States in reliance on Regulation S under the Securities Act. The Notes are governed by the Indenture.
The Notes are fully and unconditionally guaranteed (the Guarantees) by certain subsidiaries of Interxion (the Guarantors). The Notes and the Guarantees are secured by certain first-priority liens over certain shares, rights in respect of certain inter-company loan receivables, and rights over certain bank accounts, of Interxion and the Guarantors.
The description of the Indenture in this Form 6-K is not intended to be a complete description of the Indenture. The description is qualified in its entirety by the full text of the Indenture which is attached as Exhibit 99.2 and incorporated by reference in this Form 6-K.
Intercreditor Agreement
Interxion and certain of its subsidiaries entered into the Intercreditor Agreement to govern the relationships and relative priorities among: (i) the lenders named therein; (ii) original hedge counterparty or other persons that accede to the Intercreditor Agreement as counterparties to certain hedging agreements; (iii) the holders of the Notes; (iv) the holders of any future senior unsecured notes; and (v) intra-group creditors and debtors.
The Intercreditor Agreement sets out: (i) the relative ranking of certain indebtedness of the debtors; as defined in the Intercreditor Agreement (the Debtors); (ii) the relative ranking of certain security granted by the Debtors; (iii) when payments can be made in respect of certain indebtedness of the Debtors; (iv) when enforcement actions can be taken in respect of that indebtedness; (v) the terms pursuant to which that indebtedness will be subordinated upon the occurrence of certain insolvency events; (vi) turnover provisions; and (vii) when security and guarantees will be released to permit a sale of the Collateral, as defined in the Intercreditor Agreement.
The Intercreditor Agreement was entered into in connection with the Revolving Credit Facility agreement dated June 17, 2013 by and among Interxion Holding N.V., the guarantors thereunder, ABN AMRO Bank N.V., Barclays Bank PLC, Citigroup Global Markets Limited, Credit Suisse AG, Banc of America Securities Limited, as arrangers, the lenders thereunder, Barclays Bank PLC, as agent and Barclays Bank PLC as security trustee, as filed on Form 6-K with the Commission on June 20, 2013.
The description of the Intercreditor Agreement in this Form 6-K is not intended to be a complete description of the Intercreditor Agreement. The description is qualified in its entirety by the full text of the Intercreditor Agreement which is
attached as Exhibit 99.3 and incorporated by reference in this Form 6-K.
Exhibit |
||
99.1 |
Press release dated July 1, 2013. | |
99.2 |
The Indenture dated July 3, 2013, by and among, Interxion, the guarantors thereunder, The Bank of New York Mellon, London Branch, as trustee, principal paying agent and transfer agent, The Bank of New York Mellon (Luxembourg) S.A., as registrar and Luxembourg paying agent and Barclays Bank PLC as security trustee. | |
99.3 |
The Intercreditor Agreement dated July 3, 2013, by and among, Interxion Holding N.V., Barclays Bank PLC, as revolving agent, The Bank of New York Mellon, London Branch, as original senior secured notes trustee, the revolving lenders named therein, the original debtors named therein, and Barclays Bank PLC as security trustee. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
INTERXION HOLDING N.V. |
||
By: |
/s/ David C. Ruberg |
|
Name: | David C. Ruberg | |
Title: | Chief Executive Officer |
Date: July 5, 2013
Exhibit 99.1
Press release 1 July 2013
NOT FOR DISTRIBUTION TO ANY PERSON LOCATED OR RESIDENT IN ANY
JURISDICTION WHERE IT IS UNLAWFUL TO DISTRIBUTE THIS ANNOUNCEMENT.
Interxion Holding N.V. Announces Final Tender Offer and Consent Solicitation Results
for its 9.50% Senior Secured Notes due 2017
Amsterdam, The Netherlands 1 July 2013 Interxion Holding N.V. (Interxion, we, us, or the Company) (NYSE:INXN) today announced the final results of its offer to purchase for cash (the Tender Offer) any and all of its 260 million outstanding euro-denominated 9.50% Senior Secured Notes due 2017 (the Notes) and solicitation of consents to proposed amendments to the indenture governing the Notes (the Consent Solicitation, and together with the Tender Offer, the Offer) pursuant to an Offer to Purchase dated June 3, 2013 (the Offer to Purchase). The Tender Offer expired at 11:59 p.m., New York City time on June 28, 2013 (the Expiration Time).
As of the Expiration Time, holders of 256,962,000 aggregate principal amount of Notes (representing 98.83% of the outstanding Notes) had validly tendered and not validly withdrawn their Notes in the Offer. Prior to 5:00 p.m., New York City time, on June 14, 2013 (the Consent Deadline), holders of 255,012,000 aggregate principal amount of Notes had validly tendered and not validity withdrawn their Notes in the Offer. The total consideration for each 1,000 principal amount of Notes validly tendered prior to the Consent Deadline, is 1,102.00 plus accrued and unpaid interest up to, but not including, the time that payment for the Notes is made, which is expected to be July 3, 2013 (the Settlement Time). After the Consent Deadline, holders of 1,950,000 aggregate principal amount of Notes had validity tendered and not validly withdrawn their Notes in the Offer. The total consideration for each 1,000 principal amount of Notes validly tendered after the Consent Deadline, is 1,092.00 plus accrued and unpaid interest up to, but not including, the Settlement Time.
In connection with the Offer, Interxion solicited and received the requisite consents from holders of the Notes to amend the indenture related to the Notes. The amendments eliminate the indentures restrictive covenants and modify certain of its other provisions. The
Press release 1 July 2013
amendments to the indenture implementing those changes will become operative at the Settlement Time.
Interxion intends to exercise its option to redeem the remaining all outstanding Notes not purchased in the Offer on or about the Settlement Time at a redemption price equal to a make-whole amount as calculated in accordance with the terms of the indenture, plus accrued and unpaid interest up to, but not including, the redemption date, which will be 30 days following the notice of redemption.
Barclays Bank PLC was the exclusive Dealer Manager for the Offer. Lucid Issuer Services Limited acted as the Tender and Information Agent.
Forward-looking Statements
This press release contains forward-looking statements that involve risks and uncertainties. Actual results may differ materially from expectations discussed in such forward-looking statements. Factors that might cause such differences include, but are not limited to, the difficulty of reducing operating expenses in the short term, inability to utilise the capacity of newly planned data centres and data centre expansions, significant competition, the cost and supply of electrical power, data centre industry over-capacity, performance under service-level agreements, and other risks described from time to time in Interxions filings with the Securities and Exchange Commission. Interxion does not assume any obligation to update the forward-looking information contained in this press release.
DISCLAIMER
OFFER AND DISTRIBUTION RESTRICTIONS
NEITHER THE OFFER TO PURCHASE NOR ANY RELATED DOCUMENT HAS BEEN FILED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION, NOR HAS ANY SUCH DOCUMENT BEEN FILED WITH OR REVIEWED BY ANY U.S. STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY OF THE NETHERLANDS, FRANCE, ITALY, THE UNITED KINGDOM OR ANY OTHER COUNTRY. NO AUTHORITY HAS PASSED UPON
Press release 1 July 2013
THE ACCURACY OR ADEQUACY OF THE OFFER TO PURCHASE OR ANY RELATED DOCUMENTS, AND IT IS UNLAWFUL AND MAY BE A CRIMINAL OFFENCE TO MAKE ANY REPRESENTATION TO THE CONTRARY.
THE DISTRIBUTION OF THE OFFER TO PURCHASE IN CERTAIN JURISDICTIONS MAY BE RESTRICTED BY LAW. PERSONS INTO WHOSE POSSESSION THE OFFER TO PURCHASE COMES ARE REQUIRED BY THE COMPANY, THE DEALER MANAGER AND THE TENDER AND INFORMATION AGENT TO INFORM THEMSELVES ABOUT, AND TO OBSERVE, ANY SUCH RESTRICTIONS.
This announcement, the Offer to Purchase, and any other materials or advertisements in connection with the Offer may not be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of such jurisdiction. In those jurisdictions where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, and the Dealer Manager or any of its affiliates is such a licensed broker or dealer in such jurisdictions, the Offer shall be deemed to be made by the Dealer Manager or such affiliate (as the case may be) on behalf of Interxion in such jurisdictions. Persons into whose possession this document comes are advised to inform themselves about and to observe any restrictions relating to the Offer and the distribution of this announcement, the Offer to Purchase and any other related materials.
This announcement and the Offer to Purchase do not constitute an offer or solicitation to purchase Notes in any jurisdiction in which, or to, or from, any person to, or from, whom, it is unlawful to make such offer or solicitation under applicable securities or blue sky laws.
Contact:
Press release 1 July 2013
Jim Huseby
Investor Relations
Interxion
Tel: +1-813-644-9399
IR@interxion.com
Exhibit 99.2
EXECUTION VERSION
I NTER X ION H OLDING N.V.,
A S I SSUER ,
I NTER X ION B ELGIUM N.V., I NTER X ION D ANMARK A P S, I NTER X ION C ARRIER H OTEL L IMITED ,
I NTER X ION D ATACENTERS B.V., I NTER X ION D EUTSCHLAND G MB H, I NTERXION E SPAÑA S.A.,
I NTER X ION F RANCE SAS, I NTER X ION H EAD Q UARTERS B.V., I NTER X ION I RELAND L IMITED ,
I NTER X ION N EDERLAND B.V. AND I NTER X ION O PERATIONAL B.V.,
AS I NITIAL G UARANTORS ,
T HE B ANK OF N EW Y ORK M ELLON , LONDON BRANCH ,
AS T RUSTEE , P RINCIPAL P AYING A GENT AND T RANSFER A GENT
T HE B ANK OF N EW Y ORK M ELLON (L UXEMBOURG ) S.A.,
AS R EGISTRAR AND L UXEMBOURG P AYING A GENT
AND
B ARCLAYS B ANK PLC,
AS S ECURITY T RUSTEE
Indenture
Dated as of July 3, 2013
325,000,000
6.00% Senior Secured Notes due 2020
InterXion Holding N.V. Indenture | Page i |
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE |
1 | |||||
S ECTION 1.01. |
D EFINITIONS | 1 | ||||
S ECTION 1.02. |
O THER D EFINITIONS | 27 | ||||
S ECTION 1.03. |
R ULES OF C ONSTRUCTION | 27 | ||||
ARTICLE TWO THE NOTES |
28 | |||||
S ECTION 2.01. |
T HE N OTES | 28 | ||||
S ECTION 2.02. |
E XECUTION AND A UTHENTICATION | 29 | ||||
S ECTION 2.03. |
R EGISTRAR , T RANSFER A GENT AND P AYING A GENT | 30 | ||||
S ECTION 2.04. |
D EPOSITS P AYING A GENT TO H OLD M ONEY IN T RUST | 30 | ||||
S ECTION 2.05. |
H OLDER L ISTS | 31 | ||||
S ECTION 2.06. |
T RANSFER AND E XCHANGE | 31 | ||||
S ECTION 2.07. |
R EPLACEMENT N OTES | 38 | ||||
S ECTION 2.08. |
O UTSTANDING N OTES | 38 | ||||
S ECTION 2.09. |
N OTES H ELD BY THE I SSUER | 39 | ||||
S ECTION 2.10. |
[R ESERVED ] | 39 | ||||
S ECTION 2.11. |
C ANCELLATION | 39 | ||||
S ECTION 2.12. |
D EFAULTED I NTEREST | 39 | ||||
S ECTION 2.13. |
C OMPUTATION OF I NTEREST | 40 | ||||
S ECTION 2.14. |
CUSIP, ISIN AND C OMMON C ODE N UMBERS | 40 | ||||
S ECTION 2.15. |
I SSUANCE OF A DDITIONAL N OTES | 40 | ||||
S ECTION 2.16. |
A GENTS | 41 | ||||
S ECTION 2.17. |
T EMPORARY N OTES | 41 | ||||
ARTICLE THREE REDEMPTION; OFFERS TO PURCHASE |
42 | |||||
S ECTION 3.01. |
R IGHT OF R EDEMPTION | 42 | ||||
S ECTION 3.02. |
N OTICES TO T RUSTEE | 42 | ||||
S ECTION 3.03. |
S ELECTION OF N OTES TO BE R EDEEMED | 42 | ||||
S ECTION 3.04. |
N OTICE OF R EDEMPTION | 43 | ||||
S ECTION 3.05. |
D EPOSIT OF R EDEMPTION P RICE | 44 | ||||
S ECTION 3.06. |
P AYMENT OF N OTES C ALLED FOR R EDEMPTION | 44 | ||||
S ECTION 3.07. |
N OTES R EDEEMED IN P ART | 44 | ||||
S ECTION 3.08. |
M ANDATORY R EDEMPTION | 45 | ||||
ARTICLE FOUR COVENANTS |
45 | |||||
S ECTION 4.01. |
P AYMENT OF N OTES | 45 | ||||
S ECTION 4.02. |
C ORPORATE E XISTENCE | 45 | ||||
S ECTION 4.03. |
S TATEMENT AS TO C OMPLIANCE | 45 | ||||
SECTION 4.04. |
L IMITATION ON D EBT | 46 | ||||
S ECTION 4.05. |
L IMITATION ON L IENS | 50 | ||||
S ECTION 4.06. |
L IMITATION ON R ESTRICTED P AYMENTS | 50 | ||||
S ECTION 4.07. |
L IMITATION ON S ALE OF C ERTAIN A SSETS | 54 | ||||
S ECTION 4.08. |
L IMITATION ON T RANSACTIONS WITH A FFILIATES | 57 | ||||
S ECTION 4.09. |
C HANGE OF C ONTROL | 59 | ||||
S ECTION 4.10. |
A DDITIONAL A MOUNTS | 60 | ||||
S ECTION 4.11. |
L IMITATION ON G UARANTEES OF D EBT BY R ESTRICTED S UBSIDIARIES | 63 | ||||
S ECTION 4.12. |
L IMITATION ON D IVIDENDS AND O THER P AYMENT R ESTRICTIONS A FFECTING R ESTRICTED S UBSIDIARIES | 65 | ||||
S ECTION 4.13. |
D ESIGNATION OF U NRESTRICTED AND R ESTRICTED S UBSIDIARIES | 67 | ||||
S ECTION 4.14. |
R EPORTS TO H OLDERS | 69 | ||||
S ECTION 4.15. |
I MPAIRMENT OF S ECURITY I NTEREST | 70 | ||||
S ECTION 4.16. |
P AYMENTS FOR C ONSENT | 71 | ||||
S ECTION 4.17. |
A DDITIONAL I NTERCREDITOR A GREEMENT | 72 |
InterXion Holding N.V. Indenture | Page ii |
S ECTION 4.18. |
S USPENSION OF C OVENANTS ON A CHIEVEMENT OF I NVESTMENT G RADE S TATUS | 72 | ||||
S ECTION 4.19. |
F URTHER I NSTRUMENTS AND A CTS | 73 | ||||
S ECTION 4.20. |
C OMPLETION OF C OLLATERAL | 73 | ||||
ARTICLE FIVE CONSOLIDATION, MERGER OR SALE OF ASSETS |
73 | |||||
S ECTION 5.01. |
C ONSOLIDATION , M ERGER OR S ALE OF A SSETS | 73 | ||||
S ECTION 5.02. |
S UCCESSOR S UBSTITUTED | 76 | ||||
ARTICLE SIX DEFAULTS AND REMEDIES |
76 | |||||
S ECTION 6.01. |
E VENTS OF D EFAULT | 76 | ||||
S ECTION 6.02. |
A CCELERATION | 78 | ||||
S ECTION 6.03. |
O THER R EMEDIES | 79 | ||||
S ECTION 6.04. |
W AIVER OF P AST D EFAULTS | 80 | ||||
S ECTION 6.05. |
C ONTROL BY M AJORITY | 80 | ||||
S ECTION 6.06. |
L IMITATION ON S UITS | 80 | ||||
S ECTION 6.07. |
U NCONDITIONAL R IGHT OF H OLDERS TO R ECEIVE P AYMENT | 81 | ||||
S ECTION 6.08. |
C OLLECTION S UIT BY T RUSTEE | 81 | ||||
S ECTION 6.09. |
T RUSTEE M AY F ILE P ROOFS OF C LAIM | 82 | ||||
S ECTION 6.10. |
A PPLICATION OF M ONEY C OLLECTED | 82 | ||||
S ECTION 6.11. |
U NDERTAKING FOR C OSTS | 83 | ||||
S ECTION 6.12. |
R ESTORATION OF R IGHTS AND R EMEDIES | 83 | ||||
S ECTION 6.13. |
R IGHTS AND R EMEDIES C UMULATIVE | 83 | ||||
S ECTION 6.14. |
D ELAY OR O MISSION NOT W AIVER | 83 | ||||
S ECTION 6.15. |
R ECORD D ATE | 83 | ||||
S ECTION 6.16. |
W AIVER OF S TAY OR E XTENSION L AWS | 83 | ||||
ARTICLE SEVEN TRUSTEE |
84 | |||||
S ECTION 7.01. |
D UTIES OF T RUSTEE | 84 | ||||
S ECTION 7.02. |
C ERTAIN R IGHTS OF T RUSTEE | 85 | ||||
S ECTION 7.03. |
I NDIVIDUAL R IGHTS OF T RUSTEE | 88 | ||||
S ECTION 7.04. |
T RUSTEE S D ISCLAIMER | 88 | ||||
S ECTION 7.05. |
C OMPENSATION AND I NDEMNITY | 88 | ||||
S ECTION 7.06. |
R EPLACEMENT OF T RUSTEE | 89 | ||||
S ECTION 7.07. |
S UCCESSOR T RUSTEE BY M ERGER | 90 | ||||
S ECTION 7.08. |
E LIGIBILITY : D ISQUALIFICATION | 90 | ||||
ARTICLE EIGHT DEFEASANCE; SATISFACTION AND DISCHARGE |
91 | |||||
S ECTION 8.01. |
I SSUER S O PTION TO E FFECT D EFEASANCE OR C OVENANT D EFEASANCE | 91 | ||||
S ECTION 8.02. |
D EFEASANCE AND D ISCHARGE | 91 | ||||
S ECTION 8.03. |
C OVENANT D EFEASANCE | 91 | ||||
S ECTION 8.04. |
C ONDITIONS TO D EFEASANCE | 91 | ||||
S ECTION 8.05. |
S ATISFACTION AND D ISCHARGE OF I NDENTURE | 93 | ||||
S ECTION 8.06. |
S URVIVAL OF C ERTAIN O BLIGATIONS | 94 | ||||
S ECTION 8.07. |
A CKNOWLEDGMENT OF D ISCHARGE BY T RUSTEE | 94 | ||||
S ECTION 8.08. |
A PPLICATION OF T RUST M ONEY | 94 | ||||
S ECTION 8.09. |
R EPAYMENT TO I SSUER | 94 | ||||
S ECTION 8.10. |
I NDEMNITY FOR G OVERNMENT S ECURITIES | 95 | ||||
S ECTION 8.11. |
R EINSTATEMENT | 95 | ||||
ARTICLE NINE AMENDMENTS AND WAIVERS |
95 | |||||
S ECTION 9.01. |
W ITHOUT C ONSENT OF H OLDERS | 95 | ||||
S ECTION 9.02. |
W ITH C ONSENT OF H OLDERS | 96 | ||||
S ECTION 9.03. |
E FFECT OF S UPPLEMENTAL I NDENTURES | 97 | ||||
S ECTION 9.04. |
N OTATION ON OR E XCHANGE OF N OTES | 97 | ||||
S ECTION 9.05. |
N OTICE OF A MENDMENT OR W AIVER | 97 | ||||
S ECTION 9.06. |
P ROCESS FOR C ONSENTS | 98 | ||||
ARTICLE TEN GUARANTEE |
98 | |||||
S ECTION 10.01. |
G UARANTEE | 98 | ||||
S ECTION 10.02. |
S UBROGATION | 99 |
InterXion Holding N.V. Indenture | Page iii |
S ECTION 10.03. |
G ENERAL L IMITATION OF G UARANTEE | 99 | ||||
S ECTION 10.04. |
L IMITATION OF G UARANTEE T HE N ETHERLANDS | 100 | ||||
S ECTION 10.05. |
L IMITATION OF G UARANTEE G ERMANY | 100 | ||||
S ECTION 10.06. |
L IMITATION OF G UARANTEE F RANCE | 102 | ||||
S ECTION 10.07. |
L IMITATION OF G UARANTEE S PAIN | 103 | ||||
S ECTION 10.08. |
L IMITATION OF G UARANTEE R EPUBLIC OF I RELAND | 103 | ||||
S ECTION 10.09. |
L IMITATION OF G UARANTEE B ELGIUM | 103 | ||||
S ECTION 10.10. |
L IMITATION OF G UARANTEE D ENMARK | 104 | ||||
S ECTION 10.11. |
N OTATION N OT R EQUIRED | 104 | ||||
S ECTION 10.12. |
R ELEASE OF T HE G UARANTEES | 105 | ||||
S ECTION 10.13. |
S UCCESSORS AND A SSIGNS | 105 | ||||
S ECTION 10.14. |
N O W AIVER | 105 | ||||
S ECTION 10.15. |
M ODIFICATION | 105 | ||||
ARTICLE ELEVEN INTERCREDITOR AGREEMENT |
106 | |||||
S ECTION 11.01. |
I NTERCREDITOR A GREEMENT C ONTROLS | 106 | ||||
ARTICLE TWELVE COLLATERAL AND SECURITY |
106 | |||||
S ECTION 12.01. |
C REATION OF P ARALLEL D EBT | 106 | ||||
S ECTION 12.02. |
S ECURITY D OCUMENTS | 108 | ||||
S ECTION 12.03. |
R ELEASE OF C OLLATERAL | 109 | ||||
S ECTION 12.04. |
A UTHORIZATION OF A CTIONS TO B E T AKEN BY THE S ECURITY T RUSTEE OR THE T RUSTEE U NDER THE S ECURITY D OCUMENTS | 110 | ||||
S ECTION 12.05. |
A UTHORIZATION OF R ECEIPT OF F UNDS BY THE S ECURITY T RUSTEE AND THE T RUSTEE U NDER THE S ECURITY D OCUMENTS | 110 | ||||
S ECTION 12.06. |
F RENCH S ECURITY | 110 | ||||
S ECTION 12.07. |
N O O BLIGATION TO P ERFECT | 111 | ||||
ARTICLE THIRTEEN MISCELLANEOUS |
111 | |||||
S ECTION 13.01. |
N OTICES | 111 | ||||
S ECTION 13.02. |
C OMMUNICATIONS | 113 | ||||
S ECTION 13.03. |
C ERTIFICATE AND O PINION AS TO C ONDITIONS P RECEDENT | 113 | ||||
S ECTION 13.04. |
S TATEMENTS R EQUIRED IN C ERTIFICATE OR O PINION | 113 | ||||
S ECTION 13.05. |
R ULES BY T RUSTEE , P AYING A GENT AND R EGISTRAR | 114 | ||||
S ECTION 13.06. |
L EGAL H OLIDAYS | 114 | ||||
S ECTION 13.07. |
G OVERNING L AW | 114 | ||||
S ECTION 13.08. |
J URISDICTION | 114 | ||||
S ECTION 13.09. |
N O R ECOURSE A GAINST O THERS | 115 | ||||
S ECTION 13.10. |
S UCCESSORS | 115 | ||||
S ECTION 13.11. |
C OUNTERPARTS | 115 | ||||
S ECTION 13.12. |
T ABLE OF C ONTENTS , C ROSS - REFERENCE S HEET AND H EADINGS | 115 | ||||
S ECTION 13.13. |
S EVERABILITY | 115 | ||||
S ECTION 13.14. |
C URRENCY I NDEMNITY | 115 | ||||
S ECTION 13.15. |
N O A DVERSE I NTERPRETATION OF O THER A GREEMENTS | 116 | ||||
S ECTION 13.16. |
A GENTS | 116 | ||||
S ECTION 13.17. |
W AIVER OF J URY T RIAL | 116 |
InterXion Holding N.V. Indenture | Page iv |
Exhibits
Exhibit A | - | Form of Notes | ||
Exhibit B | - | Form of Certificate of Transfer | ||
Exhibit C | - | Form of Certificate of Exchange | ||
Exhibit D | - | Form of Supplemental Indenture |
InterXion Holding N.V. Indenture | Page 1 |
INDENTURE dated as of July 3, 2013 among InterXion Holding N.V., a limited liability company incorporated under the laws of The Netherlands and with its corporate seat at Amsterdam, The Netherlands (the Issuer ), InterXion Belgium N.V., InterXion Danmark ApS, InterXion Carrier Hotel Limited, InterXion Datacenters B.V., InterXion Deutschland GmbH, Interxion España S.A., InterXion France SAS, InterXion HeadQuarters B.V., InterXion Ireland Limited, InterXion Nederland B.V. and InterXion Operational B.V. (the Initial Guarantors ), such other Persons as may from time to time become a party to this Indenture upon Incurring a Guarantee (as provided herein), The Bank of New York Mellon, London Branch as Trustee, Principal Paying Agent and Transfer Agent (as such terms are defined below), The Bank of New York Mellon (Luxembourg) S.A., as Registrar (as defined below), and Barclays Bank PLC (the Security Trustee ).
RECITALS OF THE ISSUER AND THE GUARANTORS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of its (i) 6.00% Senior Secured Notes due 2020 issued on the date hereof (the Original Notes ) and (ii) any additional Notes ( Additional Notes ) that may be issued after the Issue Date (as defined herein) (the Original Notes and any Additional Notes, the Notes ). The Guarantors (as defined herein) have duly authorized the execution and delivery of this Indenture to provide for the issuance of their Guarantees (as defined herein). The Issuer and the Guarantors have received good and valuable consideration for the execution and delivery of this Indenture and the Guarantees, as the case may be. The Guarantors will derive substantial direct and indirect benefits from the issuance of the Notes. All necessary acts and things have been done to make: (i) the Notes, when duly issued and executed by the Issuer and authenticated and delivered hereunder, the legal, valid and binding obligations of the Issuer; and (ii) this Indenture a legal, valid and binding agreement of the Issuer and the Guarantors in accordance with the terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed by the parties hereto, for the benefit of each other and for the equal and proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions
144A Global Note means a Global Note bearing the Global Note Legend and the Private Placement Legend deposited with and registered in the name of a nominee of the Common Depositary for Euroclear and Clearstream, that will be issued in an initial amount equal to the principal amount of the Notes sold in reliance on Rule 144A.
Acquired Debt means Debt of a Person:
(a) | existing at the time such Person becomes a Restricted Subsidiary or is merged into or consolidated with the Issuer or any Restricted Subsidiary; or |
(b) | assumed in connection with the acquisition of assets from any such Person, |
provided that, in each case, such Debt was not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary or such acquisition, as the case may be.
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Acquired Debt will be deemed to be Incurred on the date the acquired Person becomes a Restricted Subsidiary (or is merged into or consolidated with the Issuer or any Restricted Subsidiary, as the case may be) or the date of the related acquisition of assets from any Person.
Adjusted EBITDA means, for any period, the sum of the operating profit (or loss) of the Issuer and the Restricted Subsidiaries for such period as determined in accordance with IFRS:
(a) | plus depreciation, amortization and impairment of assets ( less reversal of such impairment); |
(b) | plus share-based payments and charge ( less income) attributable to a defined benefit pension scheme other than the current service costs attributable to the scheme; |
(c) | plus exceptional general and administrative costs and material losses ( less gains) of unusual or non-recurring nature; |
(d) | less exceptional income; and |
(e) | plus share of the profits of any non-consolidated Person (other than the Issuer or a Restricted Subsidiary) to the extent received in cash by the Issuer or a Restricted Subsidiary and ( less the share of the losses of such non-consolidated Person to the extent funded in cash by the Issuer or a Restricted Subsidiary). |
Affiliate means, with respect to any specified Person:
(a) | any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person; |
(b) | any other Person that owns, directly or indirectly, 10% or more of such specified Persons Capital Stock or any officer or director of any such specified Person or other Person or, with respect to any natural Person, any Person having a relationship with such Person by blood, marriage or adoption not more remote than first cousin; or |
(c) | any other Person 10% or more of the Voting Stock of which is beneficially owned or held, directly or indirectly by such specified Person. |
For the purposes of this definition, control, when used with respect to any specified Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Agents means any Paying Agent, Registrar, Transfer Agent or any one of them.
Applicable Procedures means, with respect to any transfer or exchange of or for Book-Entry Interests in any Global Note, the procedures of Euroclear and/or Clearstream that apply to such transfer or exchange.
Applicable Redemption Premium means, with respect to any Note on any Redemption Date, the greater of:
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(a) | 1.0% of the principal amount of the Note; and |
(b) | the excess of: |
(i) | the present value at such Redemption Date of: (x) the redemption price of such Note at July 15, 2016 (such redemption price being set forth in the table appearing in the Notes; plus (y) all required interest payments that would otherwise be due to be paid on such Note during the period between the Redemption Date and July 15, 2016 (excluding accrued but unpaid interest), computed using a discount rate equal to the Bund Rate plus 50 basis points; over |
(ii) | the outstanding principal amount of the Note. |
For the avoidance of doubt, calculation of the Applicable Redemption Premium shall not be a duty or obligation of the Trustee or any Paying Agent.
Asset Sale means any sale, issuance, conveyance, transfer, lease (other than operating leases) or other disposition (including, without limitation, by way of merger, consolidation, amalgamation or other combination or sale and leaseback transaction) (collectively, a transfer ), directly or indirectly, in one or a series of related transactions, of:
(a) | any Capital Stock of any Subsidiary (other than directors qualifying shares or shares required by applicable law to be held by a Person other than the Issuer or a Subsidiary); |
(b) | all or substantially all of the properties and assets of any division or line of business of the Issuer or any Restricted Subsidiary; or |
(c) | any other of the Issuers or any Restricted Subsidiarys properties or assets. |
Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:
(i) | any single transaction or series of related transactions that involves assets or Capital Stock having a Fair Market Value of less than 2.0 million; |
(ii) | any transfer or disposition of assets by the Issuer to any Restricted Subsidiary, or by any Restricted Subsidiary to the Issuer or any Restricted Subsidiary and otherwise in accordance with the terms of this Indenture; |
(iii) | any transfer or disposition of obsolete or permanently retired equipment or facilities or other assets that are no longer useful in the conduct of the Issuers and any Restricted Subsidiarys business; |
(iv) | sales or dispositions of receivables in any factoring transaction in the ordinary course of business; |
(v) | any transfer or disposition of assets that is governed by the provisions of this Indenture described under Section 5.01 and Section 4.09; |
(vi) | for the purposes of Section 4.07 only, the making of a Permitted Investment or a Restricted Payment permitted under Section 4.06; |
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(vii) | the sale, lease, sublease, assignment or other disposition of any real or personal property or any equipment, inventory or other assets in the ordinary course of business; |
(viii) | an issuance of Capital Stock by a Restricted Subsidiary to the Issuer or to another Restricted Subsidiary; |
(ix) | any transfer, termination, unwinding or other disposition of Hedging Agreements in the ordinary course of business and not for speculative purposes; |
(x) | sales of assets received by the Issuer or any Restricted Subsidiary upon the foreclosure on a Lien granted in favor of the Issuer or any Restricted Subsidiary or any other transfer of title with respect to any secured investment in default; |
(xi) | any disposition in connection with a Permitted Lien; |
(xii) | the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims, in the ordinary course of business; |
(xiii) | a sale and leaseback transaction with respect to any assets within 180 days of the acquisition of such assets; |
(xiv) | a disposition of cash or Cash Equivalents; or |
(xv) | disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements. |
Authorized Person means any person who is designated in writing by the Issuer from time to time to give Instructions to Trustee or an Agent under this Indenture.
Average Life means, as at the date of determination with respect to any Debt, the quotient obtained by dividing:
(a) | the sum of the products of: |
(i) | the numbers of years from the date of determination to the date or dates of each successive scheduled principal payment of such Debt; multiplied by |
(ii) | the amount of each such principal payment; |
by
(b) | the sum of all such principal payments. |
Baker Capital means Baker Capital Corp., Lamont Finance N.V., Chianna Investment N.V., Baker Communications Fund II, L.P., Baker Communications Fund (Cayman), L.P., and/or Baker Communications Fund II (Cayman), L.P.
Bankruptcy Law means any law relating to bankruptcy, insolvency, receivership, winding-up, administration, liquidation, examinership, reorganization or relief of debtors or impairment of creditors or any amendment to, succession to or change in any such law.
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Board of Directors means:
(a) | with respect to any corporation (which includes, for the avoidance of doubt, the Issuer), the board of directors or managers of the corporation (which, in the case of any corporation having both a supervisory board and an executive or management board, shall be the executive or management board) or any duly authorized committee thereof; |
(b) | with respect to any partnership, the board of directors of the general partner of the partnership or any duly authorized committee thereof; |
(c) | with respect to a limited liability company, the managing member or members (or analogous governing body) or any controlling committee of managing members thereof; and |
(d) | with respect to any other Person, the board or any duly authorized committee thereof or committee of such Person serving a similar function. |
Book-Entry Interest means a beneficial interest in a Global Note held through and shown on, and transferred only through, records maintained in book-entry form by a Depositary.
Bund Rate means, with respect to any Redemption Date, the rate per annum equal to the equivalent yield to maturity as at such Redemption Date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such Redemption Date, where:
(a) | Comparable German Bund Issue means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such Redemption Date to July 15, 2016 and that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of Euro denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to July 15, 2016; provided that if the period from such Redemption Date to July 15, 2016, is less than one year, a fixed maturity of one year shall be used; |
(b) | Comparable German Bund Price means, with respect to any Redemption Date, the average of the Reference German Bund Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations; |
(c) | Reference German Bund Dealer means any dealer of German Bundesanleihe securities appointed by the Issuer in consultation with the Trustee; and |
(d) |
Reference German Bund Dealer Quotations means, with respect to each Reference German Bund Dealer and any Redemption Date, the average as determined by the Issuer of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund |
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Dealer at 3:30 p.m. Frankfurt, Germany time on the third business day preceding such Redemption Date. |
Business Day means a day other than a Saturday, Sunday or other day on which banking institutions in Amsterdam, London, New York or a place of payment under this Indenture are authorized or required by law to close.
Capital Stock means, with respect to any Person, any and all shares, interests, partnership interests (whether general or limited), participations, rights in or other equivalents (however designated) of such Persons equity, any other interest or participation that confers the right to receive a share of the profits and losses, or distributions of assets of, such Person and any rights (other than debt securities convertible into or exchangeable for Capital Stock), warrants or options exchangeable for, or convertible into, such Capital Stock, whether now outstanding or issued after the Issue Date.
Capitalized Lease Obligation means, with respect to any Person, any obligation of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed), which obligation is required to be classified and accounted for as a capital lease obligation under IFRS (as in effect on the Issue Date for purposes of determining whether a lease is a capital lease), and, for purposes of this Indenture, the amount of such obligation at any date will be the capitalized amount thereof at such date, determined in accordance with IFRS and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty. For the avoidance of doubt, obligations that are accounted for as operating lease arrangements for financial reporting purposes in accordance with IFRS as in effect on the Issue Date will not be Capitalized Lease Obligations.
Cash Equivalents means any of the following:
(a) | any evidence of Debt denominated in Euro, Sterling or U.S. dollars with a maturity of one year or less from the date of acquisition, issued or directly and fully guaranteed or insured by a member state (an EU Member State ) of the European Union whose sole lawful currency on the Issue Date is the Euro, the government of the United Kingdom of Great Britain and Northern Ireland, the United States of America, any state thereof or the District of Columbia, Canada or any province of Canada, Norway or Switzerland, or any agency or instrumentality thereof; |
(b) | time deposit accounts, certificates of deposit, money market deposits or bankers acceptances denominated in Euro, Sterling or U.S. dollars with a maturity of one year or less from the date of acquisition issued by a bank or trust company organized in an EU Member State, the United Kingdom of Great Britain and Northern Ireland, Canada, Norway or Switzerland or any commercial banking institution that is a member of the U.S. Federal Reserve System, in each case having combined capital and surplus and undivided profits of not less than 500.0 million, whose long-term, unsecured, unsubordinated and unguaranteed debt has a rating, at the time any investment is made therein, of at least A or the equivalent thereof from S&P and at least A2 or the equivalent thereof from Moodys; |
(c) |
commercial paper with a maturity of one year or less from the date of acquisition issued by a corporation that is not the Issuers or any Restricted Subsidiarys Affiliate and which is incorporated under the laws of an EU Member State, United Kingdom of Great Britain and Northern Ireland, the |
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United States of America or any state thereof and, at the time of acquisition, having a short-term credit rating of at least
A-1 or the equivalent thereof from S&P or at least P-1 or the equivalent thereof from Moodys; |
(d) | repurchase obligations with a term of not more than thirty days for underlying securities of the type described in clause (a) above, entered into with a financial institution meeting the qualifications described in clause (b) above; and |
(e) | Investments in money market mutual funds substantially all of the assets of which constitute Cash Equivalents of the kind described in clauses (a) through (d) above. |
Change of Control means the occurrence of any of the following events:
(a) | the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) any person or group of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date) other than one or more Permitted Holders becoming the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Issue Date), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer, provided that for the purposes of this clause (a), no Change of Control shall be deemed to occur by reason of the Issuer becoming a Subsidiary of a Successor Parent; or |
(b) | the sale of all or substantially all the assets of the Issuer (determined on a consolidated basis), other than by way of merger, consolidation or other business combination transaction, in one or a series of related transactions to another Person other than a Restricted Subsidiary or one or more Permitted Holders. |
Clearstream means Clearstream Banking, société anonyme , or any successor securities clearing agency.
Collateral means the rights and assets over which security is granted to secure the Notes and the Guarantees pursuant to the Security Documents.
Commission means the U.S. Securities and Exchange Commission.
Common Depositary means The Bank of New York Mellon, London Branch in its capacity as common depositary for Euroclear and Clearstream.
Consolidated Fixed Charge Coverage Ratio of the Issuer means, for any period, the ratio of (1) Adjusted EBITDA to (2) Consolidated Interest Expense; provided that:
(a) |
if the Issuer or any Restricted Subsidiary has Incurred any Debt since the beginning of such period that remains outstanding or if the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio is an Incurrence of Debt or both, Consolidated Net Income and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Debt as if such Debt had been Incurred on the first day of such period and the discharge of any other Debt repaid, repurchased, |
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defeased or otherwise discharged with the proceeds of such new Debt as if such discharge had occurred on the first day of such period; |
(b) | if, since the beginning of such period, the Issuer or any Restricted Subsidiary shall have made any Asset Sale, Consolidated Net Income for such period shall be reduced by an amount equal to the Consolidated Net Income (if positive) directly attributable to the assets which are the subject of such asset sale for such period, or increased by an amount equal to the Consolidated Net Income (if negative) directly attributable thereto, for such period and the Consolidated Interest Expense for such period shall be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any Debt of the Issuer or of any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with respect to the Issuer and the continuing Restricted Subsidiaries in connection with such Asset Sale for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period directly attributable to the Debt of such Restricted Subsidiary to the extent the Issuer and the continuing Restricted Subsidiaries are no longer liable for such Debt after such sale); |
(c) | if, since the beginning of such period the Issuer or any Restricted Subsidiary (by merger, consolidation, amalgamation or other combination or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary) or an acquisition of assets, including any acquisition of an asset occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantially all of an operating unit of a business, Consolidated Net Income and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any Debt) as if such Investment or acquisition occurred on the first day of such period; and |
(d) | if, since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary since the beginning of such period) shall have made any Asset Sale or any Investment or acquisition of assets that would have required an adjustment pursuant to clause (b) or (c) if made by the Issuer or a Restricted Subsidiary during such period, Consolidated Net Income and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such asset sale or Investment or acquisition occurred on the first day of such period, |
provided , however, the pro forma calculation of the Consolidated Fixed Charge Coverage Ratio shall not give effect to (i) any Debt incurred on the date of determination pursuant to Section 4.04(2) or (ii) the discharge on the date of determination of any Debt to the extent that such discharge results from the proceeds incurred pursuant to Section 4.04(2).
If any Debt bears a floating rate of interest and is being given pro forma effect, the interest expense on such Debt shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Debt for a period equal to the remaining term of such Interest Rate Agreement).
Consolidated Interest Expense means, for any period, without duplication and in each case determined on a consolidated basis in accordance with IFRS, the sum of:
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(a) | the Issuers and the Restricted Subsidiaries interest expense on loans, notes and capital leases for such period, plus , to the extent not otherwise included in interest expense on loans, notes and capital leases: |
(i) | amortization of debt discount and original issue discount; |
(ii) | the net payments made or received pursuant to Hedging Agreements (including amortization of fees and discounts); |
(iii) | commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and similar transactions; and |
(iv) | the interest portion of any deferred payment obligation and amortization of debt issuance costs; plus |
(b) | the interest component of the Issuers and the Restricted Subsidiaries Capitalized Lease Obligations accrued and/or scheduled to be paid or accrued during such period other than the interest component of Capitalized Lease Obligations between or among the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; plus |
(c) | the Issuers and the Restricted Subsidiaries non-cash interest expenses and interest that was capitalized during such period; plus |
(d) | the interest expense on Debt of another Person to the extent such Debt is guaranteed by the Issuer or any Restricted Subsidiary or secured by a Lien on the Issuers or any Restricted Subsidiarys assets, but only to the extent that such interest is actually paid by the Issuer or such Restricted Subsidiary; plus |
(e) | cash and non-cash dividends due (whether or not declared) on the Issuers Redeemable Capital Stock and any Restricted Subsidiarys Preferred Stock (to any Person other than the Issuer and any Restricted Subsidiary), in each case for such period. |
Consolidated Leverage means, as of any date of determination, the sum of the total amount of Debt of the Issuer and its Restricted Subsidiaries, less cash and Cash Equivalents, in each case that would be stated on the balance sheet of the Issuer and its Restricted Subsidiaries on a consolidated basis on such date.
Consolidated Leverage Ratio means, as at any date of determination, the ratio of:
(a) | the Consolidated Leverage of the Issuer on such date, to |
(b) | the pro forma Adjusted EBITDA for the period of the most recent four consecutive fiscal quarters for which internal financial statement are available, in each case with such pro forma adjustments to Debt and Adjusted EBITDA as are consistent with the pro forma adjustments set forth in the definition of Consolidated Fixed Charge Coverage Ratio. |
Consolidated Net Income means, for any period, the Issuers and the Restricted Subsidiaries consolidated net income (or loss) for such period as determined in accordance with IFRS, adjusted by excluding (to the extent included in such consolidated net income or loss), without duplication:
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(a) | the portion of net income (and the loss unless and to the extent funded in cash by the Issuer or a Restricted Subsidiary) of any Person (other than the Issuer or a Restricted Subsidiary), including Unrestricted Subsidiaries, in which the Issuer or any Restricted Subsidiary has an equity ownership interest, except that the Issuers or a Restricted Subsidiarys equity in the net income of such Person for such period shall be included in such Consolidated Net Income to the extent of the aggregate amount of dividends or other distributions actually paid to the Issuer or any Restricted Subsidiary in cash dividends or other distributions during such period; |
(b) | the net income (but not the loss) of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the date of determination permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary or its shareholders (other than restrictions (i) pursuant to this Indenture, (ii) contractual restrictions in effect on the Issue Date with respect to a Restricted Subsidiary, and other restrictions with respect to such Restricted Subsidiary that, taken as a whole, are not materially less favorable to the Holders than such restrictions in effect on the Issue Date, and (iii) restrictions specified in clause (2)(m) of Section 4.12; |
(c) | net after-tax gains attributable to the termination of any employee pension benefit plan; |
(d) | any restoration to net income of any contingency reserve, except to the extent provision for such reserve was made out of income accrued at any time following the Issue Date; |
(e) | any net gain arising from the acquisition of any securities or extinguishment, under IFRS, of any Debt of such Person; |
(f) | the net income attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or not such operations were classified as discontinued); |
(g) | any gains (but not losses) from currency exchange transactions not in the ordinary course of business; |
(h) | the net gain (or loss) realized upon the sale or other disposition of any asset or disposed operations of the Issuer or any Restricted Subsidiary (including pursuant to a sale/leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by an officer or the Board of Directors of the Issuer); |
(i) | any extraordinary, exceptional, unusual or non-recurring gain, loss or charge; |
(j) | any non-cash compensation charge or expense arising from any grant of stock, stock options or other equity based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions; and |
(k) |
any unrealized gains or losses in respect of Hedging Agreements or other derivative instruments or forward contracts or any ineffectiveness recognized in earnings related to a qualifying hedge transaction or the fair value or |
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changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of Hedging Agreements. |
Consolidated Senior Leverage Ratio , as at any date of determination, means the ratio of:
(1) | the outstanding Senior Debt of the Issuer and its Restricted Subsidiaries on a consolidated basis, to |
(2) | the pro forma Adjusted EBITDA for the period of the most recent four consecutive fiscal quarters for which internal financial statements are available, in each case with such pro forma adjustments to Debt and Adjusted EBITDA as are consistent with the pro forma adjustments set forth in the definition of Consolidated Fixed Charge Coverage Ratio. |
Corporate Trust Office means the principal corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered, which office at the date of execution of this Indenture is located at One Canada Square, London, England E14 5AL, or such other address in London, England, as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address in London, England, as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).
Credit Facility or Credit Facilities means, one or more debt facilities or indentures, as the case may be, (including the Revolving Credit Facility) or commercial paper facilities with banks, insurance companies or other institutional lenders providing for revolving credit loans, term loans, notes, letters of credit or other forms of guarantees and assurances or other credit facilities or extensions of credit, including overdrafts, in each case, as amended, restated, modified, renewed, refunded, replaced, refinanced, repaid, increased or extended in whole or in part from time to time.
Currency Agreements means, in respect of a Person, any spot or forward foreign exchange agreements and currency swap, currency option or other similar financial agreements or arrangements designed to protect such Person against or manage exposure to fluctuations in foreign currency exchange rates.
Custodian means any receiver, trustee, assignee, liquidator, custodian, administrator or similar official under any Bankruptcy Law.
Debt means, with respect to any Person, without duplication:
(a) | all liabilities of such Person for borrowed money (including overdrafts) or for the deferred purchase price of property or services, excluding any trade payables and other accrued current liabilities Incurred in the ordinary course of business; |
(b) | all obligations of such Person evidenced by bonds, notes, debentures or other similar instruments; |
(c) | all reimbursement obligations of such Person in connection with any letters of credit, bankers acceptances, receivables facilities or other similar facilities; |
(d) |
all debt of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even if the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), |
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which is due more than one year after its incurrence but excluding trade payables arising in the ordinary course of business; |
(e) | all Capitalized Lease Obligations of such Person; |
(f) | all obligations of such Person under or in respect of Hedging Agreements (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such obligation that would be payable by such Person at such time); |
(g) | all Debt referred to in (but not excluded from) the preceding clauses (a) through (f) of other Persons and all dividends of other Persons, the payment of which is secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien upon or with respect to property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt (the amount of such obligation being deemed to be the lesser of the Fair Market Value of such property or asset and the amount of the obligation so secured); |
(h) | all guarantees by such Person of Debt referred to in this definition of any other Person; |
(i) | all Redeemable Capital Stock of such Person valued at the greater of its voluntary maximum fixed repurchase price and involuntary maximum fixed repurchase price; and |
(j) | Preferred Stock of any Restricted Subsidiary, |
in each case to the extent it appears as a liability on the balance sheet in accordance with IFRS; provided that the term Debt shall not include: (i) non-interest bearing installment obligations and accrued liabilities Incurred in the ordinary course of business that are not more than 90 days past due; (ii) anything accounted for as an operating lease in accordance with IFRS as at the Issue Date; (iii) any pension obligations of the Issuer or a Restricted Subsidiary; and (iv) Debt incurred by the Issuer or one of the Restricted Subsidiaries in connection with a transaction where (a) such Debt is borrowed from a bank or trust company incorporated in any member state of the European Union as of the date of this Indenture, or any commercial banking institution that is a member of the U.S. Federal Reserve System, in each case having a combined capital and surplus and undivided profits of not less than 500 million, whose debt has a rating immediately prior to the time such transaction is entered into, of at least A or the equivalent thereof by S&P and A2 or the equivalent thereof by Moodys and (b) a substantially concurrent Investment is made by the Issuer or a Restricted Subsidiary in the form of cash deposited with the lender of such Debt, or a Subsidiary or affiliate thereof, in amount equal to such Debt.
For purposes of this definition, the maximum fixed repurchase price of any Redeemable Capital Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on any date on which Debt will be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Redeemable Capital Stock, such fair market value will be determined in good faith by the Board of Directors of the issuer of such Redeemable Capital Stock; provided , that if such Redeemable Capital Stock is not then permitted to be redeemed, repaid or repurchased, the redemption, repayment or repurchase price shall be
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the book value of such Redeemable Capital Stock as reflected in the most recent financial statements of such Person.
Default means any event that is, or after the giving of notice or passage of time or both would be, an Event of Default.
Definitive Registered Note means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 and Section 2.07, substantially in the form of Exhibit A hereto, except that such Note shall not bear the Global Note Legend and shall not have the Schedule of Principal Amount attached thereto.
Designated Non-cash Consideration means the Fair Market Value of non-cash consideration received by the Issuer or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.
Depositary means Euroclear, Clearstream and their respective nominees and successors, acting through itself or through the Common Depositary.
Disinterested Member means, with respect to any transaction or series of related transactions, a member of the Issuers Board of Directors who does not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions or is not an Affiliate, or an officer, director, member of a supervisory, executive or management board or employee of any Person (other than the Issuer or a Restricted Subsidiary) who has any direct or indirect financial interest in or with respect to such transaction or series of related transactions.
Equity Offering means an underwritten offer and sale of Capital Stock (which is Qualified Capital Stock) of the Issuer, or any Holding Company of the Issuer; provided that the net proceeds of such underwritten public offer and sale are contributed to the equity capital of the Issuer.
Euro or means the lawful currency of the member states of the European Union that participate in the third stage of the European Economic and Monetary Union.
Euro Equivalent means, with respect to any monetary amount in a currency other than Euro, at any time for the determination thereof, the amount of Euro obtained by converting such foreign currency involved in such computation into Euro at the spot rate for the purchase of Euro with the applicable foreign currency as published under Currency Rates in the section of The Financial Times entitled Currencies, Bonds & Interest Rates on the date two Business Days prior to such determination.
Euroclear means Euroclear SA/NV, or any successor securities clearing agency.
European Government Obligations means direct obligations (or certificates representing an ownership interest in such obligations) of a member state of the European Union as at the Issue Date (including any agency or instrumentality thereof) for the payment of which the full faith and credit of such government is given.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
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Existing Notes means the Issuers 260 million aggregate principal amount of 9.50% Senior Secured Notes due 2017.
Fair Market Value means, with respect to any asset or property, the sale value that would be obtained in an arms-length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Issuers Board of Directors.
Global Notes means, individually or collectively, each of the global notes, substantially in the form of Exhibit A hereto and that bears the Private Placement Legend and the Global Note Legend, issued in accordance with Section 2.06 and Section 2.07 and that has the Schedule of Principal Amount attached thereto.
Global Note Legend means the legend set forth in Section 2.06(f)(ii) and in Exhibit A, which is required to be placed on all Global Notes issued under this Indenture.
guarantee means, as applied to any obligation:
(a) | a guarantee (other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business), direct or indirect, in any manner, of any part or all of such obligation; and |
(b) | an agreement, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of non-performance) of all or any part of such obligation, including, without limiting the foregoing, by the pledge of assets and the payment of amounts drawn down under letters of credit. |
Guarantee means any guarantee of the Issuers obligations under this Indenture and the Notes by any Restricted Subsidiary or any other Person in accordance with the provisions of this Indenture. When used as a verb, Guarantee shall have a corresponding meaning.
Guarantors means the Initial Guarantors (once such entities provide Guarantees) and any other Restricted Subsidiary that Incurs a Guarantee. For the avoidance of doubt, if a Guarantee is released in accordance with the provisions of this Indenture, the entity that provided such Guarantee shall no longer be considered a Guarantor and shall be excluded from the list of entities set out in this definition.
Hedging Agreements means Currency Agreements, Interest Rate Agreements and Power Agreements.
Holder means the Person in whose name a Note is recorded on the Registrars books.
Holding Company of a Person means any other Person (other than a natural person) of which the first Person is a Subsidiary.
IFRS means International Financial Reporting Standards (a) for purposes of Section 4.14, as in effect from time to time. and (b) for other purposes of this Indenture, as in effect on the Issue Date. Except as otherwise set forth in this Indenture, all ratios and calculations based on IFRS contained in this Indenture shall be computed in accordance with IFRS as in effect on the Issue Date.
Indenture means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.
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Independent Financial Advisor means an investment banking firm, bank, accounting firm or third-party appraiser, in any such case, of international standing; provided that such firm is not an Affiliate of the Issuer.
Indirect Participant means a Person who holds a Book-Entry Interest in a Global Note through a Participant.
Initial Guarantors has the meaning assigned to such term in the preamble to this Indenture.
Instructions means any written notices, written directions or written instructions received by the Trustee or any of the Agents in accordance with the provisions of this Indenture from an Authorized Person or from a person reasonably believed by the Trustee or any of the Agents to be an Authorized Person.
Intercreditor Agreement means the Intercreditor Agreement dated on or around the Issue Date among the Issuer, the Senior Agent, the Security Trustee, the Trustee and certain other parties, as amended, waived or converted from time to time.
Interest Payment Date means the Stated Maturity of an installment of interest on the Notes.
Interest Rate Agreements means, in respect of a Person, any interest rate protection agreements and other types of interest rate hedging agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) designed to protect such Person against or manage exposure to fluctuations in interest rates.
Investment Grade Status shall occur when all of the Notes receive both of the following:
(a) | a rating of BBB or higher from S&P; and |
(b) | a rating of Baa3 or higher from Moodys, |
or the equivalent of such rating by either such rating organization or, if no rating of Moodys or S&P then exists, the equivalent of such rating by any other nationally recognized statistical ratings organization (as such term is defined for the purposes of Section 3(a)(62) of the Exchange Act).
Investments means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other similar obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions in consideration of Debt, Capital Stock or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with IFRS. If the Issuer or any Subsidiary of the Issuer sells or otherwise disposes of any equity interests of any direct or indirect Subsidiary of the Issuer such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Issuer, the Issuer will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Issuers Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in the definition of Fair Market Value. The acquisition by the Issuer or any Subsidiary of the Issuer of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Issuer or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 4.06. Except as otherwise
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provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.
Issue Date means July 3, 2013.
Issuer means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.
Issuer Order means a written order signed in the name of the Issuer by an authorized officer or director of the Issuer.
Lien means any mortgage or deed of trust, charge, pledge, lien (statutory or otherwise), security interest, hypothecation, assignment for or by way of security or encumbrance upon or with respect to any property of any kind, real or personal, movable or immovable, now owned or hereafter acquired. A Person will be deemed to own subject to a Lien any property which such Person has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement.
Listing Agent means The Bank of New York Mellon (Luxembourg) S.A.
Losses means any and all claims, losses, liabilities, damages, costs, expenses and judgments (including legal fees and expenses) sustained or incurred.
Management Advances means loans or advances made to, or Guarantees with respect to loans or advances made to, directors, officers, employees or consultants of the Issuer or any Restricted Subsidiary for purposes of funding any such persons purchase of Capital Stock of the Issuer or its Subsidiaries with the approval of the Board of Directors.
Maturity means, with respect to any debt, the date on which any principal of such debt becomes due and payable as therein or herein provided, whether at the Stated Maturity with respect to such principal or by declaration of acceleration, call for redemption or purchase or otherwise.
Moodys means Moodys Investors Service, Inc. and its successors.
Net Cash Proceeds means:
(a) | with respect to any Asset Sale, the proceeds thereof in the form of cash or Cash Equivalents (except to the extent that such obligations are financed or sold with recourse to the Issuer or any Restricted Subsidiary), net of: |
(i) | brokerage commissions and other fees and expenses (including, without limitation, fees and expenses of legal counsel, accountants, investment banks and other consultants) related to such Asset Sale; |
(ii) | provisions for all taxes paid or payable, or required to be accrued as a liability under IFRS as a result of such Asset Sale; |
(iii) | all distributions and other payments required to be made to any Person (other than the Issuer or any Restricted Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale; and |
(iv) |
appropriate amounts required to be provided by the Issuer or any Restricted Subsidiary, as the case may be, as a reserve in accordance with IFRS against any liabilities associated with such |
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Asset Sale and retained by the Issuer or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as reflected in an Officers Certificate delivered to the Trustee; and |
(b) | with respect to any capital contributions, issuance or sale of Capital Stock or options, warrants or rights to purchase Capital Stock, or debt securities or Capital Stock that have been converted into or exchanged for Capital Stock as referred to under Section 4.06, the proceeds of such issuance or sale in the form of cash or Cash Equivalents, payments in respect of deferred payment obligations when received in the form of, or stock or other assets when disposed of for, cash or Cash Equivalents (except to the extent that such obligations are financed or sold with recourse to the Issuer or any Restricted Subsidiary), net of attorneys fees, accountants fees and brokerage, consultation, underwriting and other fees and expenses actually Incurred in connection with such issuance or sale and net of taxes paid or payable as a result of thereof. |
Offering Memorandum means the offering memorandum relating to the Notes dated June 19, 2013.
Officers Certificate means a certificate signed by two officers of (or such number of managing directors authorized to represent) the Issuer, a Guarantor or a Surviving Entity, as the case may be, and delivered to the Trustee.
Opinion of Counsel means a written opinion from legal counsel. The counsel may be an employee of or counsel to the Issuer or the Trustee.
Pari Passu Debt means Senior Debt including, without limitation, (a) any Debt of the Issuer that ranks equally in right of payment with the Notes or (b) with respect to any Guarantee, any Debt that ranks equally in right of payment to such Guarantee.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively.
Paying Agents shall mean the Principal Paying Agent and the Luxembourg Paying Agent and Paying Agent shall mean either of them.
Permitted Business means any business related, ancillary or complementary to the business of the Issuer and the Restricted Subsidiaries on the date of this Indenture.
Permitted Collateral Liens means any Lien on the Collateral:
(a) | to secure: |
(i) | (a) any Additional Notes and (b) Pari Passu Debt of the Issuer or a Restricted Subsidiary (which in the case of this clause (a)(i)(b), may have priority in an intercreditor waterfall) that is permitted to be Incurred under clause (a) or (b) of paragraph (2) of Section 4.04; |
(ii) | Pari Passu Debt of the Issuer or a Guarantor that is permitted to be Incurred under paragraph (1) of Section 4.04 (including, without limitation, clause (c) of such paragraph (1)); |
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(iii) | any obligations under Hedging Agreements; |
(iv) | any bank account that is a blocked account with a bank that has provided a guarantee or other assurance against loss on behalf of the Issuer or a Restricted Subsidiary in respect of rental lease, supplier or stock payments; |
(v) | Liens on Collateral that are described in clauses (f), (g), (h), (i). (j), (k), (n), (o), (p), (r) (but only to the extent the Lien being extended, renewed or replaced was already a Permitted Collateral Lien), (s) (but only to the extent the Lien being refinanced was already a Permitted Collateral Lien), (v) and (w) of the definition of Permitted Liens; |
(vi) | any Permitted Refinancing Debt thereof; or |
(vii) | the Existing Notes until the Existing Notes are repaid in full or otherwise discharged; or |
(b) | that is a statutory Lien arising by operation of law, |
provided that such Lien either ranks: (A) equal to all other Liens on such Collateral securing Pari Passu Debt of the Issuer or the relevant Guarantor, if the Lien secures Pari Passu Debt; or (B) junior to the Liens securing the Notes and the Guarantees; provided further that, in the case of clauses (a)(ii), (a)(iii), (a)(iv), (a)(v), (a)(vi) and (b) above, any Debt related to such Lien does not rank in priority to the Notes in any appropriation or distribution provisions in the Intercreditor Agreement (or any similar agreement among creditors).
Permitted Debt has the meaning given to such term in Section 4.04.
Permitted Holders means (i) Baker Capital, (ii) any Affiliate or Related Person of any Permitted Holder and/or (iii) any successor to any Permitted Holder or such Affiliate or Related Person.
Permitted Investments means any of the following:
(a) | Investments in cash or Cash Equivalents; |
(b) | intercompany Debt to the extent permitted under clause (d) of the definition of Permitted Debt; |
(c) | Investments in: (i) the Issuer; (ii) a Restricted Subsidiary; or (iii) another Person if as a result of such Investment such other Person becomes a Restricted Subsidiary or such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all of its assets to, the Issuer or a Restricted Subsidiary; |
(d) | Investments made by the Issuer or any Restricted Subsidiary as a result of or retained in connection with an Asset Sale permitted under or made in compliance with Section 4.07 to the extent such Investments are non-cash proceeds permitted thereunder; |
(e) | expenses or advances to cover payroll, travel entertainment, moving, other relocation and similar matters that are expected at the time of such advances to be treated as expenses in accordance with IFRS; |
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(f) | Investments in the Notes; |
(g) | Investments existing, or made pursuant to legally binding commitments in existence, at the Issue Date and any Investment that amends, extends, renews, replaces or refinances an Investment existing on the date of this Indenture; provided that such new Investment is on terms and conditions no less favorable to the Issuer or the applicable Restricted Subsidiary than the Investment being amended, extended, renewed, replaced or refinanced; |
(h) | Investments in Hedging Agreements permitted under Section 4.04; |
(i) | loans and advances (or guarantees to third party loans, but not any forgiveness of such loans or advances) to directors, officers or employees of the Issuer or any Restricted Subsidiary made in the ordinary course of business and consistent with the Issuers past practices or past practices of the Restricted Subsidiaries, as the case may be, in an amount outstanding not to exceed at any one time 2.0 million; |
(j) | Investments in a Person to the extent that the consideration therefor consists of the Issuers Qualified Capital Stock or the net proceeds of the substantially concurrent issue and sale (other than to any Subsidiary) of shares of the Issuers Qualified Capital Stock; provided that the net proceeds of such sale have been excluded from, and shall not have been included in, the calculation of the amount determined under clause (2)(c)(ii) of Section 4.06; |
(k) | (i) stock, obligations or securities received in satisfaction of judgments, foreclosure of liens or settlement of debts and (ii) any Investments received in compromise of obligations of such persons that were Incurred in the ordinary course of business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; |
(l) | Investments of the Issuer or the Restricted Subsidiaries described under item (iv) to the proviso to the definition of Debt; |
(m) | lease, utility and workers compensation, performance and other similar deposits made in the ordinary course of business; |
(n) | guarantees permitted to be incurred under Section 4.04; |
(o) | pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or liens otherwise described in the definition of Permitted Liens or made in connection with Liens permitted under Section 4.05; |
(p) | Investments by the Issuer or any Restricted Subsidiary in Qualified Joint Ventures, the amount of which, measured by reference to the Fair Market Value of each such Investment on the day it was made, not to exceed the greater of 25.0 million or 3% of Total Assets in the aggregate outstanding at any one time; and |
(q) |
other Investments in any Person other than an Affiliate of the Issuer having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when |
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taken together with all other Investments made pursuant to this clause (q) that are at the time outstanding, not to exceed 30.0 million. |
Permitted Liens means the following types of Liens:
(a) | Liens (other than Liens securing Debt under the Revolving Credit Facility) existing as at the date of the issuance of the Notes; |
(b) | Liens securing Debt under Credit Facilities permitted to be Incurred pursuant to Section 4.04(2)(a); |
(c) | Liens on any property or assets of a Restricted Subsidiary granted in favor of the Issuer or any Restricted Subsidiary; |
(d) | Liens on any of the Issuers or any Restricted Subsidiarys property or assets securing the Notes or any Guarantee; |
(e) | any interest or title of a lessor under any Capitalized Lease Obligation and Liens to secure Debt (including Capitalized Lease Obligations) permitted by Section 4.04(2)(f); |
(f) | Liens arising out of conditional sale, title retention, consignment, deferred payment or similar arrangements for the sale or purchase of goods entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business in accordance with the Issuers or such Restricted Subsidiarys past practices prior to the Issue Date; |
(g) | statutory Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen, employees, pension plan administrators or other like Liens arising in the ordinary course of the Issuers or any Restricted Subsidiarys business and with respect to amounts not yet delinquent for more than 60 days or being contested in good faith by appropriate proceedings and for which a reserve or other appropriate provision, if any, as shall be required in conformity with IFRS shall have been made or Liens arising solely by virtue of any statutory or common law provisions relating to attorneys liens or bankers liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution; |
(h) | Liens for taxes, assessments, government charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with IFRS shall have been made; |
(i) | Liens Incurred or deposits made to secure the performance of tenders, bids or trade or government contracts, or to secure leases, statutory or regulatory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature Incurred in the ordinary course of business; |
(j) |
zoning restrictions, easements, licenses, reservations, title defects, rights of others for rights-of-way, utilities, sewers, electrical lines, telephone lines, telegraph wires, restrictions, encroachments and other similar charges, encumbrances or title defects incurred in the ordinary course of business that do not in the aggregate materially interfere with in any material respect the |
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ordinary conduct of the business of the Issuer and its Restricted Subsidiaries on the properties subject thereto, taken as a whole; |
(k) | Liens arising by reason of any judgment, decree or order of any court so long as such Lien is adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment, decree or order shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired; |
(l) | Liens on property of, or on shares of Capital Stock or Debt of, any Person existing at the time such Person is acquired by, merged with or into or consolidated with, the Issuer or any Restricted Subsidiary (or at the time the Issuer or a Restricted Subsidiary acquires such property, Capital Stock or Debt); provided that such Liens: (i) do not extend to or cover any property or assets of the Issuer or any Restricted Subsidiary other than the property or assets acquired or than those of the Person merged into or consolidated with the Issuer or Restricted Subsidiary; and (ii) were created prior to, and not in connection with or in contemplation of, such acquisition, merger, consolidation, amalgamation or other combination; |
(m) | Liens securing the Issuers or any Restricted Subsidiarys obligations under Hedging Agreements permitted under clause (h) of the definition of Permitted Debt or any collateral for the Debt to which such Hedging Agreements relate; |
(n) | Liens Incurred or deposits made in the ordinary course of business in connection with workers compensation, unemployment insurance and other types of social security or other insurance; |
(o) | Liens Incurred in connection with any cash management program established in the ordinary course of business for the Issuers benefit or that of any Restricted Subsidiary in favor of a bank or trust company of the type described in Section 4.11(2)(iii); |
(p) | Liens made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the Issuer or any Restricted Subsidiary, including rights of offset and set-off; |
(q) | Liens on assets of a Restricted Subsidiary of the Issuer that is not a Guarantor to secure Debt of such Restricted Subsidiary (or any other Restricted Subsidiary that is not a Guarantor) and that is otherwise permitted under this Indenture; |
(r) | any extension, renewal or replacement, in whole or in part, of any Lien; provided that any such extension, renewal or replacement shall be no more restrictive in any material respect than the Lien so extended, renewed or replaced and shall not extend in any material respect to any additional property or assets; |
(s) | Liens securing Debt Incurred to refinance Debt that has been secured by a Lien permitted by this Indenture; provided that: (i) any such Lien shall not extend to or cover any assets not securing the Debt so refinanced; and (ii) the Debt so refinanced shall have been permitted to be Incurred; |
(t) |
purchase money Liens to finance property or assets of the Issuer or any Restricted Subsidiary acquired in the ordinary course of business; provided |
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that: (i) the related purchase money Debt shall not exceed the cost of such property or assets and shall not be secured by any property or assets of the Issuer or any Restricted Subsidiary other than the property and assets so acquired; and (ii) the Lien securing such Debt shall be created within 90 days of any such acquisitions; |
(u) | Liens Incurred by the Issuer or any Restricted Subsidiary with respect to obligations that do not exceed 50.0 million at any one time outstanding; |
(v) | Liens resulting from escrow arrangements entered into in connection with the disposition of assets; |
(w) | any right of refusal, right of first offer, option or other arrangement to sell or otherwise dispose of an asset of the Issuer or any Restricted Subsidiary; and |
(x) | any security arising under Dutch General Banking Terms and Conditions ( Algemene Bankvoorwaarden ) or the equivalent in any other jurisdiction of relevant banking or financing institutions in each case with whom the Issuer or a Restricted Subsidiary maintains a banking relationship in the ordinary course of business; |
(y) | Permitted Collateral Liens; |
(z) | leases and subleases of assets (including real property) entered into in the ordinary course of business; and |
(aa) | Liens securing the Existing Notes until the Existing Notes are repaid in full or otherwise discharged. |
Permitted Refinancing Debt means any renewals, extensions, substitutions, defeasances, discharges, refinancings or replacements (each, for purposes of this definition and paragraph (2)(k) of Section 4.04, a refinancing ) of any Debt of the Issuer or a Restricted Subsidiary or pursuant to this definition, including any successive refinancings, as long as:
(a) | such Debt is in an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) not in excess of the sum of: (i) the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding of the Debt being refinanced; and (ii) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such refinancing; |
(b) | the Average Life of such Debt is equal to or greater than the Average Life of the Debt being refinanced; |
(c) | the Stated Maturity of such Debt is no earlier than the Stated Maturity of the Debt being refinanced; and |
(d) | if the Debt being renewed, extended, substituted, defeased, discharged, refinanced or replaced is subordinated in right of payment to the Notes or the Guarantees (as applicable), such Permitted Refinancing Debt is subordinated in right of payment to, the Notes or the Guarantees (as applicable) on terms at least as favorable to the holders of Notes as those contained in the documentation governing the Debt being renewed, extended, substituted, defeased, discharged, refinanced or replaced. |
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Person means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Power Agreements means, in respect of a Person, any type of hedging agreements designed to protect such Person against or manage exposure to fluctuations in power costs.
Preferred Stock means, with respect to any Person, Capital Stock of any class or classes (however designated) of such Person that is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Capital Stock of any other class of such Person, whether now outstanding or issued after the Issue Date and including, without limitation, all classes and series of preferred or preference stock of such Person.
Private Placement Legend means the legend set forth in Section 2.06(f)(i) and in Exhibit A, which is required to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
pro forma means, with respect to any calculation made or required to be made pursuant to the terms of the Notes, a calculation made in good faith by the Issuers chief financial officer.
Property means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including Capital Stock and other securities of, any other Person. For purposes of any calculation required pursuant to this Indenture, the value of any Property shall be its Fair Market Value.
QIB means a Qualified Institutional Buyer as defined under Rule 144A.
Qualified Capital Stock of any Person means any and all Capital Stock of such Person other than Redeemable Capital Stock.
Qualified Joint Venture means a joint venture that is not a Subsidiary of the Issuer or any of its Restricted Subsidiaries in which the Issuer or any of its Restricted Subsidiaries has a direct or indirect ownership interest and that is engaged in a Permitted Business.
Record Date for the interest payable on any Interest Payment Date means the January 1 or July 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
Redeemable Capital Stock means any class or series of Capital Stock that, either by its terms, by the terms of any security into which it is convertible or exchangeable or by contract or otherwise, is, or upon the happening of an event or passage of time would be, required to be redeemed prior to the final Stated Maturity of the Notes or is redeemable at the option of the holder thereof at any time prior to such final Stated Maturity (other than upon a change of control of the Issuer in circumstances in which the holders of the Notes would have similar rights), or is convertible into or exchangeable for debt securities at any time prior to such final Stated Maturity; provided that any Capital Stock that would constitute Qualified Capital Stock but for provisions thereof giving holders thereof the right to require such Person to repurchase or redeem such Capital Stock upon the occurrence of any asset sale or change of control occurring prior to the Stated Maturity of the Notes will not constitute Redeemable Capital Stock if the asset sale or change of control provisions applicable to such Capital Stock are no more favorable to the holders of such Capital Stock than the provisions contained in Section 4.07 and Section 4.09 and such Capital Stock specifically provides that such Person will not repurchase or redeem any such stock pursuant to such
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provision prior to the Issuers repurchase of such Notes as are required to be repurchased pursuant to Section 4.07 and Section 4.09.
Redemption Date , when used with respect to any Note to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price , when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
Related Person with respect to any Permitted Holder means:
(a) | any controlling equity-holder or majority (or more) owned Subsidiary of such Permitted Holder; |
(b) | in the case of any individual, any spouse, family member or relative of such individual, any trust or partnership for the benefit of one or more of such individual and any such spouse, family member or relative, or the estate, executor, administrator, committee or beneficiaries of any thereof; |
(c) | any trust, corporation, partnership or other Person for which one or more of the Permitted Holders and other Related Persons of any thereof constitute the beneficiaries, stockholders, partners or owners thereof, or persons beneficially holding in the aggregate a majority (or more) controlling interest therein; or |
(d) | any investment fund or vehicle managed, sponsored or advised by such Permitted Holder or Fortis Intertrust (Curacao) B.V. on their behalf or any successor thereto or by any Affiliate of such Permitted Holder or Fortis Intertrust (Curacao) B.V. on their behalf or any such successor. |
Regulation S means Regulation S under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
Regulation S Global Note means a Global Note bearing the Global Note Legend and the Private Placement Legend deposited with and registered in the name of a nominee of the Common Depositary for Euroclear and Clearstream, that will be issued in an initial amount equal to the principal amount of the Notes sold in reliance on Regulation S.
Replacement Assets means non-current properties and assets (including Capital Stock of a Person that is or becomes a Restricted Subsidiary and such Restricted Subsidiary is useful in the Issuers business or in that of the Restricted Subsidiaries or any and all businesses that in the good faith judgment of the Board of Directors of the Issuer are reasonably related) that replace the properties and assets that were the subject of an Asset Sale or non-current properties and assets that are useful in the Issuers business or in that of the Restricted Subsidiaries or any and all businesses that in the good faith judgment of the Board of Directors of the Issuer are reasonably related.
Restricted Period means the 40-day distribution compliance period, as defined in Regulation S.
Restricted Subsidiary means any Subsidiary of the Issuer other than an Unrestricted Subsidiary.
Revolving Credit Facility means that certain facility agreement dated June 17, 2013 (as amended from time to time) by, among others, the Issuer, certain of its Subsidiaries and the
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Senior Agent and all documentation relating thereto, including collateral documents, letter of credit and guarantees, as such documentation, in whole or in part, may be amended, renewed, extended, substituted, refinanced, restructured, replaced, supplemented or otherwise modified from time to time under one or more Credit Facilities (including, without limitation, any successive renewals, extensions, substitutions, refinancings, restructurings, replacements, supplementations or other modifications of the foregoing).
Rule 144 means Rule 144 under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
Rule 144A means Rule 144A under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
S&P means Standard and Poors Ratings Service, a division of The McGraw-Hill Companies, Inc. and its successors.
Securities Act means the U.S. Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
Security Documents has the meaning assigned to such term in the Intercreditor Agreement.
Security Trustee means Barclays Bank PLC.
Senior Agent means Barclays Bank PLC in its capacity as Agent under and as defined in the Revolving Credit Facility until a successor replaces it and, thereafter, means the successor.
Senior Debt means (i) any Debt of the Issuer or any Guarantor that is either secured or not Subordinated Debt and (ii) any Debt of a Restricted Subsidiary that is not a Guarantor other than Debt Incurred pursuant to clause (2)(d) of Section 4.04; provided that, solely for the purposes of calculating the Consolidated Senior Leverage Ratio, Senior Debt shall be calculated by deducting from Senior Debt the amount of cash and Cash Equivalents that would be stated on the balance sheet of the Issuer and its Restricted Subsidiaries on a consolidated basis on the date of determination.
Significant Subsidiary means any Restricted Subsidiary that would be a significant subsidiary as defined in Rule 1.02(w) of Regulation S-X under the Securities Act.
Stated Maturity means, when used with respect to any Note or any installment of interest thereon, the date specified in such Note as the fixed date on which the principal of such Note or such installment of interest, respectively, is due and payable, and, when used with respect to any other debt, means the date specified in the instrument governing such debt as the fixed date on which the principal of such debt, or any installment of interest thereon, is due and payable.
Sterling means the lawful currency of the United Kingdom of Great Britain and Northern Ireland.
Subordinated Debt means Debt of the Issuer or any of the Guarantors that is subordinated in right of payment to the Notes or the Guarantees of such Guarantors, as the case may be.
Subsidiary means, with respect to any Person:
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(a) | a corporation a majority of whose Voting Stock is at the time, directly or indirectly, owned by such Person, by one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person; and |
(b) | any other Person (other than a corporation), including, without limitation, a partnership, limited liability company, business trust or joint venture, in which such Person, one or more Subsidiaries of such Person or such Person and one or more Subsidiaries thereof, directly or indirectly, at the date of determination thereof, has at least majority ownership interest entitled to vote in the election of directors, managers or trustees thereof (or other Person performing similar functions). |
Successor Parent with respect to any Person means any other Person with more than 50% of the total voting power of the Voting Stock of which is, at the time the first Person becomes a Subsidiary of such other Person, beneficially owned (as defined below) by one or more Persons that beneficially owned (as defined below) more than 50% of the total voting power of the Voting Stock of the first Person immediately prior to the first Person becoming a Subsidiary of such other Person. For purposes hereof, beneficially owned has the meaning correlative to the term beneficial owner, as such term is defined in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue Date).
Total Assets means the consolidated total assets of the Issuer and its Restricted Subsidiaries as shown on the most recent balance sheet (excluding the notes thereto) of the Issuer.
Trustee means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and, thereafter, means the successor serving hereunder.
Trust Officer means, when used with respect to the Trustee, any vice president, assistant vice president, assistant treasurer or trust officer in the corporate trust administration of the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, and, in each case, who shall have direct responsibility for the administration of this Indenture.
Unrestricted Subsidiary means:
(a) | any Subsidiary of the Issuer that at the time of determination is an Unrestricted Subsidiary (as designated by the Issuers Board of Directors pursuant to Section 4.13); and |
(b) | any Subsidiary of an Unrestricted Subsidiary. |
U.S. dollars or $ means the lawful currency of the United States of America.
Voting Stock means any class or classes of Capital Stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors, managers or trustees (or Persons performing similar functions) of any Person (irrespective of whether or not, at the time, stock of any other class or classes shall have, or might have, voting power by reason of the happening of any contingency).
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Section 1.02. Other Definitions
Term |
Defined in Section |
|
Additional Amounts |
4.10 | |
Additional Intercreditor Agreement |
4.17 | |
Additional Notes |
Recitals | |
Agreed Jurisdictions |
12.01(a) | |
Authorized Agent |
13.08 | |
Change of Control Offer |
4.09(1) | |
Change of Control Purchase Date |
4.09(1) | |
Change of Control Purchase Price |
4.09(1) | |
Code |
4.10(2)(i) | |
covenant defeasance |
8.03 | |
Defaulted Interest |
2.12 | |
Event of Default |
6.01(1) | |
Excess Proceeds |
4.07(2) | |
Excess Proceeds Offer |
4.07(3) | |
Incur |
4.04(1) | |
Initial Agreement |
4.12(2)(1) | |
legal defeasance |
8.02 | |
Luxembourg Paying Agent |
2.03 | |
Notes |
Recitals | |
Obligations |
10.01(a) | |
Original Notes |
Recitals | |
Paying Agent |
2.03 | |
Permitted Debt |
4.04 | |
Principal Obligations |
12.01(b) | |
Principal Paying Agent |
2.03 | |
Registrar |
2.03 | |
Relevant Payment Date |
4.10(b) | |
Relevant Taxing Jurisdiction |
4.10 | |
Restricted Payments |
4.06(1) | |
Reversion Date |
4.20 | |
Security Register |
2.03 | |
Surviving Entity |
5.01(a)(1)(a) | |
Successor Guarantor |
5.01(b)(1)(a) | |
Suspension Event |
4.20 | |
Tax and Taxes |
4.10 | |
Transfer Agent |
2.03 |
Section 1.03. Rules of Construction
Unless the context otherwise requires:
(i) | a term has the meaning assigned to it; |
(ii) | an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS; |
(iii) | or is not exclusive; |
(iv) | including or include means including or include without limitation; |
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(v) | words in the singular include the plural and words in the plural include the singular; |
(vi) | whenever in this Indenture there is referenced, in any context, the payment of interest under or with respect to any Note or Guarantee, that reference shall be deemed to include the payment of Additional Amounts to the extent that Additional Amounts are payable in respect thereof; |
(vii) | unsecured or unguaranteed Debt shall not be deemed to be subordinate or junior to secured or guaranteed Debt merely by virtue of its nature as unsecured or unguaranteed Debt; |
(viii) | the words herein , hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, clause or other subdivision; and |
(ix) | for purposes of the covenants and definitions set forth in this Indenture, amounts stated in Euros shall be deemed to include both Euros and Euro Equivalents. |
ARTICLE TWO
THE NOTES
Section 2.01. The Notes
(a) | Form and Dating |
The Notes and the Trustees certificate of authentication shall be substantially in the form of Exhibit A hereto with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture. The Notes may have notations, legends or endorsements required by law, the rules of any securities exchange or usage. The Issuer shall approve the form of the Notes. Each Note shall be dated the date of its authentication. The terms and provisions contained in the form of the Notes shall constitute and are hereby expressly made a part of this Indenture. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. The Notes shall be issued only in registered form without coupons and only in minimum denominations of 100,000 in principal amount and any integral multiples of 1,000 in excess thereof.
(b) | Global Notes. |
Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and a Schedule of Principal Amount substantially in the form of Schedule A attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions and purchases and cancellations. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the Common Depositary or the Principal Paying Agent, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06.
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(c) | 144A Global Notes and Regulation S Global Notes. |
Notes sold within the United States to QIBs pursuant to Rule 144A under the U.S. Securities Act shall be issued initially in the form of a 144A Global Note, which shall be deposited with the Common Depositary for Euroclear and Clearstream, duly executed by the Issuer and authenticated by the Trustee or the authenticating agent on its behalf, as hereinafter provided. The aggregate principal amount of the 144A Global Note may from time to time be increased or decreased by adjustments made on Schedule A to each such Global Note, as hereinafter provided.
Notes offered and sold in reliance on Regulation S shall be issued initially in the form of a Regulation S Global Note, which shall be deposited with the Common Depositary for Euroclear and Clearstream, duly executed by the Issuer and authenticated by the Trustee, or the authenticating agent on its behalf, as hereinafter provided. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on Schedule A to each such Global Note, as hereinafter provided.
(d) | Definitive Registered Notes. |
Definitive Registered Notes issued upon transfer of a Book-Entry Interest or a Definitive Registered Note, or in exchange for a Book-Entry Interest or a Definitive Registered Note, shall be issued in accordance with this Indenture. Notes issued in definitive registered form will be substantially in the form of Exhibit A hereto (excluding the Global Note Legend thereon and the Schedule of Principal Amount in the form of Schedule A attached thereto).
(e) | Book-Entry Provisions. |
The Applicable Procedures shall be applicable to Book-Entry Interests in the Global Notes that are held by Participants through Euroclear or Clearstream.
Section 2.02. Execution and Authentication
An authorized member of the Board of Directors or officer of the Issuer shall sign the Notes for the Issuer by manual or facsimile signature.
If an authorized member of the Board of Directors or officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid or obligatory for any purpose until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture. Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, the Issuer shall deliver such Note to the Trustee for cancellation as provided for in Section 2.11.
Pursuant to an Issuer Order, the Trustee shall authenticate (a) the Original Notes on the Issue Date in an aggregate principal amount of 325,000,000, (b) Additional Notes subject to compliance at the time of issuance of such Additional Notes with the provisions of this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate the Notes. Unless limited by the terms of such appointment, any such authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by any
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such agent. An authenticating agent has the same rights as any Registrar, co-Registrar Transfer Agent or Paying Agent to deal with the Issuer or an Affiliate of the Issuer.
The Trustee shall have the right to decline to authenticate and deliver any Notes under this Section 2.02 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Section 2.03. Registrar, Transfer Agent and Paying Agent
The Issuer shall maintain an office or agency for the registration of the Notes and of their transfer or exchange (the Registrar ), an office or agency where Notes may be transferred or exchanged (the Transfer Agent ), an office or agency in London, England, where the Notes may be presented for payment (the Paying Agent ) and an office or agency where notices or demands to or upon the Issuer in respect of the Notes may be served. The Issuer may appoint one or more Transfer Agents, one or more co-Registrars and one or more additional Paying Agents.
The Issuer or any of its Affiliates may act as Transfer Agent, Registrar, co-Registrar, Paying Agent and agent for service of notices and demands in connection with the Notes; provided , however , that neither the Issuer nor any of its Affiliates shall act as Paying Agent for the purposes of Article Three, Article Eight, Section 4.07 and Section 4.09.
The Issuer hereby appoints (i) The Bank of New York Mellon, London Branch (located at One Canada Square, London, England E14 5AL) as Principal Paying Agent (the Principal Paying Agent ), (ii) The Bank of New York Mellon (Luxembourg) S.A. (located at Vertigo Building, Polaris 2-4 rue Eugène Ruppert, L-2453 Luxembourg) as Registrar and as Luxembourg Paying Agent (the Luxembourg Paying Agent ) and (iii) The Bank of New York Mellon, London Branch as the Transfer Agent. The Bank of New York Mellon, London Branch and The Bank of New York Mellon (Luxembourg) S.A. accept their respective appointments.
Subject to any applicable laws and regulations, the Registrar shall keep a register (the Security Register ) of the ownership, exchange, and transfer of the Notes. Such registration in the Security Register shall be conclusive evidence of the ownership of Notes. Included in the books and records for the Notes shall be notations as to whether such Notes have been paid, exchanged or transferred, canceled, lost, stolen, mutilated or destroyed and whether such Notes have been replaced. In the case of the replacement of any of the Notes, the Registrar shall keep a record of the Note so replaced and the Note issued in replacement thereof. In the case of the cancellation of any of the Notes, the Registrar shall keep a record of the Note so canceled and the date on which such Note was canceled.
If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.05.
Section 2.04. Deposits Paying Agent to Hold Money in Trust
Not later than 11:00 am (London time) on the Business Day prior to each due date of the principal, premium, if any, and interest on any Notes, the Issuer shall deposit with the Paying Agent money in immediately available funds sufficient to pay such principal, premium, if any, and interest so becoming due on the due date for payment under the Notes. Each Paying Agent (other than The Bank of New York Mellon or an Affiliate of the Trustee) shall hold in trust for the benefit of the Holders or the Trustee all money received by the Paying Agent for the payment of principal of, premium, if any, and interest on the Notes (whether such money has been paid to it by the Issuer or any other obligor on the Notes), and such Paying Agent
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shall promptly notify the Trustee of any default by the Issuer (or any other obligor on the Notes) in making any such payment. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the Trustee. If the Issuer or any Affiliate of the Issuer acts as Paying Agent, it shall, on or before each due date of any principal, premium, if any, or interest on the Notes, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such principal, premium, if any, or interest so becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and shall promptly notify the Trustee of its action or failure to act. Subject to actual receipt of such funds as provided by this Section 2.04 by the Principal Paying Agent, the Principal Paying Agent shall make payments on the Notes in accordance with the provisions of this Indenture.
A Holder of a Note at the close of business on any Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding any transfer or exchange of such Note subsequent to the Record Date and prior to such Interest Payment Date, except if and to the extent the Issuer shall default in the payment of the interest due on such Interest Payment Date, in which case Defaulted Interest shall be paid in accordance with Section 2.12.
Section 2.05. Holder Lists
The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and the aggregate principal amount of Notes held by each Holder. If the Trustee is not the Registrar or an Affiliate of the Trustee, the Issuer shall, upon written request of the Trustee, furnish to the Trustee and each Paying Agent, in writing no later than the Record Date for each Interest Payment Date and at such other times as the Trustee or a Paying Agent may request in writing, a list in such form and as of such Record Date as the Trustee or a Paying Agent may reasonably require of the names and addresses of Holders.
Section 2.06. Transfer and Exchange
(a) | Transfer and Exchange of Global Notes. |
A Global Note may not be transferred except as a whole by a Depositary to a Common Depositary or a nominee of such Common Depositary, by a Common Depositary or a nominee of such Common Depositary to such Depositary or to another nominee or Common Depositary of such Depositary, or by such Common Depositary or Depositary or any such nominee to a successor Depositary or Common Depositary or a nominee thereof.
All | Global Notes will be exchanged by the Issuer for Definitive Registered Notes: |
(i) | if Euroclear or Clearstream notifies the Issuer that they are unwilling or unable to continue to act as Depositary and a successor Depositary is not appointed by the Issuer within 120 days; or |
(ii) |
if the holder of a Book-Entry Interest requests such an exchange in writing delivered through either Euroclear or Clearstream following an Event of Default under this Indenture and enforcement action is being taken in respect thereof under this Indenture. |
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Upon the occurrence of any of the preceding events in clauses (i) through (ii) above, the Issuer shall issue or cause to be issued Definitive Registered Notes in such names as the relevant Depositary shall instruct the Trustee.
Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.17. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.17, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a). Book-Entry Interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c).
(b) | General Provisions Applicable to Transfer and Exchange of Book-Entry Interests in the Global Notes. |
The transfer and exchange of Book-Entry Interests shall be effected through the relevant Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures.
Transfers of Book-Entry Interests shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the U.S. Securities Act. Transfers and exchanges of Book-Entry Interests for Book-Entry Interests also shall require compliance with either subsection (b)(i) or (b)(ii) below, as applicable, as well as either subsection (b)(iii) below, as applicable.
(i) | Transfer of Book-Entry Interests in the Same Global Note . Book-Entry Interests in a Global Note may be transferred to Persons who take delivery thereof in the form of a Book-Entry Interest in a Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided , however , that prior to the expiration of the Restricted Period, Book-Entry Interests in the Regulation S Global Notes will be limited to persons that have accounts with Euroclear or Clearstream or persons who hold interests through Euroclear or Clearstream, and any sale or transfer of such interest to U.S. persons shall not be permitted during the Restricted Period unless such resale or transfer is made pursuant to Rule 144A. No written orders or instructions shall be required to be delivered to the Trustee, Registrar or Transfer Agent to effect the transfers described in this Section 2.06(b)(i). |
(ii) | All Other Transfers and Exchanges of Book-Entry Interests in Global Notes . A holder may transfer or exchange a Book-Entry Interest in Global Notes in a transaction not subject to Section 2.06(b)(i) only if the Trustee and the Registrar or the Transfer Agent (copies to the Trustee) receives either: |
(A) | both: |
(1) | a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing such Depositary to credit or cause to be credited a Book-Entry Interest in another Global Note in an amount equal to the Book-Entry Interest to be transferred or exchanged; and |
(2) | instructions given by the Depositary in accordance with the Applicable Procedures containing information regarding the Participants account to be credited with such increase; or |
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(B) | both: |
(1) | a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing such Depositary to cause to be issued a Definitive Registered Note in an amount equal to the Book-Entry Interest to be transferred or exchanged; and |
(2) | instructions given by the Depositary to the Registrar containing information specifying the identity of the Person in whose name such Definitive Registered Note shall be registered to effect the transfer or exchange referred to in (1) above, the principal amount of such securities and the ISIN, Common Code or other similar number identifying the Notes, |
provided that any such transfer or exchange is made in accordance with the transfer restrictions set forth in the Private Placement Legend.
(iii) | Transfer of Book-Entry Interests to Another Global Note . A Book-Entry Interest in any Global Note may be transferred to a Person who takes delivery thereof in the form of a Book-Entry Interest in another Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) and the Trustee and the Registrar receive the following: |
(A) | if the transferee will take delivery in the form of a Book-Entry Interest in a 144A Global Note, then the transferor must deliver either a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and |
(B) | if the transferee will take delivery in the form of a Book-Entry Interest in a Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof. |
(c) | Transfer or Exchange of Book-Entry Interests in Global Notes for Definitive Registered Notes . If any holder of a Book-Entry Interest in a Global Note proposes to exchange such Book-Entry Interest for a Definitive Registered Note or to transfer such Book-Entry Interest to a Person who takes delivery thereof in the form of a Definitive Registered Note, then, upon receipt by the Trustee and the Registrar of the following documentation: |
(A) | if the holder of such Book-Entry Interest in a Global Note proposes to exchange such Book-Entry Interest for a Definitive Registered Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1) thereof; |
(B) | if such Book-Entry Interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof; |
(C) | if such Book-Entry Interest is being transferred in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof; or |
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(D) | if such Book-Entry Interest is being transferred to the Issuer or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3) thereof, |
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g), and the Issuer shall execute and the Trustee or the authenticating agent shall authenticate and deliver to the Person designated in the instructions a Definitive Registered Note in the appropriate principal amount. Any Definitive Registered Note issued in exchange for a Book-Entry Interest in a Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such Book-Entry Interest shall instruct the applicable Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Registrar or the Trustee shall deliver such Definitive Registered Notes to the Persons in whose names such Notes are so registered. Any Definitive Registered Note issued in exchange for a Book-Entry Interest in a Global Note pursuant to this Section 2.06(c) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(d) | Transfer and Exchange of Definitive Registered Notes for Book-Entry Interests in the Global Notes . If any Holder of a Definitive Registered Note proposes to exchange such Note for a Book-Entry Interest in a Global Note or to transfer such Definitive Registered Notes to a Person who takes delivery thereof in the form of a Book-Entry Interest in a Global Note, then, upon receipt by the Trustee, the relevant Transfer Agent and the Registrar of the following documentation: |
(A) | if the Holder of such Definitive Registered Note proposes to exchange such Note for a Book-Entry Interest in a Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2) thereof; |
(B) | if such Definitive Registered Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof; |
(C) | if such Definitive Registered Note is being transferred in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof; |
(D) | if such Definitive Registered Note is being transferred to the Issuer or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3) thereof; and |
the Trustee will cancel the Definitive Registered Note, and the Trustee will increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Global Note, in the case of clause (B) above, the appropriate 144A Global Note, in the case of clause (C) above, the appropriate Regulation S Global Note, and in the case of clause (D) above, the appropriate 144A Global Note.
(e) | Transfer and Exchange of Definitive Registered Notes for Definitive Registered Notes. |
Upon request by a Holder of Definitive Registered Notes, and such Holders compliance with the provisions of this Section 2.06(e), the Transfer Agent or the
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Registrar will register the transfer or exchange of Definitive Registered Notes of which registration the Issuer will be informed of by the Transfer Agent or the Registrar (as the case may be). Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Transfer Agent or the Registrar the Definitive Registered Notes duly endorsed and accompanied by a written instruction of transfer in a form satisfactory to the Transfer Agent or the Registrar duly executed by such Holder or its attorney, duly authorized to execute the same in writing. In the event that the Holder of such Definitive Registered Notes does not transfer the entire principal amount of Notes represented by any such Definitive Registered Note, the Transfer Agent or the Registrar will cancel or cause to be cancelled such Definitive Registered Note and the Issuer (who has been informed of such cancellation) shall execute and the Trustee or the authenticating agent shall authenticate and deliver to the requesting Holder and any transferee Definitive Registered Notes in the appropriate principal amounts. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
Any Definitive Registered Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Definitive Registered Note if the Registrar receives the following:
(A) | if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and |
(B) | if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof. |
(f) | Legends. The following legends shall appear on the face of all Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture. |
(i) | Private Placement Legend : Each Global Note and each Definitive Registered Note (and all Notes issued in exchange therefor or in substitution thereof) shall bear the legend in substantially the following form: |
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE U.S. SECURITIES ACT) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) OR (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION PURSUANT TO RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
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RESALE RESTRICTION TERMINATION DATE) WHICH IS [IN THE CASE OF RULE 144A NOTES. ONE YEAR] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE U.S. SECURITIES ACT (RULE 144A), TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND TO COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUERS AND THE TRUSTEES RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(ii) | Global Note Legend . Each Global Note shall bear a legend in substantially the following form: |
THIS GLOBAL NOTE IS HELD BY THE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
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(g) | Cancellation and/or Adjustment of Global Notes. At such time as all Book-Entry Interests in a particular Global Note have been exchanged for Definitive Registered Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any Book-Entry Interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a Book-Entry Interest in another Global Note or for Definitive Registered Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee, the Principal Paying Agent or the Common Depositary, at the direction of the Trustee, to reflect such reduction; and if the Book-Entry Interests is being exchanged for or transferred to a Person who will take delivery thereof in the form of a Book-Entry Interests in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Principal Paying Agent or the Common Depositary at the direction of the Trustee to reflect such increase. |
(h) | General Provisions Relating to Transfers and Exchanges. |
(i) | To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee or the authenticating agent shall authenticate Global Notes and Definitive Registered Notes upon receipt of an authentication order in accordance with Section 2.02 or at the Registrars request. |
(ii) | No service charge shall be made by the Issuer or the Registrar to a holder of a Book-Entry Interest in a Global Note, a Holder of a Global Note or a Holder of a Definitive Registered Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any stamp duty, stamp duty reserve, documentary or other similar tax or governmental charge that may be imposed in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.17, 3.07, 4.07 and 4.09). |
(iii) | No Transfer Agent or Registrar shall be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. |
(iv) | All Global Notes and Definitive Registered Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Registered Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Registered Notes surrendered upon such registration of transfer or exchange. |
(v) | Neither the Issuer nor the Registrar shall be required to register the transfer into its register kept at its registered office of any Definitive Registered Notes: (A) for a period of 15 calendar days prior to any date fixed for the redemption of the Notes under Section 3.04; (B) for a period of 15 calendar days immediately prior to the date fixed for selection of Notes to be redeemed in part; (C) for a period of 15 calendar days prior to the record date with respect to any interest payment date; or (D) which the Holder has tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer or an Excess Proceeds Offer. Any such transfer will be made without charge to the Holder, other than any taxes, duties and governmental charges payable in connection with such transfer. |
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(vi) | The Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered on the Security Register as the absolute owner of such Note for the purpose of receiving payment of principal of, interest, and premium and Additional Amounts, if any, on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary. |
(vii) | All certifications, certificates and Opinions of Counsel required to be submitted to the Issuer, the Trustee or the applicable Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted initially by facsimile with originals to be delivered promptly thereafter to the Trustee. |
Section 2.07. Replacement Notes
If a mutilated Definitive Registered Note is surrendered to the Registrar or if the Holder claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a replacement Note in such form as the Note mutilated, lost, destroyed or wrongfully taken if the Holder satisfies the requirements of the Trustee and the Issuer, including evidence satisfactory to them of the ownership and destruction, loss or theft of such Note. If required by the Trustee or the Issuer, such Holder shall furnish an indemnity bond sufficient in the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee, any Paying Agent, the Transfer Agent, the Registrar and any co-Registrar, and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge the Holder for their expenses in replacing a Note.
Every replacement Note shall be an additional obligation of the Issuer. If, after delivery of such replacement Note, a bona fide purchaser of the original Note in lieu of which such replacement Note was issued presents for payment or registration such original Note, the Trustee shall be entitled to recover such replacement Note from the Person to whom it was delivered or any Person taking therefrom, except a bona fide purchaser, and the Issuer and/or the Trustee shall be entitled to recover upon the security or indemnity provided therefore to the extent of any loss, damage, cost or expense incurred by the Issuer, any Guarantor, the Trustee or any Paying Agent, Transfer Agent, Registrar or co-Registrar.
Section 2.08. Outstanding Notes
Notes outstanding at any time are all Notes that have been authenticated by the Trustee except for: (i) those cancelled by it; (ii) those delivered to it for cancellation; (iii) to the extent set forth in Section 8.02 on or after the date on which the conditions set forth in Section 8.04 have been satisfied, those Notes theretofore authenticated by the Trustee and delivered by the Registrar hereunder; (iv) Notes in respect of which the Issuer and the Guarantors have been fully discharged for the payment of principal, premium, if any, interest and Additional Amounts, if any; (v) (for the purpose only of ascertaining the principal amount of the Notes outstanding and without prejudice to the status for any other purpose of the relevant Notes) Notes which are alleged to have been lost, stolen or destroyed and in respect of which replacement Notes have been issued, and (vi) those described in this Section 2.08 as not outstanding. A Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the Note which has been replaced is held by a bona fide purchaser in whose hands such Note is a legal, valid and binding obligation of the Issuer.
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If the principal amount of any Note is considered to be paid under Section 4.01, it ceases to be outstanding and interest thereon shall cease to accrue.
If one or more Paying Agents hold, in their capacity as such, on a Redemption Date or maturity date of the Notes money sufficient to pay all principal, premium, if any, interest and Additional Amounts, if any, payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and are not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
Section 2.09. Notes Held by the Issuer
In determining whether the Holders of the required principal amount of Notes have concurred in any direction or consent or any amendment, modification or other change to this Indenture, Notes owned by the Issuer or by an Affiliate of the Issuer shall be disregarded and treated as if they were not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent or any amendment, modification or other change to this Indenture, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to the Notes and that the pledgee is not the Issuer or an Affiliate of the Issuer.
Section 2.10. [Reserved]
Section 2.11. Cancellation
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee, in accordance with its customary procedures, and no one else shall cancel (subject to the Trustees retention policy) all Notes surrendered for registration of transfer, exchange, payment or cancellation and dispose of such cancelled Notes in its customary manner, unless the Issuer directs the Trustee in writing to return such Notes to the Issuer, and, if so disposed, upon request, shall deliver a certificate of disposition thereof to the Issuer. Except as otherwise provided in this Indenture the Issuer may not issue new Notes to replace Notes it has redeemed, paid or delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest
Any interest on any Note that is payable, but is not punctually paid or duly provided for, on the dates and in the manner provided in the Notes and this Indenture (all such interest herein called Defaulted Interest ) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below:
(a) |
The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer may deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest; or shall make |
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arrangements reasonably satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. In addition, the Issuer shall fix a special record date for the payment of such Defaulted Interest, such date to be not more than 15 days and not less than 10 days prior to the proposed payment date and not less than 15 days after the receipt by the Trustee of the notice of the proposed payment date. The Issuer shall promptly but, in any event, not less than 15 days prior to the special record date, notify the Trustee of such special record date and, in the name and at the expense of the Issuer, the Trustee shall cause notice of the proposed payment date of such Defaulted Interest and the special record date therefor to be mailed first-class, postage prepaid to each Holder as such Holders address appears in the Security Register, not less than 10 days prior to such special record date. Notice of the proposed payment date of such Defaulted Interest and the special record date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes are registered at the close of business on such special record date and shall no longer be payable pursuant to clause (b) below.
(b) | The Issuer may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment date pursuant to this clause, such manner of payment shall be deemed reasonably practicable. |
Subject to the foregoing provisions of this Section 2.12, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.13. Computation of Interest
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 2.14. CUSIP, ISIN and Common Code Numbers
The Issuer in issuing the Notes may use CUSIP, ISIN and Common Code numbers (if then generally in use), and, if so, the Issuer shall use CUSIP, ISIN and Common Code numbers, as appropriate, in notices of redemption as a convenience to Holders; provided , however , that any such notice may state that no representation is made as to the correctness of such numbers or codes either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee of any change in the CUSIP, ISIN or Common Code numbers.
Section 2.15. Issuance of Additional Notes
The Issuer may, subject to Section 4.04 of this Indenture, issue Additional Notes under this Indenture from time to time after the Issue Date in accordance with the procedures of Section 2.02. The Original Notes issued on the date of this Indenture and any
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Additional Notes subsequently issued shall be treated as a single class and as part of the same series for all purposes (including voting) under this Indenture.
Section 2.16. Agents
(a) | Actions of Agents. The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint or joint and several. |
(b) | Agents of Trustee. The Issuer and the Agents acknowledge and agree that in the event of a Default or Event of Default, the Trustee may, by notice in writing to each of the Issuer and the Agents, require that the Agents act as agents of, and take instructions exclusively from, the Trustee. Until they have received such written notice from the Trustee, the Agents shall act solely as agents of the Issuer and need have no concern for the interests of the Holders. |
(c) | Moneys Held. The Agents hold all funds as banker subject to the terms of this Indenture and as a result, such money will not be held in accordance with the rules established by the Financial Conduct Authority in the Financial Conduct Authoritys Handbook of rules and guidance from time to time in relation to client money. |
(d) | Publication of Notices. Any obligation the Agents may have to publish a notice to Holders on behalf of the Issuer will have been met upon delivery of the notice to Euroclear and/or Clearstream, as applicable. |
(e) | Resignation of Agents. Any Agent may resign and be discharged from its duties under this Indenture at any time by giving 30 days prior written notice of such resignation to the Trustee and Issuer. The Trustee or Issuer may remove any Agent at any time by giving 30 days prior written notice to any Agent. Upon such notice, a successor Agent shall be appointed by the Issuer, who shall provide written notice of such to the Trustee. Such successor Agent shall become the Agent hereunder upon the resignation or removal date specified in such notice. If the Issuer is unable to replace the resigning Agent within 30 days after such notice, the Agent may, in its sole discretion, deliver any funds then held hereunder in its possession to the Trustee or may apply to a court of competent jurisdiction for the appointment of a successor Agent or for other appropriate relief. The costs and expenses (including its counsels fees and expenses) properly incurred by the Agent in connection with such proceeding shall be paid by the Issuer. Upon receipt of the identity of the successor Agent, the Agent shall deliver any funds then held hereunder to the successor Agent, less the Agents fees, costs and expenses or other obligations owed to the Agent. Upon its resignation and delivery of any funds, the Agent shall be discharged of and from any and all further obligations arising in connection with this Indenture, but shall continue to enjoy the benefit of Section 7.07 hereof. |
Section 2.17. Temporary Notes
Pending the preparation of Definitive Registered Notes, the Issuer may execute and the Trustee shall authenticate and deliver temporary Notes. Temporary Notes shall be issuable as registered Notes without coupons, of any authorized denomination, and substantially in the form of the Definitive Registered Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Issuer. Temporary Notes may contain such reference to any provisions of this Indenture as may be
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appropriate. Every temporary Note shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the Definitive Registered Notes. Without unreasonable delay the Issuer shall execute and shall furnish Definitive Registered Notes and thereupon temporary Notes may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for such purpose pursuant to Section 2.03, and the Trustee shall authenticate and deliver in exchange for such temporary Notes a like aggregate principal amount of Definitive Registered Notes of authorized denominations. Until so exchanged the temporary Notes shall be entitled to the same benefits under this Indenture as Definitive Registered Notes.
ARTICLE THREE
REDEMPTION; OFFERS TO PURCHASE
Section 3.01. Right of Redemption
The Issuer may redeem all or any portion of the Notes upon the terms and at the Redemption Prices set forth in the Notes. Any redemption pursuant to this Section 3.01 shall be made pursuant to the provisions of this Article Three.
Section 3.02. Notices to Trustee
If the Issuer elects to redeem Notes pursuant to Section 3.01, it shall furnish to the Trustee in accordance with Section 13.01, at least 10 days but not more than 60 days (unless the Trustee consents to a shorter period) before a Redemption Date, an Officers Certificate from the Issuer setting forth: (i) the Redemption Date; (ii) the principal amount of Notes to be redeemed; (iii) the Redemption Price; and (iv) the paragraph of the Notes pursuant to which the redemption will occur.
Section 3.03. Selection of Notes to be Redeemed
If fewer than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed by a method that complies with the requirements, as certified to it by the Issuer, of the principal securities exchange or automated quotation system, if any, on which the Notes are listed or, if the Notes are not listed on a securities exchange or automated quotation system, on a pro rata basis (or, in the case of Notes issued in global form, based on a method that most nearly approximates pro rata as the Trustee deems fair and appropriate based on the procedures of Euroclear or Clearstream) unless otherwise required by law or applicable securities exchange or depositary requirements; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Note not redeemed to less than 100,000.
The Trustee shall make the selection from the Notes outstanding and not previously called for redemption. The Trustee may select for redemption portions equal to 100,000 in principal amount or any integral multiple of 1,000 in excess thereof, except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if less than 100,000 or not in an integral multiple of 1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The Trustee shall notify the Issuer and the Registrar promptly in writing of the Notes or portions of Notes to be called for redemption. The Trustee shall not be liable for selections made by it under this Section 3.03.
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Section 3.04. Notice of Redemption
(a) | At least 10 days but not more than 60 days before a date for redemption of Notes, the Issuer shall deliver a notice of redemption in accordance with the provisions of Section 13.01, except that redemption notices may be mailed more than 60 days before a date for redemption of Notes if such notices are issued in connection with Article Eight. |
(b) | The notice shall identify the Notes to be redeemed (including CUSIP, ISIN and Common Code numbers) and shall state: |
(i) | the Redemption Date and the record date; |
(ii) | the Redemption Price and the amount of accrued interest, if any, and Additional Amounts, if any, to be paid; |
(iii) | the name and address of the Paying Agent; |
(iv) | that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued interest, if any, and Additional Amounts, if any; |
(v) | that, if any Note is being redeemed in part, the portion of the principal amount (equal to 100,000 in principal amount or any integral multiple of 1,000 in excess thereof) of such Note to be redeemed and that, on and after the Redemption Date, upon surrender of such Note, if a Global Note, the principal amount thereof will be decreased by the portion thereof redeemed pursuant hereto, or, if a Definitive Registered Note, a new Note or Notes in principal amount equal to the unredeemed portion thereof will be issued upon cancellation of the original Note; |
(vi) | that, if any Note contains a CUSIP, ISIN or Common Code number, no representation is being made as to the correctness of such CUSIP, ISIN or Common Code number either as printed on the Notes or as contained in the notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes; |
(vii) | that, unless the Issuer and the Guarantors default in making such redemption payment, interest on the Notes (or portion thereof) called for redemption shall cease to accrue on and after the Redemption Date; and |
(viii) | the paragraph of the Notes pursuant to which the Notes called for redemption are being redeemed. |
(c) | At the Issuers written request, the Trustee shall give a notice of redemption in the Issuers name and at the Issuers expense. In such event, the Issuer shall provide the Trustee with the notice and the other information required by this Section 3.04; provided , however , that the Issuer has delivered to the Trustee, at least 5 days prior to publication of the notice of redemption, an Officers Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. |
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(d) | Any optional redemption or notice thereof may, at the Issuers discretion, be subject to one or more conditions precedent. |
Section 3.05. Deposit of Redemption Price
No later than 11:00 am London time one Business Day prior to any Redemption Date, the Issuer shall deposit or cause to be deposited with the Paying Agent (or, if the Issuer or a wholly owned Subsidiary is the Paying Agent, such Person shall segregate and hold in trust) a sum in same day funds sufficient to pay the Redemption Price of and accrued interest and Additional Amounts, if any, on all Notes to be redeemed on that date other than Notes or portions of Notes called for redemption that have previously been delivered by the Issuer to the Trustee for cancellation. The Paying Agent shall promptly return to the Issuer any money so deposited that is not required for that purpose.
Section 3.06. Payment of Notes Called for Redemption
Save to the extent that any redemption is conditional on any event or condition specified in the notice related thereto, once notice of redemption has been given in the manner provided below, the Notes or portion of Notes specified in such notice to be redeemed shall become due and payable on the Redemption Date at the Redemption Price stated therein, together with accrued interest to such Redemption Date, and on and after such date (unless the Issuer shall default in the payment of such Notes at the Redemption Price and accrued interest to the Redemption Date, in which case the principal, until paid, shall bear interest from the Redemption Date at the rate prescribed in the Notes), such Notes shall cease to accrue interest. Upon surrender of any Note for redemption in accordance with a notice of redemption, such Note shall be paid and redeemed by the Issuer at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided , however , that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders registered as such at the close of business on the relevant Record Date.
Notice of redemption shall be deemed to be given when mailed or published, whether or not the Holder receives the notice. In any event, failure to give such notice, or any defect therein, shall not affect the validity of the proceedings for the redemption of Notes held by Holders to whom such notice was properly given.
Section 3.07. Notes Redeemed in Part
(a) | Upon surrender of a Global Note that is redeemed in part, the Paying Agent or the Trustee shall forward such Global Note to the Registrar who shall make a notation on the Security Register to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided , however , that each such Global Note shall be in a principal amount at final Stated Maturity of 100,000 or any integral multiple of 1,000 in excess thereof. |
(b) | Upon surrender and cancellation of a Definitive Registered Note that is redeemed in part, the Issuer shall execute and the Trustee shall authenticate for the Holder (at the Issuers expense) a new Definitive Registered Note equal in principal amount to the unredeemed portion of the Definitive Registered Note surrendered and canceled; provided , however , that each such Definitive Registered Note shall be in a principal amount at final Stated Maturity of 100,000 or any integral multiple of 1,000 in excess thereof. |
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Section 3.08. Mandatory Redemption
The Issuer will not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes
The Issuer and the Guarantors (subject to Article Ten) covenant and agree for the benefit of the Holders that they shall duly and punctually pay the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal, premium, if any, interest and Additional Amounts, if any, shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Issuer or any of its Affiliates) holds, in accordance with this Indenture, money sufficient to pay all principal, premium, if any, interest and Additional Amounts, if any then due. If the Issuer or any of its Affiliates acts as Paying Agent, principal, premium, if any, interest and Additional Amounts, if any, shall be considered paid on the due date if the entity acting as Paying Agent complies with Section 2.04.
The Issuer or the Guarantors shall pay interest on overdue principal at the rate specified therefor in the Notes. The Issuer or the Guarantors shall pay interest on overdue installments of interest at the same rate to the extent lawful.
Section 4.02. Corporate Existence
Subject to Article Five, the Issuer and each Restricted Subsidiary shall do or cause to be done all things necessary to preserve and keep in full force and effect their corporate, partnership, limited liability company or other existence; provided, however, that the Issuer shall not be required to preserve the corporate, partnership, limited liability company or other existence of any Restricted Subsidiary if the Board of Directors of the Issuer or the parent entity of any such Restricted Subsidiary shall determine that such preservation is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries, taken as whole, and that the loss thereof is not adverse in any material respect to the Holders.
Section 4.03. Statement as to Compliance
(a) | The Issuer shall deliver to the Trustee no later than the date on which the Issuer is required to deliver annual reports pursuant to Section 4.14, an Officers Certificate stating that in the course of the performance by the relevant officers of their respective duties as an officer of the Issuer they would normally have knowledge of any Default and whether or not such officers know of any Default that occurred during such period and, if any, specifying such Default, its status and what action the Issuer is taking or proposes to take with respect thereto. |
(b) | The Issuer shall, so long as any of the Notes are outstanding, deliver to the Trustee within 15 Business Days of any Default, an Officers Certificate specifying such Default, its status and what action the Issuer is taking or proposes to take with respect thereto. |
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Section 4.04. Limitation on Debt
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, create, issue, incur, assume, guarantee or in any manner become directly or indirectly liable with respect to or otherwise become responsible for, contingently or otherwise, the payment of (individually and collectively, to Incur or, as appropriate, an Incurrence ), any Debt (including any Acquired Debt); provided that the Issuer and any Guarantor shall be permitted to Incur Debt (including Acquired Debt) if: |
(a) | after giving effect to the Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, no Default or Event of Default would occur or be continuing; |
(b) | at the time of such Incurrence and after giving effect to the Incurrence of such Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Debt, taken as one period, would be greater than 2.00 to 1.00; and |
(c) | if such Debt is Senior Debt, at the time of such Incurrence and after giving effect to the Incurrence of such Senior Debt and the application of the proceeds thereof, on a pro forma basis, the Consolidated Senior Leverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the Incurrence of such Senior Debt, taken as one period, would be less than 4.00 to 1.00. |
(2) | This Section 4.04 shall not, however, prohibit the following (collectively, Permitted Debt ): |
(a) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) 100.0 million, plus (ii) in the case of any refinancing of any Debt permitted under this clause, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing; |
(b) | the Incurrence by the Issuer of Debt pursuant to the Notes (other than Additional Notes) and the Incurrence of Debt by the Guarantors pursuant to the Guarantees (other than Guarantees of Additional Notes); |
(c) | any Debt of the Issuer or any Restricted Subsidiary outstanding on the Issue Date (other than (i) Debt described in Section 4.04(2)(a) or Section 4.04(2)(b) or (ii) Debt Incurred to finance the purchase of real property on which the AMS3 data centre is located which shall be deemed Incurred pursuant to any other clause of Section 4.04(2) or pursuant to Section 4.04(1)), including the Existing Notes until the Existing Notes are repaid in full or otherwise discharged; |
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(d) | the Incurrence by the Issuer or any Restricted Subsidiary of intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that: |
(i) | if the Issuer or a Guarantor is the obligor on any such Debt and the lender of such Debt is not the Issuer or a Guarantor, it is unsecured and expressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under the Notes or its Guarantee, as the case may be; and |
(ii) | (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Issuer or another Restricted Subsidiary ceases to be a Restricted Subsidiary, shall, in each case, be deemed to be an Incurrence of such Debt not permitted by Section 4.04(2)(d); |
(e) | guarantees of the Notes made in accordance with the provisions of Section 4.11; |
(f) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, lease, rental or development and improvement of real or personal, movable or immovable, property or assets, in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction or improvement of property plant or equipment used in the Issuers or any Restricted Subsidiarys business (including any reasonable related fees or expenses Incurred in connection with such acquisition or development); provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (f) and still outstanding shall not in the aggregate exceed the greater of 60.0 million and 6% of Total Assets; provided further that such Debt exists prior to or on the date of such acquisition, lease, rental or development and improvement or is created within 270 days thereafter; |
(g) |
the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of earnouts or other purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (g) shall at no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving |
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effect to any subsequent changes in value), actually received from the sale of such assets; |
(h) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Hedging Agreements entered into in the ordinary course of business and not for speculative purposes; |
(i) | the Incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit; |
(j) | the Incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (i) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 business days of Incurrence, (ii) bankers acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided or letters of credit obtained by the Issuer or any Restricted Subsidiary in the ordinary course of business; |
(k) | the Incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Debt in exchange for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by it pursuant to, or described in Section 4.04(1), Section 4.04(2)(b), Section 4.04(2)(c), Section 4.04(2)(k) and Section 4.04(2)(t), as the case may be; |
(l) | Customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business; |
(m) | Management Advances; |
(n) | any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business; |
(o) | without limiting Section 4.11 the guarantee by the Issuer or any Restricted Subsidiary of Debt that was permitted to be incurred by another provision of this covenant; provided that if the Debt being guaranteed is subordinated to the Notes or is unsecured, then the guarantee shall be subordinated or unsecured to the same extent as the Debt guaranteed; |
(p) | without limiting Section 4.05, Debt arising by reason of any Lien granted by or applicable to such Person securing Debt of the Issuer or any Restricted Subsidiary so long as the Incurrence of such Debt is permitted under the terms of this Indenture; |
(q) | Debt consisting of (i) the financing of insurance premiums, (ii) take or pay obligations contained in supply agreements or (iii) rental guarantees, in each case, in the ordinary course of business; |
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(r) | guarantees of the obligations of Qualified Joint Ventures at any time outstanding not exceeding the greater of 25.0 million and 3% of Total Assets in aggregate principal amount; |
(s) | (x) the Incurrence of Debt by the Issuer or any Restricted Subsidiary to finance an acquisition or (y) Acquired Debt; provided that, after giving pro forma effect to such acquisition, (i) the Issuer would have been able to incur 1.00 of additional Debt pursuant to paragraph (1) of this Section 4.04 or (ii) the Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available would be no less than immediately prior to such acquisition and incurrence; and |
(t) | the Incurrence of Debt by the Issuer or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (a) through (s) above) in an aggregate principal amount at any one time outstanding not to exceed 50.0 million. |
(3) | For purposes of determining compliance with this Section 4.04, in the event that an item of Debt meets the criteria of more than one of the categories of Permitted Debt described in Section 4.04(2)(a) through Section 4.04(2)(t), or is entitled to be Incurred pursuant to Section 4.04(1), the Issuer shall be permitted to classify such item of Debt on the date of its Incurrence in any manner that complies with this Section 4.04. Debt under Credit Facilities outstanding on the date on which the Notes are first issued shall initially be deemed to have been Incurred on such date in reliance on Section 4.04(2)(a). In addition, any item of Debt initially classified as Incurred pursuant to one of the categories of Permitted Debt described in Section 4.04(2)(b) through Section 4.04(2)(t), or is entitled to be Incurred pursuant to Section 4.04(1), may later be reclassified by the Issuer such that it shall be deemed as having been Incurred pursuant to such new clause or Section 4.04(1) to the extent that such reclassified Debt could be Incurred pursuant to such new clause or Section 4.04(1) at the time of such reclassification. |
(4) | For purposes of determining compliance with any restriction on the Incurrence of Debt in Euros where Debt is denominated in a different currency, the amount of such Debt shall be the Euro Equivalent determined on the date of such determination; provided that if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to Euros) covering principal amounts payable on such Debt, the amount of such Debt expressed in Euros shall be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt Incurred in the same currency as the Debt being refinanced shall be the Euro Equivalent of the Debt being refinanced determined on the date such Debt being refinanced was initially Incurred. Notwithstanding any other provision of this Section 4.04, for purposes of determining compliance with this Section 4.04, increases in Debt solely due to fluctuations in the exchange rates of currencies shall not be deemed to exceed the maximum amount that the Issuer or a Restricted Subsidiary may Incur under this Section 4.04. |
(5) | For purposes of determining any particular amount of Debt under Section 4.04: |
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(a) | obligations in the form of letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall not be included; |
(b) | any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.05 shall not be treated as Debt; and |
(c) | accrual of interest, accrual of dividends, the accretion or amortization of original issue discount or of accreted value, the obligation to pay commitment fees and the payment of interest or dividends in the form of additional Debt, shall not, in any case, be treated as Debt. |
Section 4.05. Limitation on Liens
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind or assign or otherwise convey any right to receive any income, profits or proceeds on or with respect to any of the Issuers or any Restricted Subsidiarys property or assets, including any shares or stock or Debt of any Restricted Subsidiary, whether owned at or acquired after the Issue Date, or any income, profits or proceeds therefrom (except for Permitted Liens and Permitted Collateral Liens) unless: |
(a) | in the case of any Lien securing Subordinated Debt, the Issuers obligations in respect of the Notes, the obligations of the Guarantors under the Guarantees and all other amounts due under this Indenture are directly secured by a Lien on such property, assets or proceeds that is senior in priority to the Lien securing the Subordinated Debt until such time as the Subordinated Debt is no longer secured by a Lien; and |
(b) | in the case of any other Lien, the Issuers obligations in respect of the Notes, the obligations of the Guarantors under the Guarantees and all other amounts due under this Indenture are equally and ratably secured with the obligation or liability secured by such Lien. |
(2) | Any such Lien arising as a result of paragraphs (1)(a) or (b) above shall be automatically and unconditionally released and discharged concurrently with (i) the unconditional release of the Lien which gave rise to such Lien (other than as a consequence of an enforcement action with respect to the assets subject to such Lien) or (ii) as set forth in Section 12.03. |
Section 4.06. Limitation on Restricted Payments
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, take any of the following actions (each of which is a Restricted Payment and which are collectively referred to as Restricted Payments ): |
(a) |
declare or pay any dividend on or make any distribution (whether made in cash, securities or other property) with respect to any of the Issuers or any Restricted Subsidiarys Capital Stock (including, without limitation, any payment in connection with any merger, consolidation, amalgamation or other combination involving the Issuer |
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or any Restricted Subsidiary) (other than to the Issuer or any Restricted Subsidiary) except for dividends or distributions payable solely in shares of the Issuers Qualified Capital Stock or in options, warrants or other rights to acquire such shares of Qualified Capital Stock; |
(b) | purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger, consolidation, amalgamation or other combination), directly or indirectly, any shares of the Issuers Capital Stock or any Capital Stock of a Holding Company of the Issuer held by persons other than the Issuer or a Restricted Subsidiary or any options, warrants or other rights to acquire such shares of Capital Stock; |
(c) | make any principal payment on, or repurchase, redeem, defease or otherwise acquire or retire for value, prior to any scheduled principal payment, sinking fund payment or Stated Maturity, any Subordinated Debt (other than intercompany Debt between the Issuer and any Restricted Subsidiary or among Restricted Subsidiaries); or |
(d) | make any Investment (other than any Permitted Investment) in any Person. |
If any Restricted Payment described above is not made in cash, the amount of the proposed Restricted Payment shall be the Fair Market Value of the asset to be transferred as at the date of transfer.
(2) | Notwithstanding Section 4.06(1), the Issuer or any Restricted Subsidiary may make a Restricted Payment if, at the time of and after giving pro forma effect to such proposed Restricted Payment: |
(a) | no Default or Event of Default has occurred and is continuing; |
(b) | the Issuer could Incur at least 1.00 of additional Debt pursuant to the ratio set forth in Section 4.04(1)(b); and |
(c) | the aggregate amount of all Restricted Payments declared or made after the Issue Date, and after giving effect to any reductions required by Section 4.06(4), does not exceed the sum of: |
(i) | 50% of aggregate Consolidated Net Income on a cumulative basis during the period beginning on January 1, 2010 and ending on the last day of the Issuers last fiscal quarter ending prior to the date of such proposed Restricted Payment (or, if such aggregate cumulative Consolidated Net Income shall be a negative number, minus 100% of such negative amount); plus |
(ii) |
the aggregate Net Cash Proceeds and the Fair Market Value of property or assets or marketable securities received by the Issuer after the Issue Date as equity capital contributions or from the issuance or sale (other than to any Subsidiary) of shares of the Issuers Qualified Capital Stock (including upon the exercise of options, warrants or rights) or warrants, options or rights to purchase shares of the Issuers Qualified Capital |
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Stock (except, in each case to the extent such proceeds are used to purchase, redeem or otherwise retire Capital Stock or Subordinated Debt as set forth in Section 4.06(3)(d) or Section 4.06(3)(e)) (excluding the Net Cash Proceeds and the Fair Market Value of property or assets or marketable securities received from the issuance of the Issuers Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Issuer or any Subsidiary until and to the extent such borrowing is repaid); plus |
(iii) | (x) the amount by which the Issuers Debt or Debt of any Restricted Subsidiary is reduced on the Issuers consolidated balance sheet after the Issue Date upon the conversion or exchange (other than by a Subsidiary) of such Debt into the Issuers Qualified Capital Stock and (y) the aggregate Net Cash Proceeds and the Fair Market Value of property or assets or marketable securities received after the Issue Date by the Issuer from the issuance or sale (other than to any Subsidiary) of Redeemable Capital Stock that has been converted into or exchanged for the Issuers Qualified Capital Stock, to the extent such Redeemable Capital Stock was originally sold for cash or Cash Equivalents, together with, in the case of both clauses (x) and (y), the aggregate Net Cash Proceeds and the Fair Market Value of property or assets or marketable securities received by the Issuer at the time of such conversion or exchange (excluding the Net Cash Proceeds from the issuance of the Issuers Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Issuer or any Subsidiary until and to the extent such borrowing is repaid); plus |
(iv) | (x) repurchases, redemptions or other acquisitions or retirements of any such Investment that is a Restricted Payment, proceeds realized upon the sale or other disposition to a Person other than the Issuer or a Restricted Subsidiary of any such Investment that is a Restricted Payment, repayments of loans or advances or other transfers of assets (including by way of dividend, distribution, interest payments or returns of capital) to the Issuer or any Restricted Subsidiary, less the cost of the disposition of such Investment and net of taxes, (y) if such Investment constituted a guarantee, an amount equal to the amount of such guarantee upon the full and unconditional release of such guarantee and (z) in the case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary (as long as the designation of such Subsidiary as an Unrestricted Subsidiary was deemed a Restricted Payment), the Fair Market Value of the Issuers interest in such Subsidiary; plus |
(v) | in the event that the Issuer or any Restricted Subsidiary makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, an amount equal to the Fair Market Value of Issuers or such Restricted Subsidiarys existing interest in such Person that was previously treated as a Restricted Payment. |
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(3) | Notwithstanding Section 4.06(1) and Section 4.06(2), the Issuer and any Restricted Subsidiary may take the following actions so long as (with respect to Section 4.06(3)(e), Section 4.06(3)(f), Section 4.06(3)(k), Section 4.06(3)(l), Section 4.06(3)(m) and Section 4.06(3)(n) below) no Default or Event of Default has occurred and is continuing: |
(a) | the payment of any dividend within 60 days after the date of its declaration if at such date of its declaration such payment would have been permitted by the provisions of this Section 4.06; |
(b) | cash payments in lieu of issuing fractional shares pursuant to the exchange or conversion of any exchangeable or convertible securities; |
(c) | the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of the Issuer or any Restricted Subsidiary of the Issuer held by any employee benefit plan of the Issuer or any of its Restricted Subsidiaries, any current or former officer, director, consultant, or employee of the Issuer or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed 2.0 million in any twelve-month period; |
(d) | the repurchase, redemption or other acquisition or retirement for value of any shares of the Issuers Capital Stock or options, warrants or other rights to acquire such Capital Stock in exchange for (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares or scrip), or out of the Net Cash Proceeds of a substantially concurrent issuance and sale (other than to a Subsidiary) of, shares of the Issuers Qualified Capital Stock or options, warrants or other rights to acquire such Capital Stock; |
(e) | the prepayment, repayment, purchase, repurchase, redemption, defeasance or other acquisition or retirement for value or payment of principal of any Subordinated Debt in exchange for, or out of the Net Cash Proceeds of the issuance and sale (other than to a Subsidiary) of, shares of the Issuers Qualified Capital Stock; |
(f) | the prepayment, repayment, purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Debt (other than Redeemable Capital Stock) in exchange for, or out of the Net Cash Proceeds of the Incurrence (other than to a Subsidiary) of, Permitted Refinancing Debt; |
(g) | the declaration or payment of any dividend or distribution to holders of Capital Stock of a Restricted Subsidiary on a pro rata basis or on a basis that results in the receipt by the Issuer or a Restricted Subsidiary of dividends or distributions of greater value than the Issuer or such Restricted Subsidiary would receive on a pro rata basis; |
(h) |
the repurchase of Capital Stock deemed to occur upon the exercise of stock options with respect to which payment of the cash exercise price has been forgiven if the cumulative aggregate value of such deemed |
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repurchases does not exceed the cumulative aggregate amount of the exercise price of such options received; |
(i) | the declaration and payment of dividends to holders of any class or series of Redeemable Capital Stock issued in accordance with Section 4.04; |
(j) | the purchase, repurchase, redemption, retirement or other acquisition for value of Capital Stock deemed to occur upon the exercise of stock options, warrants or other securities, if such Capital Stock represents a portion of the exercise price of such options, warrants or other securities; |
(k) | any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Debt of the Issuer or any of its Restricted Subsidiaries pursuant to the provisions similar to those described in Section 4.09; provided that all Notes validly tendered by Holders in connection with a Change of Control Offer, as applicable, have been repurchased, redeemed or acquired for value; |
(l) | the purchase, repurchase, redemption, acquisition or retirement of subordinated Debt of the Issuer or any Restricted Subsidiary with any Excess Proceeds remaining after consummation of an Excess Proceeds Offer pursuant to Section 4.07; |
(m) | any other Restricted Payment; provided that the total aggregate amount of Restricted Payments made under this clause (m) does not exceed 25.0 million; and |
(n) | any Restricted Payment; provided that the Consolidated Leverage Ratio does not exceed 1.5 to 1.0 on a pro forma basis after giving effect to such Restricted Payment. |
(4) | The actions described in Section 4.06(3)(a), Section 4.06(3)(c), Section 4.06(3)(m) and Section 4.06(3)(n) are Restricted Payments that shall be permitted to be made in accordance with Section 4.06(3) but that shall reduce the amount that would otherwise be available for Restricted Payments under Section 4.06(2)(c) above. |
Section 4.07. Limitation on Sale of Certain Assets
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, consummate any Asset Sale unless: |
(a) | the consideration the Issuer or such Restricted Subsidiary receives for such Asset Sale is not less than the Fair Market Value of the assets sold (as determined by the Issuers Board of Directors); |
(b) | at least 75% of the consideration the Issuer or such Restricted Subsidiary receives in respect of such Asset Sale consists of: |
(i) | cash (including any Net Cash Proceeds received from the conversion to cash within 90 days of such Asset Sale of securities, notes or other obligations received in consideration of such Asset Sale); |
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(ii) | Cash Equivalents (including any Net Cash Proceeds received from the conversion to cash within 90 days of such Asset Sale of securities, notes or other obligations received in consideration of such Asset Sale); |
(iii) | the assumption by the purchaser of (x) the Issuers Debt or Debt of any Restricted Subsidiary (other than Subordinated Debt) as a result of which neither the Issuer nor any of the Restricted Subsidiaries remains obliged in respect of such Debt or (y) Debt of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, if the Issuer and each other Restricted Subsidiary is released from any guarantee of such Debt as a result of such Asset Sale; |
(iv) | Replacement Assets; |
(v) | any Designated Non-cash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Sale; provided that the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (v), less the amount of Net Cash Proceeds previously realized in cash from prior Designated Non-cash Consideration does not exceed (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) 20.0 million; or |
(vi) | a combination of the consideration specified in clauses (i) through (v); and |
(c) | the Issuer delivers an Officers Certificate to the Trustee certifying that such Asset Sale complies with the provisions described in the foregoing clauses (a) and (b). |
(2) | If the Issuer or any Restricted Subsidiary consummates an Asset Sale, the Net Cash Proceeds of the Asset Sale, within 365 days of the consummation of such Asset Sale (or the Issuer or any such Restricted Subsidiary may enter into a binding commitment to so use; provided that such Net Cash Proceeds are so used within 180 days after the expiration of the aforementioned 365 day period), may be used by the Issuer or such Restricted Subsidiary to: |
(a) | permanently repay or prepay any then outstanding Debt of the Issuer, or Debt of any Restricted Subsidiary (and to permanently reduce the corresponding commitment by an equal amount if such Debt is a revolving credit borrowing) owing to a Person other than the Issuer or a Restricted Subsidiary, as applicable; |
(b) | to make a capital expenditure or to invest in any Replacement Assets; or |
(c) | any combination of the foregoing. |
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The amount of such Net Cash Proceeds not so used as set forth in this paragraph (2) constitutes Excess Proceeds . Pending the final application of any such Net Cash Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by the terms of this Indenture.
(3) | When the aggregate amount of Excess Proceeds exceeds 25.0 million, the Issuer shall, within 30 Business Days, make an offer to purchase (an Excess Proceeds Offer ) to all holders of Notes and, at the Issuers election, to the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in this Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount, in the case of the Notes (expressed as a minimum amount of 100,000 and integral multiples of 1,000 in excess thereof) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt shall be payable in cash in an amount equal to (solely in the case of the Notes) 100% of the principal amount of such Note and (solely in the case of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, as applicable) of such Pari Passu Debt, plus , in each case, accrued and unpaid interest, if any, to the date of purchase. |
To the extent that the aggregate principal amount of Notes and any such Pari Passu Debt tendered pursuant to an Excess Proceeds Offer is less than the aggregate amount of Excess Proceeds, the Issuer may use the amount of such Excess Proceeds not used to purchase Notes and Pari Passu Debt for general corporate purposes that are not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and any such Pari Passu Debt validly tendered and not withdrawn by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Pari Passu Debt to be purchased shall be selected by the Trustee on a pro rata basis (based upon the principal amount of Notes and the principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds shall be reset to zero.
(4) | If the Issuer is obliged to make an Excess Proceeds Offer, the Issuer shall purchase the Notes and Pari Passu Debt, at the option of the holders thereof, in whole or in part in a minimum amount of 100,000 and integral multiples of 1,000 in excess thereof on a date that is not earlier than 30 days and not later than 60 days from the date the notice of the Excess Proceeds Offer is given to such holders, or such later date as may be required under the Exchange Act. |
Pending the final application of any Net Cash Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(5) |
If the Issuer is required to make an Excess Proceeds Offer, the Issuer will comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations, including the requirements of any applicable securities exchange on which Notes are then listed. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 4.07, the Issuer will |
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comply with such securities laws and regulations and will not be deemed to have breached its obligations described in Section 4.07 by virtue thereof. |
Section 4.08. Limitation on Transactions with Affiliates
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets or property or the rendering of any service), with, or for the benefit of, any Affiliate of the Issuer or any other Restricted Subsidiary having a value greater than 5.0 million, unless such transaction or series of transactions is entered into in good faith and: |
(a) | such transaction or series of transactions is on terms that, taken as a whole, are not materially less favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable arms-length transaction with third parties that are not Affiliates; |
(b) | with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value greater than 10.0 million, the Issuer shall deliver a resolution of its Board of Directors (attached to an Officers Certificate to the Trustee) resolving that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the Disinterested Members, if any, of the Board of Directors; and |
(c) | with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value greater than 20.0 million, the Issuer shall deliver to the Trustee a written opinion of an Independent Financial Advisor stating that the transaction or series of transactions is fair to the Issuer or such Restricted Subsidiary from a financial point of view or that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arms length basis. |
(2) | Notwithstanding the foregoing, the restrictions set forth in this description shall not apply to: |
(i) | customary directors fees, indemnities and similar arrangements (including the payment of directors and officers insurance premiums), consulting fees, employee compensation, employee and director bonuses, employment agreements and arrangements or employee benefit arrangements, including stock options or legal fees, as long as the Issuers Board of Directors has approved the terms thereof and deemed the services performed or thereafter to be performed for amounts to be fair consideration therefor; |
(ii) | Permitted Investments (other than pursuant to clause (c)(iii), (p) or (q) of the definition thereof) and any Restricted Payment not prohibited by Section 4.06; |
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(iii) | loans and advances (or guarantees to third party loans, but not any forgiveness of such loans or advances) to directors, officers or employees of the Issuer or any Restricted Subsidiary made in the ordinary course of business in an amount outstanding not to exceed at any one time 2.0 million; |
(iv) | agreements and arrangements existing on the Issue Date and any amendment, extension, renewal, refinancing, modification or supplement thereto; provided that any such amendment, extension, renewal, refinancing, modification or supplement to the terms thereof is not more disadvantageous, taken as a whole, to the holders of the Notes and to the Issuer and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the Issue Date; |
(v) | the issuance of securities or other payments, awards or grants in cash, securities or similar transfers pursuant to, or for the purpose of the funding of, employment arrangements, stock options, stock ownership plans and other similar arrangements, as long as the terms thereof are or have been previously approved by the Issuers Board of Directors; |
(vi) | the granting and performance of registration rights for the Issuers securities; |
(vii) | transactions between or among the Issuer and the Restricted Subsidiaries or between or among Restricted Subsidiaries; |
(viii) | any issuance of Capital Stock (other than Redeemable Capital Stock) of the Issuer; |
(ix) | the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement relating thereto) to which it is a party as at the Issue Date and any similar agreements which it may enter into thereafter; provided , however , that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of, obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (ix) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the holders of the Notes when taken as a whole; |
(x) | transactions with a Person that is an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary of the Issuer owns Capital Stock in such Person or solely because the Issuer or a Restricted Subsidiary of the Issuer has the right to designate one or more members of the Board of Directors or similar governing body of such Person; and |
(xi) |
transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business, which are fair to the Issuer or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or an officer of the |
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Issuer or the relevant Restricted Subsidiary or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party. |
Section 4.09. Change of Control
(1) | If a Change of Control occurs at any time, than the Issuer shall make an offer (a Change of Control Offer ) to each holder of Notes to purchase such holders Notes, in whole or in part, in a principal amount of 100,000 or in integral multiples of 1,000 in excess thereof at a purchase price (the Change of Control Purchase Price ) in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (the Change of Control Purchase Date ). |
(2) | Within 30 days following any Change of Control, the Issuer shall send notice of the Change of Control Offer by first-class mail, with a copy to the Trustee and each Paying Agent, to each Holder of Notes to the address of such Holder appearing in the Security Register, which notice shall state: |
(a) | that a Change of Control has occurred and the date it occurred; |
(b) | the circumstances and relevant facts regarding such Change of Control; |
(c) | the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be a business day no earlier than 30 days nor later than 60 days after the date such notice is mailed, or such later date as is necessary to comply with any requirements under the Exchange Act and any other applicable securities laws or regulations; |
(d) | that any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date unless the Change of Control Purchase Price is not paid on such date; |
(e) | that any Note or part thereof not tendered shall continue to accrue interest; and |
(f) | any other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance. |
(3) | The Trustee shall promptly authenticate and deliver a new Note or Notes in a principal amount equal to any unpurchased portion of Notes surrendered, if any, to the Holder of Notes in global form or to each Holder of Definitive Registered Notes; provided that each such new Note shall be in a principal amount of 100,000 or in integral multiples of 1,000 in excess thereof. The Issuer shall publicly announce the results of a Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date. |
(4) |
The Issuer shall not be required to make a Change of Control Offer following a Change of Control if (i) the Notes have been irrevocably and unconditionally called for redemption as described on the face of the Note or (ii) a third party |
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has made, and not terminated, a tender offer for all of the Notes in the manner and at the times applicable to a Change of Control Offer, at a tender offer purchase price in cash equal to at least 101% of the principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, and such third party purchases all of the Notes validly tendered and not withdrawn under such tender offer. |
The Issuer and the Guarantors shall comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act, and any other applicable securities laws and regulations in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer and the Guarantors shall comply with such applicable securities laws and regulations and shall not be deemed to have breached their obligations under this Indenture by virtue of such conflict.
If and for so long as the Notes are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the Issuer shall publish a public announcement with respect to the results of the Change of Control Offer in a leading newspaper of general circulation in Luxembourg (which is expected to be the Luxemburger Wort ) or, to the extent and in the manner permitted by such rules, post such notice on the official website of the Luxembourg Stock Exchange ( www.bourse.lu ).
Section 4.10. Additional Amounts
(1) | All payments made under or with respect to the Notes or the Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any jurisdiction in which the Issuer or any Guarantor is organized, engaged in business or resident for tax purposes or from or through which payment on the Notes is made or any political subdivision or authority thereof or therein having the power to tax (each, a Relevant Taxing Jurisdiction ) and any interest, penalties and other liabilities with respect thereto (collectively, Taxes ), unless the withholding or deduction of such Taxes is required by law or by the relevant taxing authoritys interpretation or administration thereof. In the event that the Issuer or a Guarantor is required to so withhold or deduct any amount for or on account of any such Taxes from any payment made under or with respect to the Notes, the Issuer or Guarantor, as the case may be, shall pay such additional amounts ( Additional Amounts ) as may be necessary so that the net amount received by each Holder of the Notes (including Additional Amounts) after such withholding or deduction shall be not less than the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted. |
(2) | Notwithstanding Section 4.10(1), neither the Issuer nor any Guarantor shall pay Additional Amounts to a Holder or beneficial owner of any Note in respect or on account of: |
(a) |
any Taxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of the Holders (or, if applicable, its partners, its shareholders or beneficial owners) present or former connection with such Relevant Taxing Jurisdiction |
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(including, but not limited to, citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Relevant Taxing Jurisdiction) other than the mere receipt or holding of any Note or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under such Note, any Guarantee or this Indenture; |
(b) | any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of any Note, prior to the relevant date on which a payment under and with respect to the Notes is due and payable (the Relevant Payment Date ), to comply with the Issuers written request addressed to the Holder at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any certification, identification, information or other reporting requirements concerning nationality, residence, identity or connection with the Relevant Taxing Jurisdiction which the Holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice, in each such case by the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction); |
(c) | any estate, inheritance, gift, sales, transfer, personal property or similar Taxes; |
(d) | any Tax that is payable other than by deduction or withholding from payments made under or with respect to any Note or Guarantee; |
(e) | any Tax which would not have been so imposed but for the presentation (where presentation is required in order to receive payment) by the Holder or beneficial owner of a Note for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts on presenting the same for payment on any day (including the last day) within such 30-day period; |
(f) | any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any Directive otherwise implementing the conclusions of the ECOFIN Council meetings of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, any such Directive; |
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(g) | any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by requesting that a payment on the Note be made by, or presenting a Note for a payment to, another Paying Agent in an EU Member State; |
(h) | any Tax that is imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note; or |
(i) | any withholding or deduction required to be made from a payment pursuant to sections 1471-1474 of the U.S. Internal Revenue Code, as of the issue date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) (the Code ), any current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to section 1471(b)(1) of the Code. |
In addition, Additional Amounts shall not be payable with respect to any Taxes that are imposed in respect of any combination of the above items.
The Issuer or Guarantor shall also make or cause to be made such withholding or deduction of Taxes and remit the full amount of Taxes so deducted or withheld to the relevant taxing authority in accordance with all applicable laws. The Issuer shall, upon request, make available to the Holders, within 30 days after the date on which the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or if, notwithstanding the Issuers reasonable efforts to obtain such receipts, the same are not obtainable, other evidence reasonably satisfactory to the Trustee of such payment by the Issuer.
At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or a Guarantor shall be obliged to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30 th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), the Issuer or Guarantor shall deliver to the Trustee an Officers Certificate stating that such Additional Amounts shall be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee or Paying Agents to pay such Additional Amounts to the Holders and beneficial owners on the payment date. The Trustee shall be entitled to rely solely on such Officers Certificate as conclusive proof that such payments are necessary.
In addition, the Issuer or the Guarantor shall pay: (i) any present or future stamp, issue, registration, transfer, documentation, court, excise or property taxes or other similar taxes, charges and duties, including interest, penalties and Additional Amounts with respect thereto
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imposed or levied by any Relevant Taxing Jurisdiction, in respect of the execution, issue, delivery or registration of the Notes, this Indenture or the Guarantees, or any other document or instrument referred to thereunder (other than transfers of the Notes following the initial resale of the Notes by the initial purchasers of the Notes); (ii) any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction as a result of, or in connection with, the enforcement of the Notes, Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes; and (iii) any stamp, court or documentary taxes (or similar charges or levies) imposed by any Relevant Taxing Jurisdiction with respect to the receipt of any payments with respect to the Notes or the Guarantees (limited to any such taxes (or similar charges or levies) that are not excluded under Section 4.10(2)(a) through Section 4.10(2)(c) or Section 4.10(2)(e) through Section 4.10(2)(i) or any combination thereof).
The foregoing provisions shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined below) or successor person to the Issuer or a Guarantor is organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Whenever in this Indenture there is mentioned, in any context, the payment of principal (and premiums, if any), Redemption Price, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to any Guarantee), such mention shall be deemed to include mention of the payment of Additional Amounts.
Section 4.11. Limitation on Guarantees of Debt by Restricted Subsidiaries
(1) | The Issuer shall not permit any Restricted Subsidiary that is not a Guarantor, directly or indirectly, to guarantee, assume or in any other manner become liable for the payment of any Debt of the Issuer or any Guarantor (other than the Notes), the principal amount of which exceeds 15.0 million (including amounts committed and not drawn), unless: |
(a) (i) | such Restricted Subsidiary executes and delivers within 30 days a supplemental indenture to this Indenture in the form of Exhibit D providing for a Guarantee of payment of the Notes by such Restricted Subsidiary on the same terms as the guarantee of such other Debt; and |
(ii) | with respect to any guarantee of Subordinated Debt by such Restricted Subsidiary, any such guarantee shall be subordinated to such Restricted Subsidiarys Guarantee with respect to the Notes at least to the same extent as such Subordinated Debt is subordinated to the Notes; and |
(b) | to the maximum extent permitted by law, such Restricted Subsidiary waives and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Issuer or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee. |
(2) | Paragraph (1) shall not be applicable to any guarantee of any Restricted Subsidiary: |
(i) | existing on the Issue Date; |
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(ii) | that existed at the time such Person became a Restricted Subsidiary if the guarantee was not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; or |
(iii) | given to a bank or trust company incorporated in any member state of the European Union as of the date of this Indenture or any commercial banking institution (or any branch, Subsidiary or Affiliate thereof) in each case having combined capital and surplus and undivided profits of not less than 500 million, whose debt has a rating, at the time such guarantee was given, of at least A or the equivalent thereof by S&P and at least A2 or the equivalent thereof by Moodys, in connection with the operation of cash management programs established for the Issuers benefit or that of any Restricted Subsidiary. |
(3) | Notwithstanding the foregoing, any Guarantee of the Notes created pursuant to the provisions described in paragraph (1) above may provide by its terms that it shall be automatically and unconditionally released and discharged upon: |
(a) | any sale, exchange or transfer, to any Person who is not the Issuers Affiliate, of all of the Capital Stock owned by the Issuer and its Restricted Subsidiaries in, or all or substantially all the assets of, such Restricted Subsidiary (which sale, exchange or transfer is not prohibited by this Indenture); or |
(b) | (with respect to any Guarantee created after the Issue Date) the release by the holders of the Issuers or the Guarantors Debt described in paragraph (1) above, of their guarantee by such Restricted Subsidiary (including any deemed release upon payment in full of all obligations under such Debt other than as a result of payment under such guarantee), at a time when: |
(i) | no other Debt of the Issuer (other than the Notes) or any Guarantor (other than the Guarantees) has been guaranteed by such Restricted Subsidiary; or |
(ii) | the holders of all such other Debt that is guaranteed by such Restricted Subsidiary also release their guarantee by such Restricted Subsidiary (including any deemed release upon payment in full of all obligations under such Debt other than as a result of payment under such guarantee); or |
(c) | the release of the Guarantees on the terms and conditions and in the circumstances described in Section 10.12. |
(4) | Notwithstanding the foregoing, the Issuer shall not be obligated to cause such Restricted Subsidiary to guarantee the Notes to the extent such Guarantee would reasonably be expected to give rise to or result in: |
(a) | any conflict with or violation of applicable law; |
(b) | material risk of personal liability for the officers, directors, shareholders or partners of such Restricted Subsidiary; or |
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(c) | any cost, expense, liability or obligation (including with respect to any Taxes but excluding any reasonable guarantee or similar fee payable to the Issuer or any Restricted Subsidiary) other than reasonable expenses and other than reasonable governmental expenses incurred in connection with any governmental or regulatory filings required as a result of, or any measures pursuant to clause (1) undertaken in connection with, such Guarantee. |
Section 4.12. Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries
(1) | The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to: |
(a) | pay dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock or any other interest or participation in, or measured by, its profits; |
(b) | pay any Debt owed to the Issuer or any other Restricted Subsidiary; |
(c) | make loans or advances to the Issuer or any other Restricted Subsidiary; or |
(d) | transfer any of its properties or assets to the Issuer or any other Restricted Subsidiary, |
provided that (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (ii) the subordination of (including the application of any standstill requirements to) loans or advances made to the Issuer or any Restricted Subsidiary to other Debt Incurred by the Issuer or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(2) | The provisions of Section 4.12(1) shall not apply to: |
(a) | encumbrances and restrictions imposed by the Notes, this Indenture, the Guarantees, the Revolving Credit Facility, the Intercreditor Agreement and the Security Documents; |
(b) | encumbrances or restrictions imposed by Debt permitted to be Incurred under Credit Facilities or any guarantee thereof in accordance with Section 4.04 or pursuant to Section 4.04(2); provided that in the case of any such encumbrances or restrictions imposed under any Credit Facilities, such encumbrances or restrictions taken as a whole are not materially less favorable to the Holders taken as a whole than those imposed by the Revolving Credit Facility as at the Issue Date; |
(c) | encumbrances or restrictions contained in any agreement in effect on the Issue Date (other than an agreement described in another clause of this Section 4.12(2)); |
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(d) | with respect to restrictions or encumbrances referred to in clause (1)(d) above, encumbrances and restrictions: (i) that restrict in a customary manner the subletting, assignment or transfer of any properties or assets that are subject to a lease, license, conveyance or other similar agreement to which the Issuer or any Restricted Subsidiary is a party; and (ii) contained in operating leases for real property and restricting only the transfer of such real property upon the occurrence and during the continuance of a default in the payment of rent; |
(e) | encumbrances or restrictions contained in any agreement or other instrument of a Person or relating to assets acquired by the Issuer or any Restricted Subsidiary in effect at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; |
(f) | encumbrances or restrictions contained in contracts for sales of Capital Stock or assets permitted by Section 4.07 with respect to the assets or Capital Stock to be sold pursuant to such contract or in customary merger or acquisition agreements (or any option to enter into such contract) for the purchase or acquisition of Capital Stock or assets or any of the Issuers Subsidiaries by another Person; |
(g) | encumbrances or restrictions imposed by applicable law or regulation or by governmental licenses, concessions, franchises or permits; |
(h) | encumbrances or restrictions on cash or other deposits or net worth imposed by customers under contracts entered into the ordinary course of business; |
(i) | customary limitations on the distribution or disposition of assets or property of a Restricted Subsidiary in joint venture agreements entered into the ordinary course of business and in good faith; provided that such encumbrance or restriction is applicable only to such Restricted Subsidiary; provided further , that: |
(i) | the encumbrance or restriction is not materially less favorable to the Holders taken as a whole than is customary in comparable agreements (as determined in good faith by the Issuer); and |
(ii) | the Issuer determines in good faith that any such encumbrance or restriction shall not materially affect the ability of the Issuer or any Guarantor to make any principal or interest payments on the Notes; |
(j) | in the case of clause 1(d) above, customary encumbrances or restrictions in connection with purchase money obligations, mortgage financings and Capitalized Lease Obligations for property acquired in the ordinary course of business; |
(k) | any encumbrance or restriction arising by reason of customary non-assignment provisions in agreements; |
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(l) | any encumbrance or restriction pursuant to an agreement or instrument effecting a refunding, replacement or refinancing of Debt Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in Section 4.12(2)(a), Section 4.12(2)(b), Section 4.12(2)(c) or Section 4.12(2)(e) (an Initial Agreement ) or contained in any amendment, supplement or other modification to an agreement referred to in Section 4.12(2)(a), Section 4.12(2)(b), Section 4.12(2)(c) or Section 4.12(2)(e); provided , however , that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in such agreements and instruments referred to in Section 4.12(2)(a), Section 4.12(2)(b), Section 4.12(2)(c) or Section 4.12(2)(e) (as determined in good faith by the Issuer); |
(m) | any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Debt permitted to be Incurred after the Issue Date pursuant to the provisions of Section 4.04: (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Issuer); or (ii) if such encumbrance or restriction is not materially more disadvantageous to the holders of the Notes than is customary in comparable financings (as determined in good faith by the Issuer) and either: (x) the Issuer determines that such encumbrance or restriction shall not materially affect the Issuers ability to make principal or interest payments on the Notes as and when they come due; or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Debt; |
(n) | any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, extensions, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (l) and (m) of this paragraph; provided that such amendments, modifications, restatements, renewals, extension, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuers Board of Directors, no more restrictive (taken as a whole) with respect to such encumbrances or restrictions than those contained in the encumbrances or restrictions prior to such amendment, modification, restatement, renewal, extension, increase, supplement, refunding, replacement or refinancing; or |
(o) | with respect to restrictions or encumbrances referred to in Section 4.12(1)(d), encumbrances or restrictions existing by reason of any Lien permitted under Section 4.05. |
Section 4.13. Designation of Unrestricted and Restricted Subsidiaries
(1) | The Issuers Board of Directors may designate any Subsidiary (including newly acquired or newly established Subsidiaries) to be an Unrestricted Subsidiary only if: |
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(a) | no Default has occurred and is continuing at the time of or after giving effect to such designation; |
(b) | the Issuer would be permitted to make an Investment at the time of designation (assuming the effectiveness of such designation) pursuant to Section 4.06 in an amount equal to the greater of (i) the net book value of the Issuers interest in such Subsidiary calculated in accordance with IFRS or (ii) the Fair Market Value of the Issuers interest in such Subsidiary; |
(c) | the Issuer would be permitted under this Indenture to Incur at least 1.00 of additional Debt pursuant to the ratio set forth in Section 4.04(1)(b) at the time of such designation (assuming the effectiveness of such designation); |
(d) | such Subsidiary is not liable, directly or indirectly, with respect to any Debt, Lien or other obligation that, if in default, would result (with the passage of time or giving of notice or otherwise) in a default on any of the Issuers Debt or Debt of any Restricted Subsidiary; provided that an Unrestricted Subsidiary may provide a Guarantee for the Notes; |
(e) | such Subsidiary, either alone or in the aggregate with all other Unrestricted Subsidiaries, does not operate, directly or indirectly, all or substantially all of the businesses of the Issuer and its Subsidiaries; and |
(f) | such Subsidiary is a Person with respect to which neither the Issuer nor any Restricted Subsidiary has any direct or indirect obligation to: |
(i) | subscribe for additional Capital Stock of such Person; or |
(ii) | maintain or preserve such Persons financial condition or to cause such Person to achieve any specified levels of operating results. |
(2) | In the event of any such designation, the Issuer shall be deemed to have made an Investment constituting a Restricted Payment pursuant to Section 4.06 for all purposes of this Indenture in an amount equal to the greater of (i) the net book value of the Issuers interest in such Subsidiary calculated in accordance with IFRS or (ii) the Fair Market Value of the Issuers interest in such Subsidiary. |
(3) | Neither the Issuer nor any Restricted Subsidiary shall at any time: |
(a) | provide a guarantee of, or similar credit support to, any Debt of any Unrestricted Subsidiary (including of any undertaking, agreement or instrument evidencing such Debt); provided that the Issuer may pledge Capital Stock or Debt of any Unrestricted Subsidiary on a non-recourse basis as long as the pledgee has no claim whatsoever against the Issuer other than to obtain such pledged property, except to the extent permitted under Section 4.06 and Section 4.08; |
(b) | be directly or indirectly liable for any Debt of any Unrestricted Subsidiary, except to the extent permitted under Section 4.06 and Section 4.08; or |
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(c) | be directly or indirectly liable for any other Debt that provides that the holder thereof may (upon giving notice, the lapse of time or both) declare a default thereof (or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity) upon the occurrence of a default with respect to any other Debt that is Debt of an Unrestricted Subsidiary (including any corresponding right to take enforcement action against such Unrestricted Subsidiary). |
(4) | The Issuers Board of Directors may designate any Unrestricted Subsidiary as a Restricted Subsidiary: |
(a) | if no Default or Event of Default has occurred and is continuing at the time of, or shall occur and be continuing after giving effect to, such designation; and |
(b) | unless such designated Unrestricted Subsidiary shall not have any Debt outstanding (other than Debt that would be Permitted Debt), immediately before and after giving effect to such proposed designation, and after giving pro forma effect to the Incurrence of any such Debt of such designated Unrestricted Subsidiary as if such Debt was Incurred on the date of its designation as a Restricted Subsidiary, the Issuer could Incur at least 1.00 of additional Debt pursuant to the ratio set forth in paragraph (1)(b) of Section 4.04. |
(5) | Any such designation as an Unrestricted Subsidiary or Restricted Subsidiary by the Issuers Board of Directors shall be evidenced to the Trustee by filing a resolution of the Issuers Board of Directors with the Trustee giving effect to such designation and an Officers Certificate certifying that such designation complies with the foregoing conditions, and giving the effective date of such designation. Any such filing with the Trustee must occur within 45 days after the end of the Issuers fiscal quarter in which such designation is made (or, in the case of a designation made during the last fiscal quarter of the Issuers fiscal year, within 90 days after the end of such fiscal year). |
Section 4.14. Reports to Holders
(1) | So long as any Notes are outstanding, the Issuer shall furnish to the Trustee: |
(a) | within 120 days after the end of the Issuers fiscal year , all annual financial information that would be required to be contained in a filing with the Commission on Form 20-F if the Issuer were required to file such form, including an Operating and Financial Review and the report of the independent auditors on the financial statements; |
(b) | within 60 days after the end of each of the first three fiscal quarters in each fiscal year of the Issuer, quarterly financial statements containing the following information: (i) the Issuers unaudited condensed consolidated balance sheet as at the end of such quarter and unaudited condensed statements of income and cash flow for the most recent quarter year-to-date period ending on the unaudited condensed balance sheet date and the comparable prior period, together with condensed footnote disclosure; and (ii) an operating and financial review of the unaudited financial statements, including a discussion of the results of operations, financial condition, and material changes in liquidity and capital resources of the Issuer; and |
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(c) | promptly after the occurrence of a material acquisition, disposition or restructuring, any change of the chief executive officer or the chief financial officer of the Issuer or a change in auditors of the Issuer, a report containing a description of such event. |
(2) | In addition, the Issuer shall furnish to the holders of the Notes and to prospective investors, upon the request of such holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act for so long as the Notes are not freely transferable under the Exchange Act by Persons who are not affiliates under the Securities Act. |
(3) | For purposes of this Section 4.14, the Issuer shall be deemed to have furnished the reports to the Trustee and the Holders as required by this covenant if the Issuer has filed such reports with the Commission via the EDGAR filing system and such reports are publicly available or the Issuer has posted such reports on the Issuers public website. If and so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and traded on the Euro MTF Market and to the extent that the rules of the Luxembourg Stock Exchange so require, copies of such reports furnished to the Trustee shall also be made available at the specified office of the Listing Agent. |
(4) | No report need include separate financial statements for any Guarantors or non-Guarantor Subsidiaries of the Issuer or any disclosure with respect to the results of operations or any other financial or statistical disclosure not of a type included in the Offering Memorandum. |
(5) | At any time that any of the Issuers subsidiaries are Unrestricted Subsidiaries and any such Unrestricted Subsidiary or a group of Unrestricted Subsidiaries, taken as a whole, constitutes a Significant Subsidiary of the Issuer, then the quarterly and annual financial information required by the paragraph (1) of this Section 4.14 shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer. |
(6) | All reports provided pursuant to this Section 4.14 shall be made in the English language. |
Section 4.15. Impairment of Security Interest
(1) | Subject to Section 4.15(2) and Section 4.15(3), the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, take or knowingly or negligently omit to take, any action which action or omission would have the result of materially impairing the security interest with respect to the Collateral for the benefit of the Trustee and the Holders (including the priority thereof), and the Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, grant to any Person other than the Security Trustee, for the benefit of the Trustee and the Holders and the other beneficiaries described in the Security Documents, any interest in the Collateral; provided that nothing in this provision shall restrict the Issuer from (i) Incurring Permitted Collateral Liens or (ii) implementing any transaction permitted under Article 5; |
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(2) | At the direction of the Issuer and without the consent of the Holders, the Trustee and the Security Trustee may from time to time enter into one or more amendments to the Security Documents to: (i) cure any ambiguity, omission, defect or inconsistency therein; (ii) provide for any Permitted Collateral Liens; (iii) add to the Collateral; or (iv) make any other change thereto that does not adversely affect the Holders in any material respect; provided , however , that, in the case of clause (iii) above, no Security Document may be amended, extended, renewed, restated, supplemented or otherwise modified or replaced, unless contemporaneously with such amendment, extension, renewal, restatement, supplement, modification or renewal, the Issuer delivers to the Trustee, either: |
(1) | (i) a solvency opinion, in form and substance reasonably satisfactory to the Trustee, from an Independent Financial Advisor or (ii) a certificate from the chief financial officer of the Issuer or an Officers Certificate from the Issuer, in either case confirming the solvency of the Issuer and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such amendment, extension, renewal, restatement, supplement, modification or replacement; or |
(2) | an opinion of counsel (subject to any qualifications customary for this type of opinion of counsel), in form and substance satisfactory to the Trustee confirming that, after giving effect to any transactions related to such amendment, extension, renewal, restatement, supplement, modification or replacement, the Lien or Liens securing the Notes created under the Security Documents as so amended, extended, renewed, restated, supplemented, modified or replaced remain valid and perfected Liens not otherwise subject to any limitation, imperfection or new hardening period, in equity or at law, that such Lien or Liens were not otherwise subject to immediately prior to such amendment, extension, renewal, restatement, supplement, modification or replacement. |
(3) | Nothing in this Section 4.15 shall restrict the release or replacement of any security interests in compliance with the provisions of this Indenture, the Security Documents and the Intercreditor Agreement. |
(4) | In the event that the Issuer complies with the requirements of this Section 4.15, the Trustee and/or the Security Trustee (as the case may be) shall consent to any such amendment, extension, renewal, restatement, supplement, modification or replacement without the need for instructions from the Holders; provided such amendments do not impose any personal obligations on the Trustee or adversely affect the rights, duties, liabilities or immunities of the Trustee under this Indenture or the Intercreditor Agreement. |
Section 4.16. Payments for Consent
(1) | The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all holders of the Notes that consent, waive or agree to amend in the time frame set forth in any documents distributed relating to such consent, waiver or agreement. |
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(2) | Notwithstanding Section 4.16(1), the Issuer and its Restricted Subsidiaries shall be permitted, in any offer or payment of consideration for, or as an inducement to, any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes, to exclude Holders in any jurisdiction where (a) the solicitation of such consent, waiver or amendment, including in connection with an exchange offer or offer to purchase for cash or (b) the payment of the consideration therefor (i) would require the Issuer or any of its Restricted Subsidiaries to file a registration statement, prospectus or similar document under any applicable securities laws (including, but not limited to, the U.S. federal securities laws and the laws of the European Union or its member states), which the Issuer in its sole discretion determines (acting in good faith) would be materially burdensome; or (ii) such solicitation would otherwise not be permitted under applicable law in such jurisdiction. |
Section 4.17. Additional Intercreditor Agreement
(1) | At the request of the Issuer, at the time of, or prior to, the Incurrence of any Debt that is permitted to share the Collateral, the Issuer, the relevant Guarantors, the Trustee and the Security Trustee shall enter into an additional intercreditor agreement (an Additional Intercreditor Agreement ) on terms substantially similar to the Intercreditor Agreement or an amendment to the Intercreditor Agreement (which amendment does not adversely affect the rights of the Holders); provided that such Intercreditor Agreement or Additional Intercreditor Agreement shall not impose any personal obligations on the Trustee or the Security Trustee or adversely affect the rights, duties, liabilities or immunities of the Trustee under this Indenture or the Intercreditor Agreement. |
(2) | Each holder of a Note, by accepting such Note, shall be deemed to have agreed to and accepted the terms and conditions of each Intercreditor Agreement and Additional Intercreditor Agreement and the Trustee or the Security Trustee shall not be required to seek the consent of any holders of Notes to perform its obligations under and in accordance with this Section 4.17. |
Section 4.18. Suspension of Covenants on Achievement of Investment Grade Status
(1) | If on any date following the Issue Date, the Notes have achieved Investment Grade Status and no Default or Event of Default has occurred and is continuing (a Suspension Event ), then, beginning on that day and continuing until such time, if any, at which the Notes cease to have Investment Grade Status (the Reversion Date ), Section 4.04, Section 4.06, Section 4.07, Section 4.08, Section 4.12, Section 4.15 and Section 5.01(a)(1)(c) will not apply to the Notes, and, in each case, any related default provision of this Indenture will cease to be effective and will not be applicable to the Issuer and its Restricted Subsidiaries. |
(2) |
Such covenants and any related default provisions will again apply according to their terms from the first day on which a Suspension Event ceases to be in effect. Such covenants will not, however, be of any effect with regard to actions of the Issuer or its Restricted Subsidiaries properly taken during the continuance of the Suspension Event, and no action taken prior to the Reversion Date will constitute a Default or Event of Default. Section 4.06 will be interpreted as if it has been in effect since the date of this Indenture but |
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not during the continuance of the Suspension Event. On the Reversion Date, all Debt Incurred during the continuance of the Suspension Event will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section 4.04(2)(c). In addition, the Issuer or any of the Restricted Subsidiaries may, without causing a Default or Event of Default, honor any contractual commitments or take actions in the future after any date on which the Notes cease to have an Investment Grade Status as long as the contractual commitments shall have been entered into during the Suspension Event and not in anticipation of the Notes no longer having an Investment Grade Status. Upon the occurrence of a Suspension Event, the amount of Excess Proceeds shall be reset at zero. The Issuer shall notify the Trustee that the conditions set forth in Section 4.18(1) have been satisfied, provided that, no such notification shall be a condition for the suspension of the covenants listed under Section 4.18 to be effective. |
Section 4.19. Further Instruments and Acts
Upon request of the Trustee (but without imposing any duty or obligation of any kind on the Trustee to make any such request), the Issuer and the Guarantors shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
Section 4.20. Completion of Collateral
The Issuer and each Guarantor shall take such necessary actions so that the Collateral shall secure the Notes and the Note Guarantees no later than September 2, 2013.
ARTICLE FIVE
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 5.01. Consolidation, Merger or Sale of Assets
(a) | Issuer |
(1) | The Issuer shall not, in a single transaction or through a series of transactions, merge, consolidate, amalgamate or other combine with or into any other Person or sell, assign, convey, transfer, lease or otherwise dispose of, or take any action pursuant to any resolution passed by the Issuers Board of Directors or shareholders with respect to a demerger or division pursuant to which the Issuer would dispose of, all or substantially all of the Issuers properties and assets to any other Person or Persons and the Issuer shall not permit any Restricted Subsidiary to enter into any such transaction or series of transactions if such transaction or series of transactions, in the aggregate, would result in the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of the Issuer and its Restricted Subsidiaries on a consolidated basis to any other Person or Persons. The previous sentence shall not apply if at the time and immediately after giving effect to any such transaction or series of transactions: |
(a) |
either: (i) the Issuer shall be the continuing corporation; or (ii) the Person (if other than the Issuer) formed by or surviving any such merger, consolidation, amalgamation or other combination or to which such sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of the Issuer and |
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the Restricted Subsidiaries on a consolidated basis has been made (the Surviving Entity ): |
(x) | shall be a corporation duly incorporated and validly existing under the laws of any member state of the European Union as at the Issue Date, the United States of America, any state thereof, or the District of Columbia, Canada or any province of Canada, Norway or Switzerland; and |
(y) | shall expressly assume, by a supplemental indenture in form satisfactory to the Trustee, the Issuers obligations under the Notes, this Indenture, the Intercreditor Agreement and the Security Documents, and the Notes, this Indenture, the Intercreditor Agreement and the Security Documents shall remain in full force and effect as so supplemented; |
(b) | immediately after giving effect to such transaction or series of transactions on a pro forma basis (and treating any obligation of the Issuer or any Restricted Subsidiary Incurred in connection with or as a result of such transaction or series of transactions as having been Incurred by the Issuer or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; |
(c) | immediately after giving effect to such transaction or series of transactions on a pro forma basis (on the assumption that the transaction or series of transactions occurred on the first day of the two-quarter fiscal period immediately prior to the consummation of such transaction or series of transactions with the appropriate adjustments with respect to the transaction or series of transactions being included in such pro forma calculation), (i) the Issuer (or the Surviving Entity if the Issuer is not the continuing obligor under this Indenture) could Incur at least 1.00 of additional Debt pursuant to the ratios set forth in paragraph (1) of Section 4.04 or (ii) (A) the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding such transaction is not less than the Consolidated Fixed Charge Coverage Ratio immediately before such transaction and (B) the Consolidated Senior Leverage Ratio for the four full fiscal quarters immediately preceding such transaction is not greater than the Consolidated Senior Leverage Ratio immediately before such transaction; and |
(d) | the Issuer or the Surviving Entity has delivered to the Trustee, in form and substance satisfactory to the Trustee, an Officers Certificate and an opinion of counsel, each stating that such merger, consolidation, amalgamation or other combination or sale, assignment, conveyance, transfer, lease or other disposition, and if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with the requirements of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied and that this Indenture and the Notes constitute legal, valid and binding obligations of the Issuer or the Surviving Entity, enforceable in accordance with their terms. |
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(2) | Nothing in this Indenture shall prevent any Restricted Subsidiary from consolidating with, merging into or transferring all or substantially all of its properties and assets to the Issuer, a Guarantor or any other Restricted Subsidiary. The Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer in another jurisdiction or changing the legal form of the Issuer. |
(3) | For as long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and traded on the Euro MTF Market and to the extent that the rules of the Luxembourg Stock Exchange so require, notify such exchange of any such merger, consolidation, amalgamation or other combination or sale. |
(b) | Guarantors |
(1) | Subject to Section 10.12, no Guarantor shall, in a single transaction or through a series of transactions, merge, consolidate, amalgamate or other combine with or into any other Person or sell, assign, convey, transfer, lease or otherwise dispose of, or take any action pursuant to any resolution passed by such Guarantors Board of Directors or shareholders with respect to a demerger or division pursuant to which such Guarantor shall dispose of, all or substantially all of such Guarantors properties and assets to any other Person or Persons. The previous sentence shall not apply if at the time and immediately after giving effect to any such transaction or series of transactions: |
(a) | such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under any EU Member State as at the Issue Date, the United States of America, any state thereof, or the District of Columbia, Canada or any province of Canada, Norway or Switzerland (such Guarantor or such Person, as the case may be, being herein called the Successor Guarantor ); |
(b) | the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under its Guarantee, this Indenture, the Intercreditor Agreement and the Security Documents, pursuant to supplemental indentures and/or agreements in form reasonably satisfactory to the Trustee; |
(c) | immediately after giving pro forma effect to such transaction, no Default or Event of Default exists and is continuing; and |
(d) |
the Guarantor or the Successor Guarantor has delivered to the Trustee, in form and substance satisfactory to the Trustee, an Officers Certificate and an opinion of counsel, each stating that such merger, consolidation, amalgamation or other combination or sale, assignment, conveyance, transfer, lease or other disposition, and if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with the requirements of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied and that this |
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Indenture and the Guarantee constitutes a legal, valid and binding obligation of the Guarantor or Successor Guarantor, enforceable in accordance with its terms. |
(2) | The Successor Guarantor will succeed to, and be substituted for, and may exercise every right and power of, the relevant Guarantor under this Indenture. |
(3) | Nothing in this Indenture shall prevent any Restricted Subsidiary from consolidating with, merging into or transferring all or substantially all of its properties and assets to the Issuer, a Guarantor or any other Restricted Subsidiary. |
Section 5.02. Successor Substituted
Upon any consolidation or merger, or any sale, conveyance, transfer, lease or other disposition of all or substantially all of the property and assets of the Issuer in accordance with Section 5.01 of this Indenture, any Surviving Entity formed by such consolidation or into which the Issuer is merged or to which such sale, conveyance, transfer, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture, the Security Documents and the Intercreditor Agreement with the same effect as if such Surviving Entity had been named as the Issuer herein; provided , however , that the Issuer shall not be released from its obligation to pay the principal of, premium, if any, or interest on the Notes in the case of a lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default
(1) | Each of the following shall be an Event of Default : |
(a) | default for 30 days in the payment when due of any interest or any Additional Amounts on any Note; |
(b) | default in the payment of the principal of or premium, if any, on any Note at its Maturity (upon acceleration, optional or mandatory redemption, if any, required repurchase or otherwise); |
(c) | failure to comply with the provisions of Section 4.20 or Section 5.01; |
(d) | failure to make or consummate a Change of Control Offer in accordance with the provisions of Section 4.09; |
(e) | failure to comply with any covenant or agreement of the Issuer or of any Restricted Subsidiary that is contained in this Indenture or any Guarantee (other than specified in Section 6.01(1)(a), Section 6.01(1)(b), Section 6.01(1)(c) or Section 6.01(1)(d)) and such failure continues for a period of 30 days or more; |
(f) |
default under the terms of any instrument evidencing or securing the Debt of the Issuer or any Restricted Subsidiary having an outstanding |
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principal amount in excess of 20.0 million individually or in the aggregate, if that default: |
(x) | results in the acceleration of the payment of such Debt; or |
(y) | is caused by the failure to pay such Debt at final maturity thereof after giving effect to the expiration of any applicable grace periods (and other than by regularly scheduled required prepayment) and such failure to make any payment has not been waived or the maturity of such Debt has not been extended; |
(g) | any Guarantee ceases to be, or shall be asserted in writing by any Guarantor, or any Person acting on behalf of any Guarantor, not to be in full force and effect or enforceable in accordance with its terms (other than as provided for in this Indenture, any Guarantee or the Intercreditor Agreement); |
(h) | one or more of the Security Documents shall, at any time, cease to be in full force and effect, or a Security Document shall be declared invalid or unenforceable by a court of competent jurisdiction or the relevant grantor of the security granted pursuant to a Security Document asserts, in any pleading in any court of competent jurisdiction, that any such Security Document is invalid or unenforceable for any reason other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture, other than, in each case, pursuant to limitations on enforceability, validity or effectiveness imposed by applicable law or the terms of such Security Document or except in accordance with the terms of such Security Document, the Intercreditor Agreement or this Indenture, including the release provisions thereof; |
(i) | one or more final judgments, orders or decrees (not subject to appeal and not covered by insurance) shall be rendered against the Issuer or any Restricted Subsidiary either individually or in an aggregate amount, in each case in excess of 20.0 million, and either a creditor shall have commenced an enforcement proceeding upon such judgment, order or decree or there shall have been a period of 60 consecutive days or more during which a stay of enforcement of such judgment, order or decree was not (by reason of pending appeal or otherwise) in effect; |
(j) |
the entry by a court of competent jurisdiction of (A) a decree or order for relief in respect of the Issuer, any Guarantor or any Significant Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or (B) a decree or order adjudging the Issuer, any Guarantor or any Significant Subsidiary bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or composition of or the Issuers, any Guarantors or any Significant Subsidiarys debts generally under any applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer, any Guarantor or any Significant Subsidiary or of any substantial part of their respective properties or ordering the winding up or liquidation of their affairs, and any such decree, order or appointment pursuant to any Bankruptcy Law for any similar relief |
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shall continue to be in effect, or any such other decree, appointment or order shall be unstayed and in effect, for a period of 60 consecutive days; or |
(k) | (A) the Issuer, any Guarantor or any Significant Subsidiary (x) commences a voluntary case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent or (y) consents to the filing of a petition, application, answer or consent seeking reorganization or relief under any applicable Bankruptcy Law, (B) the Issuer, any Guarantor or any Significant Subsidiary consents to the entry of a decree or order for relief in respect of the Issuer, any Guarantor or any Significant Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against it or, (C) the Issuer, any Guarantor or any Significant Subsidiary (x) consents to the appointment of, or taking possession by, a custodian, receiver, liquidator, examiner, administrator, supervisor, assignee, trustee, sequestrator or similar official of the Issuer, any Guarantor or any Significant Subsidiary or of any substantial part of their respective properties, (y) makes an assignment for the benefit of creditors generally or (z) admits in writing its inability to pay its debts generally as they become due. |
(2) | If a Default or an Event of Default occurs and is continuing and the Trustee is informed in writing by the Issuer, the Trustee shall provide notice of the Default or Event of Default within 60 Business Days after its occurrence in accordance with Section 13.01. Except in the case of a Default or an Event of Default in payment of principal of, premium, if any, on the Notes or interest, if any, or Additional Amounts, if any, on any Note, the Trustee may withhold the giving of such notice to the Holders if it in good faith determines that withholding the giving of such notice is in the best interests of the Holders. The Trustee shall not be deemed to have knowledge of a Default or Event of Default unless a Trust Officer has actual knowledge of such Default or Event of Default or written notice of such Default or Event of Default has been received by the Trustee at its Corporate Trust Office in London (attention: Trustee Administration) and such notice clearly references the Notes, the Issuer or this Indenture. The Issuer shall also notify the Trustee within 15 Business Days of the occurrence of any Event of Default. |
Section 6.02. Acceleration
(1) | If an Event of Default (other than as specified in Sections 6.01(1)(j) or (k)) occurs and is continuing, the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer (and to the Trustee if such notice is given by the holders) may, and the Trustee, upon the written request of such holders, shall, declare the principal of, premium, if any, any Additional Amounts and accrued interest on all of the outstanding Notes immediately due and payable, and upon any such declaration all such amounts payable in respect of the Notes shall become immediately due and payable. |
(2) |
If an Event of Default specified in Sections 6.01(1)(j) or (k) occurs and is continuing, then the principal of, premium, if any, Additional Amounts and accrued and unpaid interest on all of the outstanding Notes shall become and |
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be immediately due and payable without any declaration or other act on the part of the Trustee or any holder of Notes. |
(3) | At any time after a declaration of acceleration under this Indenture, but before a judgment or decree for payment of the money due has been obtained by the Trustee, the Holders of a majority in aggregate principal amount of the outstanding Notes, by written notice to the Issuer and the Trustee, may waive all past Defaults and rescind and annul such declaration of acceleration and its consequences if: |
(i) | the Issuer or a Guarantor has paid or deposited with the Trustee a sum sufficient to pay: |
(A) | all overdue interest, if any, and Additional Amounts, if any, on all Notes then outstanding; |
(B) | all unpaid principal of and premium, if any, on any outstanding Notes that has become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Notes; |
(C) | to the extent that payment of such interest is lawful, interest upon overdue interest, if any, at the rate borne by the Notes; and |
(D) | all sums paid or advanced by the Trustee under this Indenture and the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; |
(ii) | the rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and |
(iii) | all Events of Default, other than the non-payment of amounts of principal of, premium, if any, and any Additional Amounts and interest, if any, on the Notes that has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.04. |
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 6.03. Other Remedies
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
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Notwithstanding the foregoing provisions of this Section 6.03 or anything to the contrary contained in this Indenture or the Security Documents, it is hereby understood and agreed that: (i) the Security Documents may be enforced in accordance with their terms; (ii) neither the Trustee nor the Holders may, individually or collectively, take any direct action to enforce any rights in their favor under the Security Documents; and (iii) the Holders may only act in respect of the Security Documents through the Security Trustee.
Section 6.04. Waiver of Past Defaults
The Holders of not less than a majority in principal amount of the outstanding Notes may on behalf of the Holders of all the Notes waive any past or existing Default or Event of Default hereunder and its consequences, except a Default or Event of Default:
(a) | in respect of the payment of the principal of (or premium, if any), Additional Amounts, if any or interest on any Note, or |
(b) | in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of 90% in principal amount of the outstanding Notes, |
in each case which may be waived by the Holders of not less than 90% in principal amount of the outstanding Notes.
Upon any such waiver pursuant to this Section 6.04, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.05. Control by Majority
The Holders of not less than a majority in aggregate principal amount of the Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee under this Indenture; provided , that:
(a) | the Trustee may refuse to follow any direction that conflicts with law, this Indenture or that the Trustee determines in good faith may be unduly prejudicial to the rights of holders not joining in the giving of such direction; |
(b) | the Trustee may refuse to follow any direction that the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability; and |
(c) | the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. |
Section 6.06. Limitation on Suits
A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(a) | the Holder has previously given the Trustee written notice of a continuing Event of Default; |
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(b) | the Holders of at least 25% in aggregate principal amount of outstanding Notes shall have made a written request to the Trustee to pursue such remedy; |
(c) | such Holder or Holders offer the Trustee indemnity and/or security satisfactory to the Trustee against any costs, liability or expense; |
(d) | the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity and/or security; and |
(e) | during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request. |
The limitations in the foregoing provisions of this Section 6.06, however, do not apply to a suit instituted by a Holder for the enforcement of the payment of the principal of, premium, if any, Additional Amounts, if any, or interest, if any, on such Note on or after the respective due dates expressed in such Note.
A Holder may not use this Indenture to prejudice the rights of any other Holder or to obtain a preference or priority over another Holder.
Section 6.07. Unconditional Right of Holders To Receive Payment
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of, premium, if any, Additional Amounts, if any, and interest, if any, on the Notes held by such Holder, on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of Holders of not less than 90% in principal amount of the outstanding Notes.
Section 6.08. Collection Suit by Trustee
(1) | Issuer covenants that if default is made in the payment of: |
(a) | any installment of interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or |
(b) | the principal of (or premium, if any, on) any Note at the Maturity thereof, |
the Issuer shall, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium, if any), Additional Amounts, if any and interest, and interest on any overdue principal (and premium, if any) and Additional Amounts, if any and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the rate borne by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the amounts provided for in Section 7.05 and such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
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(2) | If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer or any other obligor upon the Notes, wherever situated. |
Section 6.09. Trustee May File Proofs of Claim
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.05) and the Holders allowed in any judicial proceedings relative to the Issuer or any Guarantor, their creditors or their property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders at their direction in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the compensation, expenses, disbursements and advances of the Trustee, its agents, the Agents and their counsel, and any other amounts due under Section 7.05.
Nothing herein contained shall be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Application of Money Collected
If the Trustee or the Security Trustee collects any money or property pursuant to this Article Six or from the enforcement of any Security Documents, it shall pay out the money or property in the following order:
FIRST: | to the Trustee and Agents for amounts due under Section 7.05; |
SECOND: | to Holders for amounts due and unpaid on the Notes for principal of, premium, if any, interest, if any, and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest, if any, and Additional Amounts, if any, respectively; and |
THIRD: | to the Issuer, any Guarantor or any other obligors of the Notes, as their interests may appear, or as a court of competent jurisdiction may direct. |
The Issuer shall provide the Trustee with any additional information in its possession necessary for the Trustee to make the payments mentioned above, upon request.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
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Section 6.11. Undertaking for Costs
A court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in the suit of an undertaking to pay the costs of such suit, and such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by Holders of more than 10% in aggregate principal amount of the outstanding Notes or to any suit by any Holder pursuant to Section 6.07.
Section 6.12. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, then and in each case, subject to any determination in such proceeding, the Issuer, any Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.13. Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.14. Delay or Omission not Waiver
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.15. Record Date
The Issuer may set a record date for purposes of determining the identity of Holders entitled to vote or to consent to any action by vote or consent authorized or permitted by Section 6.04 and Section 6.05.
Section 6.16. Waiver of Stay or Extension Laws
The Issuer covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it shall not hinder, delay or impede the execution of any power herein
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granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee
(a) | If an Event of Default has occurred and is continuing of which a Trust Officer of the Trustee has actual knowledge, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such persons own affairs. |
(b) | Except during the continuance of an Event of Default of which a Trust Officer of the Trustee has actual knowledge: (i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. In the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine same to determine whether they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). |
(c) | The Trustee shall not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: |
(i) | this paragraph does not limit the effect of paragraph (b) of this Section 7.01; |
(ii) | the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and |
(iii) | the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.02, Section 6.04 or Section 6.05; |
(d) | the Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer or a Guarantor. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law; |
(e) | no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it (in its sole discretion); and |
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(f) | every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.01. |
Section 7.02. Certain Rights of Trustee
(a) | Subject to Section 7.01: |
(i) | the Trustee may rely, and shall be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper person; |
(ii) | before the Trustee acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel, which shall conform to Section 13.04. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion; |
(iii) | the Trustee may act through its attorneys and agents and shall not be responsible for monitoring them or the misconduct or negligence of any attorney or agent appointed with due care by it hereunder; |
(iv) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee security and/or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; |
(v) | the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers; provided that the Trustees conduct does not constitute negligence or bad faith; |
(vi) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate; and |
(vii) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled at reasonable times upon written request to examine the books, records and premises of the Issuer personally or by agent or attorney. |
(b) |
The Trustee may request that the Issuer deliver an Officers Certificate setting forth the names of the individuals and/or titles of officers authorized at such |
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time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an Officers Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. |
(c) | The Trustee will not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. |
(d) | The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. |
(e) | The Trustee may consult with other professional advisors and the written advice of such professional advisor will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. |
(f) | The Trustee shall have no duty to inquire as to the performance of the covenants of the Issuer, any Guarantor and/or any of their Subsidiaries. In addition, the Trustee shall not be deemed to have knowledge of any Default or Event of Default except: (i) any Event of Default occurring pursuant to Section 6.01(a) or Section 6.01(b) (provided it is acting as a Paying Agent); and (ii) any Default or Event of Default of which a Trust Officer shall have received written notification. Delivery of reports, information and documents to the Trustee under Section 4.14 is for informational purposes only and the Trustees receipt of the foregoing shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates). |
(g) | The Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of minimum denominations imposed under this Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption, purchase or repurchase, as applicable, of any interest in any Notes. |
(h) | The rights, privileges, protections, immunities and benefits given to the Trustee under this Article Seven, including its right to be indemnified and/or secured to its satisfaction, are extended to, and shall be enforceable by The Bank of New York Mellon in each of its capacities hereunder and by The Bank of New York Mellon (Luxembourg) S.A. and each agent, custodian and other person employed to act hereunder. Absent willful misconduct or negligence, each Paying Agent, Registrar and Transfer Agent shall not be liable for acting in good faith on instructions believed by it to be genuine and from the proper party. |
(i) |
In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole discretion, may determine what action, if any, will be taken and shall not incur any |
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liability for its failure to act until such inconsistency or conflict is, in its reasonable opinion, resolved. |
(j) | In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by acts of war or terrorism involving the United States, the United Kingdom or any member state of the European Monetary Union or any other national or international calamity or emergency (including natural disasters or acts of God), it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. |
(k) | The Trustee is not required to give any bond or surety with respect to the performance or its duties or the exercise of its powers under this Indenture or the Notes. |
(l) | The permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do so. |
(m) | The Trustee will not be liable to any person if prevented or delayed in performing any of its obligations or discretionary functions under this Indenture by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control. |
(n) | The Trustee shall not under any circumstances be liable for any consequential loss (being loss of business, goodwill, opportunity or profit of any kind) of the Issuer, any Restricted Subsidiary or any other Person (or, in each case, any successor thereto), even if advised of it in advance and even if foreseeable. |
(o) | No provision of this Indenture shall require the Trustee to do anything which, in its opinion, may be illegal or contrary to applicable law or regulation. |
(p) | The Trustee may assume without inquiry, in the absence of actual knowledge, that the Issuer and its Restricted Subsidiaries are duly complying with their obligations contained in this Indenture required to be observed and performed by them, and that no Default or Event of Default or other event that would require repayment of the Notes has occurred. |
(r) | in connection with any enforcement of security, the Trustee is not responsible for: |
(i) | any failure of the Security Trustee to enforce such security within a reasonable time or at all; |
(ii) | any failure of the Security Trustee to pay over the proceeds of enforcement of the security; |
(iii) | any failure of the Security Trustee to realize such security for the best price obtainable; |
(iv) |
monitoring the activities of the Security Trustee in relation to such enforcement; |
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(v) | taking any enforcement action itself in relation to such security; |
(vi) | agreeing to any proposed course of action by the Security Trustee which could result in the Trustee incurring any liability for its own account; or |
(vii) | paying any fees, costs or expenses of the Security Trustee. |
(s) | The Trustee shall be entitled to make payments net of any taxes or other sums required by any applicable law to be withheld or deducted. |
Section 7.03. Individual Rights of Trustee
The Trustee, any Paying Agent, any Registrar or any other agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 7.04. Trustees Disclaimer
The recitals contained herein and in the Notes, except for the Trustees certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder. The Trustee shall not be accountable for the use or application by the Issuer of the Notes or the proceeds thereof.
Section 7.05. Compensation and Indemnity
The Issuer shall pay to the Trustee such compensation as shall be agreed in writing for its services hereunder. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee promptly upon request for all properly incurred out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Upon request and delivery of reasonably detailed supporting documentation, such expenses shall include the properly incurred compensation and out-of-pocket expenses of the Trustees agents and counsel.
The Issuer, failing which (subject to Article Ten) the Guarantors, shall indemnify the Trustee against any and all loss, liability or expense (including attorneys fees and expenses) properly incurred by it without willful misconduct, negligence or bad faith on its part arising out of or in connection with the administration of this Indenture and the performance of its duties hereunder (including the costs and expenses of defending itself against any claim, whether asserted by the Issuer, the Guarantors, any Holder or any other Person), in each case, as such duties may be qualified, limited or otherwise affected by the provisions of the Intercreditor Agreement. The indemnity further includes the costs and expenses of enforcing this Indenture against the Issuer including this Section 7.05. The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. Except in cases where the interests of the Issuer and the Trustee may be adverse, the Issuer shall defend the claim and the Trustee shall cooperate in such defense. If the Issuer has not assumed such defense within a reasonable amount of time, the Trustee may have separate counsel and the Issuer shall pay the properly incurred fees and expenses of such counsel. The Issuer and the Guarantors need not pay for any settlement made without its consent, which
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consent may not be unreasonably withheld. The Issuer and the Guarantors need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustees own willful misconduct, negligence or bad faith.
To secure the Issuers payment obligations in this Section 7.05, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, premium, if any, and interest on particular Notes.
When the Trustee incurs expenses or renders services after the occurrence of an Event of Default with respect to the Issuer, the Guarantor, or any Restricted Subsidiary, such expenses and the compensation for the services are intended to constitute expenses of administration under Bankruptcy Law.
The Issuers obligations and the Trustees Lien under this Section 7.05 and any claim arising hereunder shall survive the resignation or removal of any Trustee, the satisfaction and discharge of the Issuers obligations pursuant to Article Eight, and the termination of this Indenture.
Section 7.06. Replacement of Trustee
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section 7.06.
The Trustee may resign at any time by so notifying the Issuer. The Holders holding a majority in outstanding principal amount of the outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer shall remove the Trustee if:
(a) | the Trustee fails to comply with Section 7.08; |
(b) | the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; |
(c) | a Custodian or other public officer takes charge of the Trustee or its property; or |
(d) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer. If the successor Trustee does not deliver its written acceptance required by the next succeeding paragraph of this Section 7.06 within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders of a majority in principal amount of the outstanding Notes may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer and shall succeed the retiring Trustee as a party to the Intercreditor Agreement. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders, which shall include the name and address of the principal corporate
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trust office of the successor Trustee. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, (i) the retiring Trustee, the Issuer or the Holders of at least 25% in outstanding principal amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee at the expense of the Issuer; or (ii) the retiring Trustee may appoint a successor Trustee at any time prior to the date on which a successor Trustee takes office, provided such appointment is reasonably satisfactory to the Issuer.
If the Trustee fails to comply with Section 7.08, any Holder who has been a Holder for at least six months may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.06, the Issuers and the Guarantors obligations under Section 7.05 shall continue for the benefit of the retiring Trustee.
Section 7.07. Successor Trustee by Merger
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified and eligible under this Article Seven, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes. In case at that time any of the Notes shall not have been authenticated, any successor Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee shall have; provided , however , that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 7.08. Eligibility: Disqualification
The Trustee shall at all times be a corporation organized and doing business under, or licensed to do business pursuant to, the laws of the United States of America (or of any state thereof or the District of Columbia) or any EU Member State that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by governmental authorities, if applicable, and that has a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of such federal, state, territorial or other governmental supervising or examining authority, then for the purposes of this Section 7.08, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. No obligor upon the Notes or Person directly controlling, controlled by, or under common control with such obligor shall serve as Trustee upon the Notes.
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ARTICLE EIGHT
DEFEASANCE; SATISFACTION AND DISCHARGE
Section 8.01. Issuers Option to Effect Defeasance or Covenant Defeasance
The Issuer may, at its option by a resolution of its Board of Directors, at any time, with respect to the Notes, elect to have either Section 8.02 or Section 8.03 be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article Eight.
Section 8.02. Defeasance and Discharge
Upon the Issuers exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer shall be deemed to have been discharged from its obligations with respect to the Notes on the date the conditions set forth in Section 8.04 are satisfied (hereinafter, legal defeasance ). For this purpose, such legal defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all its other obligations under the Notes and this Indenture (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Notes to receive, solely from the trust fund described in Section 8.08 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any, on) and interest on such Notes when such payments are due, (b) the provisions set forth at Section 8.06 below and (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder. Subject to compliance with this Article Eight, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 below with respect to the Notes. If the Issuer exercises its legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default (other than an Event of Default described in Section 6.01(1)(a) or Section 6.01(1)(b)).
Section 8.03. Covenant Defeasance
Upon the Issuers exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer shall be released from its obligations under any covenant contained in Article Four (other than Section 4.01 and Section 4.02) and Section 5.01 with respect to the Notes on and after the date the conditions set forth below are satisfied (hereinafter, covenant defeasance ). For this purpose, such covenant defeasance means that, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
Section 8.04. Conditions to Defeasance
In order to exercise either legal defeasance or covenant defeasance:
(a) |
the Issuer must irrevocably deposit or cause to be deposited on trust with the Trustee, or such entity as the Trustee may designate for this purpose, for the benefit of the holders of the Notes, cash in Euro, European Government Obligations or a combination thereof, in such amounts as shall be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay and discharge the principal of, premium, if any, Additional Amounts and interest, on the outstanding Notes on the Stated Maturity or on the applicable Redemption Date, as the case may be, and the Issuer must: |
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(i) specify whether the Notes are being defeased to maturity or to a particular Redemption Date; and (ii) if applicable, have delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes; |
(b) | in the case of legal defeasance, the Issuer must have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that: (x) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling; or (y) since the Issue Date, there has been a change in applicable U.S. federal income tax law, in either case to the effect that (and based thereon such opinion shall confirm that) the holders of the outstanding Notes shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal defeasance and shall be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred; |
(c) | in the case of legal defeasance, the Issuer must have delivered to the Trustee Opinions of Counsel reasonably acceptable to the Trustee to the effect that the holders of the outstanding Notes shall not recognize income, gain or loss for tax purposes in The Netherlands as a result of such legal defeasance and shall be subject to tax in The Netherlands on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred; |
(d) |
no Default or Event of Default shall have occurred and be continuing: (i) on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit); or (ii) insofar as bankruptcy or insolvency events described in Section 6.01(1)(j) or (k) are concerned, at any time during the period ending on the 123 rd day after the date of such deposit; |
(e) | such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a Default under (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit), this Indenture or any material agreement or instrument to which the Issuer or any Restricted Subsidiary is a party or by which the Issuer or any Restricted Subsidiary is bound; |
(f) |
the Issuer must have delivered to the Trustee an opinion of counsel in the country of the Issuers incorporation to the effect that after the 123 rd day following the deposit, the trust funds shall not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally and an opinion of counsel reasonably acceptable to the Trustee that the Trustee shall have a perfected security interest in such trust funds for the ratable benefit of the holders of the Notes; |
(g) | the Issuer must have delivered to the Trustee an Officers Certificate stating that the deposit was not made by the Issuer with the intent of preferring the holders of the Notes over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or other creditors, or removing assets beyond the reach of the relevant creditors or increasing debts of the Issuer to the detriment of the relevant creditors; |
(h) |
no event or condition exists that would prevent the Issuer from making payments of the principal of, premium, if any, Additional Amounts and interest |
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on the Notes on the date of such deposit or at any time ending on the 123 rd day after the date of such deposit; and |
(i) | the Issuer must have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the legal defeasance or the covenant defeasance, as the case may be, have been complied with. |
If the funds deposited with the Trustee to effect covenant defeasance are insufficient to pay the principal of, premium, if any, Additional Amounts and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuer and the Guarantors shall remain liable for such payments.
Section 8.05. Satisfaction and Discharge of Indenture
This Indenture shall be discharged and shall cease to be of further effect as to all Notes issued thereunder when:
(a) | the Issuer has irrevocably deposited or caused to be deposited with the Trustee (or such entity designated by the Trustee for this purpose) as funds on trust for such purpose an amount in Euro or European Government Obligations sufficient to pay and discharge the entire Debt on such Notes that have not, prior to such time, been delivered to the Trustee for cancellation, for principal of, premium, if any, and any Additional Amounts and accrued and unpaid interest on the Notes to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be, and the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of Notes at Stated Maturity or on the Redemption Date, as the case may be and either: |
(i) | all of the Notes that have been authenticated and delivered (other than destroyed, lost or stolen Notes that have been replaced or paid and Notes for which payment money has been deposited on trust or segregated and held on trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust as provided for in this Indenture) have been delivered to the Trustee for cancellation; or |
(ii) | all Notes that have not been delivered to the Trustee for cancellation: (x) have become due and payable (by reason of the mailing of a notice of redemption or otherwise); (y) will become due and payable within one year of Stated Maturity; or (z) are to be called for redemption within one year of the proposed discharge date under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Issuers name and at the Issuers expense; |
(b) | the Issuer has paid or caused to be paid all sums payable by the Issuer under this Indenture; and |
(c) | the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, stating that: |
(i) | all conditions precedent provided in this Indenture relating to the satisfaction and discharge of this Indenture have been satisfied; and |
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(ii) | such satisfaction and discharge will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer or any Subsidiary is a party or by which the Issuer or any Subsidiary is bound. |
For purposes of Section 8.05(a), in determining the funds to be deposited in an amount sufficient to pay and discharge the Notes, if the calculation requires the application of an Applicable Redemption Premium, the Issuer shall be allowed to make reasonable assumptions with respect to the calculation of such Applicable Redemption Premium as of the applicable Redemption Date.
Section 8.06. Survival of Certain Obligations
Notwithstanding Section 8.01 and Section 8.03, any obligations of the Issuer and the Guarantors in Article Two (except for Section 2.01 and Section 2.12), Section 6.07, Section 7.05, Section 7.06, Section 8.07, Section 8.08 and Section 8.09 shall survive until the Notes have been paid in full. Thereafter, any obligations of the Issuer and the Guarantors in Section 7.05, Section 8.07 and Section 8.08 shall survive such satisfaction and discharge.
Section 8.07. Acknowledgment of Discharge by Trustee
Subject to Section 8.09, after the conditions of Section 8.02 or Section 8.03 have been satisfied, the Trustee upon written request shall acknowledge in writing the discharge of all of the Issuers obligations under this Indenture except for those surviving obligations specified in this Article Eight.
Section 8.08. Application of Trust Money
Subject to Section 8.09, the Trustee shall hold in trust all cash in Euro or European Government Obligations deposited with it pursuant to this Article Eight. It shall apply the deposited cash or European Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of, premium, if any, interest, and Additional Amounts, if any, on the Notes; but such money need not be segregated from other funds except to the extent required by law.
Section 8.09. Repayment to Issuer
Subject to Section 7.05, and Section 8.01 through Section 8.04, the Trustee and the Paying Agent shall promptly pay to the Issuer upon request set forth in an Officers Certificate any excess money held by them at any time and thereupon shall be relieved from all liability with respect to such money. The Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal, premium, if any, interest or Additional Amounts, if any, that remains unclaimed for two years; provided that the Trustee or Paying Agent before being required to make any payment may cause to be published (a) in The Wall Street Journal or another leading newspaper in London, England and (b) through the newswire service of Bloomberg or any similar agency or mail to each Holder entitled to such money at such Holders address (as set forth in the Security Register) notice that such money remains unclaimed and that after a date specified therein (which shall be at least 30 days from the date of such publication or mailing) any unclaimed balance of such money then remaining will be repaid to the Issuer. After payment to the Issuer, Holders entitled to such money must look to the Issuer for payment as general creditors unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.
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Section 8.10. Indemnity for Government Securities
The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against European Government Obligations deposited pursuant to Section 8.05 or the principal, premium, if any, interest, if any, and Additional Amounts, if any, received on such European Government Obligations (other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes).
Section 8.11. Reinstatement
If the Trustee or Paying Agent is unable to apply cash in Euro or European Government Obligations in accordance with this Article Eight by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers and each of the Guarantors obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article Eight until such time as the Trustee or any such Paying Agent is permitted to apply all such cash or European Government Obligations in accordance with this Article Eight; provided , however , that, if the Issuer has made any payment of principal of, premium, if any, interest, if any, and Additional Amounts, if any, on any Notes following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the cash in Euro or Euro Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders
The Issuer, when authorized by a resolution its Board of Directors (as evidenced by the delivery of such resolution to the Trustee), the Guarantors, the Security Trustee and the Trustee may modify, amend or supplement this Indenture, the Notes, the Intercreditor Agreement and/or the Security Documents without notice to or the consent of any Holder:
(i) | to evidence the succession of another Person to the Issuer or a Guarantor and the assumption by any such successor of the covenants in this Indenture and in the Notes in accordance with Article Five; |
(ii) | to add to the Issuers covenants and those of any Guarantor or any other obligor in respect of the Notes for the benefit of the holders of the Notes or to surrender any right or power conferred upon the Issuer or any Guarantor or any other obligor in respect of the Notes, as applicable, in this Indenture, the Notes or any Guarantee; |
(iii) | to cure any ambiguity, or to correct or supplement any provision in this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document that may be defective or inconsistent with any other provision in this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document or make any other provisions with respect to matters or questions arising under this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document; provided that, in each case, such provisions shall not materially adversely affect the interests of the holders of the Notes; |
(iv) |
to conform the text of this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document to any provision of the |
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section in the Offering Memorandum entitled Description of the Notes to the extent that such provision in the Description of the Notes was intended to be a verbatim recitation of a provision of this Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document; |
(v) | to release any Guarantor in accordance with (and if permitted by) the terms of this Indenture and the Intercreditor Agreement; |
(vi) | to add a Guarantor or other guarantor under this Indenture; |
(vii) | to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture; |
(viii) | to mortgage, pledge, hypothecate or grant a security interest in favor of the Security Trustee for the benefit of the Trustee and the Holders as security for the payment and performance of the Issuers and any Guarantors obligations under this Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Security Trustee pursuant to this Indenture or otherwise; and |
(ix) | to provide for the issuance of Additional Notes in accordance with and if permitted by the terms of and limitations set forth in this Indenture. |
In formulating its opinion on such matters, the Trustee shall be entitled to request and rely on such evidence as it deems fit, including, but not limited to, Officers Certificates and opinions of counsel.
Section 9.02. With Consent of Holders
(a) | Except as provided in Section 9.02(b) below and Section 6.04 and without prejudice to Section 9.01, the Issuer, the Guarantors, the Security Trustee and the Trustee may: |
(i) | amend or supplement this Indenture, the Intercreditor Agreement and/or the Security Documents; or |
(ii) | waive compliance by the Issuer with any provision of this Indenture, the Intercreditor Agreement and/or the Security Documents or the Notes, |
with the written consent of the Holders of not less than a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or in exchange for the Notes).
(b) | Without the consent of the holders of 90% in principal amount of the Notes then outstanding, no amendment, modification, supplement or waiver, including a waiver pursuant to Section 6.04 and an amendment, modification or supplement pursuant to Section 9.01, may: |
(1) | change the Stated Maturity of the principal of, or any installment of or Additional Amounts or interest on, any Note (or change any Default or Event of Default under Section 6.01(1)(a); |
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(2) | reduce the principal amount of any Note (or Additional Amounts or premium, if any) or the rate of or change the time for payment of interest on any Note (or change any Default or Event of Default under Section 6.01(1)(b)); |
(3) | change the coin or currency in which the principal of any Note or any premium or any Additional Amounts or the interest thereon is payable; |
(4) | impair the right to institute suit for the enforcement of any payment of any Note in accordance with the provisions of such Note, this Indenture and the Intercreditor Agreement; |
(5) | reduce the principal amount of Notes whose holders must consent to any amendment, supplement or waiver of provisions of this Indenture requiring the consent of 90% in principal amount of the Notes then outstanding; |
(6) | modify any of the provisions relating to supplemental indentures requiring the consent of 90% in principal amount of the Notes then outstanding; |
(7) | release any Guarantee except in compliance with the terms of this Indenture and the Intercreditor Agreement; or |
(8) | release any Lien on the Collateral granted for the benefit of the holders of the Notes, except in compliance with the terms of the Security Documents, this Indenture and the Intercreditor Agreement. |
(c) | The consent of the Holders is not necessary to approve the particular form of any proposed amendment, modification, supplement or waiver. It is sufficient if such consent approves the substance of the proposed amendment, modification, supplement or waiver. |
Section 9.03. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.04. Notation on or Exchange of Notes
If an amendment, modification or supplement changes the terms of a Note, the Issuer or Trustee may require the Holder to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note and on any Note subsequently authenticated regarding the changed terms and return it to the Holder. Alternatively, if the Issuer so determines, the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment, modification or supplement.
Section 9.05. Notice of Amendment or Waiver
Promptly after the effectiveness of any amendment, supplemental indenture or waiver pursuant to the provisions of Section 9.01, the Issuer shall give notice thereof to the Holders of each outstanding Note affected, in the manner provided for in Section 13.01, setting forth
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in general terms the substance of such amendment, supplemental indenture or waiver. Any failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplemental indenture or waiver.
Section 9.06. Process for Consents
Upon the request of the Issuer and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02, the Trustee shall join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture or other waiver or amendment unless such amended or supplemental indenture directly affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture or other waiver or amendment.
ARTICLE TEN
GUARANTEE
Section 10.01. Guarantee
(a) | Each of the Guarantors hereby fully and unconditionally guarantees, on a joint and several basis, to each Holder and to the Trustee and its successors and assigns on behalf of each Holder, the full payment of principal, premium, if any, interest and Additional Amounts, if any on, the Notes and all other monetary obligations of the Issuer under this Indenture and the Notes (including obligations to the Trustee) with respect to each Note authenticated and delivered by the Trustee or its agent pursuant to and in accordance with this Indenture, in accordance with the terms of this Indenture (all the foregoing being hereinafter collectively called the Obligations ). Each of the Guarantors further agrees that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from the Guarantors and that the Guarantors will remain bound under this Section 10.01 notwithstanding any extension or renewal of any Obligation. All payments under such Guarantees will be made in Euro. |
(b) |
Each of the Guarantors hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, unaffected by, and irrespective of, any validity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Issuer with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided , however , that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of each of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter any Stated Maturity in respect thereof. Nothing in this Indenture prevents the assertion of any claim, set-off or other rights, whether by separate suit, compulsory counterclaim or otherwise, which any Guarantor may have at any time against the Issuer, the Trustee or any other Person, whether in connection with this Indenture or any unrelated transactions. Each of the Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Issuer prior to |
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exercising its rights under the Guarantee (including, for the avoidance of doubt, any right which the Guarantors may have to require the seizure and sale of the assets of the Issuer to satisfy the outstanding principal of, interest on or any other amount payable under each Note prior to recourse against the Guarantors or its assets), protest or notice with respect to any Note or the Debt evidenced thereby and all demands whatsoever, and covenants that the Guarantee will not be discharged with respect to any Note except by payment in full of the principal thereof and interest thereon or as otherwise provided in this Indenture, including Section 10.03. If at any time any payment of principal of, premium, if any, interest, if any, or Additional Amounts, if any, on such Note is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Issuer, the Guarantors obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or returns as though such payment had become due but had not been made at such times. |
(c) | The Guarantors also agree to pay any and all costs and expenses (including properly incurred attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01. |
(d) | The obligations of a Spanish Guarantor under this Section will not be affected by any benefit ( beneficio ) under Spanish Law, including but not limited to, benefits of prior exhaustion of the main debtors assets ( excusión ), division ( división ) and order ( orden ), which shall not in any event apply. |
Section 10.02. Subrogation
The Guarantors shall be subrogated to all rights of the Holders against the Issuer in respect of any amounts paid to such Holders by a Guarantor pursuant to the provisions of their respective Guarantees.
Each of the Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations. Each of the Guarantors further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Section 6.02 for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purposes of this Section 10.02.
Section 10.03. General Limitation of Guarantee
Any term or provision of this Indenture to the contrary notwithstanding, each party to this Indenture, and by its acceptance of Notes, each Holder, hereby by confirms that is the intention of all such Persons that the maximum aggregate amount of Obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be guaranteed by the relevant Guarantor without rendering such Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer of similar laws affecting the rights of the creditors generally.
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Section 10.04. Limitation of Guarantee The Netherlands
Notwithstanding any other provision of this Article Ten, the guarantee, indemnity and other obligations of any Guarantor incorporated under the laws of The Netherlands expressed to be assumed in this Article Ten shall be deemed not to be assumed by such Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of Article 2:98c Dutch Civil Code or any other applicable financial assistance rules under any relevant jurisdiction (the Prohibition ) and the provisions of this Indenture and the Notes shall be construed accordingly. For the avoidance of doubt, it is expressly acknowledged that the relevant Dutch Guarantors will continue to guarantee all such obligations which, if included, do not constitute a violation of the Prohibition.
Section 10.05. Limitation of Guarantee Germany
(a) | Enforcement of any rights under Section 10.01 against the German Guarantor is limited if and to the extent that: |
(i) | the Guarantee secures the obligations of a debtor which is (x) a direct or indirect shareholder of the Guarantor or (y) an affiliated company ( verbundenes Unternehmen ) within the meaning of section 15 of the German Stock Corporation Act ( Aktiengesetz ) of a shareholder of the Guarantor (other than the Guarantor and its subsidiaries) (the Up-Stream and/or Cross-Stream Security ); and |
(ii) | the enforcement would have the effect of (x) reducing the Guarantors net assets ( Reinvermögen ) (the Net Assets ) to an amount of less than its stated share capital ( Stammkapital ) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) thereby causing a violation of the capital maintenance requirements as set forth in section 30, para. 1 German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) as amended from time to time provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the agent under the Revolving Credit Facility. |
(b) | The Net Assets shall be calculated as an amount equal to the sum of the values of the Guarantors assets (consisting of all assets which correspond to the items set forth in section 266 sub-section (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch ) less the aggregate amount of the Guarantors liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section (3) B, C and D of the German Commercial Code), save that: |
(i) |
any asset that is shown in the balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of such asset and that can be realized shall be taken into account with its market value, to the extent that such assets are not necessary for the Guarantors business ( nicht betriebsnotwendig ) and to the extent that such realization is necessary to satisfy the amount owed under the Guarantee (for the purpose of this clause a book value being |
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significantly lower than the market value shall as a general rule be assumed if the book value is 35% lower than the market value); |
(ii) | obligations under loans provided to the Guarantor by any member of the Group shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the Guarantor; and |
(iii) | obligations under loans or other contractual liabilities incurred by the Guarantor in a culpable ( schuldhaft ) violation of the provisions of the Debt Documents (as defined in the Intercreditor Agreement) shall not be taken into account as liabilities. |
The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany ( Grundsätze ordnungsmäßiger Buchführung ) and, to the extent such accounting principles provide for discretion, be based on the same principles that were applied by the Guarantor in the preparation of its most recent annual balance sheet ( Jahresbilanz ) and, in any event, in accordance with the jurisprudence from time to time of the German Federal Court of Justice ( Bundesgerichtshof ) relating to the protection of liable capital under Sections 30 and 31 of the German Limited Liability Companies Act.
(c) | The limitations set out in paragraph (b) above shall only apply if: |
(i) | the Guarantor delivers to the Trustee, without undue delay but not later than within 10 Business Days (or such longer period as has been agreed between the Guarantor and the Trustee) after receipt of a request for payment under the Guarantee by the Trustee, a determination prepared by the Guarantors management stating which amount of the Up-Stream and/or Cross-Stream Security cannot be enforced as it would cause the Net Assets of the Guarantor being less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (taking into account the adjustments set out in paragraph (b) above (the Management Determination ); and |
(ii) | provided that the Trustee disagrees with the Management Determination, the Guarantor delivers to the Trustee, without undue delay but not later than within 20 Business Days (or such longer period as has been agreed between the Guarantor and the Trustee) from the date the Trustee has contested the Management Determination, an up to date balance sheet prepared by a firm of auditors of international standard and reputation which shows the amount of the Up-Stream and/or Cross-Stream Security that cannot be enforced without the Net Assets of the Guarantor becoming less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (the Balance Sheet ). The Balance Sheet shall be prepared in accordance with the principles set out in paragraph (b) above and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to paragraph (b) above. |
If the Guarantor fails to deliver the Management Determination or the Balance Sheet within the aforementioned time periods, the Trustee, acting for and on
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behalf of the Trustee and the Holders of Notes, shall be entitled to enforce the Guarantee irrespective of the limitations set out in paragraph (b) above.
(d) | If the Trustee disagrees with the Management Determination and/or the Balance Sheet, the Trustee, acting for and on behalf of the Trustee and the Holders of Notes, shall be entitled to enforce the Guarantee up to the amount which, according to the Management Determination or the Balance Sheet, as the case may be, can be enforced in compliance with the limitations set out in paragraph (b) above. In relation to any additional amounts for which the Guarantor is liable under the Guarantee, the Trustee, acting for and on behalf of the Trustee and the Holders of Notes, shall be entitled to further pursue their claims (if any) and the Guarantor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the demand under the Guarantee was made). |
(e) | No reduction of the amount enforceable under this Article Ten will prejudice the right of the Trustee and the Holders of Notes to continue enforcing the Guarantee (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims secured. |
(f) | After the complete, unconditional, irrevocable, and full payment and discharge of all Obligations any remaining proceeds resulting from the enforcement of the Guarantee (or part thereof) shall be transferred to the Guarantor at the cost and expense of the Guarantor. |
Section 10.06. Limitation of Guarantee France
Notwithstanding anything to the contrary in the Guarantee provided by a French company, pursuant to this Article Ten, such Guarantee will be subject to the following limitations:
(a) | the obligations and liabilities of a French company under such Guarantee will not include any obligation or liability which if incurred would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Code de commerce and/or would constitute a misuse of corporate assets or powers within the meaning of article L.241-3 or L.242-6 of the French Code de commerce or any other law or regulations having the same effect, as interpreted by French courts; and |
(b) | the obligations and liabilities of a French company under such Guarantee for the obligations of a parent company shall be limited, at any time, to an amount equal to the amount (if any) directly or indirectly on-lent or otherwise provided to the French company and/or any subsidiary(ies) of such French company under intercompany loan or similar arrangements and outstanding at the date a payment is to be made by such French company under its Guarantee, it being specified that any payment made by a French company under this Guarantee shall automatically reduce pro tanto the outstanding amount of the relevant intercompany loans or similar arrangements due by such French company to the parent company or its subsidiary(ies). |
(c) | It is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and that no French Guarantor shall be considered as co-debiteur solidaire as to its obligations pursuant to the guarantee given pursuant to this Article Ten. |
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Section 10.07. Limitation of Guarantee Spain
(a) | The obligations under this Article Ten of any Spanish Guarantor shall: (i) not extend to any obligation incurred by any Guarantor as a result of such Guarantor borrowing (or guaranteeing the borrowing of) funds (but only in respect of those funds) for the purpose of (A) acquiring shares ( acciones ) representing the share capital of such Spanish Guarantor or shares ( acciones ) or quotas ( participaciones sociales ) representing the share capital of its holding company or (B) refinancing a previous debt incurred by any Guarantor for the acquisition of shares ( acciones ) representing the share capital of such Spanish Guarantor or shares ( acciones ) or quotas ( participaciones sociales ) representing the share capital of its holding company, and shall (ii) be deemed not to be undertaken or incurred by a Spanish Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of article 81 of the Royal Decree-Law on Spanish Stock Companies ( Texto Refundido de la Ley de Sociedades Anónimas ), and, in that case, all provisions of this Indenture shall be construed accordingly in the sense that, in no case, can any guarantee or security given by a Spanish Guarantor secure repayment of the above-mentioned funds. |
(b) | For the purposes of paragraph (a) above, a reference to a holding company of a Spanish Guarantor shall mean the company which, directly or indirectly, owns the majority of the voting rights of such Spanish Guarantor or that may have a dominant influence on such Spanish Guarantor. It shall be presumed that one company has a dominant influence on another company when: |
(i) | any of the scenarios set out in section 1 of article 42 of the Spanish Commercial Code ( Código de Comercio ) are met; or |
(ii) | when at least half plus one of the members of the managing body of the Spanish Guarantor are also members of the managing body or top managers ( altos directivos ) of the dominant company or of another company controlled by such dominant company. |
Section 10.08. Limitation of Guarantee Republic of Ireland
No Guarantee shall apply to any liability to the extent that it would result in such Guarantee constituting unlawful financial assistance within the meaning of Section 60 of the Companies Act 1963 or any equivalent and applicable provisions under the laws of any relevant jurisdiction.
Section 10.09. Limitation of Guarantee Belgium
Belgian Guarantor means any Guarantor incorporated and existing under Belgian law.
Notwithstanding any other provision of this Article Ten, the guarantee, indemnity and other obligations of the Belgian Guarantor under this Article Ten shall not include any liability which would constitute unlawful financial assistance within the meaning of Article 629 of the Belgian Company Code and shall be limited, at any time, to a maximum aggregate amount equal to the greater of:
(i) |
an amount equal to 90% of the Belgian Guarantors net assets (as determined in accordance with the Belgian Companies Code and |
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accounting principles generally accepted in Belgium, but not taking intra-group debts into account as debts) as shown by the latest audited financial statements publicly available on the date of this Agreement; |
(ii) | an amount equal to 90% of the Belgian Guarantors net assets (as determined in accordance with the Belgian Companies Code and accounting principles generally accepted in Belgium, but not taking intra-group debts into account as debts) as shown by the latest audited financial statements publicly available on the date on which the relevant demand is made; and |
(iii) | the aggregate amount outstanding on the day prior to the date on which the relevant demand is made of any intra-group loans or facilities made to the Belgian Guarantor by the Issuer or any Subsidiary of the Issuer using all or part of the proceeds of the Notes (whether or not such intra-group loan is retained by the Belgian Guarantor for its own purposes or on-lent to the Issuer or another Subsidiary of the Issuer) |
less any amounts paid or payable by such Belgian Guarantor under the Revolving Credit Facility.
Section 10.10. Limitation of Guarantee Denmark
Notwithstanding any provision of this Indenture and in particular this Article Ten, any guarantee, indemnity and other obligations (as well as any security created in relation thereto) of any Guarantor incorporated in Denmark (the Danish Guarantor ) expressed to be assumed pursuant to this Indenture and in particular this Article Ten:
(1) | shall be deemed not to be assumed (and any security created in relation thereto shall be limited) to if and to the extent required to comply with Danish statutory provisions on unlawful financial assistance, at the date of this Agreement including, but not limited to, Sections 206-212 of the Danish Companies Act as amended and supplemented from time to time; and |
(2) | shall, in relation to obligations not incurred as a result of borrowings by the Danish Guarantor, further be limited to an amount equal to the higher of (i) the equity of the Danish Guarantor at the date of this Agreement or (ii) the equity at the date when a claim is made against the Danish Guarantor, in both events calculated in accordance with the Danish Guarantors generally accepted accounting principles at the relevant time. However, adjusted to include a statutory reserve in respect of any unpaid portion of the subscription price for shares issued by the Danish Guarantor calculated in accordance with the Danish Guarantors generally accepted accounting principles at the relevant time (if not already included). |
Section 10.11. Notation Not Required
Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof.
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Section 10.12. Release of the Guarantees
A Guarantee will be automatically and unconditionally released (and thereupon will terminate and be discharged and be of no further force and effect):
(1) | upon the sale or disposition (including through merger, consolidation, amalgamation or other combination) or conveyance, transfer or lease of the Capital Stock, or all or substantially all of the assets, of the Guarantor (or a Holding Company thereof) if such sale is made in compliance either with Section 4.07 or with Section 5.01; |
(2) | as provided in the Intercreditor Agreement; |
(3) | upon a defeasance or satisfaction and discharge of this Indenture that complies with the provisions under Article Eight; |
(4) | upon the designation by the Issuer of the Guarantor (or a Holding Company thereof) as an Unrestricted Subsidiary in compliance with the terms of this Indenture; |
(5) | upon repayment in full of the Notes; |
(6) | in the case of any Restricted Subsidiary that after the Issue Date is required to guarantee the Notes pursuant to Section 4.11, the release or discharge of the guarantee of Debt by such Restricted Subsidiary which resulted in the obligation to guarantee the Notes; or |
(7) | as described under Article Nine. |
Upon any occurrence giving rise to a release of a Guarantee as specified in this Section 10.12, the Trustee will execute any documents reasonably required in order to evidence or effect such release, discharge and termination in respect of such Guarantee.
Section 10.13. Successors and Assigns
This Article Ten shall be binding upon the Guarantors and each of their successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assigns, all subject to the terms and conditions of this Indenture.
Section 10.14. No Waiver
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article Ten shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and are not exclusive of any other rights, remedies or benefits which either may have under this Article Ten at law, in equity, by statute or otherwise.
Section 10.15. Modification
No modification, amendment or waiver of any provision of this Article Ten, nor the consent to any departure by the Guarantors therefrom, shall in any event be effective unless the same
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shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Guarantors in any case shall entitle the Guarantors to any other or further notice or demand in the same, similar or other circumstance.
ARTICLE ELEVEN
INTERCREDITOR AGREEMENT
Section 11.01. Intercreditor Agreement Controls
(a) | The Issuer agrees, and each Holder by accepting a Note agrees, that this Indenture is subject to the Intercreditor Agreement. In the event of any conflict between the terms of this Indenture and the Intercreditor Agreement, the Intercreditor Agreement shall prevail. |
(b) | Each Holder of Notes authorizes and directs the Trustee and the Security Trustee to execute the Intercreditor Agreement and any Additional Intercreditor Agreement as contemplated by Section 4.17 and the Trustee and the Security Trustee shall incur no liability for doing so. |
(c) | Each Holder (including, without limitation, each Holder, if any, of Additional Notes), by accepting a Note, authorizes and requests the Trustee and the Security Trustee to, on such Holders behalf, make all undertakings, representations, offers and agreements of the Trustee and the Security Trustee (as applicable) set forth in the Intercreditor Agreement and any Additional Intercreditor Agreement as contemplated by Section 4.17. |
ARTICLE TWELVE
COLLATERAL AND SECURITY
Section 12.01. Creation of Parallel Debt
(a) | For the purposes of (a) creating Liens on Collateral in, or subject to the laws of, Germany, The Netherlands, Belgium and France (and such other jurisdictions as the Trustee (on the instructions of the Holders) and the Issuer (each acting reasonably) agree) (together, the Agreed Jurisdictions ) and (b) ensuring the initial and continued validity of such Liens, the Security Trustee, the Issuer and the Guarantors agree that notwithstanding anything to the contrary contained in this Indenture, the Notes, the Guarantees, the Security Documents or the Intercreditor Agreement: |
(1) | the Issuer and each Guarantor shall pay to the Security Trustee, as creditor in its own right and not as representative of the Trustee or the Holders, sums equal to, and in the currency of, its Principal Obligations (as defined below) as and when the same fall due for payment under this Indenture, the Notes, the Guarantees, the Security Documents or the Intercreditor Agreement (the Parallel Obligations ); provided that the total amount of the Parallel Obligations shall never exceed the total amount of the Principal Obligations; |
(2) | the rights of the Trustee and the Holders, as applicable, to receive payment of the Principal Obligations are several and are separate from, and without prejudice to, the rights of the Security Trustee to receive payment in respect of the Parallel Obligations; |
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(3) | the Security Trustee shall have its own independent right, in its own name and stead, to demand payment of the Parallel Obligations by the Issuer and each of the Guarantors upon the occurrence and during the continuance of an unremedied and unwaived Event of Default; |
(4) | the payment by the Issuer or any Guarantor of its Parallel Obligations to the Security Trustee in accordance with this Section 12.01 (whether through direct payment by the Issuer or any Guarantor or any Lien held by the Security Trustee securing the Parallel Obligations) shall be a good discharge in the corresponding amount of the corresponding Principal Obligations and, similarly, the payment by the Issuer or any Guarantor of the Principal Obligations shall be a good discharge in the corresponding amount of the corresponding Parallel Obligations owed to the Security Trustee under this Section 12.01, in each case provided that the receiving party is able to retain the relevant payment made by the Issuer or such Guarantor; |
(5) | the increase of the Principal Obligations of the Issuer or any Guarantor shall result in the increase of a corresponding amount of the corresponding Parallel Obligations to the Security Trustee under this Section 12.01; and |
(6) | nothing in this Section 12.01 shall in any way limit the Security Trustees right to act in the protection or preservation of, the rights under, or to enforce any, Security Document as contemplated by this Indenture or the relevant Security Document. |
Despite the foregoing, any such payment by the Issuer or any Guarantor shall be made to or to the order of the Trustee, unless the Trustee directs the Issuer or such Guarantor in writing to make such payment to the Security Trustee.
Without limiting or affecting the Security Trustees rights against the Issuer and the Guarantors (whether under this Section 12.01 or under any other provision of this Indenture, the Notes, the Guarantees, the Security Documents or the Intercreditor Agreement and subject to the following paragraph), the Security Trustee agrees with the Trustee and each Holder (on a several basis) that it will not exercise its rights in respect of the Parallel Obligations except with the consent of the Trustee or such Holder, as applicable.
Nothing in this Section 12.01 shall in any way negate or affect the obligations which each of the Issuer and the Guarantors has to the Trustee and the Holders under this Indenture. For the purpose of this Section 12.01, the Security Trustee acts in its own name and on behalf of itself and not as agent or representative of any other party hereto or as trustee and the security over the Collateral granted under this Indenture, the Notes, the Guarantees, the Security Documents and the Intercreditor Agreement to the Security Trustee to secure the Parallel Obligations is granted to the Security Trustee in its capacity as creditor in respect of the Parallel Obligations (or to do any act reasonably incidental to any of the foregoing).
(b) |
For the purposes of this Section 12.01, Principal Obligations means, in respect of each Agreed Jurisdiction and in relation to the Issuer or any |
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Guarantor, any sums owing by it to the Trustee or any Holder under this Indenture. |
(c) | French Security : The Security Trustee is hereby appointed as agent ( mandataire ) of each of the Issuer, the Guarantors and the Holders pursuant to Article 1984 et seq. of the French Code Civil, to represent and act on behalf of each of the Issuer, the Guarantors and the Holders in relation to any actions required or advisable in connection with the entry into, performance, management and foreclosure of, and in respect of any dispute arising from or in connection with, any security interest created pursuant to any Security Document governed by French law. |
Section 12.02. Security Documents
(a) | The due and punctual payment of the principal of and interest, if any, on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and performance of all other obligations of the Issuer to the Holders of Notes or the Trustee under this Indenture and the Notes, according to the terms hereunder or thereunder, will be secured as provided in the Security Documents which the Guarantors and the Issuer will enter into in connection with the execution of this Indenture. |
(b) | Each Holder of Notes, by its acceptance thereof, consents and agrees to (A) the appointment of the Security Trustee and any other security trustee appointed under the terms of the Security Documents and/or the Intercreditor Agreement and (B) the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure and release of security over the Collateral) as the same may be in effect or may be amended from time to time in accordance with its terms and authorizes and directs the Security Trustee and any other security trustee appointed under the terms of the Security Documents and/or the Intercreditor Agreement to enter into the Security Documents and to perform its respective obligations and exercise its respective rights thereunder in accordance therewith. |
(c) | The Issuer will take, and will cause its Subsidiaries to take, upon request of the Trustee, any and all actions reasonably required to cause the Security Documents to create and maintain, as security for the Obligations of the Guarantors and the Issuer hereunder, a valid and enforceable perfected Lien in and on all the Collateral, in favor of the Security Trustee and any other security trustee appointed under the terms of the Security Documents for the benefit of the Holders of Notes, in accordance with the provisions of this Indenture, the Security Documents and the Intercreditor Agreement. |
(d) | The Holders authorize and direct the Trustee and the Security Trustee to finalize the Security Documents with the Issuer without the further consent of the Holders. |
(e) | Each Holder by accepting a Note and the Trustee hereby: |
(i) |
grant the Security Trustee all powers and authorities to, in their name and on their behalf, in good faith and acting reasonably, accept, negotiate and approve the terms and conditions of such Security Documents and any amendment, addendum or accession thereto, |
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execute such Security Documents, any amendment, addendum or accession thereto and any other agreement, deed or instrument ancillary or otherwise related to such Security Documents, give or receive any notice and take any other action in relation to the creation, perfection, maintenance, enforcement, administration and release of the security granted thereunder; |
(ii) | undertake to ratify and approve all activities performed in their name and on their behalf by the Security Trustee, in good faith and acting reasonably, acting in its appointed capacity; and |
(iii) | undertake to execute such powers of attorney or other instruments as may be necessary or appropriate in order to enable the Security Trustee, in good faith and acting reasonably, to exercise the powers and authorities granted to it hereunder. |
Section 12.03. Release of Collateral
(a) | The Collateral shall be released from the Lien and security interest created by the Security Documents and the Trustee and the Security Trustee shall be authorized and directed to release the Collateral under the Security Documents: |
(1) | upon repayment in full of the Notes; |
(2) | as provided in the Intercreditor Agreement; |
(3) | upon the defeasance, satisfaction or discharge of the Notes as provided in Article Eight in accordance with the terms and conditions of this Indenture; |
(4) | upon certain dispositions of the Collateral in compliance with Section 4.07; |
(5) | as provided in Article Nine; or |
(6) | in the case of a Guarantor that is released from its Guarantee pursuant to the terms of this Indenture, the release of the property and assets and Capital Stock of such Guarantor. |
(b) |
In addition, if a refinancing or an increase of the Revolving Credit Facility is implemented in a manner that releases the security interests over all or some of the Collateral, the security interest over such Collateral shall be released automatically and replaced by new security in favor of the Notes and Guarantees (or the Trustee for the benefit of the Notes and Guarantees), on substantially the same terms as prior to release; provided that either (i) there is delivered to the Trustee, in form and substance satisfactory to it, an Opinion of Counsel opining that, following such release and retaking any new hardening period in respect of the Collateral is no longer than any hardening periods in respect of the facility refinancing or increasing the Revolving Credit Facility, as applicable, (ii) an Independent Financial Advisor delivers a solvency opinion, in form and substance reasonably satisfactory to the Trustee, confirming the solvency of the Issuer and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such refinancing or (iii) there is delivered to the Trustee a certificate from the chief financial officer of |
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the Issuer or an Officers Certificate from the Issuer confirming the solvency of the Issuer and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such refinancing or increase of the Revolving Credit Facility. |
(c) | The Trustee shall deliver an appropriate instrument evidencing the release of Collateral upon receipt of a request by the Issuer accompanied by an Officers Certificate and an Opinion of Counsel certifying as to the compliance with this Section 12.03; provided the legal counsel delivering such Opinion of Counsel may rely as to matters of fact on one or more Officers Certificates. |
Section 12.04. Authorization of Actions to Be Taken by the Security Trustee or the Trustee Under the Security Documents
Subject to the provisions of Section 6.03, Section 7.01 and Section 7.02 hereof, the Intercreditor Agreement and the Security Documents, the Trustee may, in its sole discretion and without the consent of the Holders of Notes, direct, on behalf of the Holders of Notes, the Security Trustee and any other security trustee appointed under the terms of the Security Documents to, take all actions it deems necessary or appropriate in order to:
(1) | enforce any of the terms of the Security Documents; and |
(2) | collect and receive any and all amounts payable in respect of the Obligations of the Guarantors or the Issuer hereunder. |
The Security Trustee will have power to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the security over the Collateral by any acts that may be unlawful or in violation of the Security Documents or this Indenture, and such suits and proceedings as the Security Trustee may deem expedient to preserve or protect its interests and the interests of the Holders of Notes in the security over the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders of Notes, the Trustee or of the Security Trustee).
Section 12.05. Authorization of Receipt of Funds by the Security Trustee and the Trustee Under the Security Documents
The Trustee and the Security Trustee are authorized to receive any funds for the benefit of the Holders of Notes distributed under the Security Documents, and to make further distributions of such funds to the Holders of Notes according to the provisions of this Indenture.
Section 12.06. French Security
The Trustee is hereby appointed as agent ( mandataire ) of each of the Issuer, the Guarantors and the Holders pursuant to Article 1984 et seq. of the French Code Civil, to represent and act on behalf of each of the Issuer, the Guarantors and the Holders in relation to any actions required or advisable in connection with the entry into, performance, management and foreclosure of, and in respect of any dispute arising from or in connection with, any security interest created pursuant to any Security Document governed by French law.
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Section 12.07. No Obligation to Perfect
Notwithstanding any other provision of this Indenture, neither the Trustee nor the Security Trustee shall have any responsibility for the validity, perfection, sufficiency, adequacy, insuring of, priority or enforceability of any lien, Collateral, Security Documents or other security interest.
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Notices
(a) | Any notice or communication shall be in writing and delivered in person or mailed by first class mail addressed as follows: |
if to the Issuer or a Guarantor:
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Facsimile: +31(0) 208 880 7601
Attention: J. Joshi
if to the Trustee, Principal Paying Agent or Transfer Agent:
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
United Kingdom
Facsimile: +44 (0)20 7964 2536
Attention: Trustee Administration
if to the Luxembourg Paying Agent or Registrar:
The Bank of New York Mellon (Luxembourg) S.A.
Vertigo Building
Polaris 2-4 rue Eugène Ruppert
L-2453 Luxembourg
Facsimile: +352 24 524 204
Attention: Corporate Trust Administration
With copies to:
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
United Kingdom
Facsimile: +44 (0)20 7964 2536
Attention: Trustee Administration
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if to the Security Trustee:
Barclays Bank PLC
1 Churchill Place
London E14 5HP
United Kingdom
Facsimile: +44 (0)20 7773 4893
Attention: Duncan Nash;
provided that: (i) any notice, direction, request or other communication by the Issuer or any Holder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made by facsimile transmission at the Corporate Trust Office, and (ii) all certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
The Issuer, the Guarantors, the Trustee or the Security Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. All communications delivered to the Trustee shall be deemed effective when received.
(b) | All notices to Holders will be validly given if mailed to them at their respective addresses in the register of the Holders, if any, maintained by the Registrar. In addition, for so long as any Notes are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, any such notice to the Holders shall also be published in a newspaper having a general circulation in Luxembourg (which is expected to be the Luxemburger Wort ) or, to the extent and in the manner permitted by such rules, post such notice on the official website of the Luxembourg Stock Exchange ( www.bourse.lu ). In addition, for Notes which are represented by global certificates held on behalf of Euroclear or Clearstream, notices may be given by delivery of the relevant notices to Euroclear or Clearstream for communication to entitled account holders in substitution for the aforesaid mailing. |
Each such notice shall be deemed to have been given on the date of such publication or, if published more than once on different dates, on the first date on which publication is made, provided that, if notices are mailed, such notice shall be deemed to have been given on the later of such publication and the fifth day after being so mailed. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to him if so mailed within the time prescribed. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
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(c) | Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. |
Section 13.02. Communications
In no event shall an Agent, the Trustee or any other entity of The Bank of New York Mellon group (the BNYM Group ) be liable for any Losses to any party arising from an Agent or any BNYM Group member receiving any data from the Issuer, any Authorized Person or any party to this Indenture via any non-secure method of transmission or communication, such as, but without limitation, by facsimile or email.
The Issuer and any Guarantors each accept that some methods of communication are not secure and an Agent or any other BNYM Group member shall incur no liability for receiving instructions via any such non-secure method. An Agent or any other BNYM Group member is authorized to comply with and rely upon any such notice, instructions or other communications believed by it to have been sent or given by an Authorized Person or an appropriate party to the transaction (or authorized representative thereof). The Issuer shall use all commercially reasonable efforts to ensure that instructions by the Issuer transmitted to an Agent or any other BNYM Group member pursuant to this Indenture are complete and correct.
Section 13.03. Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Issuer or any Guarantor to the Trustee to take or refrain from taking any action under this Indenture (except in connection with the original issuance of the Notes on the date hereof), the Issuer or any Guarantor, as the case may be, shall furnish upon request to the Trustee:
(a) | an Officers Certificate in form reasonably satisfactory to the Trustee stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
(b) | an Opinion of Counsel in form reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent, if any, provided for in this Indenture have been complied with. |
Any Officers Certificate may be based, insofar as it relates to legal matters, upon an Opinion of Counsel. Any Opinion of Counsel may be based and may state that it is so based, insofar as it relates to factual matters, upon an Officers Certificate.
Section 13.04. Statements Required in Certificate or Opinion
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) | a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; |
(b) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
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(c) | a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
(d) | a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. |
Section 13.05. Rules by Trustee, Paying Agent and Registrar
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
Section 13.06. Legal Holidays
If an Interest Payment Date or other payment date is not a Business Day, payment shall be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. If a Record Date is not a Business Day, the Record Date shall not be affected.
Section 13.07. Governing Law
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.08. Jurisdiction
Each of the parties hereto agrees that any suit, action or proceeding brought by any other party hereto arising out of or based upon this Indenture, the Guarantees or the Notes may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Guarantee or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. Each of the parties hereto agrees that final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon it, and may be enforced in any court to the jurisdiction of which such Person is subject by a suit upon such judgment; provided , however , that service of process is effected upon the Issuer or the applicable Guarantor, as the case may be, in the manner provided by this Indenture. Each of the Issuer and the Guarantors has appointed CT Corporation System, 111 Eighth Avenue, New York, NY 10011, USA as its authorized agent (the Authorized Agent ), upon whom process may be served in any suit, action or proceeding arising out of or based upon this Indenture, the Guarantees or the Notes or the transactions contemplated herein which may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, by any Holder or the Trustee, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. Each of the Issuer and the Guarantors hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer and the Guarantors agree to take any and all action, including the filing of any and all documents, that may be reasonably necessary to continue such respective appointment in full force and effect as aforesaid. Service of process upon
InterXion Holding N.V. Indenture | Page 115 |
the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer and the Guarantors.
Section 13.09. No Recourse Against Others
No past, present or future director, officer, employee, incorporator, stockholder or agent of the Issuer or any Guarantor or any of their respective Subsidiaries, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, this Indenture, the Guarantees, the Intercreditor Agreement or the Security Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 13.10. Successors
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of any Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.12. All agreements of the Trustee in this Indenture shall bind its successors.
Section 13.11. Counterparts
This Indenture may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Indenture.
Section 13.12. Table of Contents, Cross-Reference Sheet and Headings
The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 13.13. Severability
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.14. Currency Indemnity
Euro is the sole currency of account and payment for all sums payable under the Notes, the Guarantees and this Indenture. Any amount received or recovered in respect of the Notes or the Guarantees in a currency other than Euro (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding up or dissolution of the Issuer, any Subsidiary or otherwise) by the Trustee and/or a Holder in respect of any sum expressed to be due to such Holder from the Issuer or the Guarantors will constitute a discharge of their obligation only to the extent of the Euro amount which the recipient is able to purchase with the amount so received or recovered in such other currency on the date of that receipt or recovery (or, if it is not possible to purchase Euro on that date, on the first date on which it is possible to do so). If the Euro amount that could be recovered following such a purchase is less than the Euro amount expressed to be due to the recipient under any Note, the Issuer and the Guarantors will jointly and severally indemnify the recipient against the cost of the recipients making a further purchase of Euro in an amount equal to such difference. For the purposes of this Section 13.14, it will be sufficient for the Trustee and/or holder to certify that it would have suffered a loss had the
InterXion Holding N.V. Indenture | Page 116 |
actual purchase of Euro been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of Euro on that date had not been possible, on the first date on which it would have been possible). These indemnities, to the extent permitted by law:
(a) | constitute a separate and independent obligation from the Issuers and the Guarantors other obligations; |
(b) | give rise to a separate and independent cause of action; |
(c) | apply irrespective of any waiver granted by any holder of a Note; and |
(d) | will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note or any other judgment or order. |
Section 13.15. No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret any other indenture, deed, loan, intercreditor or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, deed, loan, intercreditor or debt agreement may not be used to interpret this Indenture.
Section 13.16. Agents
The names of the initial Registrar, the initial Transfer Agent and the initial Paying Agent and their specified offices are set out in this Indenture. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Transfer Agent or Paying Agent and to appoint additional or other Transfer Agents or Paying Agents; provided that the Issuer will at all times maintain a Transfer Agent and a Paying Agent in London.
Section 13.17. Waiver of Jury Trial
Each of the parties to this Indenture hereby irrevocably waives its right to trial by jury in any legal suit, action or proceeding against it arising out of or in connection with this Indenture.
( Signature pages follow .)
InterXion Holding N.V. Indenture | Signature Pages |
IN WITNESS WHEREOF, the parties have caused this indenture to be duly executed as of the date first written above.
InterXion Holding N.V. as Issuer |
||
By: | /s/ D. C. Ruberg | |
Name: | D. C. Ruberg | |
Title: | C.E.O | |
InterXion Belgium N.V. as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative | |
InterXion Danmark ApS as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative | |
InterXion Carrier Hotel Limited as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative | |
InterXion Datacenters B.V. as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative | |
InterXion Deutschland GmbH as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative |
InterXion Holding N.V. Indenture | Signature Pages |
InterXion Espana S.A. as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative | |
InterXion France SAS as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative | |
By: | /s/ Fabrice Coquio | |
Name: | Fabrice Coquio | |
Title: | President | |
InterXion HeadQuarters B.V. as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative |
InterXion Holding N.V. Indenture | Signature Pages |
SIGNED AND DELIVERED as a deed by a duly authorised attorney of
INTERXION IRELAND LIMITED
as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Attorney |
In the presence of: | ||
Signature of witness: | /s/ J. V. Moorsel | |
Name of witness: | J. V. Moorsel | |
Address: |
Duin en Kruidberg 6 1187 JJ Amstelveen The Netherlands |
|
Occupation of witness | Executive Assistant |
InterXion Nederland B.V. as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative | |
InterXion Operational B.V. as an Initial Guarantor |
||
By: | /s/ J. J. Camman | |
Name: | J. J. Camman | |
Title: | Authorised Representative |
InterXion Holding N.V. Indenture | Signature Pages |
The Bank of New York Mellon, London Branch | ||
as Trustee, Principal Paying Agent and Transfer Agent | ||
By: | /s/ Françoise Rivière | |
Name: | Françoise Rivière | |
Title: | Vice President |
InterXion Holding N.V. Indenture | Signature Pages |
The Bank of New York Mellon (Luxembourg) S.A. | ||
as Registrar and Luxembourg Paying Agent | ||
By: | /s/ Françoise Rivière | |
Name: | Françoise Rivière | |
Title: | Vice President |
InterXion Holding N.V. Indenture | Signature Pages |
Barclays Bank PLC | ||
as Security Trustee | ||
By: | /s/ Sinead Harris | |
Name: | Sinead Harris | |
Title: | Director |
InterXion Holding N.V. Indenture | Page 1 |
EXHIBIT A
[FORM OF NOTE]
No.
[Global Note Legend
THIS GLOBAL NOTE IS HELD BY THE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.]
[Private Placement Legend
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE U.S. SECURITIES ACT) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) OR (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION PURSUANT TO RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE RESALE RESTRICTION TERMINATION DATE) WHICH IS [IN THE CASE OF RULE 144A NOTES. ONE YEAR] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE U.S. SECURITIES ACT (RULE 144A), TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW
InterXion Holding N.V. Indenture | Page 2 |
THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND TO COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUERS AND THE TRUSTEES RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]
InterXion Holding N.V. Indenture | Page 3 |
[Common Code /ISIN Number ]
6.00% SENIOR SECURED NOTE DUE 2020
InterXion Holding N.V., a public limited liability company incorporated under the laws of The Netherlands and with its corporate seat at Amsterdam, The Netherlands, for value received promises to pay to The Bank of New York Depository (Nominees) Limited or registered assigns the sum of (or such lesser or greater amount as indicated in Schedule A (Schedule of Principal Amount) on the reverse hereof) on July 15, 2020.
From , or from the most recent interest payment date to which interest has been paid or provided for, cash interest on this Note will accrue at 6.00%, payable semi-annually on January 15 and July 15 of each year, beginning on , to the Person in whose name this Note (or any predecessor Note) is registered at the close of business on the preceding January 1 or July 1, as the case may be.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature of an authorized signatory, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof and to the provisions of the Indenture, which provisions shall for all purposes have the same effect as if set forth at this place. Capitalized terms not otherwise defined shall have the meanings set forth in the Indenture.
InterXion Holding N.V. Indenture | Page 4 |
IN WITNESS WHEREOF, InterXion Holding N.V. has caused this Note to be signed manually or by facsimile by its duly authorized signatory.
Dated:
InterXion Holding N.V. | ||
By: | ||
Name: | ||
Title: |
InterXion Holding N.V. Indenture | Page 5 |
TRUSTEES CERTIFICATE OF AUTHENTICATION
The Bank of New York Mellon, London Branch as Trustee, certifies that this is one of the Notes referred to in the Indenture.
By: | ||
Authorized Officer |
InterXion Holding N.V. Indenture | Page 6 |
[FORM OF REVERSE SIDE OF NOTE]
6.00% Senior Secured Note Due 2020
1. Interest
InterXion Holding N.V., a public limited liability company incorporated under the laws of The Netherlands and with its corporate seat at Amsterdam, The Netherlands (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the Issuer ), for value received promises to pay interest on the principal amount of this Note from , at the rate per annum shown above. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Issuer will pay interest on overdue principal at a rate that is 1.0% higher than the interest rate borne by the Notes, payable semiannually, and it shall pay interest on overdue installments of interest at a rate that is 1.0% higher than the rate borne by the Notes payable semiannually to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth in this Note.
2. Additional Amounts
All payments made under or with respect to the Notes or the Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any jurisdiction in which the Issuer or any Guarantor is organized, engaged in business or resident for tax purposes or from or through which payment on the Notes is made or any political subdivision or authority thereof or therein having the power to tax (each, a Relevant Taxing Jurisdiction ) and any interest, penalties and other liabilities with respect thereto (collectively, Taxes ), unless the withholding or deduction of such Taxes is required by law or by the relevant taxing authoritys interpretation or administration thereof. In the event that the Issuer or a Guarantor is required to so withhold or deduct any amount for or on account of any such Taxes from any payment made under or with respect to the Notes, the Issuer or Guarantor, as the case may be, shall pay such additional amounts ( Additional Amounts ) as may be necessary so that the net amount received by each Holder of the Notes (including Additional Amounts) after such withholding or deduction shall be not less than the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted.
Notwithstanding the foregoing, neither the Issuer nor any Guarantor shall pay Additional Amounts to a Holder or beneficial owner of any Note in respect or on account of:
(a) | any Taxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of the Holders (or, if applicable, its partners, its shareholders or beneficial owners) present or former connection with such Relevant Taxing Jurisdiction (including, but not limited to, citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Relevant Taxing Jurisdiction) other than the mere receipt or holding of any Note or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under this Note, any Guarantee or the Indenture; |
(b) |
any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of any Note, prior to the relevant date on which a payment under and with respect to the Notes is due and payable (the Relevant Payment Date ), to comply with the Issuers written request addressed to the |
InterXion Holding N.V. Indenture | Page 7 |
Holder at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any certification, identification, information or other reporting requirements concerning nationality, residence, identity or connection with the Relevant Taxing Jurisdiction which the Holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice, in each such case by the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction); |
(c) | any estate, inheritance, gift, sales, transfer, personal property or similar Taxes; |
(d) | any Tax that is payable other than by deduction or withholding from payments made under or with respect to any Note or Guarantee; |
(e) | any Tax which would not have been so imposed but for the presentation (where presentation is required in order to receive payment) by the Holder or beneficial owner of a Note for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts on presenting the same for payment on any day (including the last day) within such 30-day period; |
(f) | any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any Directive otherwise implementing the conclusions of the ECOFIN Council meetings of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, any such Directive; |
(g) | any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by requesting that a payment on the Note be made by, or presenting a Note for a payment to, another Paying Agent in an EU Member State; |
(h) | any Tax that is imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note; or |
(i) |
any withholding or deduction required to be made from a payment pursuant to sections 1471-1474 of the U.S. Internal Revenue Code, as of the issue date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) (the Code ), any current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between |
InterXion Holding N.V. Indenture | Page 8 |
a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to section 1471(b)(1) of the Code. |
In addition, Additional Amounts shall not be payable with respect to any Taxes that are imposed in respect of any combination of the above items.
The Issuer or Guarantor shall also make or cause to be made such withholding or deduction of Taxes and remit the full amount of Taxes so deducted or withheld to the relevant taxing authority in accordance with all applicable laws. The Issuer shall, upon request, make available to the Holders, within 30 days after the date on which the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or if, notwithstanding the Issuers reasonable efforts to obtain such receipts, the same are not obtainable, other evidence reasonably satisfactory to the Trustee of such payment by the Issuer.
At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or a Guarantor shall be obliged to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30 th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), the Issuer or Guarantor shall deliver to the Trustee an Officers Certificate stating that such Additional Amounts shall be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee or Paying Agents to pay such Additional Amounts to the Holders and beneficial owners on the payment date. The Trustee shall be entitled to rely solely on such Officers Certificate as conclusive proof that such payments are necessary.
In addition, the Issuer or the Guarantor shall pay: (i) any present or future stamp, issue, registration, transfer, documentation, court, excise or property taxes or other similar taxes, charges and duties, including interest, penalties and Additional Amounts with respect thereto imposed or levied by any Relevant Taxing Jurisdiction, in respect of the execution, issue, delivery or registration of the Notes, the Indenture or the Guarantees, or any other document or instrument referred to thereunder (other than transfers of the Notes following the initial resale of the Notes by the initial purchasers of the Notes); (ii) any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction as a result of, or in connection with, the enforcement of the Notes, Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes; and (iii) any stamp, court or documentary taxes (or similar charges or levies) imposed by any Relevant Taxing Jurisdiction with respect to the receipt of any payments with respect to the Notes or the Guarantees (limited to any such taxes (or similar charges or levies) that are not excluded under clauses (a) through (c) or (e) through (i) above or any combination thereof).
The foregoing provisions shall survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined below) or successor person to the Issuer or a Guarantor is organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premiums, if any), Redemption Price, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to any Guarantee), such mention shall be deemed to include mention of the payment of Additional Amounts.
InterXion Holding N.V. Indenture | Page 9 |
3. Method of Payment
The Issuer shall pay interest on this Note (except defaulted interest) to the persons who are registered Holders of this Note at the close of business on the Record Date for the next Interest Payment Date even if this Note is cancelled after the Record Date and on or before the Interest Payment Date. The Issuer shall pay principal and interest in Euro in immediately available funds that at the time of payment is legal tender for payment of public and private debts; provided , however , that payment of interest may be made at the option of the Issuer by check mailed to the Holder.
The amount of payments in respect of interest on each Interest Payment Date shall correspond to the aggregate principal amount of this Note, as established by the Registrar at the close of business on the relevant Record Date. Payments of principal shall be made upon surrender of the Regulation S Global Note and the Restricted Global Note to the Paying Agent.
4. Paying Agent and Registrar
Initially, The Bank of New York Mellon, London Branch or one of its affiliates will act as Principal Paying Agent and The Bank of New York Mellon (Luxembourg) S.A. will act as Luxembourg Paying Agent and Registrar. The Issuer or any of its Affiliates may act as Paying Agent, Registrar or co-Registrar.
5. Indenture
The Issuer issued the Notes under an indenture dated as of July 3, 2013 (the Indenture ), among, inter alios , the Issuer, the Guarantors, The Bank of New York Mellon, London Branch, as trustee (the Trustee ) and Barclays Bank PLC, as security trustee (the Security Trustee ). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture.
The Notes are secured senior guaranteed obligations of the Issuer and are issued in an [initial] aggregate principal amount of [ ]. The Indenture imposes certain limitations on the Issuer, the Guarantors and their affiliates, including, without limitation, limitations on the incurrence of indebtedness, the payment of dividends and other payment restrictions affecting the Issuer and its subsidiaries, the sale of assets, transactions with and among affiliates of the Issuer and the Restricted Subsidiaries, change of control and Liens. In the event of any conflicts or inconsistencies between the terms of this Note and the Indenture, the provisions of the Indenture shall control and govern.
6. Optional Redemption
Optional Redemption prior to July 15, 2016 upon Equity Offering
At any time prior to July 15, 2016, upon not less than 10 nor more than 60 days notice, the Issuer may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes at a redemption price of 106.000% of their principal amount, plus accrued and unpaid interest, if any, to the Redemption Date, with the net proceeds from one or more Equity Offerings. The Issuer may only do this, however, if:
(a) | at least 65% of the aggregate principal amount of Notes that were initially issued (calculated after giving effect to the issuance of any Additional Notes) would remain outstanding immediately after the proposed redemption; and |
(b) | the redemption occurs within 90 days after the closing of such Equity Offering. |
InterXion Holding N.V. Indenture | Page 10 |
Optional Redemption prior to July 15, 2016
Prior to July 15, 2016, upon not less than 10 nor more than 60 days notice, the Issuer may during each 12-month period commencing on the Issue Date redeem up to 10% of the aggregate principal amount of Notes (calculated after giving effect to the issuance of any Additional Notes) at a redemption price equal to 103.000% of the principal amount redeemed plus accrued and unpaid interest, if any, to the Redemption Date.
At any time prior to July 15, 2016, upon not less than 10 nor more than 60 days notice, the Issuer may also redeem all or part of the Notes at a redemption price equal to 100% of the principal amount thereof plus the Applicable Redemption Premium and accrued and unpaid interest to the Redemption Date.
Optional Redemption on or after July 15, 2016
At any time on or after July 15, 2016 and prior to maturity, upon not less than 10 nor more than 60 days notice, the Issuer may redeem all or part of the Notes. These redemptions will be in amounts of 100,000 or integral multiples of 1,000 in excess thereof at the following redemption prices (expressed as percentages of their principal amount at maturity), plus accrued and unpaid interest, if any, to the Redemption Date, if redeemed during the 12-month period commencing on July 15, of the years set forth below.
Year | Redemption Price | |||
2016 |
104.500 | % | ||
2017 |
103.000 | % | ||
2018 |
101.500 | % | ||
2019 and thereafter |
100.000 | % |
Any optional redemption or notice thereof may, at the Issuers discretion, be subject to one or more conditions precedent.
7. Redemption Upon Changes in Withholding Taxes
The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon giving not less than 10 nor more than 60 days notice to the Holders, at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon, if any, to the Redemption Date and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is or, on the next date on which any amount would be payable in respect of the Notes, would be obliged to pay Additional Amounts which are more than a de minimis amount in respect of the Notes or the Guarantees pursuant to the terms and conditions thereof, which the Issuer or Guarantor cannot avoid by the use of reasonable measures available to it (including making payment through a Paying Agent located in another jurisdiction), as a result of:
(a) | any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the date of the Indenture or, if the Relevant Taxing Jurisdiction has changed since the date of the Indenture, on or after the date on which the then current Relevant Taxing Jurisdiction became the Relevant Taxing Jurisdiction under the Indenture; or |
InterXion Holding N.V. Indenture | Page 11 |
(b) | any change in the official application, administration, or interpretation of the laws, treaties, regulations or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment or order by a court of competent jurisdiction) on or after the date of the Indenture or, if the Relevant Taxing Jurisdiction has changed since the date of the Indenture, on or after the date on which the then current Relevant Taxing Jurisdiction became the Relevant Taxing Jurisdiction under the Indenture (each of the foregoing clauses (a) and (b), a Change in Tax Law ). |
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if the Relevant Taxing Jurisdiction changes under the Indenture and the Issuer is obliged to pay Additional Amounts as a result of a Change in Tax Law of the then current Relevant Taxing Jurisdiction which, at the time the latter became the Relevant Taxing Jurisdiction under the Indenture, had been publicly announced as being or having been formally proposed.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 60 days prior to the earliest date on which the Issuer or Guarantor would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the publication or, where relevant, mailing of any notice of redemption pursuant to the foregoing, the Issuer will deliver to the Trustee:
(a) | an Officers Certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by the Issuer or Guarantor taking reasonable measures available to it); and |
(b) | an opinion of independent tax counsel of recognized standing, qualified under the laws of the Relevant Taxing Jurisdiction and reasonably satisfactory to the Trustee to the effect that the Issuer or Guarantor, as the case may be, is or would be obliged to pay such Additional Amounts as a result of a Change in Tax Law. |
The Trustee will accept such Officers Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.
The foregoing provisions will apply mutatis mutandis to any successor person, after such successor person becomes a party to the Indenture, with respect to a Change in Tax Law occurring after the time such successor person becomes a party to the Indenture.
8. Notice of Optional Redemption
Notice of redemption will be made at least 10 days but not more than 60 days before the Redemption Date. If this Note is in a denomination larger than 100,000 of principal amount, it may be redeemed in part but only in integral multiples of 1,000 in excess of 100,000. In the event of a redemption of less than all of the Notes, the Notes for redemption will be chosen by the Trustee in accordance with the Indenture. If this Note is redeemed subsequent to a Record Date with respect to any Interest Payment Date specified above, then any accrued interest will be paid to the Holder at the close of business on such Record Date. If money sufficient to pay the Redemption Price of and accrued interest on all
InterXion Holding N.V. Indenture | Page 12 |
Notes (or portions thereof) to be redeemed on the Redemption Date is deposited with the applicable Paying Agent on or before the Redemption Date and certain other conditions are satisfied, interest ceases to accrue on such Notes (or such portions thereof) called for redemption on or after the Redemption Date.
9. Repurchase at the Option of Holders
If a Change of Control occurs (as defined in the Indenture) at any time, the Issuer shall be required to offer to purchase on the Change of Control Purchase Date all or any part (equal to 100,000 or an integral multiple of 1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest and Additional Amounts, if any, to the Change of Control Purchase Date (subject to the rights of holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date), which date shall be no earlier than 30 days nor later than 60 days from the date notice of such offer is mailed, other than as required by law. The Issuer shall purchase all Notes properly and timely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the procedures that Holders of the Notes must follow to accept the Change of Control Offer.
When the aggregate amount of Excess Proceeds exceeds 25.0 million, the Issuer shall, within 30 Business Days, make an Excess Proceeds Offer to all holders of Notes and, at the Issuers election, to the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount, in the case of the Notes (expressed as a minimum amount of 100,000 and integral multiples of 1,000 in excess thereof) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt shall be payable in cash in an amount equal to (solely in the case of the Notes) 100% of the principal amount of such Note and (solely in the case of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, as applicable) of such Pari Passu Debt, plus , in each case, accrued and unpaid interest, if any, to the date of purchase.
10. Denominations
The Notes are in denominations of 100,000 and integral multiples of 1,000 in excess thereof). The transfer of Notes may be registered, and Notes may be exchanged, as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
11. Unclaimed Money
All moneys paid by the Issuer or the Guarantors to the Trustee or a Paying Agent for the payment of the principal of, or premium, if any, or interest on, any Notes that remain unclaimed at the end of two years after such principal, premium or interest has become due and payable may be repaid to the Issuer or the Guarantors, subject to applicable law and certain optional notice provisions, and the Holder of such Note thereafter may look only to the Issuer or the Guarantors for payment thereof.
12. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time may terminate some or all of its obligations and the obligations of the Guarantors under the Notes, the Guarantees and the
InterXion Holding N.V. Indenture | Page 13 |
Indenture if the Issuer irrevocably deposits with the Trustee Euro or European Government Obligations for the payment of principal and interest on the Notes to redemption or maturity, as the case may be.
13. Amendment, Supplement and Waiver
(a) | The Issuer, when authorized by a resolution its Board of Directors (as evidenced by the delivery of such resolution to the Trustee), the Guarantors, the Security Trustee and the Trustee may modify, amend or supplement the Indenture, the Notes, the Intercreditor Agreement and/or the Security Documents without notice to or the consent of any Holder: |
(i) | to evidence the succession of another Person to the Issuer or a Guarantor and the assumption by any such successor of the covenants in the Indenture and in the Notes in accordance with Article Five; |
(ii) | to add to the Issuers covenants and those of any Guarantor or any other obligor in respect of the Notes for the benefit of the holders of the Notes or to surrender any right or power conferred upon the Issuer or any Guarantor or any other obligor in respect of the Notes, as applicable, in the Indenture, the Notes or any Guarantee; |
(iii) | to cure any ambiguity, or to correct or supplement any provision in the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document that may be defective or inconsistent with any other provision in the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document or make any other provisions with respect to matters or questions arising under the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document; provided that, in each case, such provisions shall not materially adversely affect the interests of the holders of the Notes; |
(iv) | to conform the text of the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document to any provision of the section in the Offering Memorandum entitled Description of Notes to the extent that such provision in the Description of Notes was intended to be a verbatim recitation of a provision of the Indenture, the Notes, any Guarantee, the Intercreditor Agreement or any Security Document; |
(v) | to release any Guarantor in accordance with (and if permitted by) the terms of the Indenture and the Intercreditor Agreement; |
(vi) | to add a Guarantor or other guarantor under the Indenture; |
(vii) | to evidence and provide the acceptance of the appointment of a successor Trustee under the Indenture; |
(viii) | to mortgage, pledge, hypothecate or grant a security interest in favor of the Security Trustee for the benefit of the Trustee and the Holders as security for the payment and performance of the Issuers and any Guarantors obligations under the Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Security Trustee pursuant to the Indenture or otherwise; and |
InterXion Holding N.V. Indenture | Page 14 |
(ix) | to provide for the issuance of Additional Notes in accordance with and if permitted by the terms of and limitations set forth in the Indenture. |
(b) | Except as provided in Section 9.02(b) and Section 6.04 of the Indenture and without prejudice to Section 9.01 of the Indenture, the Issuer, the Guarantors, the Security Trustee and the Trustee may: |
(i) | amend or supplement the Indenture, the Intercreditor Agreement and/or the Security Documents; or |
(ii) | waive compliance by the Issuer with any provision of the Indenture, the Intercreditor Agreement and/or the Security Documents or the Notes, |
with the written consent of the Holders of not less than a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or in exchange for the Notes).
(c) | Without the consent of the holders of 90% in principal amount of the Notes then outstanding, no amendment, modification, supplement or waiver, including a waiver pursuant to Section 6.04 of the Indenture and an amendment, modification or supplement pursuant to Section 9.01 of the Indenture, may: |
(1) | change the Stated Maturity of the principal of, or any installment of or Additional Amounts or interest on, any Note (or change any Default or Event of Default under clause (a) of the definition thereof related thereto); |
(2) | reduce the principal amount of any Note (or Additional Amounts or premium, if any) or the rate of or change the time for payment of interest on any Note (or change any Default or Event of Default under clause (b) of the definition thereof related thereto); |
(3) | change the coin or currency in which the principal of any Note or any premium or any Additional Amounts or the interest thereon is payable; |
(4) | impair the right to institute suit for the enforcement of any payment of any Note in accordance with the provisions of such Note, the Indenture and the Intercreditor Agreement; |
(5) | reduce the principal amount of Notes whose holders must consent to any amendment, supplement or waiver of provisions of the Indenture requiring the consent of 90% in principal amount of the Notes then outstanding; |
(6) | modify any of the provisions relating to supplemental indentures requiring the consent of 90% of holders of the Notes; |
(7) | release any Guarantee except in compliance with the terms of the Indenture and the Intercreditor Agreement; or |
(8) | release any Lien on the Collateral granted for the benefit of the holders of the Notes, except in compliance with the terms of the Security Documents, the Indenture and the Intercreditor Agreement. |
(d) |
The consent of the Holders is not necessary to approve the particular form of any proposed amendment, modification, supplement or waiver. It is sufficient if such |
InterXion Holding N.V. Indenture | Page 15 |
consent approves the substance of the proposed amendment, modification, supplement or waiver. |
14. Defaults and Remedies
The Notes have the Events of Default as set forth in Section 6.01 of the Indenture. If an Event of Default occurs and is continuing, the Trustee, by notice to the Issuer, or the registered Holders of not less than 25% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer and the Trustee, subject to certain limitations, may declare all the Notes to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default and shall result in the Notes being due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives an indemnity and/or security satisfactory to it. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee may rescind any acceleration and its consequence if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest that has become due solely because of such acceleration. The above description of Events of Default, remedies, waivers and rescissions thereof is qualified by reference, and subject in its entirety, to the more complete description thereof contained in the Indenture.
15. Trustee Dealings with the Issuer
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer, the Guarantors or any of their Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, co-Registrar or co-Paying Agent may do the same with like rights.
16. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, will have any liability for any obligations of the Issuer or the Guarantors under this Note, the Indenture, the Guarantees, the Security Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of Notes by accepting a Note will waive and release all such liability. The waiver and release will be part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under U.S. federal securities laws.
17. Authentication
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.
18. CUSIP, ISIN and Common Code Numbers
The Issuer in issuing the Notes may use CUSIP, ISIN and Common Code numbers (if then generally in use), and, if so, the Issuer shall use CUSIP, ISIN and Common Code numbers, as appropriate, in notices of redemption as a convenience to Holders; provided , however , that any such notice may state that no representation is made as to the correctness of such
InterXion Holding N.V. Indenture | Page 16 |
numbers or codes either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers.
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Issuer shall furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Attention: General Counsel
InterXion Holding N.V. Indenture | Page 17 |
ASSIGNMENT FORM
To assign and transfer this Note, fill in the form below:
(I) or (the Issuer) assign and transfer this Note to
______________________________________________________________________
(Insert assignees social security or tax I.D. no.)
______________________________________________________________________
(Print or type assignees name, address and postal code)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guaranty:
_______________________________________________________________________
(Participant in a recognized signature guaranty medallion program)
Date:
Certifying Signature:
InterXion Holding N.V. Indenture | Page 18 |
In connection with any transfer of any Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which the Notes were owned by the Issuer or any Affiliate of the Issuer, the undersigned confirms that such Notes are being transferred in accordance with the transfer restrictions set forth in such Notes and:
CHECK ONE LINE BELOW
(1) | ¨ | ______ | to the Issuer; | |||
(2) |
¨ |
______ | pursuant to a registration statement which has been declared effective under the U.S. Securities Act of 1933, as amended (the U.S. Securities Act ); | |||
(3) |
¨ |
______ | for so long as the Notes are eligible for resale pursuant to Rule 144A under the U.S. Securities Act ( Rule 144A ), to a person it reasonably believes is a qualified institutional buyer as defined in Rule 144A that purchases for its own account or the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A; | |||
(4) |
¨ |
______ | pursuant to offers and sales that occur outside the United States in compliance with Regulation S under the U.S. Securities Act; or | |||
(5) |
¨ |
______ | pursuant to any other available exemption from the registration requirements of the U.S. Securities Act. |
If line (5) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuer reasonably requests to confirm that such transfer is being made pursuant to an exemption from or in a transaction not subject to, the registration requirements of the U.S. Securities Act.
Signature: | ||||||
Signature Guaranty: | ||||||
(Participant in a recognized signature guaranty medallion program) | ||||||
Certifying Signature: | ||||||
Date: | ||||||
Signature Guaranty: | ||||||
(Participant in a recognized signature guaranty medallion program) |
InterXion Holding N.V. Indenture | Page 19 |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased pursuant to Section 4.07 or Section 4.09 of the Indenture, check the line:
If the purchase is in part, indicate the portion (in denominations of 100,000 or any integral multiple of 1,000 in excess thereof) to be purchased:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guaranty:
_____________________________________________________________________
(Participant in a recognized signature guaranty medallion program)
Date:
Certifying Signature:
InterXion Holding N.V. Indenture | Page 20 |
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The following decreases/increases in the principal amount of this Note have been made:
Date of Decrease/ Increase |
Decrease in Principal Amount |
Increase in Principal Amount |
Principal Amount
Decrease/ Increase |
Notation Made by or on Behalf of Registrar |
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InterXion Holding N.V. Indenture | Exhibit B Page 1 |
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
United Kingdom
Facsimile No.: +44 (0) 20 7964 2536
Attention: Trustee Administration
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Facsimile No.: +
Attention: General Counsel
Re: 6.00% Senior Secured Notes due 2020 of InterXion Holding N.V.
Reference is hereby made to the Indenture, dated July 3, 2013 (the Indenture ), among, inter alios , InterXion Holding N.V. (the Issuer ), the Guarantors and The Bank of New York Mellon, London Branch, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
, (the Transferor ) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of (the Transfer ), to (the Transferee ), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
1. | Check if transfer is pursuant to Rule 144A: |
The Transfer is being effected pursuant to and in accordance with Rule 144A ( Rule 144A ) under the U.S. Securities Act of 1933, as amended (the Securities Act ) and, accordingly, the Transferor hereby further certifies that the Book-Entry Interest or Definitive Registered Note is being transferred to a Person that the Transferor reasonably believes is purchasing the Book-Entry Interest or Definitive Registered Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a qualified institutional buyer within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with all applicable securities laws of any other jurisdiction. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred Book-Entry Interest or Definitive Registered Note will be subject to the restrictions on transfer enumerated in the private placement legend printed on the Restricted Global Note and/or the 144A Definitive Registered Note and in the Indenture and the Securities Act.
2. | Check if transfer is pursuant to Regulation S: |
The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that: (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was
InterXion Holding N.V. Indenture | Exhibit B Page 2 |
outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States; (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act; and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred Book-Entry Interest or Definitive Registered Note will be subject to the restrictions on transfer enumerated in the private placement legend and in the Indenture and the Securities Act.
3. | Check if Transferee will take delivery of a Book-Entry Interest in a Global Note or a Definitive Registered Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S: |
The Transfer is being effected in compliance with the transfer restrictions applicable to Book-Entry Interests in Global Notes and Definitive Registered Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States.
InterXion Holding N.V. Indenture | Exhibit B Page 3 |
This certificate and the statements contained herein are made for the benefit the Trustee, the Issuer and any Guarantor.
[ Insert Name of Transferor]
By: | ||
Name: | ||
Title: |
Dated:
InterXion Holding N.V. Indenture | Exhibit B Page 4 |
ANNEX A TO CERTIFICATE OF TRANSFER
1. | The Transferor owns and proposes to transfer the following: |
[ CHECK ONE OF (a), (b) OR (c) ]
(a) | a Book-Entry Interest held through Euroclear Account No. or Clearstream, Luxembourg Account No. , in the: |
(i) | Restricted Global Note (ISIN or CUSIP ), or |
(ii) | Regulation S Global Note (ISIN or CUSIP ), or |
(b) | a 144A Definitive Registered Note; or |
(c) | a Regulation S Definitive Registered Note. |
2. | After the Transfer the Transferee will hold: |
[ CHECK ONE ]
(a) | a Book-Entry Interest held through Euroclear Account No. or Clearstream, Luxembourg Account No. , in the: |
(i) | Restricted Global Note (ISIN or CUSIP ), or |
(ii) | Regulation S Global Note (ISIN or CUSIP ), |
(b) | a 144A Definitive Registered Note; or |
(c) | a Regulation S Definitive Registered Note. |
InterXion Holding N.V. Indenture | Exhibit C Page 1 |
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
United Kingdom
Facsimile No.: +44 (0) 20 7964 2536
Attention: Trustee Administration
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Facsimile No.: +
Attention: General Counsel
Re: 6.00% Senior Secured Notes due 2020 of InterXion Holding N.V.
Reference is hereby made to the Indenture, dated July 3, 2013 (the Indenture ), among, inter alios , InterXion Holding N.V. (the Issuer ), the Guarantors and The Bank of New York Mellon, London Branch, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
, (the Owner ) owns and proposes to exchange the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of in such Note[s] or interests (the Exchange ) to be held following such Exchange as specified below and in Annex A hereto. In connection with the Exchange, the Owner hereby certifies that:
1. | Check if Exchange is from Book-Entry Interest in a Global Note for Definitive Registered Notes. |
____ | In connection with the Exchange of the Owners Book-Entry Interest in a Global Note for Definitive Registered Notes in an equal amount, the Owner hereby certifies that such Definitive Registered Notes are being acquired for the Owners own account without transfer. The Definitive Registered Notes issued pursuant to the Exchange will bear the private placement legend set forth in Section 2.06 of the Indenture and will be subject to restrictions on transfer enumerated in the Indenture and the U.S. Securities Act. |
2. | Check if Exchange is from Definitive Registered Notes for Book-Entry Interest in a Global Note. |
____ | In connection with the Exchange of the Owners Definitive Registered Notes for Book-Entry Interest in a Global Note in an equal amount, the Owner hereby certifies that such Book-Entry Interest in a Global Note are being acquired for the Owners own account without transfer. The Book-Entry Interests transferred in exchange will be subject to restrictions on transfer enumerated in the Indenture and the U.S. Securities Act. |
InterXion Holding N.V. Indenture | Exhibit C Page 2 |
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
InterXion Holding N.V. Indenture | Exhibit C Page 3 |
[ Insert Name of Owner ]
By: | ||
Name: | ||
Title: |
Dated:
InterXion Holding N.V. Indenture | Exhibit C Page 4 |
ANNEX A TO CERTIFICATE OF EXCHANGE
1. | The Transferor owns and proposes to transfer the following: |
[ CHECK ONE OF (a), (b) OR (c) ]
(a) | a Book-Entry Interest held through Euroclear Account No. or Clearstream, Luxembourg Account No. , in the: |
(i) | Restricted Global Note (ISIN or CUSIP ), or |
(ii) | Regulation S Global Note (ISIN or CUSIP ), or |
(b) | a 144A Definitive Registered Note; or |
(c) | a Regulation S Definitive Registered Note. |
2. | After the Transfer the Transferee will hold: |
[ CHECK ONE ]
(a) | a Book-Entry Interest held through Euroclear Account No. or Clearstream, Luxembourg Account No. , in the: |
(i) | Restricted Global Note (ISIN or CUSIP ), or |
(ii) | Regulation S Global Note (ISIN or CUSIP ), |
(b) | a 144A Definitive Registered Note; or |
(c) | a Regulation S Definitive Registered Note. |
InterXion Holding N.V. Indenture | Exhibit D Page 1 |
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this Supplemental Indenture ), dated as of , 201__, among (the Guaranteeing Entity ), InterXion Holding N.V. (the Issuer ), the Guarantors, The Bank of New York Mellon, London Branch, as trustee under the Indenture referred to below (the Trustee ) and Barclays Bank PLC, as security trustee (the Security Trustee ).
W I T N E S S E T H
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture (the Indenture ), dated as of July 3, 2013 providing for the issuance of 6.00% Senior Secured Notes due 2020 (the Notes );
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Entity shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Entity shall unconditionally guarantee all of the Issuers Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the Guarantee ); and
WHEREAS, pursuant to Article Nine of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Entity and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. | CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. |
2. | AGREEMENT TO GUARANTEE. The Guaranteeing Entity hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Guarantee and in the Indenture including but not limited to Article Ten thereof. Such guarantee includes the limitations set out in Article Ten and may include limitations to the extent a similar guarantee is also made to holders of other Indebtedness and such guarantee includes such limitations. |
3. | NO RECOURSE AGAINST OTHERS. No director, member of any supervisory or management board, shareholders committee, officer, employee, incorporator, or shareholder of the Guaranteeing Entity, as such, shall have any liability for any obligations of the Issuer or any of its Subsidiaries or any parent of the Issuer under the Notes, the Intercreditor Agreement, any Guarantee, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. Such waiver may not be effective to waive liabilities under the U.S. federal securities laws and it is the view of the Commission that such a waiver is against public policy. |
4. |
GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE |
InterXion Holding N.V. Indenture | Exhibit D Page 2 |
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. |
5. | COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. |
6. | EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof. |
7. | THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entity and the Issuer. |
8. | [SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN. [ To be applied only when the Guaranteeing Entity is a Spanish company ]] |
8.1 | SECURITY TRUSTEE ACCOUNTING. For the purposes of the Notes and the Indenture (including the Guarantees under the Indenture), the Security Trustee, in its capacity as such, shall open and maintain in its book a special credit account for each Holder and the Trustee. In each of such accounts the Security Trustee shall debit the amounts owed by the Issuer or a Guarantor, including the interest, fees, expenses, default interest, additional costs and any other amounts that are payable by the Issuer or a Guarantor pursuant to the Notes or the Indenture (including the guarantees under the Indenture). Likewise, all amounts received by the Security Trustee from a Issuer or a Guarantor pursuant the Notes and the Indenture (including the guarantees under the Indenture) shall be credited in that account, so that the sum of the balance of the credit account represents the amount owed by the Issuer or a Guarantor a to a Holder or the Trustee at any time. |
8.2 | DETERMINATION OF BALANCE DUE IN THE EVENT OF ENFORCEMENT BEFORE THE SPANISH COURTS. In the event of enforcement of the Notes or the Indenture (including the Guarantees under the Indenture) before the Spanish courts, the Security Trustee shall settle the credit accounts referred to above in Section 8.1 (Security Trustee Accounting). It is expressly agreed for purposes of enforceability via judicial or out-of-court methods pursuant to Spanish law, that the balance due from the accounts referred to in this Section resulting from the certificate issued for such purpose by the Security Trustee shall be deemed a liquid, due and payable amount enforceable against the Issuer or a Guarantor; provided that it is evidenced in a notarial document that the settlement was made in the form agreed to by the parties in the enforceable instrument documenting this document ( título ejecutivo ). |
The Security Trustee shall previously notify the Issuer of the amount due as a result of the settlement.
8.3 |
ENFORCEMENT BEFORE THE SPANISH COURTS. In the event that the Security Trustee decides, for the purposes of the enforcement of the Notes and the Indenture (including the Guarantees under the Indenture) before the Spanish courts, to commence the ordinary enforcement proceeding set forth in Articles 517, et seq., of the Law of Civil Procedure ( Ley de Enjuciamiento Civil ), the parties expressly agree for purposes of Article 571, et seq., of such Law of Civil Procedure that the settlement to determine the summarily enforceable debt be made by the Security Trustee. Therefore, the following will be sufficient for the commencement of the |
InterXion Holding N.V. Indenture | Exhibit D Page 3 |
summary proceedings: (i) the notarial deed ( escritura de elevación a público ) evidencing this agreement; (ii) a certificate, issued by the Security Trustee, of the debt for which the Issuer or a Guarantor is liable, as well as the extract of the debit and credit entries and the entries corresponding to the application of interest that determines the actual balance for which enforcement is requested and the document providing evidence ( documento fehaciente ) that the settlement of the debt has been carried out in the form agreed to in this agreement; and (iii) a notarial document providing evidence of the prior notice to the Issuer of the amount due as a result of the settlement. |
The Issuer shall bear all taxes, expenses and duties accruing or that are incurred on by reason of the notarial instruments referred to in the previous paragraph.
8.4 | PUBLIC DEED. This Supplemental Indenture has been executed in a private document. Each party shall be entitled to request to the other the formalization of this agreement before a Spanish Notary Public at any moment. The Guarantor shall bear all costs and expenses relating to such formalization. The public deed by which this agreement is raised to the status of public document will confirm in Spanish language: (i) the guarantee to be provided under Article 10 of the Indenture, (ii) the provisions of Section 12.02 of the Indenture related to the powers of attorney to be granted by the Holders and the Trustee to the Security Trustee; and (iii) this section.] |
InterXion Holding N.V. Indenture | Exhibit D Page 4 |
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: , 201
[ GUARANTEEING ENTITY]
By: | ||
Name: | ||
Title: |
InterXion Holding N.V. | ||
By: | ||
Name: | ||
Title: |
[ EXISTING GUARANTORS ] | ||
By: | ||
Name: | ||
Title: |
The Bank of New York Mellon, London Branch as Trustee |
||
By: | ||
Name: | ||
Title: |
[Barclays Bank PLC as Security Trustee |
||
By: | ||
Name: | ||
Title: |
Exhibit 99.3
Dated July 2013
BARCLAYS BANK PLC
as Revolving Agent
- and -
THE BANK OF NEW YORK MELLON, LONDON BRANCH
as Original Senior Secured Notes Trustee
- and -
The Revolving Lenders
- and -
CERTAIN COMPANIES
as Original Debtors
- and -
BARCLAYS BANK PLC
acting as Security Trustee
- and -
others
INTERCREDITOR AGREEMENT
ABU DHABI | BEIJING | BRUSSELS | DÜSSELDORF | FRANKFURT | HONG KONG | LONDON | MILAN | MUNICH | NEW YORK
PALO ALTO | PARIS | ROME | SAN FRANCISCO | SÃO PAULO | SHANGHAI | SINGAPORE | TOKYO | TORONTO | WASHINGTON, DC
TABLE OF CONTENTS
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28. | GOVERNING LAW | 112 | ||||
29. | ENFORCEMENT | 112 | ||||
30. | SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN | 113 | ||||
SCHEDULE 1 THE REVOLVING LENDERS |
115 | |||||
SCHEDULE 2 THE INTRA-GROUP LENDERS AND DEBTORS |
116 | |||||
Part 1 The Intra-Group Lenders |
116 | |||||
Part 2 The Debtors |
117 | |||||
SCHEDULE 3 FORM OF DEBTOR ACCESSION DEED |
118 | |||||
SCHEDULE 4 FORM OF CREDITOR/REPRESENTATIVE ACCESSION UNDERTAKING |
121 | |||||
SCHEDULE 5 FORM OF DEBTOR RESIGNATION REQUEST |
123 | |||||
SCHEDULE 6 |
124 | |||||
PART I SENIOR SECURED NOTES PARAMETERS |
124 | |||||
PART II SENIOR UNSECURED NOTES PARAMETERS |
124 | |||||
SCHEDULE 7 TRANSACTION SECURITY DOCUMENTS |
125 | |||||
SCHEDULE 8 SECURITY ENFORCEMENT PRINCIPLES |
126 | |||||
SIGNATURES |
127 |
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THIS AGREEMENT is dated July 2013 and made between:
(1) | BARCLAYS BANK PLC as Revolving Agent; |
(2) | THE FINANCIAL INSTITUTIONS named in Schedule 1 ( The Revolving Lenders ) as Revolving Lenders; |
(3) | THE BANK OF NEW YORK MELLON, LONDON BRANCH as Original Senior Secured Notes Trustee; |
(4) | INTERXION HOLDING N.V. , a public company with limited liability ( naamloze vennootschap met beperkte aansprakelijkheid ), incorporated under Dutch law, having its seat ( statutaire zetel ) in Amsterdam, The Netherlands and its office address at Tupolevlaan 24, 1119 NX Schiphol-Rijk, The Netherlands, Chamber of Commerce registration number 33301892 (the Company ); |
(5) | THE COMPANIES named in Part 1 of Schedule 2 ( The Intra-Group Lenders ) as Intra-Group Lenders; |
(6) | THE SUBSIDIARIES of the Company named in Part 2 of Schedule 2 ( The Debtors ) as Debtors (together with the Company, the Original Debtors ); |
(7) | BARCLAYS BANK PLC as hedge counterparty (the Original Hedge Counterparty ); and |
(8) | BARCLAYS BANK PLC as security trustee for the Secured Parties (the Security Trustee ). |
IT IS AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
In this Agreement:
1992 ISDA Master Agreement means the Master Agreement (MulticurrencyCross Border) as published by the International Swaps and Derivatives Association, Inc.
2002 ISDA Master Agreement means the 2002 Master Agreement as published by the International Swaps and Derivatives Association, Inc.
Acceleration Event means a Revolving Acceleration Event, a Senior Secured Notes Acceleration Event or a Senior Unsecured Notes Acceleration Event (as the context requires).
Additional Senior Secured Debt Instrument means any credit agreement, loan, indenture, trust deed or other instrument constituting or evidencing any Additional Senior Secured Notes Liabilities.
Additional Senior Secured Notes Creditors means any Additional Senior Secured Notes Trustee and any creditor in respect of Additional Senior Secured Notes Liabilities arising pursuant to or in connection with any Additional Senior Secured Debt Instrument.
Additional Senior Secured Notes Liabilities means the Liabilities that the members of the Group and any other grantor of Transaction Security are permitted to incur in respect of any Senior Secured Notes (other than the Original Senior Secured Notes) pursuant to and in addition to the Senior Secured Notes Liabilities arising in respect of the Original Senior Secured Notes and which may share the same priority and payment ranking as the Senior Secured Notes Liabilities arising in respect of the Original Senior Secured Notes in accordance with the Debt Documents.
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Additional Senior Secured Notes Trustee means any agent or trustee acting on behalf of any creditor in respect of any Additional Senior Secured Notes Liabilities arising pursuant to or in connection with any Additional Senior Secured Debt Instrument.
Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
Allocated Amount has the meaning given to that term in Clause 4.14 ( Allocation of Priority Hedging Liabilities ).
Ancillary Document has the meaning given to the term Ancillary Document in any Revolving Facility Agreement.
Ancillary Facility has the meaning given to the term Ancillary Facility in any Revolving Facility Agreement.
Ancillary Lender means each Revolving Lender (or Affiliate of a Revolving Lender) which makes an Ancillary Facility available pursuant to the terms of any Revolving Facility Agreement.
Available Commitment has the meaning given to the term Available Commitment in any Revolving Facility Agreement.
Belgian Debtor means any Debtor incorporated and existing under Belgian law.
Borrowing Liabilities means, in relation to a member of the Group, the liabilities (not being Guarantee Liabilities) it may have as a borrower to a Creditor, Subordinated Creditor or Debtor in respect of Financial Indebtedness arising under the Debt Documents (whether incurred solely or jointly and including, without limitation, liabilities as a Borrower under and as defined in the Revolving Facility Documents and liabilities of the Company as an Issuer under and as defined in the Senior Secured Notes Documents and as an Issuer under and as defined in the Senior Unsecured Notes Documents).
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London and Amsterdam and:
(a) | (in relation to any date for payment or purchase of a currency other than Euro) the principal financial centre of the country of that currency; or |
(b) | (in relation to any date for payment or purchase of Euro) any TARGET Day. |
Charged Property means all of the assets which from time to time are, or are expressed to be, the subject of the Transaction Security.
Close Out Netting means:
(a) | in respect of a Hedging Agreement or a Hedging Ancillary Document based on a 1992 ISDA Master Agreement, any step involved in determining the amount payable in respect of an Early Termination Date (as defined in the 1992 ISDA Master Agreement) under section 6(e) of the 1992 ISDA Master Agreement before the application of any subsequent Set off (as defined in the 1992 ISDA Master Agreement); |
(b) | in respect of a Hedging Agreement or a Hedging Ancillary Document based on a 2002 ISDA Master Agreement, any step involved in determining an Early Termination Amount (as defined in the 2002 ISDA Master Agreement) under section 6(e) of the 2002 ISDA Master Agreement before the application of any subsequent Set off (as defined in the 2002 ISDA Master Agreement); and |
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(c) | in respect of a Hedging Agreement or a Hedging Ancillary Document not based on an ISDA Master Agreement, any step involved on a termination of the hedging transactions under that Hedging Agreement pursuant to any provision of that Hedging Agreement which has a similar effect to either provision referenced in paragraph (a) and paragraph (b) above. |
Common Assurance means any guarantee, indemnity or other assurance against loss in respect of any of the Liabilities, the benefit of which (however conferred) is, to the extent legally possible, given to all the Secured Parties in respect of their Liabilities.
Common Currency means Euro.
Common Currency Amount means, in relation to an amount, that amount converted (to the extent not already denominated in the Common Currency) into the Common Currency at the Security Trustees Spot Rate of Exchange on the Business Day prior to the relevant calculation.
Common Transaction Security means any Transaction Security which, to the extent legally possible:
(a) | is created in favour of the Security Trustee as trustee for the other Secured Parties in respect of their Liabilities; or |
(b) | in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Trustee as trustee for the Secured Parties is created in favour of: |
(i) | all the Secured Parties in respect of their Liabilities; or |
(ii) | the Security Trustee under a parallel debt structure for the benefit of all the Secured Parties, |
and which ranks in the order of priority contemplated in Clause 2.2 ( Transaction Security ).
Conflicting Enforcement Instructions means instructions (or proposed instructions contained in any counterproposal) as to Enforcement delivered to the Security Trustee by or on behalf of the Majority Super Senior Creditors or the Majority Senior Secured Notes Creditors that are inconsistent as to the manner of Enforcement (including any inconsistency as to the timeframe for realising value from an enforcement of the Transaction Security or a Distressed Disposal) with the instructions (or proposed instructions) contained in any Enforcement Proposal delivered under Clause 13.4 ( Enforcement Instructions Consultation Periods ), it being understood that the failure to give instructions by a Representative will not be deemed to be an instruction inconsistent with any other instructions given.
Consent means any consent, approval, release or waiver or agreement to any amendment.
Creditor/Representative Accession Undertaking means:
(a) | an undertaking substantially in the form set out in Schedule 4 ( Form of Creditor/Representative Accession Undertaking ); |
(b) | a Transfer Certificate or an Assignment Agreement (each as defined in the Revolving Facility Agreement); or |
(c) | an Increase Confirmation (as defined in the Revolving Facility Agreement), |
as the context may require, or
(d) | in the case of an acceding Debtor which is expressed to accede as an Intra-Group Lender in the relevant Debtor Accession Deed, that Debtor Accession Deed. |
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Creditors means the Revolving Creditors, the Senior Secured Notes Creditors, the Hedge Counterparties, the Senior Unsecured Notes Creditors and the Intra-Group Lenders.
Debt Document means each of this Agreement, the Hedging Agreements, the Revolving Facility Documents, the Senior Secured Notes Documents, the Senior Unsecured Notes Documents, the Security Documents, any agreement evidencing the terms of the Intra-Group Liabilities or the Subordinated Liabilities and any other document designated as such by the Security Trustee and the Company.
Debtor means each Original Debtor and any person which becomes a Party as a Debtor in accordance with the terms of Clause 19 ( Changes to the Parties ).
Debtor Accession Deed means:
(a) | a deed substantially in the form set out in Schedule 3 ( Form of Debtor Accession Deed ); or |
(b) | (only in the case of a member of the Group which is acceding as a borrower or guarantor under any Revolving Facility Agreement) an Accession Letter (as defined in the Revolving Facility Agreement). |
Debtor Liabilities means, in relation to a member of the Group, any liabilities owed to any Debtor (whether actual or contingent and whether incurred solely or jointly) by that member of the Group.
Debtor Resignation Request means a notice substantially in the form set out in Schedule 5 ( Form of Debtor Resignation Request ).
Default means an Event of Default or any event or circumstance which would (with the expiry of a grace period, the giving of notice or the making of any determination under the Revolving Facility Agreement, the Senior Secured Notes Documents or the Senior Unsecured Notes Documents or any combination of the foregoing) be an Event of Default, provided that any such event or circumstance which requires any determination as to materiality before it becomes an Event of Default shall not be a Default until such determination is made).
Defaulting Lender means a Revolving Lender which is a Defaulting Lender under, and as defined in, a Revolving Facility Agreement.
Delegate means any delegate, agent, attorney or co-trustee appointed by the Security Trustee.
Designated Gross Amount means, in relation to a Multi Account Overdraft Facility, that Multi Account Overdraft Facilitys maximum gross amount.
Designated Net Amount means, in relation to a Multi Account Overdraft Facility, that Multi Account Overdraft Facilitys maximum net amount.
Distress Event means any of:
(a) | an Acceleration Event; or |
(b) | the enforcement of any Transaction Security. |
Distressed Disposal means a disposal of an asset of a member of the Group which is:
(a) | being effected at the request of an Instructing Group in circumstances where the Transaction Security has become enforceable; |
(b) | being effected by enforcement of the Transaction Security; or |
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(c) | being effected, after the occurrence of a Distress Event, by a Debtor to a person or persons which is not a member of the Group. |
Dutch Civil Code means the Dutch Civil Code ( Burgerlijk Wetboek ).
Dutch Debtor means any Debtor incorporated in The Netherlands.
Enforcement means the enforcement of the Transaction Security, the requesting of a Distressed Disposal and/or the release of claims and/or Transaction Security on a Distressed Disposal under Clause 14.2 ( Distressed Disposals ), the giving of instructions as to actions in respect of any Transaction Security following an Insolvency Event under Clause 10.7 ( Security Trustee instructions ) and the taking of any other actions consequential on (or necessary to effect) the enforcement of the Transaction Security.
Enforcement Action means:
(a) | in relation to any Liabilities: |
(i) | the acceleration of any Liabilities or the making of any declaration that any Liabilities are prematurely due and payable (other than as a result of it becoming unlawful for a Revolving Lender to perform its obligations under, or of any voluntary or mandatory prepayment arising under, the Debt Documents); |
(ii) | the making of any declaration that any Liabilities are payable on demand; |
(iii) | the making of a demand in relation to a Liability that is payable on demand; |
(iv) | the making of any demand against any Debtor in relation to any Guarantee Liabilities of that Debtor which are due and payable but unpaid or any demand against any grantor of Transaction Security in relation to any guarantee, indemnity or other assurance against loss in respect of any Liabilities which are due and payable but unpaid; |
(v) | the exercise of any right to require any member of the Group or any grantor of Transaction Security to acquire any Liability (including exercising any put or call option against any member of the Group or any grantor of Transaction Security for the redemption or purchase of any Liability); |
(vi) | the exercise of any right of set off, account combination or payment netting against any Debtor or any grantor of Transaction Security in respect of any Liabilities which are due and payable but unpaid other than the exercise of any such right: |
(A) | as Close Out Netting by a Hedge Counterparty or by a Hedging Ancillary Lender; |
(B) | as Payment Netting by a Hedge Counterparty or by a Hedging Ancillary Lender; |
(C) | as Inter-Hedging Agreement Netting by a Hedge Counterparty; |
(D) | as Inter-Hedging Ancillary Document Netting by a Hedging Ancillary Lender; and |
(E) | which is otherwise expressly permitted under any Revolving Facility Agreement, any Senior Secured Notes Indenture or any Senior Unsecured Notes Indenture to the extent that the exercise of that right gives effect to a Permitted Payment; and |
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(vii) | the suing for, commencing or joining of any legal or arbitration proceedings against any member of the Group or any grantor of Transaction Security to recover any Liabilities; |
(b) | the premature termination or close-out of any hedging transaction under any Hedging Agreement; |
(c) | the taking of any steps to enforce or require the enforcement of any Transaction Security (including the crystallisation of any floating charge forming part of the Transaction Security); |
(d) | the entering into of any composition, compromise, assignment or arrangement with any member of the Group or any grantor of Transaction Security which owes any Liabilities, or has given any Security, guarantee or indemnity or other assurance against loss in respect of the Liabilities (other than any action permitted under Clause 19 ( Changes to the Parties )); or |
(e) | the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, receiver and manager, examiner, administrator or similar officer) in relation to, the winding up, dissolution, administration or reorganisation of any Debtor or any grantor of Transaction Security which owes any Liabilities, or has given any Security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities, or (as the case may be) any of such Debtors or any grantor of Transaction Securitys assets or any suspension of payments or moratorium of any indebtedness of any such Debtor or any grantor of Transaction Security, or any analogous procedure or step in any jurisdiction, |
except that the following shall not constitute Enforcement Action:
(i) | to the extent entitled by law, the taking of any actions against any Creditor (or any agent, trustee or receiver acting on behalf of such Creditor) to challenge the basis on which any sale or disposal is to take place pursuant to the powers granted to such persons under any security documentation; |
(ii) | the taking of any action falling within paragraph (a)(vii) above which is necessary (but only to the extent necessary) to preserve the validity, existence or priority of claims in respect of Liabilities, including the registration of such claims before any court or governmental authority and the bringing, supporting or joining of proceedings to prevent any loss of the right to bring, support or join proceedings by reason of applicable limitation periods; |
(iii) | an Ancillary Lender, Hedge Counterparty or Issuing Bank bringing legal proceedings against any person solely for the purpose of: |
(A) | obtaining injunctive relief (or any analogous remedy outside England and Wales) to restrain any actual or putative breach of any Debt Document to which it is party; |
(B) | obtaining specific performance (other than specific performance of an obligation to make a payment) with no claim for damages; or |
(C) | requesting judicial interpretation of any provision of any Debt Document to which it is party with no claim for damages; |
(iv) |
the taking of any action necessary to create, register or perfect any Transaction Security by any method of perfection (except possession or control or notifying any debtors to direct payments in respect of receivables that are subject to Transaction Security to a creditor (or on its behalf) or directly collecting accounts receivables that are subject to Transaction Security or other payment rights of any member of the |
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Group that are subject to Transaction Security) or the taking of any action necessary to prove, preserve or protect (but not enforce) any Transaction Security; or |
(v) | bringing legal proceedings against any person in connection with any securities violation or common fraud. |
Enforcement Proposal has the meaning given to that expression in Clause 13.4 ( Enforcement Instructions Consultation Periods ).
Euro or EUR means the single currency of Participating Member States of the European Union.
Event of Default means any event or circumstance specified as such in any Revolving Facility Agreement, a Senior Secured Notes Indenture or a Senior Unsecured Notes Indenture.
Final Discharge Date means the later to occur of the Senior Discharge Date, the Non Priority Hedging Discharge Date and the Senior Unsecured Notes Discharge Date.
Financial Adviser means an internationally recognised investment bank or any one of BDO, Deloitte & Touche, Ernst & Young, Grant Thornton, KPMG or PricewaterhouseCoopers or, if it is not practicable for the Security Trustee to appoint any such bank or firm on commercially reasonable terms (including for reasons of conflicts of interest) as determined by the Security Trustee (acting in good faith), another third party professional firm which is regularly engaged in providing valuations in respect of the relevant type of assets (in each case not being the firm appointed as the relevant Debtors administrator or other relevant office holder) selected by the Security Trustee.
Financial Indebtedness has the meaning given to the term Financial Indebtedness in the Original Revolving Facility Agreement in its original form.
French Debtor means any Debtor incorporated under the laws of France.
French Security Document means any Security Document governed by French law.
French Security Interest means any Security governed by French law.
German Security Document means any Security Document governed by German law.
German Security Interest means any Security governed by German law.
Group has the meaning given to the term Group in the Original Revolving Facility Agreement.
Guarantee Liabilities means, in relation to a member of the Group, the liabilities under the Debt Documents (present or future, actual or contingent and whether incurred solely or jointly) it may have to a Creditor, Subordinated Creditor or Debtor as or as a result of its being a guarantor or surety (including, without limitation, liabilities arising by way of guarantee, indemnity, contribution or subrogation and in particular any guarantee or indemnity arising under or in respect of the Revolving Facility Documents, the Senior Secured Notes Documents or the Senior Unsecured Notes Documents).
Hedge Counterparty means:
(a) | the Original Hedge Counterparty; and |
(b) | any other Revolving Lender or any Affiliate of a Revolving Lender or any other bank or financial institution which becomes Party as a Hedge Counterparty pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ). |
Hedge Counterparty Obligations means the obligations owed by any Hedge Counterparty to the Debtors under or in connection with the Hedging Agreements.
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Hedge Transfer means a transfer to the Senior Secured Notes Creditors or the Senior Unsecured Notes Creditors (or to a nominee or nominees of the Senior Secured Notes Creditors or the Senior Unsecured Notes Creditors) of each Hedging Agreement together with:
(a) | all the rights and benefits in respect of the Hedging Liabilities owed by the Debtors to each Hedge Counterparty; and |
(b) | all the Hedge Counterparty Obligations owed by each Hedge Counterparty to the Debtors, |
in accordance with Clause 19.3 ( Change of Hedge Counterparty ) as described in, and subject to, Clause 3.7 ( Hedge Transfer: Purchasing Senior Secured Creditors ) and Clause 6.14 ( Hedge Transfer: Purchasing Senior Unsecured Creditors ) (as applicable).
Hedging Agreement means any master agreement in the form of the 1992 ISDA Master Agreement or 2002 ISDA Master Agreement together with schedule and confirmation or any schedule, confirmation or other agreement incorporating the terms of the 1992 ISDA Master Agreement or the 2002 ISDA Master Agreement and otherwise in accordance with this Agreement entered into or to be entered into by any Debtor and a Hedge Counterparty for the purpose of hedging the exposures of such Debtor permitted by Clause 23.20 ( Treasury Transactions ) of the Original Revolving Facility Agreement.
Hedging Ancillary Document means an Ancillary Document which relates to or evidences the terms of a Hedging Ancillary Facility.
Hedging Ancillary Facility means an Ancillary Facility which is made available by way of a hedging facility.
Hedging Ancillary Lender means an Ancillary Lender to the extent that that Ancillary Lender makes available a Hedging Ancillary Facility.
Hedging Liabilities means the Liabilities owed by any Debtor or any other grantor of Transaction Security to the Hedge Counterparties or any of them under or in connection with the Hedging Agreements.
Hedging Purchase Amount means, in respect of a hedging transaction under a Hedging Agreement, the amount that would be payable to (expressed as a positive number) or by (expressed as a negative number) the relevant Hedge Counterparty on the relevant date if:
(a) | that date was an Early Termination Date (as defined in the relevant ISDA Master Agreement); and |
(b) | the relevant Debtor was the Defaulting Party (under and as defined in the relevant ISDA Master Agreement), |
in each case as certified by the relevant Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement.
Holding Company has the meaning given to the term Holding Company in the Original Revolving Facility Agreement.
Independent Financial Adviser means an investment banking firm, bank, accounting firm or third party appraiser, in any such case, of international standing, provided that such firm is not an Affiliate of the Company.
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Initial Consultation Period has the meaning given to that expression in Clause 13.4 ( Enforcement Instructions Consultation Periods ).
Insolvency Event means, in relation to any Debtor or any grantor of Transaction Security:
(a) | any resolution is passed or order made for the winding up, dissolution, receivership or examinership, administration or reorganisation of that Debtor or that grantor of Transaction Security, a moratorium is declared in relation to any indebtedness of that Debtor or that grantor of Transaction Security or an administrator is appointed to that Debtor or that grantor of Transaction Security; |
(b) | any composition, compromise, assignment or arrangement is made with any of its creditors; |
(c) | the appointment of any liquidator, examiner receiver, receiver and manager, administrator, administrative receiver, compulsory manager or other similar officer in respect of that Debtor or that grantor of Transaction Security or any of its assets; |
(d) | a petition for insolvency proceedings is filed in respect of that Debtor or that grantor of Transaction Security (other than a frivolous or vexatious petition or any petition which is stayed or discharged within 21 days of that Debtor or that grantor of Transaction Security becoming aware of the same); or |
(e) | any analogous procedure or step is taken in any jurisdiction, |
provided that an Insolvency Event will not occur in the case of a solvent liquidation or reorganisation of a Debtor or a grantor of Transaction Security that is permitted under the Revolving Facility Documents and an Insolvency Event will not occur in the case of a solvent liquidation, reorganisation, arrangement, adjustment, proposal or composition of a Debtor or a grantor of Transaction Security that would not result in an Event of Default under the Senior Secured Notes Documents or the Senior Unsecured Notes Documents.
Instructing Group means, at any time (acting through their respective Representatives):
(a) | subject to paragraph (b) below, (i) (before the Revolving Facility Discharge Date) the Majority Revolving Lenders and (before the Senior Secured Notes Discharge Date) the Senior Secured Notes Required Holders (provided that: to the extent that the Senior Secured Notes Trustee is acting on the instructions of the Senior Secured Notes Required Holders in accordance with the terms of the Senior Secured Notes Indenture in respect of a relevant consent, the Senior Secured Notes Trustee will not be required to obtain any further consent from the Senior Secured Notes Required Holders in respect of such decision if such consent is not required by the Senior Secured Notes Indenture) and (ii) (on or after the Senior Discharge Date but before the Final Discharge Date) the Majority Non Priority Creditors; or |
(b) | in relation to instructions with respect to Enforcement (delivered pursuant to paragraph (b) of Clause 13.3 ( Enforcement Instructions )): |
(i) | (before the Senior Discharge Date) the Majority Super Senior Creditors and the Majority Senior Secured Notes Creditors, provided that: |
(A) |
if by the end of any applicable consultation period under paragraphs (b), (c) and (e) of Clause 13.4 ( Enforcement Instructions Consultation Periods ) the Security Trustee has not received any instructions (or proposed instructions contained in any counterproposal) as to Enforcement from the Majority Senior Secured Notes Creditors, then, without prejudice to the right of the Majority Senior Secured Notes Creditors to form the Instructing Group for certain purposes referred to in paragraph (b) of Clause 13.9 ( Alternative Enforcement Actions ) (provided that such Majority Senior |
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Secured Notes Creditors have satisfied themselves (and confirmed in such instructions) that such instructions are consistent with the Security Enforcement Principles), the instructions as to Enforcement from the Majority Super Senior Creditors will prevail (provided that the Majority Super Senior Creditors have satisfied themselves (and confirmed in such instructions) that such instructions are consistent with the Security Enforcement Principles); or |
(B) | if the Security Trustee has received Conflicting Enforcement Instructions then: |
(1) | if the instructions with respect to Enforcement from the Majority Senior Secured Notes Creditors: |
(aa) | are delivered following the completion of any applicable consultation period (as contemplated by paragraphs (b) and (c) of Clause 13.4 ( Enforcement Instructions Consultation Periods )); and |
(bb) | are instructions to enforce or not to enforce the Transaction Security or otherwise require the Distressed Disposal of the Charged Property, it being acknowledged that, subject to the other provisions of this Agreement, the timeframe for the realisation of value from the enforcement of the Transaction Security or Distressed Disposal pursuant to such instructions will be determined by the Majority Senior Secured Notes Creditors, provided further that the Majority Senior Secured Notes Creditors have satisfied themselves (and confirmed in such instructions) that such instructions are consistent with the Security Enforcement Principles, |
then such Enforcement instructions from the Majority Senior Secured Notes Creditors (acting through their respective Representatives) will prevail; and
(2) | in the event that: |
(x) | from the date that is three (3) months after the date that the first Enforcement instructions were issued by the Majority Senior Secured Notes Creditors pursuant to paragraph (b) of Clause 13.3 ( Enforcement Instructions ), no steps have been taken in relation to the commencement of Enforcement of the Transaction Security; or |
(y) | the Super Senior Liabilities have not been fully discharged within six (6) months of the date that the first such Enforcement instructions were issued by the Majority Senior Secured Notes Creditors pursuant to paragraph (b) of Clause 13.3 ( Enforcement Instructions ), |
the instructions with respect to Enforcement from the Majority Super Senior Creditors will prevail provided further that the Majority Super Senior Creditors have satisfied themselves (and confirmed in such instructions) that such instructions are consistent with the Security Enforcement Principles and notwithstanding the
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fact that actions pertaining to Enforcement may be on-going at such time pursuant to instructions previously given by the Majority Senior Secured Notes Creditors; and
(ii) | (on or after the Senior Discharge Date but before the Final Discharge Date) the Majority Non Priority Creditors. |
Intercreditor Amendment means any amendment or waiver which is subject to Clause 25 ( Consents, Amendments and Override ).
Inter-Hedging Agreement Netting means the exercise of any right of set off, account combination, close-out netting or payment netting (whether arising out of a cross agreement netting agreement or otherwise) by a Hedge Counterparty against liabilities owed to a Debtor by that Hedge Counterparty under a Hedging Agreement in respect of Hedging Liabilities owed to that Hedge Counterparty by that Debtor under another Hedging Agreement.
Inter-Hedging Ancillary Document Netting means the exercise of any right of set off, account combination, close-out netting or payment netting (whether arising out of a cross agreement netting agreement or otherwise) by a Hedging Ancillary Lender against liabilities owed to a Debtor by that Hedging Ancillary Lender under a Hedging Ancillary Document in respect of Revolving Creditor Liabilities owed to that Hedging Ancillary Lender by that Debtor under another Hedging Ancillary Document.
Intra-Group Lenders means (i) each Debtor and (ii) each member of the Group which has made a loan available to, granted credit to or made any other financial arrangement having similar effect with a Debtor and which is named in Part 1 of Schedule 2 ( The Intra-Group Lenders ) as an Intra-Group Lender or which becomes a party as an Intra-Group Lender in accordance with the terms of Clause 19 ( Changes to the Parties ).
Intra-Group Liabilities means the Liabilities owed by any Debtor to any of the Intra-Group Lenders.
ISDA Master Agreement means a 1992 ISDA Master Agreement or a 2002 ISDA Master Agreement.
Issuing Bank means each lender that has agreed to be an issuing bank in respect of Letters of Credit under a Revolving Facility Agreement.
Letter of Credit means a letter of credit or other guarantee, indemnity or instrument provided by an Issuing Bank under a Revolving Facility Agreement.
Liabilities means all present and future liabilities and obligations at any time of any Debtor or any grantor of Transaction Security to any Creditor or to any Subordinated Creditor under the Debt Documents, both actual and contingent and whether incurred solely or jointly or in any other capacity together with any of the following matters relating to or arising in respect of those liabilities and obligations:
(a) | any refinancing, novation, deferral or extension; |
(b) | any claim for breach of representation, warranty or undertaking or on an event of default or under any indemnity given under or in connection with any document or agreement evidencing or constituting any other liability or obligation falling within this definition; |
(c) | any claim for damages or restitution; and |
(d) | any claim as a result of any recovery by any Debtor or any grantor of Transaction Security of a Payment on the grounds of preference or otherwise, |
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and any amounts which would be included in any of the above but for any discharge, non-provability, unenforceability or non-allowance of those amounts in any insolvency or other proceedings.
Liabilities Acquisition means, in relation to a person and to any Liabilities, a transaction where that person:
(a) | purchases by way of assignment or transfer; |
(b) | enters into any sub-participation in respect of; or |
(c) | enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of, |
the rights and benefits in respect of those Liabilities.
LMA Facility Agreement means the form of senior multicurrency term and revolving facilities agreement published by the Loan Market Association.
Majority Non Priority Creditors means, at any time, those Non Priority Hedge Counterparties whose Non Priority Credit Participations at any time aggregate more than 50.1 per cent. of the total Non Priority Credit Participations at that time.
Majority Revolving Lenders has the meaning given to the term Majority Lenders in:
(a) | on or prior to the RCF Discharge Date, the Original Revolving Facility Agreement after the application of clause 9.6(d) ( Replacement of a Lender ) of the Original Revolving Facility Agreement; and |
(b) | after the RCF Discharge Date, any other Revolving Facility Agreement after the application of any clause contained in such Revolving Facility Agreement similar in effect to clause 9.6(d) ( Replacement of a Lender ) of the Original Revolving Facility Agreement. |
Majority Senior Creditors means:
(a) | while the aggregate principal amount outstanding under the Revolving Facility Documents is equal to or greater than EUR 20,000,000, the Majority Super Senior Creditors; and |
(b) | at all other times, those Senior Creditors whose Senior Credit Participations at that time aggregate more than 50.1 per cent. of the total Senior Credit Participations at that time. |
Majority Senior Secured Notes Creditors means, at any time, those Senior Secured Notes Creditors whose Senior Secured Credit Participations at that time aggregate more than 50.1 per cent. of the total Senior Secured Credit Participations.
Majority Senior Unsecured Notes Creditors means at any time, those Senior Unsecured Notes Creditors whose Senior Unsecured Credit Participations at that time aggregate more than 50.1 per cent. of the total Senior Unsecured Credit Participations.
Majority Super Senior Creditors means, at any time, those Super Senior Creditors whose Super Senior Credit Participations at that time aggregate more than 66 2 / 3 per cent. of the total Super Senior Credit Participations at that time.
Maximum Priority Hedged Amount means an amount equal to EUR 50,000,000 (or its equivalent in any other currency).
Multi Account Overdraft Facility means an Ancillary Facility which is an overdraft facility comprising more than one account.
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Non Priority Credit Participations means, in relation to a Non Priority Hedge Counterparty, the aggregate of:
(a) | in respect of any hedging transaction of that Non Priority Hedge Counterparty under any Hedging Agreement in respect of Non Priority Hedging Liabilities that has, as of the date the calculation is made, been terminated or closed out in accordance with the terms of this Agreement, the amount, if any, payable to it under any such Hedging Agreement in respect of that termination or close out as of the date of termination or close out (and before taking into account any interest accrued on that amount since the date of termination or close out) to the extent that amount is unpaid (that amount to be certified by the relevant Non Priority Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement); and |
(b) | after the Senior Discharge Date or after an Acceleration Event only, in respect of any hedging transaction of that Non Priority Hedge Counterparty under any Hedging Agreement in respect of Non Priority Hedging Liabilities that has, as of the date the calculation is made, not been terminated or closed out: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement), |
that amount, in each case, to be certified by the relevant Non Priority Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement.
Non Priority Hedge Counterparties means the Hedge Counterparties to the extent they are owed Non Priority Hedging Liabilities.
Non Priority Hedging Discharge Date means the first date on which all Non Priority Hedging Liabilities have been fully and finally discharged to the satisfaction of each Non Priority Hedge Counterparty, whether or not as the result of an enforcement, and the Non Priority Hedge Counterparties are under no further obligation to assume any Hedge Counterparty Obligations to any of the Debtors under the Debt Documents.
Non Priority Hedging Liabilities means the Hedging Liabilities to the extent they are not Priority Hedging Liabilities.
Original Revolving Facility Agreement means the EUR 100,000,000 facilities agreement dated 17 June 2013 (as amended from time to time) between amongst others the Company and Barclays Bank PLC as agent.
Original Senior Secured Notes means the EUR 325,000,000 6% senior notes due 2020 of the Company issued on 3 July 2013, as amended from time to time.
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Other Liabilities means, in relation to a member of the Group, any trading and other liabilities (not being Borrowing Liabilities or Guarantee Liabilities) it may have to the Subordinated Creditor, Intra-Group Lender or Debtor.
Party means a party to this Agreement.
Payment means, in respect of any Liabilities (or any other liabilities or obligations), a payment, prepayment, repayment, redemption, defeasance or discharge of those Liabilities (or other liabilities or obligations).
Payment Netting means:
(a) | in respect of a Hedging Agreement or a Hedging Ancillary Document based on an ISDA Master Agreement, netting under section 2(c) of the relevant ISDA Master Agreement; and |
(b) | in respect of a Hedging Agreement or a Hedging Ancillary Document not based on an ISDA Master Agreement, netting pursuant to any provision of that Hedging Agreement or a Hedging Ancillary Document which has a similar effect to the provision referenced in paragraph (a) above. |
Permitted Gross Amount means, in relation to a Multi Account Overdraft Facility, any amount, not exceeding the Designated Gross Amount, which is the aggregate gross debit balance of overdrafts comprised in that Multi Account Overdraft Facility.
Permitted Hedge Close Out means, in relation to a hedging transaction under a Hedging Agreement, a termination or close out of that hedging transaction which is permitted pursuant to Clause 4.9 ( Permitted Enforcement: Hedge Counterparties ).
Permitted Hedge Payments means the Payments permitted by Clause 4.3 ( Permitted Payments: Hedging Liabilities ).
Permitted Intra-Group Payments means the Payments permitted by Clause 7.2 ( Permitted Payments: Intra-Group Liabilities ).
Permitted Payment means a Permitted Revolving Lender Payment, a Permitted Hedge Payment, a Permitted Senior Secured Notes Payment, a Permitted Senior Unsecured Notes Payment, a Permitted Intra-Group Payment or a Permitted Subordinated Creditor Payment.
Permitted Revolving Lender Payments means the Payments permitted by Clause 3.1 ( Permitted Payment: Revolving Creditor Liabilities ).
Permitted Senior Secured Notes Payments means the Payments permitted by Clause 5.1 ( Permitted Payments: Senior Secured Notes Liabilities ).
Permitted Senior Unsecured Notes Payments means the Payments permitted by Clause 6.3 ( Permitted Payments: Senior Unsecured Notes Liabilities ).
Permitted Subordinated Creditor Payments means the Payments permitted by Clause 8.2 ( Permitted Payments: Subordinated Liabilities ).
Primary Creditors means the Super Senior Creditors, the Senior Secured Notes Creditors, the Non Priority Hedge Counterparties and the Senior Unsecured Notes Creditors.
Priority Creditors means the Super Senior Creditors, the Senior Secured Notes Creditors and the Non Priority Hedge Counterparties.
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Priority Hedge Counterparties means the Hedge Counterparties to the extent they are owed Priority Hedging Liabilities.
Priority Hedging Discharge Date means the first date on which all Priority Hedging Liabilities have been fully and finally discharged to the satisfaction of each Priority Hedge Counterparty, whether or not as the result of an enforcement, and the Priority Hedge Counterparties are under no further obligation to assume any Hedge Counterparty Obligations to any of the Debtors under the Debt Documents.
Priority Hedging Liabilities means all the Hedging Liabilities to the extent they do not exceed the Maximum Priority Hedged Amount and otherwise determined in accordance with Clause 4.14 ( Allocation of Priority Hedging Liabilities ).
Public Auction means an auction or other competitive sale process of shares or other assets, by or on behalf of the Security Trustee pursuant to an enforcement of Transaction Security or by a member of the Group in circumstances that are a Distressed Disposal, the process of such sale or disposal having been conducted as follows:
(a) | prior to the sale or other disposal, the Security Trustee shall, in respect of such auction or other competitive sale process, consult with a Financial Adviser selected by the Security Trustee (acting reasonably) with respect to the procedures which may reasonably be expected to be used to obtain the best price reasonably obtainable in the then prevailing market conditions (taking into account all relevant circumstances and with a view to facilitating a prompt and expeditious sale at the best price reasonably obtainable in the prevailing market conditions although there shall be no obligation to postpone any such sale in order to achieve a higher price); |
(b) | the Security Trustee shall have implemented (to the extent permitted by applicable law) in all material respects the procedures recommended by such Financial Adviser in relation to such auction or process; and |
(c) | the Creditors shall have a right to participate in such auction or process. |
For the purposes of paragraphs (a), (b) and (c) above:
(i) | the Security Trustee shall be entitled (at the cost of the Group) to retain any Financial Adviser as its and/or any of the other Primary Creditors financial adviser to advise and assist in the proposed sale or disposition for such remuneration as the Security Trustee in good faith determines is appropriate for the circumstances; |
(ii) | except as required by applicable law, the Security Trustee shall not have any obligation to any person to engage in or to use reasonable efforts to engage in a listing of any or all of any equity interests the subject of such auction or other competitive sale process, including without limitation if recommended by such Financial Adviser; |
(iii) | by reason of certain prohibitions, or exemptive or safe-harbour provisions from such prohibitions, or other guidance contained in applicable law or regulations of any applicable governmental authority, the Security Trustee may, with respect to any sale of all or any part of such equity interests or assets: |
(A) | limit purchasers to those who meet the requirements of such governmental authority or exemptive or safe-harbour provision (as applicable) and/or make representations and undertakings satisfactory to the Security Trustee relating to compliance with such requirements and/or provisions; and/or |
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(B) | limit purchasers to persons who will agree, among other things to acquire such shares for their own account, for investment and not with a view to the distribution or resale thereof; |
(iv) | the Security Trustee and other Primary Creditors shall not under any circumstances be required to make representations, warranties or undertakings to any actual or proposed purchaser (other than customary representations in a security enforcement as to power to transfer the relevant equity interests or other assets pursuant to the Transaction Security Documents) or to indemnify any actual or proposed purchaser against any costs, liabilities or similar expenses or losses; |
(v) | without limitation to the other circumstances of the sale or other disposition that the Security Trustee and such Financial Adviser may take into consideration, the Security Trustee may (but is not required to) in all circumstances specify that no offer to purchase equity interests or other assets will be entertained unless such offer: |
(A) | is for all (and not some only) of the equity interests or other assets being sold or otherwise disposed of; |
(B) | is for cash consideration payable at closing (and therefore not including, for the avoidance of doubt, any element of deferred consideration) and is not subject to any financing conditions other than customary UK certain funds conditions; and/or |
(C) | contemplates a closing of the sale of the equity interests or other assets in not more than three (3) months (or such longer period as the Security Trustee may specify) from the time of signing of the sale and purchase agreement in respect of such equity interests or other assets; and |
(vi) | a right to participate means any offer, or indication of a potential offer, that a Creditor makes shall be considered by the Security Trustee or such Financial Adviser against the same criteria as any offer, or indication of a potential offer, by any other bidder or potential bidder. For the avoidance of doubt, if after having applied that same criteria, the offer or indication of a potential offer made by a Creditor is not considered by the Security Trustee or such Financial Adviser to be sufficient to continue in the sale or disposal process, such consideration being against the same criteria as any offer, or indication of a potential offer, by any other bidder or potential bidder (such continuation may include being invited to review additional information or being invited to have an opportunity to make a subsequent or revised offer, whether in another round of bidding or otherwise) then the right to participate of that Creditor under this Agreement shall be deemed to be satisfied. |
For the purposes of paragraph (a), such Financial Adviser may be instructed by the Security Trustee to take the limitations set out in sub-paragraphs (i) to (vi) (inclusive) above into account and to formulate recommendations that are consistent with them.
RCF Cash Cover means a Borrower paying an amount in the currency of a Letter of Credit or Ancillary Facility to an interest-bearing account in the name of that Borrower and the following conditions being met:
(a) | the account is with the Security Trustee or the Relevant Issuing Bank or Relevant Ancillary Lender; |
(b) |
until no amount is or may be outstanding under that Letter of Credit or Ancillary Facility, withdrawals from the account may only be made to pay that Relevant Issuing Bank or |
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Relevant Ancillary Lender amounts due and payable to it under the relevant Revolving Facility Agreement in respect of that Letter of Credit or Ancillary Facility; and |
(c) | that Borrower has executed a security document over that account, in form and substance satisfactory to the Security Trustee or Relevant Issuing Bank or Relevant Ancillary Lender with which that account is held, creating a first ranking security interest over that account. |
RCF Discharge Date means the first date on which all the Revolving Creditor Liabilities under the Original Revolving Facility Agreement have been fully and finally discharged to the satisfaction of the Revolving Agent under the Original Revolving Facility Agreement whether or not as a result of an enforcement, and the Revolving Lenders under the Original Revolving Facility Agreement are under no further obligation to provide financial accommodation to any Debtors under the under the Original Revolving Facility Agreement.
Receiver means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.
Recoveries has the meaning given to that term in Clause 15.1 ( Order of Application ).
Relevant Ancillary Lender means, in respect of any RCF Cash Cover, the Ancillary Lender (if any) for which that RCF Cash Cover is provided.
Relevant Issuing Bank means, in respect of any RCF Cash Cover, the Issuing Bank (if any) for which that RCF Cash Cover is provided .
Relevant Liabilities means:
(a) | in the case of a Creditor or Subordinated Creditor: |
(i) | the Liabilities owed to Creditors and Subordinated Creditors ranking (in accordance with the terms of this Agreement) pari passu with or in priority to that Creditor or Subordinated Creditor (as the case may be) together with all Representative Liabilities owed to the Representative of those Creditors; and |
(ii) | all present and future liabilities and obligations, actual and contingent, of the Debtors to the Security Trustee; and |
(b) | in the case of a Debtor or any other grantor of Transaction Security, the Liabilities owed to the Creditors and Subordinated Creditors together with the Representative Liabilities owed to the Representative of those Creditors and all present and future liabilities and obligations, actual and contingent, of the Debtors to the Security Trustee. |
Representative means each Revolving Agent, each Senior Secured Notes Trustee and each Senior Unsecured Notes Trustee.
Representative Liabilities means (as applicable) the Revolving Agent Liabilities, the Senior Secured Notes Trustee Liabilities and the Senior Unsecured Notes Trustee Liabilities.
Retiring Security Trustee has the meaning given to that term in Clause 18 ( Change of Security Trustee and Delegation ).
Revolving Acceleration Event means:
(a) | on or prior to the RCF Discharge Date, the giving of any notice under Clause 24.18 ( Acceleration ) of the Original Revolving Facility Agreement; and |
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(b) | after the RCF Discharge Date, the giving of any notice under the acceleration provisions of any other Revolving Facility Agreement. |
Revolving Agent means the Agent under and as defined in the Revolving Facility Agreement and any agent acting on behalf of the Revolving Lenders only pursuant to a Revolving Facility Document.
Revolving Agent Liabilities means the fees, costs and expenses owed by the Debtors to each Revolving Agent under or in connection with the Revolving Facility Documents (including any amount payable by way of indemnity or to reimburse any such agent for costs and expenses incurred).
Revolving Commitment has the meaning given to the term Commitment in the Original Revolving Facility Agreement and any commitment of any Revolving Lender to make available loans and credit to members of the Group under a Revolving Facility Document.
Revolving Creditor Liabilities means the Liabilities due, owing or incurred by the Debtors and any other grantor of Transaction Security to the Revolving Facility Finance Parties or any of them under or in connection with the Revolving Facility Documents and any refinancings thereof as described in paragraph (a) of Clause 9.3 ( Refinancing of the Revolving Creditor Liabilities ).
Revolving Creditor Liabilities Transfer means a transfer of the Revolving Creditor Liabilities to the Senior Secured Notes Creditors described in Clause 3.6 ( Option to purchase: Senior Secured Notes Creditors ).
Revolving Facility means the super senior multicurrency revolving facility provided by the Revolving Lenders under the Original Revolving Facility Agreement and any revolving facilities or letter of credit made available under any Revolving Facility Agreement.
Revolving Facility Agreement means the Original Revolving Facility Agreement and any other loan agreement pursuant to which Revolving Lenders make loans and other forms of credit available to members of the Group having the same priority and payment ranking as the Revolving Facility made available under the Original Revolving Facility Agreement.
Revolving Facility Cash Collateral means any cash collateral provided by a Revolving Lender to an Issuing Bank under a Revolving Facility Agreement on terms substantially the same as those set out in the LMA Facility Agreement .
Revolving Facility Discharge Date means the first date on which all the Revolving Creditor Liabilities have been fully and finally discharged to the satisfaction of each Revolving Agent whether or not as a result of an enforcement, and the Revolving Lenders are under no further obligation to provide financial accommodation to any Debtors under the Revolving Facility Documents.
Revolving Facility Documents has the meaning given to the term Finance Documents in the Original Revolving Facility Agreement and each document relating to indebtedness permitted by the Debt Documents with the same priority and payment ranking as the Revolving Facility.
Revolving Facility Event of Default means an Event of Default under any Revolving Facility Agreement.
Revolving Facility Finance Parties has the meaning given to the term Finance Parties in the Original Revolving Facility Agreement and any other creditors of the Debtors from time to time under the Revolving Facility Documents.
Revolving Guarantor has the meaning given to the term Guarantor in the Original Revolving Facility Agreement and any other guarantor from time to time of Revolving Creditor Liabilities under the Revolving Facility Documents.
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Revolving Lenders means each Lender (as defined in the Original Revolving Facility Agreement), Issuing Bank and Ancillary Lender and any other lenders from time to time under the Revolving Facility Documents.
Secured Debt Discharge Date means the later to occur of the Revolving Facility Discharge Date, the Priority Hedging Discharge Date, the Senior Secured Notes Discharge Date and the Non Priority Hedging Discharge Date.
Secured Obligations means all the Liabilities and all other present and future obligations at any time due, owing or incurred by each Debtor and by each other grantor of Transaction Security to any Secured Party under the Debt Documents, both actual and contingent and whether incurred solely or jointly and as principal or surety or in any other capacity.
Secured Parties means the Security Trustee, any Receiver or Delegate and the Priority Creditors from time to time but, in the case of each Representative (other than the Senior Unsecured Notes Trustee) or Revolving Lender, only if it is a party to this Agreement or (in the case of a Representative or a Revolving Lender) has acceded to this Agreement, in the appropriate capacity, pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ).
Security means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
Security Documents means:
(a) | each of the Transaction Security Documents; |
(b) | any other document entered into at any time by any of the Debtors or any other grantor of Transaction Security creating any guarantee, indemnity, Security or other assurance against financial loss in favour of any of the Secured Parties as security for any of the Secured Obligations; and |
(c) | any Security granted under any covenant for further assurance in any of the documents set out in paragraphs (a) and (b) above. |
Security Enforcement Objective means maximising, so far as is consistent with prompt and expeditious realisation of value from Enforcement of the Transaction Security, the recovery of all Secured Parties.
Security Enforcement Principles means the principles set out in Schedule 8 ( Security Enforcement Principles ).
Security | Property means: |
(a) | the Transaction Security expressed to be granted in favour of the Security Trustee as trustee for the Secured Parties and all proceeds of that Transaction Security; |
(b) | all obligations expressed to be undertaken by a Debtor or any other grantor of Transaction Security to pay amounts in respect of the Liabilities to the Security Trustee as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by a Debtor or any other grantor of Transaction Security in favour of the Security Trustee as trustee for the Secured Parties; |
(c) | the Security Trustees interest in any trust fund created pursuant to Clause 11 ( Turnover of Receipts ); and |
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(d) | any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Trustee is required by the terms of the Debt Documents to hold as trustee on trust for the Secured Parties. |
Security Trustees Spot Rate of Exchange means, in respect of the conversion of one currency (the First Currency ) into another currency (the Second Currency ) the Security Trustees spot rate of exchange for the purchase of the Second Currency with the First Currency in the London foreign exchange market at or about 11:00 a.m. (London time) on a particular day, which shall be notified by the Security Trustee in accordance with paragraph (d) of Clause 17.12 ( Security Trustees obligations ).
Senior Creditors means the Super Senior Creditors and the Senior Secured Notes Creditors.
Senior Credit Participation means, in relation to a Senior Creditor, the aggregate of:
(a) | its aggregate Revolving Commitments, if any; and |
(b) | in respect of any hedging transaction of that Senior Creditor under any Hedging Agreement that constitutes a Priority Hedging Liability and that has, as of the date the calculation is made, been terminated or closed out in accordance with the terms of this Agreement, the amount, if any, payable to it under any such Hedging Agreement in respect of that termination or close out as of the date of termination or close out (and before taking into account any interest accrued on that amount since the date of termination or close out) to the extent that amount is unpaid (that amount to be certified by the relevant Senior Creditor and as calculated in accordance with the relevant Hedging Agreement); |
(c) | after the later of the Revolving Facility Discharge Date and the Senior Secured Notes Discharge Date or after an Acceleration Event only, in respect of any hedging transaction of that Senior Creditor under any Hedging Agreement that constitutes a Priority Hedging Liability and has, as of the date the calculation is made, not been terminated or closed out: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement), |
that amount, in each case, to be certified by the relevant Senior Creditor and as calculated in accordance with the relevant Hedging Agreement; and
(d) | the aggregate principal amount of the Senior Secured Notes Liabilities owed to that Senior Creditor. |
Senior Discharge Date means the first date on which all Senior Liabilities have been fully and finally discharged to the satisfaction of each Revolving Agent (in the case of the Revolving Creditor Liabilities), each Hedge Counterparty (in the case of its Priority Hedging Liabilities) and each Senior Secured Notes Trustee (in the case of the Senior Secured Notes Liabilities), whether or not as the result
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of an enforcement, and no Hedge Counterparty (in respect of its Priority Hedging Liabilities only) is under any further obligation to assume any Hedge Counterparty Obligations to any Debtor under the Debt Documents and, as applicable, no Senior Creditor is under any further obligations to any Debtors under the Debt Documents.
Senior Guarantors means each member of the Group that is a guarantor under a Revolving Facility Agreement.
Senior Liabilities means the Super Senior Liabilities and the Senior Secured Notes Liabilities.
Senior Secured Creditor Liabilities Transfer means a transfer of the Revolving Creditor Liabilities and Senior Secured Notes Liabilities to the Senior Unsecured Notes Creditors as described in Clause 6.13 ( Option to purchase: Senior Unsecured Notes Creditors ).
Senior Secured Credit Participations means, in relation to a Senior Secured Notes Creditor, the aggregate principal amount of the Senior Secured Notes Liabilities owed to that Senior Secured Notes Creditor.
Senior Secured Debt means the Revolving Creditor Liabilities and/or the Senior Secured Notes Liabilities.
Senior Secured Documents means a Senior Secured Notes Document.
Senior Secured Event of Default means a Revolving Facility Event of Default and/or a Senior Secured Notes Event of Default.
Senior Secured Indenture means a Senior Secured Notes Indenture.
Senior Secured Noteholders means the holders, from time to time, of Senior Secured Notes as determined in accordance with the relevant Senior Secured Notes Indenture.
Senior Secured Notes means the Original Senior Secured Notes and any other notes issued or Liabilities incurred by the Company pursuant to an Additional Senior Secured Debt Instrument (a) which are additional notes issued or Liabilities incurred in compliance with Clause 9 ( New Money and Refinancing ) or (b) the proceeds of which are used to refinance, in whole or in part, any prior issue of Senior Secured Notes.
Senior Secured Notes Acceleration Event means:
(a) | the Senior Secured Notes Trustee (or any of the Senior Secured Noteholders) exercising any rights to accelerate amounts outstanding under the Senior Secured Notes pursuant to any Senior Secured Notes Indenture such that such amounts become immediately due and payable; or |
(b) | any Senior Secured Notes Liabilities becoming due and payable by operation of any automatic acceleration provision contained in a Senior Secured Notes Document. |
Senior Secured Notes Creditors means the Senior Secured Noteholders, each Additional Senior Secured Notes Creditor and each Senior Secured Notes Trustee.
Senior Secured Notes Event of Default means an Event of Default under any Senior Secured Notes Indenture.
Senior Secured Notes Discharge Date means the first date on which all the Senior Secured Notes Liabilities have been fully and finally discharged to the satisfaction of each Senior Secured Notes Trustee whether or not as a result of an enforcement, and the Senior Secured Notes Creditors are under no further obligations to any Debtors under the Senior Secured Notes Documents.
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Senior Secured Notes Documents means each Senior Secured Notes Indenture, the Senior Secured Notes, the Senior Secured Notes Security, the Senior Secured Notes Guarantees and this Agreement.
Senior Secured Notes Guarantees means the guarantees granted in accordance with Clause 5.2 ( Security: Senior Secured Notes Creditors ) in favour of the Senior Secured Notes Creditors.
Senior Secured Notes Guarantors means each member of the Group that is a guarantor under the Senior Secured Notes in accordance with a Senior Secured Notes Indenture and which is a Senior Guarantor (other than, for the avoidance of doubt, the issuer of such Senior Secured Notes).
Senior Secured Notes Indenture means any indenture or other agreement pursuant to which Senior Secured Notes are issued (or any guarantees therefore are given) and includes any Additional Senior Secured Debt Instrument.
Senior Secured Notes Liabilities means the Liabilities due, owing or incurred by the Debtors or any other grantor of Transaction Security to the Senior Secured Notes Creditors or any of them under or in connection with the Senior Secured Notes Documents.
Senior Secured Notes Parameters means the terms and conditions applicable to the Senior Secured Notes set out in Schedule 6, Part I ( Senior Secured Parameters ).
Senior Secured Notes Required Holders means, in respect of any direction, approval, consent or waiver, the Senior Secured Noteholders of the principal amount of Senior Secured Notes required to vote in favour of such direction, approval, consent or waiver under the terms of the Senior Secured Notes Indenture or, if the required amount is not specified, the holders holding at least the majority of the principal amount of the then outstanding Senior Secured Notes, in accordance with the Senior Secured Notes Indenture. For the avoidance of doubt, in determining whether the Senior Secured Noteholders of the required principal amount of the Senior Secured Notes have concurred in any direction, approval, waiver or consent, Senior Secured Notes owned by any Debtor, or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with any Debtor, will be considered as though not outstanding.
Senior Secured Notes Security means the Transaction Security granted in accordance with Clause 5.2(a) ( Security: Senior Secured Notes Creditors ) in favour of the Security Trustee for the benefit of the Senior Secured Notes Creditors.
Senior Secured Notes Trustee Liabilities means fees and expenses owed by, and amounts owed by and/or payable by the Debtors to each Senior Secured Notes Trustee under the Senior Secured Notes Documents including:
(a) | any amounts payable to a Senior Secured Notes Trustee personally by way of indemnity and/or remuneration pursuant to a Senior Secured Notes Indenture (including guarantees of such amounts contained therein) or any other document entered into in connection with the issuance of Senior Secured Notes; |
(b) | compensation for and the fees and expenses of the collection by any Senior Secured Notes Trustee of any amount payable to such Senior Secured Notes Trustee for the benefit of the Senior Secured Noteholders; |
(c) | the costs of any actual or attempted Enforcement Action and any action permitted under paragraph (i) of the exception to the definition of Enforcement Action (in each case, including the fees and expenses of the Senior Secured Notes Trustees agents and counsel); and |
(d) |
amounts to be payable to any paying agent, registrar or any agent, custodian or other person appointed in accordance with the Senior Secured Notes Documents by any Senior Secured Notes Trustee in relation to the Senior Secured Notes and any VAT payable on such amount, |
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provided that , for the avoidance of doubt, Senior Secured Notes Trustee Liabilities shall not include (i) any amount of principal or interest payable in respect of any Senior Secured Notes Document or (ii) costs of bringing any claims, suit or proceeding against any Primary Creditor.
Senior Secured Notes Trustee means the Original Senior Secured Notes Trustee and each Additional Senior Secured Notes Trustee.
Senior Secured Payment Default means (a) (on or prior to the RCF Discharge Date) a Default under clause 24.1 ( Non-payment ) of the Original Revolving Facility Agreement or after the RCF Discharge Date a payment default under any equivalent provision in any other Revolving Facility Agreement and (b) a payment default under a Senior Secured Notes Document in relation to non-payment of (i) principal, interest or fees or (ii) otherwise in an amount exceeding EUR100,000.
Senior Secured Trustee means a Senior Secured Notes Trustee.
Senior Unsecured Credit Participations means, in relation to a Senior Unsecured Notes Creditor, the aggregate principal amount of the Senior Unsecured Notes Liabilities owed to that Senior Unsecured Notes Creditor.
Senior Unsecured Noteholders means the holders, from time to time, of Senior Unsecured Notes, as determined in accordance with the relevant Senior Unsecured Notes Indenture.
Senior Unsecured Notes means any high yield notes issued or to be issued by the Company:
(a) | the terms of which comply with the terms of the Revolving Facility Agreement, the Senior Secured Notes Indenture and this Agreement; |
(b) | which are designated as such by the Company by written notice to each Representative who is a Party at such time; and |
(c) | in respect of which the entity acting as trustee or representative in respect of such notes or instruments at any time has acceded to this Agreement as a Senior Unsecured Notes Trustee pursuant to Clause 19.10 ( Creditor / Representative Accession Undertaking ). |
Senior Unsecured Notes Acceleration Event means:
(a) | the Senior Unsecured Notes Trustee (or any of the Senior Unsecured Noteholders) exercising any rights to accelerate amounts outstanding under the Senior Unsecured Notes pursuant to any Senior Unsecured Notes Indenture such that such amounts become immediately due and payable; or |
(b) | any Senior Unsecured Notes Liabilities becoming due and payable by operation of any automatic acceleration provision contained in a Senior Unsecured Notes Document. |
Senior Unsecured Notes Creditors means the Senior Unsecured Noteholders and each Senior Unsecured Notes Trustee.
Senior Unsecured Notes Default means a Senior Unsecured Notes Event of Default or any event or circumstances which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Senior Unsecured Notes Documents or any combination of the foregoing) be a Senior Unsecured Notes Event of Default, provided that any such event or circumstance which under the terms of the relevant Senior Unsecured Notes Document requires any determination as to materiality before it becomes a Senior Unsecured Notes Event of Default shall not be a Senior Unsecured Notes Default until such determination is made in accordance with the terms of the relevant Senior Unsecured Notes Document).
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Senior Unsecured Notes Discharge Date means the first date on which all Senior Unsecured Notes Liabilities have been fully and finally discharged.
Senior Unsecured Notes Documents means each Senior Unsecured Notes Indenture, the Senior Unsecured Notes, the Senior Unsecured Notes Guarantees in respect of the Senior Unsecured Notes and this Agreement.
Senior Unsecured Notes Enforcement Notice has the meaning given to it in Clause 6.9 ( Permitted Senior Unsecured Notes Guarantee ).
Senior Unsecured Notes Event of Default means an event of default under the relevant Senior Unsecured Notes Indenture.
Senior Unsecured Notes Guarantee means each guarantee by a Senior Unsecured Notes Guarantor of the obligations of the Company under the Senior Unsecured Notes Documents which contains provisions in relation to standstill, payment blockage, subordination and turnover that substantially replicate those provisions of this Agreement relating to each Senior Unsecured Notes Guarantee and which is made expressly subject to the provisions of this Agreement in a legally binding manner.
Senior Unsecured Notes Guarantee Liabilities means the Liabilities due, owing or incurred by any Debtor (other than the Company) to any Senior Unsecured Notes Creditor under or in connection with the Senior Unsecured Notes Documents (in each case, whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently, and whether as principal, surety or otherwise) provided, however, that the definition of Senior Unsecured Notes Guarantee Liabilities shall not include the Senior Unsecured Notes Trustee Liabilities.
Senior Unsecured Notes Guarantors means each member of the Group that is a guarantor under the Senior Unsecured Notes in accordance with a Senior Unsecured Notes Indenture and which is also a Senior Secured Notes Guarantor and a Senior Guarantor (other than, for the avoidance of doubt, the issuer of such Senior Unsecured Notes).
Senior Unsecured Notes Indenture means any indenture or indentures pursuant to which any Senior Unsecured Notes are issued.
Senior Unsecured Notes Issue Date means, in respect of each Senior Unsecured Notes Indenture, the first date on which a Senior Unsecured Note is issued pursuant to that Senior Unsecured Notes Indenture.
Senior Unsecured Notes Issuer Liabilities means the Liabilities due, owing or incurred by the Company to the Senior Unsecured Notes Creditors under or in connection with the Senior Unsecured Notes or the Senior Unsecured Notes Documents.
Senior Unsecured Notes Liabilities means the Liabilities due, owing or incurred by the Debtors to any Senior Unsecured Notes Creditor under or in connection with the Senior Unsecured Notes or the Senior Unsecured Notes Documents, provided, however, that the definition of Senior Unsecured Notes Liabilities shall not include the Senior Unsecured Notes Trustee Liabilities.
Senior Unsecured Notes Outstandings means the principal amount of outstanding Senior Unsecured Notes held by the Senior Unsecured Noteholders.
Senior Unsecured Notes Parameters means the terms and conditions applicable to the Senior Unsecured Notes set out in Schedule 6, Part II ( Senior Unsecured Notes Parameters ).
Senior Unsecured Notes Payment Stop Notice has the meaning given to that term in Clause 6.4 ( Issue of Senior Unsecured Notes Payment Stop Notice ).
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Senior Unsecured Notes Standstill Period has the meaning given to it in Clause 6.10 ( Senior Unsecured Notes Standstill Period ).
Senior Unsecured Notes Trustee means any entity acting as trustee under any issue of Senior Unsecured Notes and which accedes to this Agreement pursuant to Clause 19.10 ( Creditor / Representative Accession Undertaking ).
Senior Unsecured Notes Trustee Liabilities means, fees and expenses owed by, and amounts owed by and/or payable by the Debtors to each Senior Unsecured Notes Trustee under the Senior Unsecured Notes Documents including:
(a) | any amounts payable to a Senior Unsecured Notes Trustee personally by way of indemnity and/or remuneration pursuant to a Senior Unsecured Notes Indenture (including guarantees of such amounts contained therein) or any other document entered into in connection with the issuance of Senior Unsecured Notes; |
(b) | compensation for and the fees and expenses of the collection by any Senior Unsecured Notes Trustee of any amount payable to such Senior Unsecured Notes Trustee for the benefit of the Senior Unsecured Noteholders; |
(c) | the costs of any actual or attempted Enforcement Action and any action permitted under paragraph (i) of the exception to the definition of Enforcement Action (in each case, including the fees and expenses of the Senior Unsecured Notes Trustees agents and counsel); and |
(d) | amounts to be payable to any paying agent, registrar or any agent, custodian or other person appointed in accordance with the Senior Unsecured Notes Documents by any Senior Unsecured Notes Trustee in relation to the Senior Unsecured Notes and any VAT payable on such amount, |
provided that, for the avoidance of doubt, Senior Unsecured Notes Trustee Liabilities shall not include (i) any amount of principal or interest payable in respect of any Senior Unsecured Notes Document or (ii) costs of bringing any claims, suit or proceeding against any Primary Creditor.
Spanish Debtor has the meaning given to that term in Clause 16.14 ( Spanish Guarantee Limitation ).
Subordinated Creditor means:
(a) | a direct or indirect shareholder of the Company or any fund, partnership or other entity managed or controlled by such a shareholder; |
(b) | any person with an interest (direct or indirect) in the shares in the Company; and |
(c) | any joint venture, consortium, partnership or similar arrangement of which any person described in paragraphs (a) or (b) above is a member but excluding any trading company. |
Subordinated Liabilities means all Liabilities owed to any Subordinated Creditor (including, but not limited to, any Financial Indebtedness, dividends or other distributions in respect of share capital).
Subsidiary has the meaning given to the term Subsidiary in the Original Revolving Facility Agreement.
Super Senior Credit Participation means, in relation to a Super Senior Creditor, the aggregate of:
(a) | its aggregate Revolving Commitments, if any; and |
(b) |
in respect of any hedging transaction of that Super Senior Creditor under any Hedging Agreement that constitutes a Priority Hedging Liability and that has, as of the date the |
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calculation is made, been terminated or closed out in accordance with the terms of this Agreement, the amount, if any, payable to it under any such Hedging Agreement in respect of that termination or close out as of the date of termination or close out (and before taking into account any interest accrued on that amount since the date of termination or close out) to the extent that amount is unpaid (that amount to be certified by the relevant Super Senior Creditor and as calculated in accordance with the relevant Hedging Agreement) to the extent that it is a Priority Hedging Liability; and |
(c) | after the later of the Revolving Facility Discharge Date and the Senior Secured Notes Discharge Date only or after an Acceleration Event, in respect of any hedging transaction of that Super Senior Creditor under any Hedging Agreement that constitutes a Priority Hedging Liability and has, as of the date the calculation is made, not been terminated or closed out: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement), |
that amount, in each case, to be certified by the relevant Super Senior Creditor and as calculated in accordance with the relevant Hedging Agreement.
Super Senior Creditors means (a) the Revolving Lenders and (b) the Hedge Counterparties to the extent that they are owed Priority Hedging Liabilities.
Super Senior Discharge Date means the first date on which all the Super Senior Liabilities have been fully and finally discharged to the satisfaction of each Revolving Agent (in the case of the Revolving Creditor Liabilities) and each relevant Hedge Counterparty (in the case of its Priority Hedge Liabilities) whether or not as a result of enforcement, and the Super Senior Creditors are under no further obligation to provide financial accommodation to any Debtors under Revolving Facility Documents or (as applicable) no further obligation to assume any Hedge Counterparty Obligations to any of the Debtors under the Debt Documents.
Super Senior Liabilities means the Revolving Creditor Liabilities and the Priority Hedging Liabilities.
TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
TARGET Day means any day on which TARGET2 is open for the settlement of payments in Euro.
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
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Transaction Security means the Security created or evidenced or expressed to be created or evidenced under or pursuant to the Security Documents.
Transaction Security Documents means each of the documents listed in Schedule 7 ( Transaction Security Documents ) together with any other document entered into by any person creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Debtors under any of the Revolving Facility Documents or the Senior Secured Notes Documents.
VAT means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature.
1.2 | Construction |
(a) | Unless a contrary indication appears, a reference in this Agreement to: |
(i) | any Ancillary Lender , Creditor , Debtor , Hedge Counterparty , Intra-Group Lender , Issuing Bank , Original Senior Secured Notes Trustee , Party , Primary Creditor , Representative , Revolving Agent , Revolving Guarantor , Revolving Lender , Senior Creditor , Security Trustee , Senior Secured Noteholder , Senior Secured Notes Creditor , Senior Secured Notes Trustee , Senior Unsecured Notes Creditor , Senior Unsecured Noteholder , Senior Unsecured Notes Trustee or Subordinated Creditor shall be construed to be a reference to it in its capacity as such and not in any other capacity; |
(ii) | any Ancillary Lender , Creditor , Debtor , Hedge Counterparty , Intra-Group Lender , Issuing Bank , Original Senior Secured Notes Trustee , Party , Primary Creditor , Representative , Revolving Agent , Revolving Guarantor , Revolving Lender , Senior Creditor , Security Trustee , Senior Secured Noteholder , Senior Secured Notes Creditor , Senior Secured Notes Trustee , Senior Unsecured Notes Creditor , Senior Unsecured Noteholder , Senior Unsecured Notes Trustee or Subordinated Creditor or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Security Trustee, any person for the time being appointed as Security Trustee or Security Trustees in accordance with this Agreement; |
(iii) | assets includes present and future properties, revenues and rights of every description; |
(iv) | a Debt Document or any other agreement or instrument is (other than a reference to a Debt Document or any other agreement or instrument in original form ) a reference to that Debt Document, or other agreement or instrument, as amended, novated, supplemented, extended or restated as permitted by this Agreement; |
(v) | enforcing (or any derivation) the Transaction Security shall include the appointment of an administrator of a Debtor by the Security Trustee; |
(vi) | indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; |
(vii) | the original form of a Debt Document or any other agreement or instrument is a reference to that Debt Document, agreement or instrument as originally entered into; |
(viii) | a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality); |
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(ix) | a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation; |
(x) | a provision of law is a reference to that provision as amended or re-enacted; and |
(xi) | the plural imports the singular and vice versa. |
(b) | Section, Clause and Schedule headings are for ease of reference only. |
(c) | An Event of Default is continuing if it has not been remedied or waived. |
(d) | References to a Senior Secured Notes Trustee acting on behalf of the relevant Senior Secured Notes Creditors shall be to such Senior Secured Notes Trustee acting on behalf of the Senior Secured Notes Creditors for which it has been appointed as agent or trustee. |
(e) | References to a Senior Secured Notes Trustee acting on behalf of the Senior Secured Noteholders mean such Senior Secured Notes Trustee acting on behalf of the Senior Secured Noteholders which it represents or, if applicable, with the consent of the requisite number of Senior Secured Noteholders required under and in accordance with the applicable Senior Secured Notes Indenture. A Senior Secured Notes Trustee will be entitled to seek instruction from the Senior Secured Noteholders which it represents to the extent required by the applicable Senior Secured Notes Indenture as to any action to be taken by it under this Agreement. |
(f) | References to a Senior Unsecured Notes Trustee acting on behalf of the relevant Senior Unsecured Notes Creditors shall be to such Senior Unsecured Notes Trustee acting on behalf of the Senior Unsecured Notes Creditors for which it has been appointed as agent or trustee. |
(g) | References to a Senior Unsecured Notes Trustee acting on behalf of the Senior Unsecured Noteholders mean such Senior Unsecured Notes Trustee acting on behalf of the Senior Unsecured Noteholders which it represents or, if applicable, with the consent of the requisite number of Senior Unsecured Noteholders required under and in accordance with the applicable Senior Unsecured Notes Indenture. A Senior Unsecured Notes Trustee will be entitled to seek instruction from the Senior Unsecured Noteholders which it represents to the extent required by the applicable Senior Unsecured Notes Indenture as to any action to be taken by it under this Agreement. |
(h) | Dutch Terms |
In this Agreement, where it relates to a Dutch entity, a reference to:
(i) | a winding-up, administration or dissolution includes a Dutch entity being: |
(A) | declared bankrupt ( failliet verklaard ); |
(B) | dissolved ( ontbonden ); |
(ii) | a moratorium includes ( voorlopige ) surséance van betaling and granted a moratorium includes ( voorlopige ) surséance van betaling verleend ; |
(iii) | a trustee in bankruptcy includes a curator ; |
(iv) | an administrator includes a bewindvoerde r; and |
(v) | a Receiver or an administrative receiver does not include a curator or bewindvoerder. |
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(i) | Spanish Terms |
In accordance with article 402 of the Spanish Royal Legislative Decree 1/2010, of July 2, approving the consolidated text of the Corporate Enterprises Act ( Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital ) a Spanish Debtor which is a limited liability company (s ociedad de responsabilidad limitada ) cannot issue or secure the issue of notes or other securities such as the Senior Secured Notes, the Senior Secured Notes Guarantees, the Senior Unsecured Notes and the Senior Unsecured Notes Guarantees. Thus, the provisions of this Agreement, in the event that they may relate to the obligations of a Spanish Debtor that is a limited liability company (s ociedad de responsabilidad limitada ), shall be construed accordingly.
1.3 | Third Party Rights |
(a) | Unless expressly provided to the contrary in this Agreement, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Rights Act ) to enforce or to enjoy the benefit of any term of this Agreement. |
(b) | Notwithstanding any term of this Agreement, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. |
(c) | Any Receiver, Delegate or any other person described in Clause 17.15 ( No proceedings ) may, subject to this Clause 1.3 and the Third Parties Rights Act, rely on any Clause of this Agreement which expressly confers rights on it. |
2. | RANKING AND PRIORITY |
2.1 | Primary Creditor Liabilities |
Each of the Parties agrees that the Liabilities owed by each Debtor and each other grantor of Transaction Security to the Primary Creditors shall rank in right and priority of payment in the following order and are postponed and subordinated to any prior ranking Liabilities as follows:
(a) | first , the Revolving Creditor Liabilities, the Priority Hedging Liabilities, the Senior Secured Notes Liabilities, the Senior Unsecured Notes Trustee Liabilities and the Senior Unsecured Notes Issuer Liabilities pari passu and without any preference between them; |
(b) | second , the Non Priority Hedging Liabilities; and |
(c) | third , the Senior Unsecured Notes Guarantee Liabilities pari passu between themselves and without any preference between them; and |
2.2 | Transaction Security |
(a) | Each of the Parties agrees that the Transaction Security shall rank and secure the following Liabilities (but only to the extent that such Transaction Security is expressed to secure those Liabilities) in the following order: |
(i) | first , the Revolving Agent Liabilities and the Senior Secured Notes Trustee Liabilities pari passu and without any preference between them; |
(ii) | second , the Revolving Creditor Liabilities (other than the Revolving Agent Liabilities) and the Priority Hedging Liabilities pari passu and without any preference between them; |
(iii) | third , the Senior Secured Notes Liabilities (other than the Senior Secured Notes Trustee Liabilities); and |
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(iv) | fourth , the Non Priority Hedging Liabilities, |
and that in any event (irrespective of the manner in which such Transaction Security is constituted) all proceeds of the Transaction Security shall be applied in accordance with Clause 15.1 ( Order of application ).
(b) | The Senior Unsecured Notes Liabilities and the Subordinated Liabilities shall not be secured by any of the Transaction Security. |
2.3 | Subordinated and Intra-Group Liabilities |
(a) | Each of the Parties agrees that the Subordinated Liabilities and the Intra-Group Liabilities are postponed and subordinated to the Liabilities owed by the Debtors and any other grantor of Transaction Security to the Primary Creditors. |
(b) | This Agreement does not purport to rank any of the Subordinated Liabilities or the Intra-Group Liabilities as between themselves. |
3. | REVOLVING LENDERS AND REVOLVING CREDITOR LIABILITIES |
3.1 | Permitted Payments: Revolving Creditor Liabilities |
(a) | Prior to the occurrence of an Acceleration Event, the members of the Group may make Payments in respect of the Revolving Creditor Liabilities at any time in accordance with the terms of the Revolving Facility Documents. |
(b) | Following the occurrence of an Acceleration Event, no member of the Group may make Payment of the Revolving Creditor Liabilities except from Recoveries distributed in accordance with Clause 15 ( Application of Proceeds ) or as agreed by the Senior Secured Notes Trustee(s), provided that: |
(i) | for the avoidance of doubt, unless any such Payment constitutes proceeds referred to in Clause 11.2 ( Turnover by the Creditors ), it shall not be required to be turned over by any Revolving Lenders under Clause 11.2 ( Turnover by the Creditors ); |
(ii) | the Payment prohibited by this paragraph (b) will remain owing by the relevant Debtor(s); and |
(iii) | nothing in this paragraph (b) shall prevent a Revolving Lender from receiving any Payment of any Revolving Creditor Liabilities from a liquidator (or equivalent) of a Debtor (subject to any applicable turnover obligation under Clause 11.2 ( Turnover by the Creditors )). |
3.2 | Security: Revolving Lenders |
Other than as set out in Clause 3.3 ( Security: Ancillary Lenders and Issuing Banks ), the Revolving Lenders may take, accept or receive the benefit of:
(a) | any Security in respect of the Revolving Creditor Liabilities in addition to the Transaction Security described in Schedule 7 ( Transaction Security Documents ) and the Common Transaction Security if (except for any Security permitted under Clause 3.3 ( Security: Ancillary Lenders and Issuing Banks )), but only to the extent legally possible, at the same time it is also offered either: |
(i) | to the Security Trustee as trustee for the other Secured Parties in respect of their Liabilities; or |
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(ii) | in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Trustee as trustee for the Secured Parties: |
(A) | to the other Secured Parties in respect of their Liabilities; or |
(B) | to the Security Trustee under a parallel debt structure for the benefit of the other Secured Parties, |
and ranks in the same order of priority as that contemplated in Clause 2.2 ( Transaction Security ); and
(b) | any guarantee, indemnity or other assurance against loss in respect of the Revolving Creditor Liabilities in addition to those contained in: |
(i) | the Original Revolving Facility Agreement (in its form on the date of this Agreement) (or any other Revolving Facility Agreement entered into in accordance with this Agreement); |
(ii) | this Agreement; or |
(iii) | any Common Assurance, |
if (except for any guarantee, indemnity or other assurance against loss permitted under Clause 3.3 ( Security: Ancillary Lenders and Issuing Banks )), but only to the extent legally possible, at the same time it is also offered to the other Secured Parties in respect of their Liabilities and ranks in the same order of priority as that contemplated in Clause 2 ( Ranking and Priority ).
For the avoidance of doubt, this Clause 3.2 shall not prohibit the Revolving Lenders from taking, accepting or receiving the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Revolving Creditor Liabilities if the same is not capable of being granted in support of some or all of the Liabilities of the other Secured Parties.
3.3 | Security: Ancillary Lenders and Issuing Banks |
No Ancillary Lender or Issuing Bank will, unless the prior consent of the Majority Super Senior Creditors is obtained, take, accept or receive from any member of the Group the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities owed to it other than:
(a) | the Transaction Security described in Schedule 7 ( Transaction Security Documents ) and the Common Transaction Security; |
(b) | each guarantee, indemnity or other assurance against loss contained in: |
(i) | the Original Revolving Facility Agreement (in its form on the date of this Agreement) (or any other Revolving Facility Agreement entered into in accordance with this Agreement); |
(ii) | this Agreement; or |
(iii) | any Common Assurance; |
(c) | indemnities and assurances against loss contained in the Ancillary Documents no greater in extent than any of those referred to in paragraph (b) above (ignoring for this purpose differences arising as a result of guarantee limitation language); |
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(d) | any RCF Cash Cover permitted under any Revolving Facility Agreement relating to any Ancillary Facility or for any Letter of Credit issued by an Issuing Bank; |
(e) | the indemnities contained in an ISDA Master Agreement (in the case of a Hedging Ancillary Document which is based on an ISDA Master Agreement) or any indemnities which are similar in meaning and effect to those indemnities (in the case of a Hedging Ancillary Document which is not based on an ISDA Master Agreement); or |
(f) | any Security, guarantee, indemnity or other assurance against loss giving effect to, or arising as a result of the effect of, any netting or set off arrangement relating to the Ancillary Facilities for the purpose of netting debit and credit balances arising under the Ancillary Facilities. |
3.4 | Restriction on Enforcement: Ancillary Lenders and Issuing Banks |
Subject to Clause 3.5 ( Permitted Enforcement: Ancillary Lenders and Issuing Banks ), so long as any of the Senior Liabilities (other than any Liabilities owed to the Ancillary Lenders or Issuing Banks) are or may be outstanding, none of the Ancillary Lenders nor the Issuing Banks shall be entitled to take any Enforcement Action in respect of any of the Liabilities owed to it in its capacity as Ancillary Lender or Issuing Bank.
3.5 | Permitted Enforcement: Ancillary Lenders and Issuing Banks |
(a) | The Ancillary Lenders and Issuing Banks may take Enforcement Action if: |
(i) | at the same time as, or prior to, that action, Enforcement Action has been taken in respect of the Revolving Creditor Liabilities (excluding the Liabilities owing to Ancillary Lenders and the Issuing Banks), in which case the Ancillary Lenders and the Issuing Banks may take the same Enforcement Action as has been taken in respect of those Revolving Creditor Liabilities; |
(ii) | that action is contemplated by any Revolving Facility Agreement or Clause 3.3 ( Security: Ancillary Lenders and Issuing Banks ); |
(iii) | that Enforcement Action is taken in respect of RCF Cash Cover which has been provided in accordance with any Revolving Facility Agreement; |
(iv) | at the same time as or prior to, that action, the consent of the Majority Senior Creditors to that Enforcement Action is obtained; or |
(v) | an Insolvency Event has occurred in relation to any member of the Group, in which case after the occurrence of that Insolvency Event, each Ancillary Lender and each Issuing Bank shall be entitled (if it has not already done so) to exercise any right it may otherwise have in respect of that member of the Group to: |
(A) | accelerate any of that member of the Groups Revolving Creditor Liabilities owing to it or declare them prematurely due and payable on demand; |
(B) | make a demand under any guarantee, indemnity or other assurance against loss given by that member of the Group in respect of any Revolving Creditor Liabilities for its benefit; |
(C) | exercise any right of set off or take or receive any Payment in respect of any Revolving Creditor Liabilities of that member of the Group owing to it; or |
(D) | claim and prove in the liquidation of that member of the Group for the Revolving Creditor Liabilities owing to it. |
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(b) | Clause 3.4 ( Restriction on Enforcement: Ancillary Lenders and Issuing Banks ) shall not restrict any right of an Ancillary Lender to net or set off in relation to a Multi Account Overdraft Facility, in accordance with the terms of any Revolving Facility Agreement, to the extent that the netting or set off represents a reduction from a Permitted Gross Amount of that Multi Account Overdraft Facility to or towards its Designated Net Amount. |
3.6 | Option to purchase: Senior Secured Notes Creditors |
(a) | After a Distress Event, one or more of the Senior Secured Notes Trustee(s) may at the direction and expense of one or more of the Senior Secured Notes Creditors (the Purchasing Senior Secured Creditors ), if: |
(i) | after all such Senior Secured Notes Creditors have been given the opportunity to so participate; and |
(ii) | the Senior Secured Notes Trustee gives not less than ten days prior written notice to the Security Trustee, |
require the transfer to them (or to a nominee or nominees), in accordance with clause 25.2 ( Conditions of assignment or transfer ) of the Revolving Facility Agreement, of all, but not part, of the rights, benefits and obligations in respect of the Revolving Creditor Liabilities if:
(i) | that transfer is lawful and, subject to paragraph (ii) below, otherwise permitted by the terms of the Revolving Facility Agreement; |
(ii) | any conditions relating to such a transfer contained in the Revolving Facility Agreement are complied with, other than any requirement to obtain the Consent of, or consult with, a Debtor relating to such transfer, which Consent or consultation shall not be required; |
(iii) | the Revolving Agent, on behalf of the Revolving Lenders, is paid an amount equal to the aggregate of: |
(A) | all of the Revolving Creditor Liabilities at that time (whether or not due), including all amounts that would have been payable under the Revolving Facility Agreement if the Revolving Facility were being prepaid by the relevant Debtors on the date of that payment; and |
(B) | all costs and expenses (including legal fees) incurred by the Revolving Agent and/or the Revolving Lenders and/or the Security Trustee as a consequence of giving effect to that transfer; |
(iv) | as a result of that transfer, the Revolving Lenders have no further actual or contingent liability to a Debtor under the relevant Debt Documents; |
(v) | an indemnity is provided from each Purchasing Senior Secured Creditor or from another third party acceptable to all the Revolving Lenders in a form reasonably satisfactory to each Revolving Lender in respect of all losses which may be sustained or incurred by any Revolving Lender in consequence of any sum received or recovered by any Revolving Lender from any person being required (or it being alleged that it is required) to be paid back by or clawed back from any Revolving Lender for any reason; |
(vi) |
the transfer is made without recourse to, or representation or warranty from, the Revolving Lenders, except that each Revolving Lender shall be deemed to have represented and warranted on the date of that transfer that it has the corporate power |
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to effect that transfer and it has taken all necessary action to authorise the making by it of that transfer; and |
(vii) | the Senior Unsecured Notes Creditors have not exercised their rights under Clause 6.13 ( Option to purchase: Senior Unsecured Notes Creditors ) or, having exercised such rights, have failed to complete the acquisition of the Revolving Creditor Liabilities and Senior Secured Notes Liabilities in accordance with Clause 6.13 |
( Option to purchase: Senior Unsecured Notes Creditors ).
(b) | Subject to paragraph (b) of Clause 3.7 ( Hedge Transfer: Purchasing Senior Secured Creditors ) the Purchasing Senior Secured Creditors may only require a Revolving Creditor Liabilities Transfer if, at the same time, they require a Hedge Transfer in accordance with Clause 3.7 ( Hedge Transfer: Purchasing Senior Secured Creditors ) and if, for any reason, a Hedge Transfer cannot be made in accordance with Clause 3.7 ( Hedge Transfer: Purchasing Senior Secured Creditors ), no Revolving Creditor Liabilities Transfer may be required to be made. |
(c) | The Revolving Agent shall, at the request of the Purchasing Senior Secured Creditors notify the Purchasing Senior Secured Creditors of the sum of the amounts described in paragraphs (a)(iii)(A) and (a)(iii)(B) above. |
(d) | If more than one Purchasing Senior Secured Creditor wishes to require a Revolving Creditor Liabilities Transfer in accordance with paragraph (a) above, each such Purchasing Senior Secured Creditor shall acquire the Revolving Creditor Liabilities pro rata, in the proportion that its credit participation bears to the aggregate credit participations of all the Purchasing Senior Secured Creditors. Any Purchasing Senior Secured Creditors wishing to require a Revolving Creditor Liabilities Transfer shall inform the Senior Secured Notes Trustee in accordance with the terms of the Senior Secured Notes Indenture, who will determine (consulting with each other as required) the appropriate share of the Revolving Creditor Liabilities to be acquired by each such Purchasing Senior Secured Creditor and who shall inform each such Purchasing Senior Secured Creditor accordingly. Furthermore, the Senior Secured Notes Trustee shall promptly inform the Revolving Agent of the Purchasing Senior Secured Creditors intention to require the transfer of the Revolving Creditor Liabilities. |
3.7 | Hedge Transfer: Purchasing Senior Secured Creditors |
(a) | The Purchasing Senior Secured Creditors may, by giving not less than ten days notice to the Security Trustee, require, at the same time as a Revolving Creditor Liabilities Transfer under Clause 3.6 ( Option to purchase: Senior Secured Notes Creditors ), a Hedge Transfer and if: |
(i) | that transfer is lawful and otherwise permitted by the terms of the Hedging Agreements in which case no Debtor or other member of the Group shall be entitled to withhold its Consent to that transfer; |
(ii) | any conditions (other than the Consent of, or any consultation with, any Debtor or other member of the Group) relating to that transfer contained in the Hedging Agreements are complied with; |
(iii) | each Hedge Counterparty is paid (in the case of a positive number) or pays (in the case of a negative number) an amount equal to the aggregate of (I) the Hedging Purchase Amount in respect of the hedging transactions under the relevant Hedging Agreement at that time and (II) all costs and expenses (including legal fees) incurred by such Hedge Counterparty as a consequence of giving effect to that transfer; |
(iv) | as a result of that transfer, the Hedge Counterparties have no further actual or contingent liability to any Debtor under the Hedging Agreements; |
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(v) | an indemnity is provided from each Purchasing Senior Secured Creditor which is receiving (or for which a nominee is receiving) that transfer (or from another third party acceptable to the relevant Hedge Counterparty) in a form reasonably satisfactory to the relevant Hedge Counterparty in respect of all losses which may be sustained or incurred by that Hedge Counterparty in consequence of any sum received or recovered by that Hedge Counterparty being required (or it being alleged that it is required) to be paid back by or clawed back from the Hedge Counterparty for any reason; |
(vi) | that transfer is made without recourse to, or representation or warranty from, the relevant Hedge Counterparty, except that the relevant Hedge Counterparty shall be deemed to have represented and warranted on the date of that transfer that it has the corporate power to effect that transfer and it has taken all necessary action to authorise the making by it of that transfer; and |
(vii) | the Senior Unsecured Notes Creditors have not exercised their rights under Clause 6.14 ( Hedge Transfer: Purchasing Senior Unsecured Creditors ) or, having exercised such rights, have failed to complete the Hedge Transfer concerned in accordance with Clause 6.14 ( Hedge Transfer: Purchasing Senior Unsecured Creditors ). |
(b) |
The Purchasing Senior Secured Creditors (acting as a whole) and any Hedge Counterparty may agree (in respect of the Hedging Agreements (or one or more of them) to which
that Hedge Counterparty is a party) that a Hedge Transfer required by all the Purchasing Senior Secured Creditors (acting as a whole) pursuant to paragraph (a) above shall not apply to that Hedging Agreement(s) or to the Hedging Liabilities and
Hedge Counterparty Obligations under that Hedging
Agreement(s). |
(c) | If more than one Purchasing Senior Secured Creditor wishes to require a Hedge Transfer in accordance with paragraph (a) above, each such Purchasing Senior Secured Creditor shall acquire the relevant Hedging Liabilities pro rata, in the proportion that its credit participation bears to the aggregate credit participations of all the Purchasing Senior Secured Creditors. Any Purchasing Senior Secured Creditors wishing to require a Hedge Transfer shall inform the Senior Secured Notes Trustee in accordance with the terms of the Senior Secured Notes Indenture, who will determine (consulting with each other as required) the appropriate share of the relevant Hedging Liabilities to be acquired by each such Purchasing Senior Secured Creditor and who shall inform each such Purchasing Senior Secured Creditor accordingly. Furthermore, the Senior Secured Notes Trustee shall promptly inform the relevant Hedge Counterparty(ies) of the Purchasing Senior Secured Creditors intention to require the Hedge Transfer. |
3.8 | Option to Purchase: Senior Secured Notes Trustee |
For the purposes of Clause 3.6 ( Option to purchase: Senior Secured Notes Creditor ) and 3.7 ( Hedge Transfer: Purchasing Senior Secured Creditors ), the term Senior Secured Notes Creditors shall not include a Senior Secured Notes Trustee.
4. | HEDGE COUNTERPARTIES AND HEDGING LIABILITIES |
4.1 | Identity of Hedge Counterparties |
(a) | Subject to paragraph (b) below, no person providing hedging arrangements to any Debtor shall be entitled to share in any of the Transaction Security or in the benefit of any guarantee or indemnity in respect of any of the liabilities arising in relation to those hedging arrangements nor shall those liabilities be treated as Hedging Liabilities unless that person is or becomes a party to this Agreement as a Hedge Counterparty. |
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(b) | Paragraph (a) above shall not apply to a Hedging Ancillary Lender. |
4.2 | Restriction on Payment: Hedging Liabilities |
The Debtors shall not, and shall procure that no other member of the Group will, make any Payment of the Hedging Liabilities at any time unless:
(a) | that Payment is permitted under Clause 4.3 ( Permitted Payments: Hedging Liabilities ); or |
(b) | the taking or receipt of that Payment is permitted under paragraph (c) of Clause 4.9 ( Permitted Enforcement: Hedge Counterparties ). |
4.3 | Permitted Payments: Hedging Liabilities |
(a) | Subject to paragraph (b) below, the Debtors may make Payments to any Hedge Counterparty in respect of the Hedging Liabilities then due to that Hedge Counterparty under any Hedging Agreement in accordance with the terms of that Hedging Agreement: |
(i) | if the Payment is a scheduled Payment arising under the relevant Hedging Agreement; |
(ii) | to the extent that the relevant Debtors obligation to make the Payment arises as a result of the operation of: |
(A) | any of sections 2(d) ( Deduction or Withholding for Tax ), 2(e) ( Default Interest; Other Amounts ), 8(a) ( Payment in the Contractual Currency ), 8(b) ( Judgments ) and 11 ( Expenses ) of the 1992 ISDA Master Agreement (if the Hedging Agreement is based on a 1992 ISDA Master Agreement); |
(B) | any of sections 2(d) (Deduction or Withholding for Tax ), 8(a) ( Payment in the Contractual Currency ), 8(b) (Judgments ), 9(h)(i) ( Prior to Early Termination ) and 11 ( Expenses ) of the 2002 ISDA Master Agreement (if the Hedging Agreement is based on a 2002 ISDA Master Agreement); or |
(C) | any provision of a Hedging Agreement which is similar in meaning and effect to any provision listed in paragraphs (A) or (B) above (if the Hedging Agreement is not based on an ISDA Master Agreement); |
(iii) | to the extent that the relevant Debtors obligation to make the Payment arises from a Permitted Hedge Close Out; or |
(iv) | subject to Clause 4.13 ( On or after relevant Discharge Date ), if the Majority Senior Creditors give prior consent to the Payment being made. |
(b) | No Payment may be made to a Hedge Counterparty under paragraph (a) above if: |
(i) | any scheduled Payment due from that Hedge Counterparty to a Debtor under a Hedging Agreement to which they are both party is due and unpaid (unless such scheduled Payment has not been made by the Hedge Counterparty as a result of it exercising its rights to withhold payments under the ISDA Master Agreement); or |
(ii) | an Acceleration Event has occurred, except from Recoveries distributed in accordance with Clause 15 ( Application of Proceeds ) or as agreed by the Revolving Agent and the Senior Secured Notes Trustee(s), provided that: |
(A) |
for the avoidance of doubt, unless any such Payment constitutes proceeds referred to in Clause 11.2 ( Turnover by the Creditors ), it shall not be |
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required to be turned over by any Hedge Counterparty under Clause 11.2 ( Turnover by the Creditors ); |
(B) | the Payment prohibited by this paragraph (b)(ii) will remain owing by the relevant Debtor(s); and |
(C) | nothing in this paragraph (b)(ii) shall prevent a Hedge Counterparty from receiving any Payment of any Hedging Liabilities from a liquidator (or equivalent) of a Debtor (subject to any applicable turnover obligation under Clause 11.2 ( Turnover by the Creditors )). |
(c) | Failure by a Debtor to make a Payment to a Hedge Counterparty which results solely from the operation of paragraph (b) above shall, without prejudice to Clause 4.4 ( Payment obligations continue ), not result in a default (however described) in respect of that Debtor under that Hedging Agreement. |
4.4 | Payment obligations continue |
No Debtor shall be released from the liability to make any Payment (including of default interest, which shall continue to accrue) under any Debt Document by the operation of Clauses 4.2 ( Restriction on Payment: Hedging Liabilities ) and 4.3 ( Permitted Payments: Hedging Liabilities ) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses.
4.5 | No acquisition of Hedging Liabilities |
The Debtors shall not, and shall procure that no other member of the Group will:
(a) | enter into any Liabilities Acquisition; or |
(b) | beneficially own all or any part of the share capital of a company that is party to a Liabilities Acquisition, |
in respect of any of the Hedging Liabilities unless, subject to Clause 4.13 ( On or after relevant Discharge Date ), the prior consent of the Majority Senior Creditors and the relevant Hedge Counterparty is obtained.
4.6 | Amendments and Waivers: Hedging Agreements |
(a) | Subject to paragraph (b) below, the Hedge Counterparties may not, at any time, amend or waive any term of the Hedging Agreements. |
(b) | A Hedge Counterparty may amend or waive any term of a Hedging Agreement in accordance with the terms of that Hedging Agreement if that amendment or waiver does not breach another term of this Agreement. |
4.7 | Security: Hedge Counterparties |
The Hedge Counterparties may not take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss from any member of the Group in respect of the Hedging Liabilities other than:
(a) | the Transaction Security described in Schedule 7 ( Transaction Security Documents ) and the Common Transaction Security; |
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(b) | any guarantee, indemnity or other assurance against loss contained in: |
(i) | this Agreement or the Original Revolving Facility Agreement (in its form on the date of this Agreement) (or any other Revolving Facility Agreement entered into in accordance with this Agreement); |
(ii) | any Common Assurance; or |
(iii) | the relevant Hedging Agreement no greater in extent than any of those referred to in paragraphs (i) and (ii) above; |
(c) | as otherwise contemplated by Clause 3.2 ( Security: Revolving Lenders ); and |
(d) | the indemnities contained in the ISDA Master Agreements (in the case of a Hedging Agreement which is based on an ISDA Master Agreement) or any indemnities which are similar in meaning and effect to those indemnities (in the case of a Hedging Agreement which is not based on an ISDA Master Agreement). |
4.8 | Restriction on Enforcement: Hedge Counterparties |
Subject to Clause 4.9 ( Permitted Enforcement: Hedge Counterparties ) and Clause 4.10 ( Required Enforcement: Hedge Counterparties ) and without prejudice to each Hedge Counterpartys rights under Clauses 13.3 ( Enforcement instructions ) and 13.5 ( Manner of enforcement ), no Hedge Counterparty shall take any Enforcement Action in respect of any of the Hedging Liabilities or any of the hedging transactions under any of the Hedging Agreements at any time.
4.9 | Permitted Enforcement: Hedge Counterparties |
(a) | A Hedge Counterparty may terminate or close out in whole or in part any hedging transaction under that Hedging Agreement prior to its stated maturity: |
(i) | if a Distress Event has occurred; |
(ii) | if: |
(A) | in relation to a Hedging Agreement which is based on the 1992 ISDA Master Agreement: |
(1) | an Illegality or Tax Event or Tax Event Upon Merger (each as defined in the 1992 ISDA Master Agreement); or |
(2) | an event similar in meaning and effect to a Force Majeure Event (as defined in the 2002 ISDA Master Agreement), |
has occurred in respect of that Hedging Agreement;
(B) | in relation to a Hedging Agreement which is based on the 2002 ISDA Master Agreement, an Illegality or Tax Event, Tax Event Upon Merger or a Force Majeure Event (each as defined in the 2002 ISDA Master Agreement) has occurred in respect of that Hedging Agreement; or |
(C) | in relation to a Hedging Agreement which is not based on an ISDA Master Agreement, any event similar in meaning and effect to an event described in paragraphs (A) or (B) above has occurred under and in respect of that Hedging Agreement; |
(iii) | if an Insolvency Event has occurred; |
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(iv) | if any hedging arrangement undertaken pursuant to a Hedging Agreement becomes speculative in the opinion of the relevant Debtor (acting reasonably); |
(v) | if the Liabilities in respect of which the Hedging Agreement has been entered into are repaid, prepaid or cancelled in whole or in part, provided that any termination or close out is pro rata to the amount so repaid, prepaid or cancelled; or |
(vi) | subject to Clause 4.13 ( On or after relevant Discharge Date ), if the Majority Senior Creditors give prior consent to that termination or close-out being made. |
(b) | If a Debtor has defaulted on any Payment due under a Hedging Agreement and the default has continued unwaived for more than 14 days after notice of that default has been given to the Security Trustee pursuant to paragraph (g) of Clause 22.3 ( Notification of prescribed events ), the relevant Hedge Counterparty: |
(i) | may, to the extent it is entitled to do so under the relevant Hedging Agreement, terminate or close out in whole or in part any hedging transaction under that Hedging Agreement; and |
(ii) | until such time as the Security Trustee has given notice to that Hedge Counterparty that the Transaction Security is being enforced (or that any formal steps are being taken to enforce the Transaction Security), shall be entitled to exercise any right it might otherwise have to sue for, commence or join legal or arbitration proceedings against any Debtor to recover any Hedging Liabilities due under that Hedging Agreement. |
(c) | After the occurrence of an Insolvency Event in relation to any member of the Group, each Hedge Counterparty shall be entitled to exercise any right it may otherwise have in respect of that member of the Group to: |
(i) | prematurely close out or terminate any Hedging Agreement with that member of the Group owing to it; |
(ii) | make a demand under any guarantee, indemnity or other assurance against loss given by that member of the Group in respect of any Hedging Liabilities owing to it; |
(iii) | exercise any right of set off or take or receive any Payment in respect of any Hedging Liabilities of that member of the Group owing to it; or |
(iv) | claim and prove in the liquidation of that member of the Group for the Hedging Liabilities owing to it. |
4.10 | Required Enforcement: Hedge Counterparties |
(a) | Subject to paragraph (b) below, a Hedge Counterparty shall promptly terminate or close out in full any hedging transaction under all or any of the Hedging Agreements to which it is party prior to their stated maturity, following: |
(i) | the occurrence of an Acceleration Event and delivery to it of a notice from the Security Trustee that that Acceleration Event has occurred; and |
(ii) | delivery to it of a subsequent notice from the Security Trustee (acting on the instructions of an Instructing Group) instructing it to do so. |
(b) | Paragraph (a) above shall not apply to the extent that that Acceleration Event occurred as a result of an arrangement made between any Debtor and any Primary Creditor with the purpose of bringing about that Acceleration Event. |
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(c) | If a Hedge Counterparty is entitled to terminate or close-out any hedging transaction under paragraph (b) of Clause 4.9 ( Permitted Enforcement: Hedge Counterparties ) (or would have been able to if that Hedge Counterparty had given the notice referred to in that paragraph) but has not terminated or closed out each such hedging transaction, that Hedge Counterparty shall promptly terminate or close-out in full each such hedging transaction following a request to do so by the Security Trustee (acting on the instructions of an Instructing Group). |
4.11 | Treatment of Payments due to Debtors on termination of hedging transactions |
(a) | If, on termination of any hedging transaction under any Hedging Agreement occurring after a Distress Event, a settlement amount or other amount (following the application of any Close Out Netting, Payment Netting or Inter-Hedging Agreement Netting in respect of that Hedging Agreement) falls due from a Hedge Counterparty to the relevant Debtor then that amount shall be paid by that Hedge Counterparty to the Security Trustee, treated as the proceeds of enforcement of the Transaction Security and applied in accordance with the terms of this Agreement. |
(b) | The payment of that amount by the Hedge Counterparty to the Security Trustee in accordance with paragraph (a) above shall discharge the Hedge Counterpartys obligation to pay that amount to that Debtor. |
4.12 | Terms of Hedging Agreements |
The Hedge Counterparties (to the extent party to the Hedging Agreement in question) and the Debtors party to the Hedging Agreements shall ensure that, at all times:
(a) | each Hedging Agreement documents only hedging arrangements entered into for the purpose of hedging the types of liabilities described in the definition of Hedging Agreement and that no other transactions or arrangements are carried out under or pursuant to a Hedging Agreement; |
(b) | each Hedging Agreement is based either: |
(i) | on an ISDA Master Agreement; or |
(ii) | on another framework agreement which is similar in effect to an ISDA Master Agreement; |
(c) | in the event of a termination of the hedging transaction entered into under a Hedging Agreement, whether as a result of: |
(i) | a Termination Event or an Event of Default, each as defined in the relevant Hedging Agreement (in the case of a Hedging Agreement which is based on an ISDA Master Agreement); or |
(ii) | an event similar in meaning and effect to either of those described in paragraph (i) above (in the case of a Hedging Agreement which is not based on an ISDA Master Agreement), |
that Hedging Agreement will:
(A) | if it is based on a 1992 ISDA Master Agreement, provide for payments under the Second Method and will make no material amendment to section 6(e) ( Payments on Early Termination ) of the ISDA Master Agreement; |
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(B) |
if it is based on a 2002 ISDA Master Agreement, make no material amendment to the provisions of
section 6(e) ( Payments on Early Termination ) of the ISDA Master Agreement; or |
(C) | if it is not based on an ISDA Master Agreement, provide for any other method the effect of which is that the party to which that event is referable will be entitled to receive payment under the relevant termination provisions if the net replacement value of all terminated transactions entered into under that Hedging Agreement is in its favour; and |
(d) | each Hedging Agreement will provide that: |
(i) | the relevant Hedge Counterparty will be entitled to designate an Early Termination Date (as defined in the relevant ISDA Master Agreement) or otherwise be able to terminate each transaction under such Hedging Agreement if so required pursuant to Clause 4.10 ( Required Enforcement: Hedge Counterparties ); and |
(ii) | the Hedge Counterparty shall not be entitled to take the benefit of any credit support arrangements in respect of the Hedging Liabilities save for those expressly permitted under Clause 4.7 ( Security: Hedge Counterparties ). |
4.13 | On or after relevant Discharge Date |
At any time on or after the later to occur of the Revolving Facility Discharge Date and Senior Secured Notes Discharge Date, any action in respect of the Priority Hedging Liabilities which is permitted under any of Clause 4.3 ( Permitted Payments: Hedging Liabilities ), Clause 4.5 ( No acquisition of Hedging Liabilities ) or Clause 4.9 ( Permitted Enforcement: Hedge Counterparties ) by reason of the prior consent of the Majority Senior Creditors shall be permitted without such consent.
4.14 | Allocation of Priority Hedging Liabilities |
In order for the Hedging Liabilities in respect of any Hedging Agreement to constitute Priority Hedging Liabilities, on or prior to entry into such Hedging Agreement, the Company and the relevant Hedge Counterparty shall advise the Security Trustee in writing of the maximum amount of the Priority Hedging Liabilities that shall be attributable to such Hedge Counterparty (the Allocated Amount ), provided that neither any single Allocated Amount nor the aggregate of all the Allocated Amounts may exceed the Maximum Priority Hedged Amount at any time. Each Allocated Amount may not be:
(a) | changed without the prior written consent of the relevant Hedge Counterparty; and |
(b) | allocated to another Hedge Counterparty (the New Hedge Counterparty ) unless the relevant Hedge Counterparty to whom it had been allocated confirms in writing to the Security Trustee that all the relevant hedging transactions that are attributable to that Allocated Amount have been terminated or, if the hedging transactions are to be novated to the New Hedge Counterparty, the relevant Hedge Counterparty confirms in writing to the Security Trustee that it has no further liabilities, rights or obligations in respect of the relevant hedging transactions that are attributable to that Allocated Amount on the effectiveness of such novation. |
5. | SENIOR SECURED NOTES CREDITORS: RIGHTS AND OBLIGATIONS |
5.1 | Permitted Payments: Senior Secured Notes Liabilities |
(a) | Prior to the occurrence of an Acceleration Event, the members of the Group may make Payments in respect of the Senior Secured Notes Liabilities at any time in accordance with the terms of the Senior Secured Notes Documents and to the extent such Payments are not prohibited under clause 23.26 ( Note Purchase Condition ) of the Original Revolving Facility Agreement or any corresponding provision in another Revolving Facility Agreement. |
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(b) | Following the occurrence of an Acceleration Event, no member of the Group may make Payment of the Senior Secured Notes Liabilities except from Recoveries distributed in accordance with Clause 15 ( Application of Proceeds ) or as agreed by the Revolving Agent, provided that: |
(i) | for the avoidance of doubt, unless any such Payment constitutes proceeds referred to in Clause 11.2 ( Turnover by the Creditors ), it shall not be required to be turned over by any Senior Secured Noteholders or any Senior Secured Notes Trustee under Clause 11.2 ( Turnover by the Creditors ); |
(ii) | the Payment prohibited by this paragraph (b) will remain owing by the relevant Debtor(s); and |
(iii) | nothing in this paragraph (b) shall prevent a Senior Secured Noteholder and the Senior Secured Notes Trustees from receiving any Payment of any Senior Secured Notes Liabilities from a liquidator (or equivalent) of a Debtor (subject to any applicable turnover obligation under Clause 11.2 ( Turnover by the Creditors )). |
5.2 | Security: Senior Secured Notes Creditors |
At any time prior to the Super Senior Discharge Date, the Senior Secured Notes Creditors may not take, accept or receive from any member of the Group the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Senior Secured Notes Liabilities other than:
(a) | the Common Transaction Security; |
(b) | any guarantee, indemnity or other assurance against loss contained in: |
(i) | the Original Senior Secured Notes Indenture (in its form on the date of this Agreement) under which the Original Senior Secured Notes are issued (or in any other Senior Secured Notes Indenture entered into in accordance with this Agreement); |
(ii) | this Agreement; or |
(iii) | any Common Assurance; and |
(c) | as otherwise contemplated by Clause 3.2 ( Security: Revolving Lenders ), |
unless the prior consent of (prior to the Super Senior Discharge Date) the Majority Super Senior Creditors is obtained and provided that (after the Super Senior Discharge Date) to the extent legally possible at the time it is also offered to the Non Priority Hedge Counterparty in respect of their Liabilities and ranks in the same order of priority as that contemplated in Clause 2 ( Ranking and Priority ).
6. | SENIOR UNSECURED NOTES CREDITORS AND SENIOR UNSECURED NOTES LIABILITIES |
6.1 | Issue of Senior Unsecured Notes |
Except as otherwise approved in writing by the Majority Revolving Lenders, the Company shall not issue or have outstanding any Senior Unsecured Notes and shall procure that no member of the Group shall enter into any Senior Unsecured Notes Indenture or grant any Senior Unsecured Notes Guarantee unless:
(a) | the Revolving Agent and the Security Trustee receive copies of the Senior Unsecured Notes Documents as soon as practicable after the relevant Senior Unsecured Notes are issued; |
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(b) | the terms of the Senior Unsecured Notes comply with the Senior Unsecured Notes Parameters and with the requirements of the Revolving Facility Agreement or are otherwise approved by the Majority Revolving Lenders and (to the extent otherwise prohibited by the terms of the Senior Secured Notes Indenture) the Senior Secured Notes Trustee(s); |
(c) | the Senior Unsecured Notes Guarantees comply with the provisions of this Agreement or such other terms approved by the Majority Revolving Lenders and (to the extent otherwise prohibited by the terms of the Senior Secured Notes Indenture) the Senior Secured Notes Trustee(s); and |
(d) | the Senior Unsecured Notes Trustee and each of the Senior Unsecured Notes Guarantors sign a Creditor/Representative Accession Undertaking or a Debtor Accession Deed, respectively, before or concurrently with the issuance of the Senior Unsecured Notes. |
6.2 | Restriction on Payment and dealings: Senior Unsecured Notes Liabilities |
Until the Secured Debt Discharge Date, except as otherwise approved in writing by the Revolving Agent under the Revolving Facility Agreement and (to the extent otherwise prohibited under the Senior Secured Notes Indenture) the relevant Senior Secured Notes Trustee under the relevant Senior Secured Notes Documents, no Debtor shall (and the Company shall ensure that no other member of the Group will):
(a) | pay, repay, prepay, redeem, acquire or defease any principal, interest or other amount on or in respect of, or make any distribution in respect of, any Senior Unsecured Notes Guarantee Liabilities in cash or in kind or apply any such money or property in or towards discharge of any Senior Unsecured Notes Guarantee Liabilities except as permitted by Clause 6.3 ( Permitted Payments: Senior Unsecured Notes Liabilities ), Clause 6.9 ( Permitted Senior Unsecured Notes Guarantee Enforcement ), Clause 10.5 ( Filing of claims ) or Clause 9.4 ( Refinancing of the Senior Unsecured Notes Liabilities ); |
(b) | exercise any set-off against any Senior Unsecured Notes Guarantee Liabilities, except as permitted by Clause 6.3 ( Permitted Senior Unsecured Notes Payments ), Clause 6.7 ( Restrictions on enforcement by Senior Unsecured Notes Creditors ) or Clause 10.5 ( Filing of claims ); or |
(c) | create or permit to subsist any Security over any assets of any member of the Group or give any guarantee (and the Senior Unsecured Notes Trustee(s) may not and no Senior Unsecured Notes Creditor may, accept the benefit of any such Security or guarantee) from any member of the Group for, or in respect of, any Senior Unsecured Notes Liabilities other than the Senior Unsecured Notes Guarantees. |
6.3 | Permitted Payments: Senior Unsecured Notes Liabilities |
The Debtors may:
(a) | prior to the Secured Debt Discharge Date, make Payments to the Senior Unsecured Notes Creditors in respect of the Senior Unsecured Notes Guarantee Liabilities then due in accordance with the Senior Unsecured Notes Documents: |
(i) | if: |
(A) | the Payment is of: |
(1) |
any of the principal amount of the Senior Unsecured Notes Liabilities which is not prohibited to be paid by the Revolving Facility Agreement and is not prohibited from being paid by the |
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Senior Secured Notes Indenture pursuant to which any Senior Secured Notes are outstanding; or |
(2) | any other amount which is not an amount of principal or capitalised interest; |
(B) | no Senior Unsecured Notes Payment Stop Notice is outstanding; and |
(C) | no Senior Secured Payment Default has occurred and is continuing; or |
(ii) | if the Majority Super Senior Creditors and the Senior Secured Notes Trustee(s) give their prior approval in writing to that Payment being made; or |
(iii) | if the Payment is of a Senior Unsecured Notes Trustee Liability; or |
(iv) | if the Payment is of costs, commissions, taxes, Consent fees and expenses incurred in respect of (or reasonably incidental to) the Senior Unsecured Notes Documents (including in relation to any reporting or listing requirements under the Senior Unsecured Notes Documents); or |
(v) | if the Payment is of costs, commissions, taxes, premiums and any expenses incurred in respect of (or reasonably incidental to) any refinancing of the Senior Unsecured Notes in compliance with this Agreement, the Revolving Facility Agreement and any Senior Secured Notes Indenture; or |
(vi) | if the Payment is of the principal amount of the Senior Unsecured Notes Liabilities on or after the final maturity date for those Senior Unsecured Notes Liabilities (provided that such maturity date is not earlier than the maturity date contained in the original form of the Senior Unsecured Notes Document governing such Senior Unsecured Notes Liabilities); and |
(b) | on or after the Secured Debt Discharge Date, make Payments to the Senior Unsecured Notes Creditors in respect of the Senior Unsecured Notes Liabilities in accordance with the Senior Unsecured Notes Documents. |
6.4 | Issue of Senior Unsecured Notes Payment Stop Notice |
(a) | Until the Secured Debt Discharge Date, except with the prior written approval of the Revolving Agent and (to the extent otherwise prohibited under the Senior Secured Notes Indenture) the Senior Secured Notes Trustee(s) under the relevant Senior Secured Notes Documents and subject to Clause 10 ( Effect of Insolvency Event ), the Company shall procure that no member of the Group (other than the Company) shall make, and no Senior Unsecured Notes Creditor may receive from any member of the Group (other than the Company), any Permitted Senior Unsecured Notes Payment (other than Senior Unsecured Notes Trustee Liabilities) if: |
(i) | a Senior Secured Payment Default is continuing; or |
(ii) | a Senior Secured Event of Default (other than a Senior Secured Payment Default) is continuing, from the date of receipt by the Senior Unsecured Notes Trustee of a notice (a Senior Unsecured Notes Payment Stop Notice ) from the Revolving Agent or the Senior Secured Notes Trustee(s) (as the case may be) specifying the event or circumstance in relation to that Senior Secured Event of Default until the earliest of: |
(A) | the date falling 179 days after delivery of that Senior Unsecured Notes Payment Stop Notice; |
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(B) | in relation to payments of Senior Unsecured Notes Liabilities, if a Senior Unsecured Notes Standstill Period is in effect at any time after delivery of that Senior Unsecured Notes Payment Stop Notice, the date on which that Senior Unsecured Notes Standstill Period expires; |
(C) | the date on which the relevant Senior Secured Event of Default has been remedied or waived in accordance with the Revolving Facility Agreement or the Senior Secured Notes Documents (as applicable); |
(D) | the date on which the Revolving Agent or the Senior Secured Notes Trustee which delivered the relevant Senior Unsecured Notes Payment Stop Notice (and, if at such time an Event of Default is continuing in relation to any other Senior Secured Debt, the Representative in respect of such Senior Secured Debt) delivers a notice to the Company, the Security Trustee and the Senior Unsecured Notes Trustee(s) cancelling the Senior Unsecured Notes Payment Stop Notice; |
(E) | the Secured Debt Discharge Date; and |
(F) | the date on which the Security Trustee or a Senior Unsecured Notes Trustee takes Enforcement Action permitted under this Agreement against a Debtor. |
(b) | Unless the Senior Unsecured Notes Trustee(s) waives this requirement: |
(i) | a new Senior Unsecured Notes Payment Stop Notice may not be delivered unless and until 360 days have elapsed since the delivery of the immediately preceding Senior Unsecured Notes Payment Stop Notice; and |
(ii) | no Senior Unsecured Notes Payment Stop Notice may be delivered in reliance on a Senior Secured Event of Default more than 45 days after the date the relevant Revolving Agent and Senior Secured Notes Trustee (as applicable) received notice of that Senior Secured Event of Default. |
(c) | The Revolving Agent and the Senior Secured Notes Trustee(s) may only serve one Senior Unsecured Notes Payment Stop Notice with respect to the same event or set of circumstances. Subject to paragraph (b) above, this shall not affect the right of the Revolving Agent or the Senior Secured Notes Trustee(s) to issue a Senior Unsecured Notes Payment Stop Notice in respect of any other event or set of circumstances. |
(d) | No Senior Unsecured Notes Payment Stop Notice may be served by the Revolving Agent or, a Senior Secured Notes Trustee(s) in respect of a Senior Secured Event of Default which had been notified to the Revolving Agent and the Senior Secured Notes Trustee(s) at the time at which an earlier Senior Unsecured Notes Payment Stop Notice was issued. |
(e) | For the avoidance of doubt, this Clause 6.4: |
(i) | acts as a suspension of payment and not as a waiver of the right to receive payment on the date such payments are due; |
(ii) | will not prevent the accrual or capitalisation of interest (including default interest) in accordance with the Senior Unsecured Notes Documents; |
(iii) | will not prevent the payment of any Senior Unsecured Notes Trustee Liabilities; and |
(iv) | will not prevent the payment of audit fees, directors fees, taxes and other proper and incidental expenses required to maintain existence. |
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6.5 | Effect of Senior Unsecured Notes Payment Stop Notice or Senior Secured Payment Default |
Any failure to make a Payment due under the Senior Unsecured Notes Documents as a result of the issue of a Senior Unsecured Notes Payment Stop Notice or the occurrence of a Senior Secured Payment Default shall not prevent:
(a) | the occurrence of an Event of Default as a consequence of that failure to make a Payment in relation to the relevant Senior Unsecured Notes Document; or |
(b) | the issue of a Senior Unsecured Notes Enforcement Notice on behalf of the Senior Unsecured Notes Creditors. |
6.6 | Payment obligations and capitalisation of interest continue |
(a) | No Debtor shall be released from the liability to make any Payment (including of default interest, which shall continue to accrue) under any Senior Unsecured Notes Document by the operation of Clauses 6.2 ( Restriction on Payment and dealings: Senior Unsecured Notes Liabilities ) to and including 6.5 ( Effect of Senior Unsecured Notes Payment Stop Notice or Senior Secured Payment Default ) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses. |
(b) | The accrual and capitalisation of interest (if any) in accordance with the Senior Unsecured Notes Documents shall continue notwithstanding the issue of a Senior Unsecured Notes Payment Stop Notice. |
6.7 | Cure of Payment Stop: Senior Unsecured Notes Creditors |
If:
(a) | at any time following the issue of a Senior Unsecured Notes Payment Stop Notice or the occurrence of a Senior Secured Payment Default, that Senior Unsecured Notes Payment Stop Notice ceases to be outstanding and/or (as the case may be) the Senior Secured Payment Default ceases to be continuing; and |
(b) | the relevant Debtor then promptly pays to the Senior Unsecured Notes Creditors an amount equal to any Payments which had accrued under the Senior Unsecured Notes Documents and which would have been Permitted Senior Unsecured Notes Payments but for that Senior Unsecured Notes Payment Stop Notice or Senior Secured Payment Default, |
then any Event of Default which may have occurred as a result of that suspension of Payments shall be waived and any Senior Unsecured Notes Enforcement Notice which may have been issued as a result of that Event of Default shall be waived, in each case without any further action being required on the part of the Senior Unsecured Notes Creditors.
6.8 | Restrictions on enforcement by Senior Unsecured Notes Creditors |
Until the Secured Debt Discharge Date, except with the prior consent of or as required by an Instructing Group no Senior Unsecured Notes Creditor shall take or require the taking of any Enforcement Action in relation to the Senior Unsecured Notes Guarantees except as permitted under Clause 6.9 ( Permitted Senior Unsecured Notes Guarantee Enforcement ) provided, however, that no such action required by the Security Trustee need be taken except to the extent the Security Trustee is otherwise entitled under this Agreement to direct such action.
6.9 | Permitted Senior Unsecured Notes Guarantee Enforcement |
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(a) | Subject to Clause 6.12 ( Enforcement on behalf of Senior Unsecured Notes Creditors ), the restrictions in Clause 6.7 ( Restrictions on enforcement by Senior Unsecured Notes Creditors ) will not apply in respect of the Senior Unsecured Notes Guarantee Liabilities if: |
(i) | a Senior Unsecured Notes Event of Default (other than solely by reason of a cross-default (other than a cross-default arising from a Senior Secured Payment Default) arising from a Senior Secured Notes Event of Default) (the Relevant Senior Unsecured Notes Default ) is continuing; |
(ii) | the Revolving Agent, the Senior Secured Notes Trustee and each Hedge Counterparty have received a written notice of the Relevant Senior Unsecured Notes Default specifying the event or circumstance in relation to the Relevant Senior Unsecured Notes Default from the relevant Senior Unsecured Notes Trustee; |
(iii) | a Senior Unsecured Notes Standstill Period has elapsed or otherwise terminated; and |
(iv) | the Relevant Senior Unsecured Notes Default is continuing at the end of the relevant Senior Unsecured Notes Standstill Period. |
(b) | Promptly upon becoming aware of a Senior Unsecured Notes Default, the relevant Senior Unsecured Notes Trustee(s) may by notice (a Senior Unsecured Notes Enforcement Notice ) in writing notify the Revolving Agent, the Senior Secured Notes Trustee(s) and each Hedge Counterparty of the existence of such Senior Unsecured Notes Default. |
6.10 | Senior Unsecured Notes Standstill Period |
In relation to a Relevant Senior Unsecured Notes Default, a Senior Unsecured Notes Standstill Period shall mean the period beginning on the date (the Senior Unsecured Notes Standstill Start Date ) the relevant Senior Unsecured Notes Trustee(s) serves a Senior Unsecured Notes Enforcement Notice on the Revolving Agent and the Senior Secured Notes Trustee(s) in respect of such Relevant Senior Unsecured Notes Default and ending on the earlier to occur of:
(a) | the date falling 179 days after the Senior Unsecured Notes Standstill Start Date (the Senior Unsecured Notes Standstill Period ); |
(b) | the date any Priority Creditor takes any Enforcement Action in relation to a particular Senior Unsecured Notes Guarantor provided, however, that: |
(i) | if a Senior Unsecured Notes Standstill Period ends pursuant to this Clause (b), the Senior Unsecured Notes Creditors may only take the same Enforcement Action in relation to the Senior Unsecured Notes Guarantor as the Enforcement Action taken by the Priority Creditors against such Senior Unsecured Notes Guarantor and not against any other member of the Group; and |
(ii) | Enforcement Action for the purpose of this Clause (b) shall not include action taken to preserve or protect any Security as opposed to realise it; |
(c) | the date of an Insolvency Event in relation to a particular Senior Unsecured Notes Guarantor against whom Enforcement Action is to be taken; |
(d) | the expiry of any other Senior Unsecured Notes Standstill Period outstanding at the date such first mentioned Senior Unsecured Notes Standstill Period commenced (unless that expiry occurs as a result of a cure, waiver or other permitted remedy); |
(e) |
the date on which the Revolving Agent (if prior to the Senior Discharge Date), the Senior Secured Notes Trustee(s) (if prior to the Senior Secured Notes Discharge Date) and the Hedge |
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Counterparties (if prior to the Non Priority Hedging Discharge Date) give their consent to the termination of the relevant Senior Unsecured Notes Standstill Period; and
(f) | a failure to pay the principal amount outstanding on the Senior Unsecured Notes at the final stated maturity of the Senior Unsecured Notes. |
6.11 | Subsequent Senior Unsecured Notes Defaults |
The Senior Unsecured Notes Creditors may take Enforcement Action under Clause 6.9 ( Permitted Senior Unsecured Notes Guarantee Enforcement ) in relation to a Relevant Senior Unsecured Notes Default even if, at the end of any relevant Senior Unsecured Notes Standstill Period or at any later time, a further Senior Unsecured Notes Standstill Period has begun as a result of any other Senior Unsecured Notes Default.
6.12 | Enforcement on behalf of Senior Unsecured Notes Creditors |
If the Security Trustee has notified the Senior Unsecured Notes Trustee(s) that it is taking steps to enforce Security created pursuant to any Security Document over shares of a Senior Unsecured Notes Guarantor, no Senior Unsecured Notes Creditor may take any action referred to in Clause 6.9 ( Permitted Senior Unsecured Notes Guarantee Enforcement ) against that Senior Unsecured Notes Guarantor while the Security Trustee is taking steps to enforce that Security in accordance with the instructions of the Instructing Group where such action might be reasonably likely to adversely affect such enforcement or the amount of proceeds to be derived therefrom.
6.13 | Option to purchase: Senior Unsecured Notes Creditors |
(a) | After a Distress Event, one or more of the Senior Unsecured Notes Trustee(s) may at the direction and expense of one or more of the Senior Unsecured Notes Creditors (subject to paragraphs (b) and (c) below) (the Purchasing Senior Unsecured Creditors ), if: |
(i) | after all such Senior Unsecured Notes Creditors have been given the opportunity to so participate; and |
(ii) | the Senior Unsecured Notes Trustee gives not less than ten days prior written notice to the Security Trustee, |
require the transfer to the Purchasing Senior Unsecured Creditors (or to a nominee or nominees), in accordance with Clause 19.2 ( Change of Revolving Lender ), of all, but not part, of the rights, benefits and obligations in respect of the Revolving Creditor Liabilities and the Senior Secured Notes Liabilities if:
(iii) | that transfer is lawful and subject to paragraph (ii) below, otherwise permitted by the terms of the Revolving Facility Agreement (in the case of the Revolving Creditor Liabilities) and the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes remain outstanding (in the case of the Senior Secured Notes Liabilities); |
(iv) | any conditions relating to such a transfer contained in the Revolving Facility Agreement (in the case of the Revolving Facility Liabilities) and the Senior Secured Notes Indenture(s) pursuant to which any Senior Secured Notes remain outstanding (in the case of the Senior Secured Notes Liabilities) are complied with, other than: |
(A) | any requirement to obtain the Consent of, or consult with, any Debtor or other member of the Group relating to such transfer, which Consent or consultation shall not be required; and |
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(B) | to the extent to which the Purchasing Senior Unsecured Creditors provide cash cover for any Letter of Credit, the Consent of the relevant Issuing Bank relating to such transfer; |
(v) | (A) the Revolving Agent, on behalf of the Revolving Lenders, is paid an amount equal to the aggregate of: |
(1) | any amounts provided as cash cover by the Purchasing Senior Unsecured Creditors for any Letter of Credit (as envisaged in paragraph (ii)(B) above); |
(2) | all of the Senior Liabilities (other than the Hedging Liabilities) at that time (whether or not due), including all amounts that would have been payable under the Revolving Facility Agreement if the Revolving Facility were being prepaid by the relevant Debtors on the date of that payment; and |
(3) | all costs and expenses (including legal fees) incurred by the Revolving Agent and/or the Revolving Lenders as a consequence of giving effect to that transfer; and |
(B) | the Senior Secured Notes Trustee, on behalf of the Senior Secured Notes Creditors, are paid an amount equal to the aggregate of: |
(1) | all of the Senior Secured Notes Liabilities at that time (whether due or not due), including all amounts that would have been payable under the Senior Secured Notes Indenture(s) if it were being redeemed (as applicable) by the relevant Debtors on the date of that payment; and |
(2) | all costs and expenses (including legal fees) incurred by the Senior Secured Notes Trustee and/or the Senior Secured Notes Creditors as a consequence of giving effect to that transfer. |
(b) | Subject to paragraph (b) of Clause 6.14 ( Hedge Transfer: Purchasing Senior Unsecured Creditors ), the Purchasing Senior Unsecured Creditors may only require a Senior Secured Creditor Liabilities Transfer if, at the same time, they require a Hedge Transfer in accordance with Clause 6.14 ( Hedge Transfer: Purchasing Senior Unsecured Creditors ) and if, for any reason, a Hedge Transfer cannot be made in accordance with Clause 6.14 ( Hedge Transfer: Purchasing Senior Unsecured Creditors ), no Senior Secured Creditor Liabilities Transfer may be required to be made. |
(c) | At the request of the Purchasing Senior Unsecured Creditors: |
(i) | the Revolving Agent shall notify the Purchasing Senior Unsecured Creditors of: |
(A) | the sum of the amounts described in paragraphs 6.13(a)(v)(A)(2) and (3); and |
(B) | the amount of each Letter of Credit for which cash cover is to be provided by the Purchasing Senior Unsecured Creditors; and |
(ii) | the Senior Secured Notes Trustee shall notify the Purchasing Senior Unsecured Creditors of the sum of amounts described in paragraphs 6.13(a)(v)(B)(1) and (2). |
6.14 | Hedge Transfer: Purchasing Senior Unsecured Creditors |
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(a) | The Purchasing Senior Unsecured Creditors may, by giving not less than ten days notice to the Security Trustee, require, at the same time as a Senior Secured Creditor Liabilities Transfer under Clause 6.13 ( Option to purchase: Senior Unsecured Notes Creditors ), a Hedge Transfer if: |
(i) | that transfer is lawful and otherwise permitted by the terms of the Hedging Agreements in which case no Debtor or other member of the Group shall be entitled to withhold its Consent to that transfer; |
(ii) | any conditions (other than the Consent of, or any consultation with, any Debtor or other member of the Group) relating to that transfer contained in the Hedging Agreements are complied with; |
(iii) | each Hedge Counterparty is paid (in the case of a positive number) or pays (in the case of a negative number) an amount equal to the aggregate of (I) the Hedging Purchase Amount in respect of the hedging transactions under the relevant Hedging Agreement at that time and (II) all costs and expenses (including legal fees) incurred by such Hedge Counterparty as a consequence of giving effect to that transfer; |
(iv) | as a result of that transfer, the Hedge Counterparties have no further actual or contingent liability to any Debtor under the Hedging Agreements; |
(v) | an indemnity is provided from each Purchasing Senior Unsecured Creditor which is receiving (or for which a nominee is receiving) that transfer (or from another third party acceptable to the relevant Hedge Counterparty) in a form reasonably satisfactory to the relevant Hedge Counterparty in respect of all losses which may be sustained or incurred by that Hedge Counterparty in consequence of any sum received or recovered by that Hedge Counterparty being required (or it being alleged that it is required) to be paid back by or clawed back from the Hedge Counterparty for any reason; and |
(vi) | that transfer is made without recourse to, or representation or warranty from, the relevant Hedge Counterparty, except that the relevant Hedge Counterparty shall be deemed to have represented and warranted on the date of that transfer that it has the corporate power to effect that transfer and it has taken all necessary action to authorise the making by it of that transfer. |
(b) | The Purchasing Senior Unsecured Creditors (acting as a whole) and any Hedge Counterparty may agree (in respect of the Hedging Agreements (or one or more of them) to which that Hedge Counterparty is a party) that a Hedge Transfer required by the Purchasing Senior Unsecured Creditors (acting as a whole) pursuant to paragraph (a) above shall not apply to that Hedging Agreement(s) or to the Hedging Liabilities and Hedge Counterparty Obligations under that Hedging Agreement(s). |
(c) | If the Purchasing Senior Unsecured Creditors are entitled to require a Hedge Transfer under this clause, the Hedge Counterparties shall at the request of the Purchasing Senior Unsecured Creditors provide details of the amounts referred to in paragraph (a)(iii) above. |
6.15 | Option to Purchase: Senior Unsecured Notes Trustee |
For the purposes of Clause 6.13 ( Option to purchase: Senior Unsecured Notes Creditor ) and 6.14 ( Hedge Transfer: Purchasing Senior Unsecured Creditors ), the term Senior Unsecured Notes Creditors shall not a Senior Unsecured Notes Trustee.
7. | INTRA-GROUP LENDERS AND INTRA-GROUP LIABILITIES |
7.1 | Restriction on Payment: Intra-Group Liabilities |
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Prior to the Senior Discharge Date, the Debtors shall not, and shall procure that no other member of the Group will, make any Payments of the Intra-Group Liabilities and the Intra-Group Lenders shall not accept or agree to accept any such Payments at any time unless:
(a) | that Payment is permitted under Clause 7.2 ( Permitted Payments: Intra-Group Liabilities); or |
(b) | the taking or receipt of that Payment is permitted under paragraph (a)(iii) of Clause 7.7 ( Permitted Enforcement: Intra-Group Lenders) . |
7.2 | Permitted Payments: Intra-Group Liabilities |
(a) | Subject to paragraph (b) below, the Debtors may make Payments in respect of the Intra-Group Liabilities (whether of principal, interest or otherwise) from time to time when due and the Intra Group Lenders may accept or agree to accept any such payment at any time. |
(b) | Payments in respect of the Intra-Group Liabilities may not be made pursuant to paragraph (a) above if, at the time of the Payment, an Acceleration Event has occurred unless: |
(i) | prior to the Secured Debt Discharge Date, the Majority Senior Creditors consent to that Payment being made; |
(ii) | after the Secured Debt Discharge Date but prior to the Senior Unsecured Notes Discharge Date, the Senior Unsecured Notes Trustee(s) consents to that Payment being made; or |
(iii) | that Payment is made to facilitate Payment of the Senior Liabilities. |
7.3 | Payment obligations continue |
No Debtor shall be released from the liability to make any Payment (including of default interest, which shall continue to accrue) under any Debt Document by the operation of Clauses 7.1 ( Restriction on Payment: Intra-Group Liabilities) and 7.2 ( Permitted Payments: Intra-Group Liabilities) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses.
7.4 | Acquisition of Intra-Group Liabilities |
(a) | Subject to paragraph (b) below, each Debtor may, and may permit any other member of the Group to: |
(i) | enter into any Liabilities Acquisition; or |
(ii) | beneficially own all or any part of the share capital of a company that is party to a Liabilities Acquisition, |
in respect of any Intra-Group Liabilities at any time.
(b) | Subject to paragraph (c) below, no action described in paragraph (a) above may take place in respect of any Intra-Group Liabilities if: |
(i) | that action would result in a breach of any Revolving Facility Agreement or a Senior Secured Notes Indenture; or |
(ii) | at the time of that action, an Acceleration Event has occurred. |
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(c) | The restrictions in paragraph (b) above shall not apply if: |
(i) | prior to the Senior Discharge Date, the Majority Senior Creditors consent to that action; or |
(ii) | that action is taken to facilitate Payment of the Senior Liabilities or the Non Priority Hedging Liabilities. |
7.5 | Security: Intra-Group Lenders |
Prior to the Final Discharge Date, the Intra-Group Lenders may not take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Intra-Group Liabilities unless:
(a) | that Security, guarantee, indemnity or other assurance against loss is expressly permitted under the terms of any Revolving Facility Agreement and any Senior Secured Notes Indenture; or |
(b) | (prior to the Senior Discharge Date) the consent of the Majority Senior Creditors is obtained. |
7.6 | Restriction on enforcement: Intra-Group Lenders |
Subject to Clause 7.7 ( Permitted Enforcement: Intra-Group Lenders), none of the Intra-Group Lenders shall be entitled to take any Enforcement Action in respect of any of the Intra-Group Liabilities at any time prior to the Final Discharge Date.
7.7 | Permitted Enforcement: Intra-Group Lenders |
(a) | After the occurrence of an Insolvency Event in relation to any Debtor or grantor of Transaction Security, each Intra-Group Lender may (unless otherwise directed by the Security Trustee or unless the Security Trustee has taken, or has given notice that it intends to take, action on behalf of that Intra-Group Lender in accordance with Clause 10.5 (Filing of claims)) and shall if so directed by the Security Trustee, exercise any right it may otherwise have against that Debtor or grantor of Transaction Security to: |
(i) | accelerate any of that Debtors or grantor of Transaction Securitys Intra-Group Liabilities or declare them prematurely due and payable or payable on demand; |
(ii) | make a demand under any guarantee, indemnity or other assurance against loss given by that member of the Group in respect of any Intra-Group Liabilities; |
(iii) | exercise any right of set off or take or receive any Payment in respect of any Intra-Group Liabilities of that member of the Group; or |
(iv) | claim and prove in the liquidation of that member of the Group for the Intra-Group Liabilities owing to it. |
(b) | Paragraph (a) shall not apply to the extent that that Insolvency Event was the result of the actions of any Intra-Group Lender. |
7.8 | Notice of Assignment in respect of certain Intra-Group Liabilities |
(a) | Each Debtor (a Charging Company) that has created Transaction Security over any Intra-Group Liabilities in respect of which it is a creditor hereby gives notice to each other Debtor (a Counterparty ) that is from time to time a debtor in respect of all present and future Intra-Group Liabilities owing to such Charging Company of the Security over such Intra-Group Liabilities created pursuant to the Security Documents in favour of the Secured Parties and |
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confirms that the Counterparty may continue to deal with the Charging Company in relation to such Intra-Group Liabilities until such Counterparty receives written notice to the contrary from the Security Trustee (in which case such Counterparty shall deal only with the Security Trustee in respect of such Intra-Group Liabilities).
(b) | Each Counterparty agrees to the terms of paragraph (a) above and confirms it has not received notice that the Charging Company has assigned its rights in respect of the Intra-Group Liabilities owed by such Counterparty (except for any such notice delivered pursuant to Existing Security (under and as defined in the Original Revolving Credit Facility) which Existing Security is released (save for the completion of any perfection requirements in respect of Existing Security governed by Spanish law) on the issue date of the Original Senior Secured Notes) to a third party or created any other interest (whether by way of Security or otherwise) in the Intra-Group Liabilities in favour of a third party. |
7.9 | Representations: Intra-Group Lenders |
Each Intra-Group Lender which is not a Debtor represents and warrants to the Primary Creditors, the Security Trustee and the Representatives that:
(a) | it is a corporation, duly incorporated or formed and validly existing under the laws of its jurisdiction of incorporation or formation; |
(b) | the obligations expressed to be assumed by it in this Agreement are, subject to any general principles of law limiting its obligations which are applicable to creditors generally, legal, valid, binding and enforceable obligations; and |
(c) | the entry into and performance by it of this Agreement does not and will not: |
(i) | conflict with any law or regulation applicable to it, its constitutional documents or any agreement or instrument binding upon it or any of its assets; or |
(ii) | constitute a default or termination event (however described) under any agreement or instrument binding on it or any of its assets. |
8. | SUBORDINATED LIABILITIES |
8.1 | Restriction on Payment: Subordinated Liabilities |
Prior to the Final Discharge Date, neither the Company nor any other Debtor shall, and the Company shall procure that no other member of the Group will, make any Payment of the Subordinated Liabilities at any time unless that Payment is permitted under Clause 8.2 ( Permitted Payments: Subordinated Liabilities) .
8.2 | Permitted Payments: Subordinated Liabilities |
The Company may make Payments in respect of the Subordinated Liabilities then due if:
(a) | The payment is permitted or not prohibited under the Revolving Facility Agreement, Senior Secured Notes Indenture and Senior Unsecured Notes Indenture; |
(b) | (i) prior to the Super Senior Discharge Date, the Majority Super Senior Creditors consent to that Payment being made; |
(ii) | following the Super Senior Discharge Date but prior to the Senior Secured Discharge Date, either any such Payment is not prohibited under the Senior Secured Notes Indenture or the Majority Senior Secured Notes Creditors consent to that Payment being made; |
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(iii) | following the Super Senior Discharge Date and Senior Secured Notes Discharge Date but prior to the Non Priority Hedging Discharge Date, the Majority Non Priority Creditors consent to that Payment being made; and |
(iv) | following the Super Senior Discharge Date, Senior Secured Notes Discharge Date and Non Priority Hedging Discharge Date but prior to the Senior Unsecured Notes Discharge Date, the Majority Senior Unsecured Notes Creditors consent to that Payment being made. |
8.3 | Payment obligations continue |
Neither the Company nor any other Debtor shall be released from the liability to make any Payment (including of default interest, which shall continue to accrue) under any Debt Document by the operation of Clauses 8.1 ( Restriction on Payment: Subordinated Liabilities) and 8.2 ( Permitted Payments: Subordinated Liabilities) even if its obligation to make that Payment is restricted at any time by the terms of any of those Clauses.
8.4 | No acquisition of Subordinated Liabilities |
Prior to the Final Discharge Date, the Debtors shall not, and shall procure that no other member of the Group will:
(a) | enter into any Liabilities Acquisition; or |
(b) | beneficially own all or any part of the share capital of a company that is party to a Liabilities Acquisition, |
in respect of any of the Subordinated Liabilities, unless the prior consent of the Majority Senior Creditors is obtained.
8.5 | Security: Subordinated Creditor |
No Debtor may grant to any Subordinated Creditor the benefit of any Security, guarantee, indemnity or other assurance against loss from any member of the Group in respect of any of the Subordinated Liabilities prior to the Final Discharge Date.
8.6 | Restrictions on Subordinated Liabilities |
Prior to the Final Discharge Date, no member of the Group may incur any liabilities of any kind whatsoever in favour of a Subordinated Creditor unless those liabilities are incurred by the Company and are subordinated (a) on terms satisfactory, prior to the Super Senior Discharge Date, to the Revolving Agent and in accordance with the terms of the Senior Secured Notes Indenture and (b) following the Super Senior Discharge Date and prior to the Senior Secured Notes Discharge Date, in accordance with the terms of the Senior Secured Notes Indenture.
9. | NEW MONEY AND REFINANCING |
9.1 | Additional Revolving Creditor Liabilities |
(a) | If the Revolving Lenders increase a Revolving Facility and make further advances under such Revolving Facility to members of the Group to the extent permitted under the Debt Documents, each such advance will be deemed to be made under the terms of the relevant Revolving Facility Agreement and (to the extent permitted by applicable law) secured by the applicable Security Documents. |
(b) | To the extent permitted under the Debt Documents, if any Group Company incurs Revolving Creditor Liabilities under a Revolving Facility Agreement other than the Original Revolving |
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Facility Agreement in accordance with the terms of the Revolving Facility Documents, any such Revolving Creditor Liabilities shall be deemed to be secured by the applicable Security Documents pari passu with the then existing Revolving Creditor Liabilities, provided that:
(i) | the Revolving Agent in respect thereof accedes to this Agreement in accordance with Clause 19.4 ( Change of Representative); and |
(ii) | each lender in respect of such Revolving Creditor Liabilities accedes to this Agreement as a Revolving Lender in accordance with Clause 19.2 ( Change of Revolving Lender) . |
(c) | To the extent additional Revolving Creditor Liabilities incurred as contemplated in sub-paragraph (b) above cannot be secured pari passu with the then existing Revolving Creditor Liabilities under the applicable existing Security Documents without the Security under such existing Security Documents first being released, the Parties agree that the Security Trustee is hereby authorised to release the Security granted pursuant to such existing Security Documents provided that immediately on such release, new Security shall be provided in favour of the providers of such Revolving Creditor Liabilities and the Primary Creditors on terms substantially similar to the Security Documents released and subject to the same ranking as set out in Clause 2.2 ( Transaction Security) and further provided that either there is delivered to the Security Trustee, in form and substance satisfactory to it: (i) (A) a solvency opinion from an Independent Financial Adviser or (B) certificate from the chief financial officer of the Company or an officers certificate from the Company, in either case confirming the solvency of the Company and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such release and re-grant; or (ii) an opinion of counsel (subject to any qualifications customary for this type of opinion of counsel), confirming that, after giving effect to any transactions related to such release and re-grant, the Security securing the Secured Obligations created under the Security Documents as so amended, extended, renewed, restated, supplemented, modified or replaced remain valid and perfected Security not otherwise subject to any limitation, imperfection or new hardening period, in equity or at law, that such Security was not otherwise subject to immediately prior to such release and re-grant. Nothing in this Agreement shall restrict the Senior Creditors and the providers of the additional Revolving Creditor Liabilities from agreeing the ranking of their respective senior claims among themselves. |
9.2 | Additional Senior Secured Notes |
(a) | To the extent permitted by the Debt Documents, the Company may issue or have outstanding Senior Secured Notes, in addition to the Original Senior Secured Notes under a Senior Secured Notes Indenture and such additional Senior Secured Notes shall (to the extent permitted by applicable law) be deemed to be secured by the applicable Security Documents pari passu with the then existing Senior Secured Notes Liabilities, provided that: |
(i) | such additional indebtedness is issued in compliance with the Senior Secured Notes Parameters or to the extent such indebtedness is not in compliance with the Senior Secured Notes Parameters the terms thereof have been approved by (prior to the Revolving Facility Discharge Date) the Majority Revolving Lenders in accordance with the relevant Debt Documents; and |
(ii) | (if not already a Party) the Additional Senior Secured Notes Trustee in respect thereof accedes to this Agreement, in accordance with Clause 19.4 ( Change of Representative) . |
(b) | To the extent additional Senior Secured Notes issued as contemplated in paragraph (a) above cannot be secured pari passu with the then existing Senior Secured Notes Liabilities under the applicable existing Security Documents without the Security under such existing Security |
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Documents first being released, the Parties agree that the Security Trustee is hereby authorised to release such existing Security Documents provided that immediately on such release, Security shall be provided in favour of Additional Senior Secured Notes Creditors in respect of such Senior Secured Notes and the Primary Creditors on terms substantially similar to the Security Documents released and subject to the same ranking as set out in Clause 2.2 ( Transaction Security) . Nothing in this Agreement shall restrict the Senior Creditors and the relevant Additional Senior Secured Notes Creditors from agreeing the ranking of their respective senior claims among themselves.
9.3 | Refinancing of the Revolving Creditor Liabilities |
(a) | The Revolving Creditor Liabilities, with the consent of the Company, may be refinanced or replaced (a Revolving Refinancing) in whole or (with the consent of the requisite Revolving Facility Finance Parties) in part and any indebtedness incurred by Debtors in such Revolving Refinancing will be subject to, and have the benefit of this Agreement. |
(b) | The Parties acknowledge that the terms and conditions (including increased pricing and amount of principal) applicable to any such Revolving Refinancing may be different to those applicable to the Revolving Creditor Liabilities as at the date of this Agreement, but shall be required to be in accordance with the terms of the other Debt Documents. |
(c) | Each Representative, each Revolving Lender, each other Senior Secured Notes Creditor party to this Agreement and each Hedge Counterparty hereby agree that if Security over any asset under the applicable Security Documents is released, whether by operation of law or otherwise, in connection with a Revolving Refinancing then (to the extent permissible under applicable law) the Security Trustee is hereby authorised to release the relevant asset from the Security under the applicable Security Documents provided that, on giving effect to such Revolving Refinancing, new Security shall be provided in favour of the providers of such Revolving Refinancing indebtedness and the Primary Creditors on terms substantially similar to the Security Documents released and subject to the same ranking as set out in Clause 2.2 ( Transaction Security) and further provided that either: there is delivered to the Security Trustee, in form and substance satisfactory to it: (i) (A) a solvency opinion from an Independent Financial Adviser or (B) certificate from the chief financial officer of the Company or an officers certificate from the Company, in either case confirming the solvency of the Company and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such release and re-grant; or (ii) an opinion of counsel (subject to any qualifications customary for this type of opinion of counsel), confirming that, after giving effect to any transactions related to such release and re-grant, the Security securing the Secured Obligations created under the Security Documents as so amended, extended, renewed, restated, supplemented, modified or replaced remain valid and perfected Security not otherwise subject to any limitation, imperfection or new hardening period, in equity or at law, that such Security was not otherwise subject to immediately prior to such release and re-grant. Nothing in this Agreement shall restrict the Senior Creditors and the providers of any Revolving Refinancing indebtedness from agreeing the ranking of their respective senior claims among themselves. |
(d) | Each Representative, each Revolving Lender, each other Senior Secured Notes Creditor party to this Agreement and each Hedge Counterparty undertakes at the prior written request of any Revolving Agent to promptly execute all such documents and give such instructions to the Security Trustee as may be reasonably necessary, including, without limitation, entering into further security, priority and intercreditor agreements (including any Intercreditor Amendment) to provide substantially similar rights and remedies to the providers of such Revolving Refinancing indebtedness as those provided to the Revolving Lenders in this Agreement. |
9.4 | Refinancing of the Senior Secured Notes Liabilities |
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(a) | Notwithstanding any other terms of this Agreement but (prior to the Super Senior Discharge Date) to the extent permitted by the Revolving Facility Documents, the Senior Secured Notes Liabilities may be discharged (a Senior Secured Refinancing) in whole or in part from the proceeds of an incurrence by the Company of indebtedness where: |
(i) | such indebtedness is issued in compliance with the Senior Secured Notes Parameters or to the extent such indebtedness is not in compliance with the said criteria, the terms thereof have been approved by (prior to the Revolving Facility Discharge Date) the Majority Revolving Lenders in accordance with the terms of the relevant Debt Documents; |
(ii) | the Additional Senior Secured Notes Trustee in respect thereof accedes to this Agreement in accordance with Clause 19.4 (Change of Representative); and |
(iii) | any Additional Senior Secured Notes Creditor who is the lender of any Additional Senior Secured Notes Liabilities made available by way of loan accedes to this Agreement in accordance with Clause 19.8 ( New Additional Senior Secured Notes Creditors) . |
(b) | Each Representative, each Revolving Lender, each Senior Secured Notes Creditor party to this Agreement and each Hedge Counterparty hereby agree that if Security over any asset under the applicable Security Documents is released, whether by operation of law or otherwise, in connection with a Senior Secured Refinancing then (to the extent permissible under applicable law) the Security Trustee is hereby authorised to release the relevant asset from the Security under the applicable Security Documents provided that, on giving effect to such Senior Secured Refinancing, Security shall be provided in favour of the providers of such Senior Secured Refinancing indebtedness and the Primary Creditors on terms substantially similar to the Security Documents released and subject to the same ranking as set out in Clause 2.2 ( Transaction Security) . Nothing in this Agreement shall restrict the Senior Creditors and the providers of any Senior Secured Refinancing indebtedness from agreeing the ranking of their respective senior claims among themselves. |
(c) | Each Representative, each Revolving Lender, each Senior Secured Notes Creditor and each Senior Unsecured Notes Creditor party to this Agreement and each Hedge Counterparty each undertake at the request of the relevant Senior Secured Notes Trustee to promptly execute all such documents and give such instructions to the Security Trustee as may be reasonably necessary, including, without limitation, entering into further security, priority and intercreditor agreements (including any Intercreditor Amendment) to provide substantially similar rights and remedies to the providers of such Senior Secured Refinancing indebtedness as those provided to the Senior Secured Notes Creditors in this Agreement. |
9.5 | Further Assurance |
Each Party agrees that it shall promptly execute all such documents as may reasonably be considered necessary in order to give effect to the refinancing of the Revolving Creditor Liabilities, the issuance of additional Senior Secured Notes and/or the refinancing of any of the Liabilities contemplated by this Clause 9, and to give effect to the security as contemplated by this Clause 9 in respect of such additional or refinanced Liabilities, including any amendment required to the terms of this Agreement and any amendment, consent, waiver or release in respect of any Security Document and any grant of security pursuant to a new Security Document.
10. | EFFECT OF INSOLVENCY EVENT |
10.1 | RCF Cash Cover |
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This Clause 10 is subject to Clause 15.3 ( Treatment of RCF Cash Cover and Revolving Facility Cash Collateral) .
10.2 | Payment of distributions |
(a) | After the occurrence of an Insolvency Event in relation to any Debtor or any other grantor of Transaction Security, any Creditor entitled to receive a distribution out of the assets of that Debtor or that grantor of Transaction Security (as applicable) in respect of Liabilities owed to that Party shall, to the extent it is able to do so taking into account any limitations under applicable law, direct the person responsible for the distribution of the assets of that Debtor or that grantor of Transaction Security (as applicable) to pay that distribution to the Security Trustee until the Liabilities owing to the Secured Parties have been paid in full. |
(b) | The Security Trustee shall apply distributions paid to it under paragraph (a) above in accordance with Clause 15 ( Application of Proceeds) . |
10.3 | Set Off |
To the extent that any member of the Groups Liabilities or any grantor of Transaction Securitys Liabilities (as the case may be) are discharged by way of set off (mandatory or otherwise) after the occurrence of an Insolvency Event in relation to (as applicable) that member of the Group or such grantor of Transaction Security, any Creditor which benefited from that set off shall to the extent legally permissible, pay an amount equal to the amount of the Liabilities owed to it which are discharged by that set off to the Security Trustee for application in accordance with Clause 15 ( Application of Proceeds) .
10.4 | Non cash distributions |
If the Security Trustee or any other Secured Party receives a distribution in a form other than in cash in respect of any of the Liabilities, the Liabilities will not be reduced by that distribution until and except to the extent that the realisation proceeds of such non cash distribution are actually applied towards the Liabilities.
10.5 | Filing of claims |
Without prejudice to any Ancillary Lenders right of netting or set off relating to a Multi Account Overdraft Facility (to the extent that the netting or set off represents a reduction from a Permitted Gross Amount of that Multi Account Overdraft Facility to or towards its Designated Net Amount), after the occurrence of an Insolvency Event in relation to a Debtor or any grantor of Transaction Security, each Creditor irrevocably authorises the Security Trustee (acting in accordance with Clause 10.7 ( Security Trustee instructions)), on its behalf, to:
(a) | take any Enforcement Action (in accordance with the terms of this Agreement) against that Debtor or that grantor of Transaction Security (as applicable); |
(b) | demand, sue, prove and give receipt for any or all of (as applicable) that Debtors Liabilities or that grantor of Transaction Securitys Liabilities; |
(c) | to the extent legally permissible, collect and receive all distributions on, or on account of, any or all of (as applicable) that Debtors Liabilities or that grantor of Transaction Securitys Liabilities; and |
(d) | file claims, take proceedings and do all other things the Security Trustee considers reasonably necessary to recover (as applicable) that Debtors Liabilities or that grantor of Transaction Securitys Liabilities. |
10.6 | Creditors actions |
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Each Creditor will:
(a) | do all things that the Security Trustee (acting in accordance with Clause 10.7 ( Security Trustee instructions)) requests in order to give effect to this Clause 10; and |
(b) | if the Security Trustee is not entitled to take any of the actions contemplated by this Clause 10 or if the Security Trustee (acting in accordance with Clause 10.7 ( Security Trustee instructions)) requests that a Creditor takes that action, undertakes that action itself in accordance with the instructions of the Security Trustee (acting in accordance with Clause 10.7 ( Security Trustee instructions)) or grants a power of attorney to the Security Trustee (on such terms as the Security Trustee (acting in accordance with Clause 10.7 ( Security Trustee instructions)) may reasonably require) to enable the Security Trustee to take such action. |
10.7 | Security Trustee instructions |
For the purposes of Clause 10.5 ( Filing of claims) and Clause 10.6 ( Creditors actions) the Security Trustee shall act:
(a) | on the instructions of the group of Primary Creditors entitled, at that time, to give instructions under Clause 13.3 ( Enforcement instructions) or Clause 13.5 ( Manner of enforcement); or |
(b) | in the absence of any such instructions, as the Security Trustee sees fit. |
11. | TURNOVER OF RECEIPTS |
11.1 | RCF Cash Cover |
This Clause 11 is subject to Clause 15.3 ( Treatment of RCF Cash Cover and Revolving Facility Cash Collateral) .
11.2 | Turnover by the Creditors |
Subject to Clause 11.3 ( Exclusions ), Clause 11.4 ( Permitted assurance and receipts) and (in the case of each Senior Secured Notes Trustee and each Senior Unsecured Notes Trustee) Clause 26 ( Senior Secured Notes Trustees), if at any time prior to the Final Discharge Date any Creditor receives or recovers:
(a) | any Payment or distribution of, or on account of or in relation to, or on account of the purchase or acquisition of, any of the Liabilities which is not either: |
(i) | a Permitted Payment; or |
(ii) | made in accordance with Clause 15 ( Application of Proceeds); |
(b) | other than where Clause 10.3 ( Set Off) applies, any amount by way of set off in respect of any of the Liabilities owed to it which does not give effect to a Permitted Payment; |
(c) | notwithstanding paragraphs (a) and (b) above, and other than where Clause 10.3 ( Set Off) applies, any amount: |
(i) | on account of, or in relation to, any of the Liabilities: |
(A) | after the occurrence of a Distress Event; or |
(B) | as a result of any other Enforcement Action against a member of the Group (other than after the occurrence of an Insolvency Event in respect of that member of the Group); or |
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(ii) | by way of set off in respect of any of the Liabilities owed to it after the occurrence of a Distress Event, |
other than, in each case, any amount received or recovered in accordance with Clause 15 ( Application of Proceeds);
(d) | the proceeds of any enforcement of any Transaction Security except in accordance with Clause 15 ( Application of Proceeds); or |
(e) | other than where Clause 10.3 ( Set Off) applies, any distribution in cash or in kind or Payment of, or on account of or in relation to, any of the Liabilities owed by any member of the Group which is not in accordance with Clause 15 ( Application of Proceeds) and which is made as a result of, or after, the occurrence of an Insolvency Event in respect of that member of the Group, |
that Creditor will:
(i) | in relation to receipts and recoveries not received or recovered by way of set off: |
(A) | hold an amount of that receipt or recovery equal to the Relevant Liabilities (or if less, the amount received or recovered) on trust for the Security Trustee and promptly pay that amount to the Security Trustee for application in accordance with the terms of this Agreement; and |
(B) | promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Trustee for application in accordance with the terms of this Agreement; and |
(ii) | in relation to receipts and recoveries received or recovered by way of set off, promptly pay an amount equal to that recovery to the Security Trustee for application in accordance with the terms of this Agreement. |
11.3 | Exclusions |
Clause 11.2 ( Turnover by the Creditors) shall not apply to any receipt or recovery:
(a) | by way of: |
(i) | Close-Out Netting by a Hedge Counterparty or a Hedging Ancillary Lender; |
(ii) | Payment Netting by a Hedge Counterparty or a Hedging Ancillary Lender; |
(iii) | Inter-Hedging Agreement Netting by a Hedge Counterparty; or |
(iv) | Inter-Hedging Ancillary Document Netting by a Hedging Ancillary Lender; or |
(b) | by an Ancillary Lender by way of that Ancillary Lenders right of netting or set off relating to a Multi Account Overdraft Facility (to the extent that that netting or set off represents a reduction from a Permitted Gross Amount of that Multi Account Overdraft Facility to or towards its Designated Net Amount); or |
(c) | that has been distributed by a Senior Secured Notes Trustee to the Senior Secured Noteholders in accordance with Senior Secured Notes Documents unless the Senior Secured Notes Trustee had actual knowledge that the receipt or recovery falls within Clause 11.2 ( Turnover by the Creditors) prior to distribution of the relevant amount; or |
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(d) | that has been distributed by a Senior Unsecured Notes Trustee to the Senior Unsecured Noteholders in accordance with Senior Unsecured Notes Documents unless the Senior Unsecured Notes Trustee had actual knowledge that the receipt or recovery falls within Clause 11.2 ( Turnover by the Creditors) prior to distribution of the relevant amount. |
11.4 | Permitted assurance and receipts |
Nothing in this Agreement shall restrict the ability of any Primary Creditor to:
(a) | arrange with any person which is not a member of the Group any assurance against loss in respect of, or reduction of its credit exposure to, a Debtor (including assurance by way of credit based derivative or sub participation); or |
(b) | make any assignment or transfer permitted by Clause 19 ( Changes to the Parties), which: |
(i) | is permitted by: |
(A) | any Revolving Facility Agreement; or |
(B) | each Senior Secured Notes Indenture; and |
(ii) | is not in breach of: |
(A) | Clause 4.5 ( No acquisition of Hedging Liabilities); |
(B) | Clause 7.4 ( Acquisition of Intra-Group Liabilities); or |
(C) | Clause 8.4 ( No acquisition of Subordinated Liabilities), |
and that Primary Creditor shall not be obliged to account to any other Party for any sum received by it as a result of that action.
11.5 | Sums received by Debtors |
If any of the Debtors or any other grantor of Transaction Security receives or recovers any sum which, under the terms of any of the Debt Documents, should have been paid to the Security Trustee, that Debtor or grantor of Transaction Security (as applicable) will, to the extent legally permissible:
(a) | hold an amount of that receipt or recovery equal to the Relevant Liabilities (or if less, the amount received or recovered) on trust for the Security Trustee and promptly pay that amount to the Security Trustee for application in accordance with the terms of this Agreement; and |
(b) | promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Trustee for application in accordance with the terms of this Agreement. |
11.6 | Saving provision |
If, for any reason, any of the trusts expressed to be created in this Clause 11 should fail or be unenforceable, the affected Creditor, Debtor or grantor of Transaction Security will, to the extent legally permissible, promptly pay an amount equal to that receipt or recovery to the Security Trustee to be held on trust by the Security Trustee for application in accordance with the terms of this Agreement.
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12. | REDISTRIBUTION |
12.1 | Recovering Creditors rights |
(a) | Any amount paid by a Creditor (a Recovering Creditor) to the Security Trustee under Clause 10 ( Effect of Insolvency Event) or Clause 11 ( Turnover of Receipts) shall be treated as having been paid by the relevant Debtor and distributed to the Security Trustee and Primary Creditors (each a Sharing Creditor) in accordance with the terms of this Agreement. |
(b) | On a distribution by the Security Trustee under paragraph (a) above of a Payment received by a Recovering Creditor from a Debtor or, as the case may be, any other grantor of Transaction Security, as between the relevant Debtor or grantor of Transaction Security and the Recovering Creditor an amount equal to the amount received or recovered by the Recovering Creditor and paid to the Security Trustee (the Shared Amount) will be treated as not having been paid by that Debtor or that grantor of Transaction Security (as the case may be). |
12.2 | Reversal of redistribution |
(a) | If any part of the Shared Amount received or recovered by a Recovering Creditor becomes repayable to a Debtor or any other grantor of Transaction Security and is repaid by that Recovering Creditor to that Debtor or grantor of Transaction Security (as applicable), then: |
(i) | each Sharing Creditor (subject, in the case of a Senior Secured Notes Trustee or a Senior Unsecured Notes Trustee, to Clause 26.1(b) ( Liability )) shall, upon request of the Security Trustee, pay to the Security Trustee for the account of that Recovering Creditor an amount equal to the appropriate part of its share of the Shared Amount (together with an amount as is necessary to reimburse that Recovering Creditor for its proportion of any interest on the Shared Amount which that Recovering Creditor is required to pay) (the Redistributed Amount); and |
(ii) | as between the relevant Debtor or grantor of Transaction Security and each relevant Sharing Creditor, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Debtor or grantor of Transaction Security (as applicable). |
(b) | The Security Trustee shall not be obliged to pay any Redistributed Amount to a Recovering Creditor under paragraph (a)(i) above until it has been able to establish to its satisfaction that it has actually received that Redistributed Amount from the relevant Sharing Creditor. |
12.3 | Deferral of Subrogation |
No Creditor or Debtor or other grantor of Transaction Security will exercise any rights which it may have by reason of the performance by it of its obligations under the Debt Documents to take the benefit (in whole or in part and whether by way of subrogation, contribution or otherwise) of any rights under the Debt Documents of any Creditor which ranks ahead of it in accordance with the priorities set out in Clause 2 ( Ranking and Priority) until such time as all of the Liabilities owing to each prior ranking Creditor (or, in the case of any Debtor or (as the case may be) other grantor of Transaction Security, owing to each Creditor) have been irrevocably paid in full.
13. | ENFORCEMENT OF TRANSACTION SECURITY |
13.1 | RCF Cash Cover |
This Clause 13 is subject to Clause 15.3 ( Treatment of RCF Cash Cover and Revolving Facility Cash Collateral) .
13.2 | Enforcement |
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The Secured Parties shall not give instructions to the Security Trustee as to the Enforcement of the Transaction Security other than in accordance with this Agreement.
13.3 | Enforcement Instructions |
(a) | The Security Trustee may refrain from enforcing the Transaction Security or taking any other Enforcement Action unless instructed otherwise by the Instructing Group in accordance with Clause 13.4 ( Enforcement Instructions Consultation Periods) . |
(b) | Subject to the Transaction Security having become enforceable in accordance with its terms and subject to Clause 13.4 ( Enforcement Instructions Consultation Periods), the Instructing Group may give instructions to the Security Trustee as to the Enforcement of the Transaction Security as they see fit provided that the instructions as to Enforcement given by the Instructing Group are consistent with the Security Enforcement Principles and: |
(i) | confirm whether they are being given by Creditors that constitute the Majority Super Senior Creditors or the Majority Senior Secured Notes Creditors (as applicable); |
(ii) | confirm that the terms set out in Clause 13.4 ( Enforcement Instructions Consultation Periods) have been complied with; |
(iii) | confirm that the Majority Super Senior Creditors or the Majority Senior Secured Notes Creditors (as applicable) have satisfied themselves that the instructions are consistent with the Security Enforcement Principles; and |
(iv) | specify which assets or shares would be and/or should not be, directly or indirectly, the subject of the Enforcement. |
(c) | The Security Trustee is entitled to rely on and comply with instructions given in accordance with this Clause 13.3 ( Enforcement Instructions) . |
13.4 | Enforcement Instructions Consultation Periods |
(a) | If either of the Majority Super Senior Creditors or the Majority Senior Secured Notes Creditors (acting in each case through their respective Representatives) wish to instruct the Security Trustee to commence Enforcement of any Transaction Security (including any such instructions or proposal made in accordance with paragraph (b) of Clause 13.9 ( Alternative Enforcement Actions)), such group of Creditors must deliver a copy of the proposed instructions as to Enforcement (the Enforcement Proposal) to the Security Trustee and the Representatives for each of the other Primary Creditors at least 5 Business Days prior to the proposed date of issuance of instructions under such Enforcement Proposal (the Proposed Enforcement Instruction Date) . |
(b) | The delivery of an Enforcement Proposal shall commence a 30 day consultation period (or such shorter period as the relevant Representatives may agree) (the Initial Consultation Period) during which time the relevant Representatives shall consult with each other in good faith with a view to coordinating the proposed instructions as to Enforcement (whilst keeping the Security Trustee informed of such consultation and co-ordination efforts and the role that the Security Trustee would be required to play in such Enforcement). |
(c) | The Representatives shall not be obliged to consult in accordance with paragraph (b) above or paragraph (e) below (or, in the case of paragraph (ii) below, shall be obliged to consult for such shorter period of time (if any) as determined in accordance with paragraph (ii) below) if: |
(i) | an Insolvency Event has occurred; |
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(ii) | the Majority Super Senior Creditors or the Majority Senior Secured Notes Creditors determine acting reasonably and in good faith (and notify the Representatives of the other Primary Creditors and the Security Trustee) that to enter into such consultations and thereby delay the commencement of enforcement of the Transaction Security could reasonably be expected to have a material adverse effect on: |
(A) | the Security Trustees ability to enforce any of the Transaction Security; or |
(B) | the realisation proceeds available to them of any enforcement of the Transaction Security in any material respect; or |
(iii) | the Representatives agree that no Initial Consultation Period is required. |
(d) | If consultation has taken place for at least 30 days as set out in paragraph (b) above (or such shorter period as determined under paragraph (c)(ii) above) and, if applicable, consultation has taken place for a period of 10 days (or such lesser period as the Representatives may agree) as set out in paragraph (e) below (or was not required to occur as provided for in paragraph (c) above), there shall be no further obligation to consult and the Security Trustee may, subject to Clause 13.9 ( Alternative Enforcement Actions), act in accordance with any instructions as to Enforcement issued pursuant to paragraph (b) of Clause 13.3 ( Enforcement Instructions) from the Instructing Group at any time thereafter. |
(e) | If the Majority Super Senior Creditors or the Majority Senior Secured Notes Creditors (acting reasonably) consider that the Security Trustee is enforcing the Security in a manner which is not consistent with the Security Enforcement Principles, the Representatives for the relevant Super Senior Creditors or Senior Secured Notes Creditors shall give notice to the Representatives for the other Super Senior Creditors and Senior Secured Notes Creditors (as appropriate) after which the Representatives shall consult with the Security Trustee for a period of 10 days (or such lesser period as such Representatives may agree) with a view to agreeing the manner of Enforcement provided that none of the Representatives shall be obliged to consult under this paragraph (e) more than once in relation to each Enforcement Action. |
13.5 | Manner of enforcement |
If the Transaction Security is being enforced or other action as to Enforcement is being taken pursuant to Clause 13.3 ( Enforcement Instructions), the Security Trustee shall enforce the Transaction Security or take other action as to Enforcement in such manner (including, without limitation, the selection of any administrator of any Debtor to be appointed by the Security Trustee) as the Instructing Group shall instruct, provided any such instructions are consistent with the Security Enforcement Principles.
13.6 | Exercise of voting rights |
(a) | Each Creditor (other than a Senior Secured Notes Trustee and a Senior Unsecured Notes Trustee) agrees with the Security Trustee that it will cast its vote in any proposal put to the vote by or under the supervision of any judicial or supervisory authority in respect of any insolvency, pre insolvency or rehabilitation or similar proceedings relating to any member of the Group as instructed by the Security Trustee (except that, but without prejudice to Clauses 14.2 ( Distressed Disposals) and 9.5 ( Further Assurance), it shall not be required to waive, reduce, discharge, extend the due date for payment of or reschedule any of the Liabilities owed to it). |
(b) | The Security Trustee shall give instructions for the purposes of paragraph (a) of this Clause 13.6 as directed by the Instructing Group provided such instructions have been given in accordance with Clause 13.3 ( Enforcement Instructions). |
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13.7 | Duties owed |
Each of the Secured Parties and the Debtors acknowledges that, in the event that the Security Trustee enforces or is instructed to enforce the Transaction Security prior to the Final Discharge Date, the duties of the Security Trustee and of any Receiver or Delegate owed to the Hedge Counterparties, the Senior Secured Notes Trustee, and the Senior Secured Noteholders in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Transaction Security shall, subject to Clause 13.2(d), be no different to or greater than the duty that is owed by the Security Trustee, Receiver or Delegate to the Debtors under general law provided that no Party shall have the right to claim any breach of this Clause 12.7 by the Security Trustee in relation to action taken by the Security Trustee as a result of and in accordance with instructions received by the Security Trustee pursuant to this Clause 12 (Enforcement of Transaction Security) (but without prejudice to any rights such Party may have against any other Party in respect of such instructions).
13.8 | Waiver of rights |
To the extent permitted under applicable law and subject to Clause 13.3 ( Enforcement Instructions), Clause 13.5 ( Manner of enforcement), paragraph (c) of Clause 14.2 ( Distressed Disposals) and Clause 15 ( Application of Proceeds), each of the Secured Parties and the Debtors waives all rights it may otherwise have to require that the Transaction Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Transaction Security or of any other security interest, which is capable of being applied in or towards discharge of any of the Secured Obligations is so applied.
13.9 | Alternative Enforcement Actions |
(a) | After the Security Trustee has received instructions from an Instructing Group pursuant to paragraph (b) of Clause 13.3 ( Enforcement Instructions) it shall not accept any subsequent instructions as to Enforcement from anyone other than the Instructing Group that instructed it in respect of such Enforcement (save in the case where the initial instructions were given by the Majority Senior Secured Notes Creditors, and the Majority Super Senior Creditors have subsequently become the Instructing Group) regarding any other Enforcement over or relating to the Transaction Security directly or indirectly the subject of the Enforcement which has been commenced (including, for the avoidance of doubt, in respect of Enforcement relating to the shares in a company, the giving of any instructions as to Enforcement of the Transaction Security over those shares or to the assets of that company or the shares in or assets of any direct or indirect Subsidiary of that company). |
(b) | This Clause 13.9 shall not restrict the right of the Instructing Group to instruct the Security Trustee as to Enforcement of the Transaction Security that includes any shares or assets which are not directly or indirectly the subject of a prior instruction as to Enforcement, subject to compliance with the requirements of Clause 13.4 ( Enforcement Ins tructions Consultation Periods) . |
14. | PROCEEDS OF DISPOSALS |
14.1 | Non-Distressed Disposals |
(a) | Subject to paragraph (c) below, if, in respect of a disposal of: |
(i) | an asset by a Debtor or a grantor of Transaction Security that is a member of the Group; or |
(ii) | an asset which is subject to the Transaction Security, |
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to another member of the Group:
(A) | that disposal is permitted under (prior to the Revolving Facility Discharge Date) the Revolving Facility Documents and (prior to the Senior Secured Notes Discharge Date) the Senior Secured Notes Documents; and |
(B) | that disposal is not a Distressed Disposal, |
the Security Trustee is irrevocably authorised (at the cost of the relevant Debtor or the Company and without any consent, sanction, authority or further confirmation from any Creditor, Debtor or other grantor of Transaction Security that is a member of the Group):
(iii) | to release the Transaction Security over that asset; |
(iv) | where that asset consists of shares in the capital of a Debtor, to release the Transaction Security over that Debtors or that other grantor of Transaction Security who is a member of the Groups assets; |
(v) | to execute and deliver or enter into any release of the Transaction Security described in paragraphs (iii) and (iv) above and issue any certificates of non-crystallisation of any floating charge or any consent to dealing that may, in the discretion of the Security Trustee, be considered necessary or desirable, |
provided that, in the case of a Non-Distressed Disposal under this paragraph (a), (A) the release of the Transaction Security is permitted under the terms of the Revolving Facility Agreement and the Senior Secured Notes Indenture and (B) to the extent that replacement Transaction Security is required from the transferee under the terms of the Debt Documents, such Transaction Security will (subject to any requirements relating to the release, retaking, amendment or extension of the Transaction Security under the Debt Documents) be granted at the same time as (or before) the relevant disposal is effected.
(b) | Subject to paragraph (c) below, if, in respect of a disposal of: |
(i) | an asset by a Debtor or a grantor of Transaction Security that is a member of the Group; or |
(ii) | an asset which is subject to the Transaction Security, |
to a person or persons outside the Group:
(A) | that disposal is permitted under (prior to the Revolving Facility Discharge Date) the Revolving Facility Documents and (prior to the Senior Secured Notes Discharge Date) the Senior Secured Notes Documents; |
(B) | that disposal is not a Distressed Disposal; and |
(C) | that disposal is notified to each Representative, |
the Security Trustee is irrevocably authorised (at the cost of the relevant Debtor or the Company and without any consent, sanction, authority or further confirmation from any Creditor, Debtor or other grantor of Transaction Security that is a member of the Group):
(iii) | to release the Transaction Security and any other claim (relating to a Debt Document) over that asset; |
(iv) | where that asset consists of shares in the capital of a Debtor, to release the Transaction Security and any other claim (relating to a Debt Document) over that |
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Debtors or that other grantor of Transaction Security who is a member of the Groups assets;
(v) | to execute and deliver or enter into any release of the Transaction Security and any claim described in paragraphs (iii) and (iv) above and issue any certificates of non-crystallisation of any floating charge or any consent to dealing that may, in the discretion of the Security Trustee, be considered necessary or desirable. |
(c) | If a disposal referred to in paragraph (a) or (b) above (each a Non-Distressed Disposal) is not made, each release of Transaction Security and, in respect of paragraph (b), each release of any claim, shall have no effect and the Transaction Security or claim (as the case may be) subject to that release shall continue in such force and effect as if that release had not been effected. |
14.2 | Distressed Disposals |
(a) | If a Distressed Disposal is being effected the Security Trustee is irrevocably authorised (at the cost of the relevant Debtor and without any consent, sanction, authority or further confirmation from any Creditor, Debtor or other grantor of Transaction Security): |
(i) | release of Transaction Security/non crystallisation certificates: to release the Transaction Security and any other claim over that asset and execute and deliver or enter into any release of that Transaction Security and claim and issue any letters of non-crystallisation of any floating charge or any consent to dealing that may, in the discretion of the Security Trustee, be considered necessary or desirable; |
(ii) | release of liabilities and Transaction Security on a share sale (Debtor) : if the asset which is disposed of consists of shares in the capital of a Debtor, to release: |
(A) | that Debtor and any Subsidiary of that Debtor from all or any part of: |
(1) | its Borrowing Liabilities (other than the Borrowing Liabilities of the Company that are Senior Liabilities or Senior Unsecured Notes Liabilities); |
(2) | its Guarantee Liabilities; and |
(3) | its Other Liabilities; |
(B) | any Transaction Security granted by that Debtor or any Subsidiary of that Debtor over any of its assets; and |
(C) | any other claim of an Intra-Group Lender, another Debtor or other grantor of Transaction Security over that Debtors assets or over the assets of any Subsidiary of that Debtor, |
on behalf of the relevant Creditors, Debtors and other grantors of Transaction Security;
(iii) | release of liabilities and Transaction Security on a share sale (Holding Company) : if the asset which is disposed of consists of shares in the capital of any Holding Company of a Debtor, to release: |
(A) | that Holding Company and any Subsidiary of that Holding Company from all or any part of: |
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(1) | its Borrowing Liabilities (other than the Borrowing Liabilities of the Company that are Senior Liabilities or Senior Unsecured Notes Liabilities); |
(2) | its Guarantee Liabilities; and |
(3) | its Other Liabilities; |
(B) | any Transaction Security granted by any Subsidiary of that Holding Company over any of its assets; and |
(C) | any other claim of an Intra-Group Lender or another Debtor over the assets of any Subsidiary of that Holding Company, |
on behalf of the relevant Creditors and Debtors;
(iv) | transfer of obligations in respect of liabilities on a share sale: if the asset which is disposed of consists of shares in the capital of a Debtor or the Holding Company of a Debtor (the Disposed Entity) and the Security Trustee (acting in accordance with paragraph (e) below) decides to transfer to another Debtor (the Receiving Entity) all or any part of the Disposed Entitys obligations or any obligations of any Subsidiary of that Disposed Entity in respect of: |
(A) | the Intra-Group Liabilities; or |
(B) | the Debtor Liabilities, |
to execute and deliver or enter into any agreement to:
(C) | agree to the transfer of all or part of the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities on behalf of the relevant Intra-Group Lenders and Debtors to which those obligations are owed and on behalf of the Debtors which owe those obligations; and |
(D) | to accept the transfer of all or part of the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities on behalf of the Receiving Entity or Receiving Entities to which the obligations in respect of those Intra-Group Liabilities or Debtor Liabilities are to be transferred. |
(b) | The net proceeds of each Distressed Disposal shall be paid to the Security Trustee for application in accordance with Clause 15 ( Application of Proceeds) as if those proceeds were the proceeds of an enforcement of the Transaction Security. |
(c) | If on or after the first Senior Unsecured Notes Issue Date but before the Senior Unsecured Notes Discharge Date, a Distressed Disposal is being effected such that the Senior Unsecured Notes Guarantees will be released under paragraph (a) above, it is a further condition to the release that either: |
(i) | the Senior Unsecured Notes Trustee has approved the release; or |
(ii) | where shares or assets of a Senior Unsecured Notes Guarantor are sold: |
(A) | the proceeds of such sale or disposal are in cash (or substantially in cash); |
(B) |
all claims of the Priority Creditors against a member of the Group (if any) (all of whose shares are pledged in favour of the Secured Parties and are sold or disposed of pursuant to such Enforcement Action), are |
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unconditionally released and discharged or sold or disposed of concurrently with such sale (and the obligations of members of the Group in respect of such claims are not assumed by the purchaser or one of its affiliates), and all Transaction Security under the Security Documents in respect of the assets that are sold or disposed of is simultaneously and unconditionally released and discharged concurrently with such sale; and |
(C) | such sale or disposal (including any sale or disposal of any claim) is made: |
(1) | pursuant to a Public Auction; or |
(2) | where a Financial Adviser selected by the Security Trustee has delivered an opinion in respect of such sale or disposal that the amount received in connection therewith is fair from a financial point of view taking into account all relevant circumstances including the method of enforcement provided that the liability of such investment bank or internationally recognised firm of accountants in giving such opinion may be limited to the amount of its fees in respect of such engagement. |
(d) | For the purposes of paragraphs (a)(ii), (a)(iii), (a)(iv) and (c) above, the Security Trustee shall act: |
(i) | if the relevant Distressed Disposal is being effected by way of enforcement of the Transaction Security, in accordance with Clause 13.5 ( Manner of enforcement); and |
(ii) | in any other case: |
(A) | on the instructions of the Instructing Group; or |
(B) | in the absence of any such instructions, as the Security Trustee sees fit. |
14.3 | Creditors and Debtors actions |
Each Creditor, Debtor and other grantor of Transaction Security will:
(a) | do all things that the Security Trustee requests in order to give effect to this Clause 13 (which shall include, without limitation, the execution of any assignments, transfers, releases or other documents that the Security Trustee may consider to be necessary to give effect to the releases or disposals contemplated by this Clause 13); and |
(b) | if the Security Trustee is not entitled to take any of the actions contemplated by this Clause 13 or if the Security Trustee requests that any Creditor, Debtor or other grantor of Transaction Security take any such action, take that action itself in accordance with the instructions of the Security Trustee, |
provided that the proceeds of those disposals are applied in accordance with Clause 14.2 ( Distressed Disposals ).
15. | APPLICATION OF PROCEEDS |
15.1 | Order of application |
Subject to the rights of creditors mandatorily preferred by law applying to companies generally and Clause 15.2 ( Prospective liabilities) and Clause 15.3 ( Treatment of RCF Cash Cover and Revolving Facility Cash Collateral), all amounts from time to time received or recovered by the Security Trustee pursuant to the terms of any Debt Document or in connection with the realisation or enforcement of all
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or any part of the Transaction Security (for the purposes of this Clause 15, the Recoveries ) shall be held by the Security Trustee on trust to apply them at any time as the Security Trustee (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15), in the following order of priority:
(a) | first, |
(i) | in discharging any sums owing to the Security Trustee, any Receiver or any Delegate; |
(ii) | in payment to each Revolving Agent on its own behalf for application towards the discharge of the Revolving Agent Liabilities (in accordance with the terms of the Revolving Facility Documents); |
(iii) | in payment to each Senior Secured Notes Trustee on its own behalf for application towards the discharge of the Senior Secured Notes Trustee Liabilities (in accordance with the Senior Secured Notes Documents); and |
(iv) | in payment to each Senior Unsecured Notes Trustee on its own behalf for application towards the discharge of the Senior Unsecured Notes Trustee Liabilities (in accordance with the Senior Unsecured Notes Documents), |
on a pro rata basis and ranking pari passu between paragraphs (i), (ii), (iii) and (iv) above;
(b) | second, in payment to: |
(i) | each Revolving Agent on behalf of the Revolving Lenders; and |
(ii) | the Hedge Counterparties, |
for application towards the discharge of:
(A) | the Revolving Creditor Liabilities (in accordance with the terms of the Revolving Facility Documents); and |
(B) | the Priority Hedging Liabilities (on the basis that the maximum amount of Priority Hedging Liabilities that a Hedge Counterparty may claim for is limited to its Allocated Amount), |
on a pro rata basis between paragraphs (A) and (B) above;
(c) | third, in payment to each Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders for application (in accordance with the terms of the Senior Secured Notes Documents) towards the discharge of the Senior Secured Notes Liabilities on a pro rata basis; |
(d) | fourth, in payment to the Hedge Counterparties for application towards the discharge of the Non Priority Hedging Liabilities on a pro rata basis; |
(e) | fifth, in payment to the Senior Unsecured Notes Trustee on behalf of the Senior Unsecured Noteholders for application (in accordance with the terms of the Senior Unsecured Notes Documents) towards the discharge of the Senior Unsecured Notes Guarantee Liabilities on a pro rata basis; |
(f) | sixth, if none of the Debtors is under any further actual or contingent liability under any Revolving Facility Document, Hedging Agreement or Senior Secured Notes Document, in payment to any person to whom the Security Trustee is obliged to pay in priority to any Debtor; and |
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(g) | seventh, the balance, if any, in payment to the relevant Debtor. |
15.2 | Prospective liabilities |
Following a Distress Event the Security Trustee may, in its discretion, hold any amount of the Recoveries in an interest bearing suspense or impersonal account(s) in the name of the Security Trustee with such financial institution (including itself) and for so long as the Security Trustee shall think fit (the interest being credited to the relevant account) for later application under Clause 15.1 ( Order of Application) in respect of:
(a) | any sum to any Security Trustee, any Receiver or any Delegate; and |
(b) | any part of the Liabilities, |
that the Security Trustee reasonably considers, in each case, might become due or owing at any time in the future.
15.3 | Treatment of RCF Cash Cover and Revolving Facility Cash Collateral |
(a) | Nothing in this Agreement shall prevent any Issuing Bank or Ancillary Lender taking any Enforcement Action in respect of any RCF Cash Cover which has been provided for it in accordance with any Revolving Facility Agreement. |
(b) | To the extent that any RCF Cash Cover is not held with the Relevant Issuing Bank or Relevant Ancillary Lender, all amounts from time to time received or recovered in connection with the realisation or enforcement of that RCF Cash Cover shall be paid to the Security Trustee and shall be held by the Security Trustee on trust to apply them at any time as the Security Trustee (in its discretion) sees fit, to the extent permitted by applicable law, in the following order of priority: |
(i) | to the Relevant Issuing Bank or Relevant Ancillary Lender towards the discharge of the Revolving Creditor Liabilities for which that RCF Cash Cover was provided; and |
(ii) | the balance, if any, in accordance with Clause 15.1 ( Order of Application) . |
(c) | To the extent that any RCF Cash Cover is held with the Relevant Issuing Bank or Relevant Ancillary Lender, nothing in this Agreement shall prevent that Relevant Issuing Bank or Relevant Ancillary Lender receiving and retaining any amount in respect of that RCF Cash Cover. |
(d) | Nothing in this Agreement shall prevent any Issuing Bank receiving and retaining any amount in respect of any Revolving Facility Cash Collateral provided for it in accordance with the terms of any Revolving Facility Agreement. |
15.4 | Investment of proceeds |
Prior to the application of the proceeds of the Security Property in accordance with Clause 15.1 ( Order of Application) the Security Trustee may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Trustee with such financial institution (including itself) and for so long as the Security Trustee shall think fit (or until otherwise directed by an Instructing Group), the interest being credited to the relevant account, pending the application from time to time of those monies in the Security Trustees discretion in accordance with the provisions of this Clause 15.
15.5 | Currency Conversion |
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(a) | For the purpose of, or pending the discharge of, any of the Secured Obligations the Security Trustee may convert any moneys received or recovered by the Security Trustee from one currency to another, at the Security Trustees Spot Rate of Exchange. |
(b) | The obligations of any Debtor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
15.6 | Permitted Deductions |
The Security Trustee shall be entitled, in its discretion, (a) to set aside by way of reserve amounts required to meet and (b) to make and pay, any deductions and withholdings (on account of taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement, and to pay all Tax which may be assessed against it in respect of any of the Charged Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Trustee under any of the Debt Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
15.7 | Good Discharge |
(a) | Any payment to be made in respect of the Secured Obligations by the Security Trustee: |
(i) | may be made to the relevant Representative on behalf of its Creditors; |
(ii) | may be made to the Relevant Issuing Bank or Relevant Ancillary Lender in accordance with paragraph (b)(i) of Clause 15.3 ( Treatment of RCF Cash Cover and Revolving Facility Cash Collateral); or |
(iii) | shall be made directly to the Hedge Counterparties, |
and any payment made in that way shall be a good discharge, to the extent of that payment, by the Security Trustee.
(b) | The Security Trustee is under no obligation to make the payments to any Representative or the Hedge Counterparties under paragraph (a) of this Clause 15.7 in the same currency as that in which the Liabilities owing to the relevant Creditor are denominated. |
15.8 | Calculation of Amounts |
For the purpose of calculating any persons share of any sum payable to or by it, the Security Trustee shall be entitled to:
(a) | notionally convert the Liabilities owed to any person into a common base currency (decided in its discretion by the Security Trustee), that notional conversion to be made at the spot rate at which the Security Trustee is able to purchase the notional base currency with the actual currency of the Liabilities owed to that person at the time at which that calculation is to be made; and |
(b) | assume that all moneys received or recovered as a result of the enforcement or realisation of the Security Property are applied in discharge of the Liabilities in accordance with the terms of the Debt Documents under which those Liabilities have arisen. |
(c) | Notwithstanding anything to the contrary set out in this Agreement, no money received or recovered from a French Debtor as a result of the enforcement or realisation of the Security Property shall be applied in discharge of any Liabilities if such discharge would result in or have the effect of an unlawful payment or discharge including (but not limited to) pursuant to Articles L.225-216, L.241-3 or L.242-36 and L.223-11 of the French Code de commerce. |
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16. | HEDGE COUNTERPARTY GUARANTEE |
16.1 | Guarantee and Indemnity |
Each Debtor irrevocably and unconditionally jointly and severally:
(a) | guarantees to each Hedge Counterparty the punctual performance by each other Debtor of all its obligations under the Hedging Agreements; |
(b) | undertakes with each Hedge Counterparty that whenever another Debtor does not pay any amount when due under or in connection with any Hedging Agreement, that Debtor shall immediately on demand pay that amount as if it was the principal obligor; and |
(c) | agrees with each Hedge Counterparty that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Hedge Counterparty immediately on demand against any cost, loss or liability it incurs as a result of a Debtor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Hedging Agreement on the date when it would have been due. The amount payable by a Debtor under this indemnity will not exceed the amount it would have had to pay under this Clause 16 if the amount claimed had been recoverable on the basis of a guarantee. |
16.2 | Continuing Guarantee |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Debtor under the Hedging Agreements, regardless of any intermediate payment or discharge in whole or in part.
16.3 | Reinstatement |
If any discharge, release or arrangement (whether in respect of the obligations of any Debtor or any other grantor of Transaction Security or any security for those obligations or otherwise) is made by a Hedge Counterparty in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration, examinership, receivership or otherwise, without limitation, then the liability of each Debtor under this Clause 16 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
16.4 | Waiver of defences |
(a) | The obligations of each Debtor under this Clause 16 will not be affected by an act, omission, matter or thing which, but for this Clause 16, would reduce, release or prejudice any of its obligations under this Clause 16 (without limitation and whether or not known to it or any Hedge Counterparty) including: |
(i) | any time, waiver or consent granted to, or composition with, any Debtor, any other grantor of Transaction Security or other person; |
(ii) | the release of any other Debtor, any other grantor of Transaction Security or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
(iii) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Debtor, any other grantor of Transaction Security or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
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(iv) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Debtor, any other grantor of Transaction Security or any other person; |
(v) | any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Hedging Agreement or any other document or security including, without limitation, any change in the purpose of, any extension of or increase in any Hedging Liability under any Hedging Agreement or any other document or security; |
(vi) | any unenforceability, illegality or invalidity of any obligation of any person under any Hedging Agreement or any other document or security; |
(vii) | any insolvency or similar proceedings; or |
(viii) | any benefit ( beneficio ) under Spanish Law, including but not limited to, benefits of prior exhaustion of the main debtors assets ( excusión ), division ( división ) and order ( orden ), which shall not in any event apply. |
(b) | Each Debtor irrevocably and unconditionally waives and abandons any and all rights or entitlement which it has or may have under the existing or future laws of the Island of Jersey whether by virtue of the customary law rights of: |
(i) | droit de discussion or otherwise, to require that recourse be had to the assets of any other person before any claim is enforced against it in respect of its obligations under any Hedging Agreement or this Clause 16, and irrevocably and unconditionally undertakes that if at any time proceedings are brought against it in respect of its obligations under any Hedging Agreement or this Clause 16 and any other person is not also joined in any such proceedings, it will not require that any other person be joined in or otherwise made a party to such proceedings, whether the formalities required by any law of the Island of Jersey whether existing or future in regard to the rights or obligations of sureties shall or shall not have been complied with or observed; and |
(ii) | droit de division or otherwise, to require that any liability under any Hedging Agreement or this Clause 16 be divided or apportioned with any other person or reduced in any manner. |
16.5 | Debtor intent |
Without prejudice to the generality of Clause 16.4 ( Waiver of defences), each Debtor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Hedging Agreements; any other variation or extension of the purposes for which any such hedging transaction or amount might be utilised from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
16.6 | Immediate recourse |
Each Debtor waives any right it may have of first requiring any Hedge Counterparty (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Debtor under this Clause 16. This waiver applies irrespective of any law or any provision of a Hedging Agreement to the contrary.
16.7 | Appropriations |
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Until all amounts which may be or become payable by the Debtors under or in connection with the Hedging Agreements have been irrevocably paid in full, each Hedge Counterparty (or any trustee or agent on its behalf) may:
(a) | refrain from applying or enforcing any other moneys, security or rights held or received by that Hedge Counterparty (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Debtor shall be entitled to the benefit of the same; and |
(b) | hold in an interest-bearing suspense account any moneys received from any Debtor or on account of any Debtors liability under this Clause 16. |
16.8 | Deferral of Debtors Rights |
Until all amounts which may be or become payable by the Debtors under or in connection with the Hedging Agreement have been irrevocably paid in full, no Debtor will exercise any rights which it may have by reason of performance by it of its obligations under any Hedging Agreement or by reason of any amount being payable, or liability arising, under this Clause 16:
(a) | to be indemnified by a Debtor or any other grantor of Transaction Security; |
(b) | to claim any contribution from any other guarantor of any Debtors obligations under the Hedging Agreements or this Clause 16; |
(c) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Hedge Counterparties under the Hedging Agreements or of any other guarantee or security taken pursuant to, or in connection with, the Hedging Agreements by any Hedge Counterparty; |
(d) | to bring legal or other proceedings for an order requiring any Debtor to make any payment, or perform any obligation, in respect of which any Debtor has given a guarantee, undertaking or indemnity under Clause 16.1 ( Guarantee and Indemnity); |
(e) | to exercise any right of set off against any Debtor or any other grantor of Transaction Security; and/or |
(f) | to claim or prove as a creditor of any Debtor or any other grantor of Transaction Security in competition with any Hedge Counterparty. |
If a Debtor or a grantor of Transaction Security receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Hedge Counterparties by the Debtors under or in connection with the Hedging Agreements or this Clause 16 to be repaid in full on trust for the Hedging Counterparties and shall promptly pay or transfer the same to the Security Trustee for applicable in accordance with Clause 15 ( Application of proceeds) .
16.9 | Release of Debtors right of contribution |
If any Debtor (a Retiring Debtor) ceases to be a Debtor for the purpose of any sale or other disposal of that Retiring Debtor then on the date such Retiring Debtor ceases to be a Debtor:
(a) | that Retiring Debtor is released by each other Debtor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Debtor arising by reason of the performance by any other Debtor of its obligations under the Hedging Agreements or this Clause 16; and |
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(b) | each other Debtor waives any rights it may have by reason of the performance of its obligations under this Clause 16 or the Hedging Agreements to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Hedge Counterparties under the Hedging Agreements, this Clause 16 or of any other security taken pursuant to, or in connection with, the Hedging Agreements or this Clause 16 where such rights or security are granted by or in relation to the assets of the Retiring Debtor. |
16.10 | Additional security |
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Hedge Counterparty.
16.11 | Dutch Guarantee Limitation |
Notwithstanding any other provision of this Clause 16 the guarantee, indemnity and other obligations of any Dutch Debtor expressed to be assumed in this Clause 16 shall be deemed not to be assumed by such Dutch Debtor to the extent that the same would constitute unlawful financial assistance within the meaning of Article 2:98c Dutch Civil Code or any other applicable financial assistance rules under any relevant jurisdiction (the Prohibition ) and the provisions of this Agreement and the other Debt Documents shall be construed accordingly. For the avoidance of doubt it is expressly acknowledged that the relevant Dutch Debtors will continue to guarantee all such obligations which, if included, do not constitute a violation of the Prohibition.
16.12 | French Guarantee Limitation |
No French Debtor shall have any liabilities as guarantor under this Clause 16.
16.13 | German Guarantee Limitation |
If the guarantee and indemnity granted in this Clause 16 (the Guarantee) is given by a Debtor incorporated in Germany in the legal form of a limited liability company ( Gesellschaft mit beschränkter Haftung (GmbH) ) (a German GmbH Debtor), the following shall apply:
(a) | The Hedge Counterparties shall be entitled to enforce the Guarantee against the relevant German GmbH Debtor without limitation in respect of: |
(i) | all and any amounts which are owed under the Hedging Agreements by such German GmbH Debtor itself or by any of its Subsidiaries; and |
(ii) | all and any amounts which correspond to funds that have been received under the Debt Documents or amounts borrowed or documentary credits or other financial accommodation provided under any ancillary facility, in each case to the extent lent or otherwise passed on to, or issued for the benefit of, the relevant German GmbH Debtor or any of its Subsidiaries, or for the benefit of any of their creditors and in each case not repaid and outstanding from time to time ((i) and (ii) are collectively referred to as the Unlimited Enforcement Events) . |
(b) | Beyond the Unlimited Enforcement Events the Hedge Counterparties shall not be entitled to enforce the Guarantee against the relevant German GmbH Debtor if and to the extent that: |
(i) | the Guarantee secures the obligations of an Debtor which is (x) a direct or indirect shareholder of the German GmbH Debtor or (y) an affiliated company ( verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) of a shareholder of the German GmbH Debtor (other than the German GmbH Debtor and its Subsidiaries) (the Up-Stream and/or Cross-Stream Guarantee); and |
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(ii) | the enforcement would have the effect of (x) reducing the German GmbH Debtors net assets ( Reinvermögen ) (the Net Assets ) to an amount of less than its stated share capital ( Stammkapital ) or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced and (y) thereby causing a violation of the capital maintenance requirements as set forth in section 30, para. 1 German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ) as amended from time to time provided that the amount of the stated share capital to be taken into consideration shall be the amount registered in the commercial register at the date hereof, and any increase of the stated share capital registered after the date of this Agreement shall only be taken into account if such increase has been effected with the prior written consent of the Revolving Agent (such consent shall not be unreasonably withheld). |
(c) | The Net Assets shall be calculated as an amount equal to the sum of the values of the German GmbH Debtors assets (consisting of all assets which correspond to the items set forth in section 266 sub-section (2) A, B and C of the German Commercial Code ( Handelsgesetzbuch ) less the aggregate amount of the German GmbH Debtors liabilities (consisting of all liabilities and liability reserves which correspond to the items set forth in section 266 sub-section (3) B, C and D of the German Commercial Code), save that: |
(i) | any asset that is shown in the balance sheet with a book value ( Buchwert ) that is significantly lower than the market value of such asset and that can be realised shall be taken into account with its market value, to the extent that such assets are not necessary for the relevant German GmbH Debtors business ( nicht betriebsnotwendig ) and to the extent that such realisation is necessary to satisfy the amount owed under the Guarantee (for the purpose of this clause a book value being significantly lower than the market value shall as a general rule be assumed if the book value is 35 per cent. lower than the market value); |
(ii) | obligations under loans provided to the German GmbH Debtor by any member of the Group shall not be taken into account as liabilities as far as such loans are subordinated by law or by contract at least to the claims of the unsubordinated creditors of the German GmbH Debtor; and |
(iii) | obligations under loans or other contractual liabilities incurred by the German GmbH Debtor in a culpable ( schuldhaft ) violation of the provisions of the Debt Documents shall not be taken into account as liabilities. |
The Net Assets shall be determined in accordance with the generally accepted accounting principles applicable from time to time in Germany ( Grundsätze ordnungsmäßiger Buchführung ) and, to the extent such accounting principles provide for discretion, be based on the same principles that were applied by the German GmbH Debtor in the preparation of its most recent annual balance sheet ( Jahresbilanz ) and, in any event, in accordance with the jurisprudence from time to time of the German Federal Court of Justice ( Bundesgerichtshof ) relating to the protection of liable capital under Sections 30 and 31 of the German Limited Liability Companies Act.
(d) | The limitations set out in paragraph (b) above shall only apply if: |
(i) |
the German GmbH Debtor delivers to the Revolving Agent, without undue delay but not later than within 10 Business Days (or such longer period as has been agreed between the German GmbH Debtor and the Revolving Agent) after receipt of a request for payment under the Guarantee by the Revolving Agent, a determination prepared by the German GmbH Debtors management stating which amount of the Up-Stream and/or Cross-Stream Guarantee cannot be enforced as it would cause the Net Assets of the relevant German GmbH Debtor being less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, |
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of causing such amount to be further reduced (taking into account the adjustments set out in paragraph (c) above (the Management Determination); and |
(ii) | provided that if the Revolving Agent (acting reasonably) disagrees with the Management Determination, the German GmbH Debtor delivers to the Revolving Agent, without undue delay but not later than within 20 Business Days (or such longer period as has been agreed between the German GmbH Debtor and the Revolving Agent) from the date the Revolving Agent has contested the Management Determination, an up to date balance sheet prepared by a firm of auditors of international standard and reputation which shows the amount of the Up-Stream and/or Cross-Stream Guarantee that cannot be enforced without the Net Assets of the relevant German GmbH Debtor becoming less than its stated share capital or, if the Net Assets are already an amount of less than its stated share capital, of causing such amount to be further reduced (the Balance Sheet) . The Balance Sheet shall be prepared in accordance with the principles set out in paragraph (c) above and shall contain further information (in reasonable detail) relating to items to be adjusted pursuant to paragraph (c) above. |
If the German GmbH Debtor fails to deliver the Management Determination or the Balance Sheet within the aforementioned time periods, the Hedge Counterparties shall be entitled to enforce the Guarantee irrespective of the limitations set out in paragraph (b) above.
(e) | If the Revolving Agent (acting for and on behalf of the Hedge Counterparties) disagrees with the Management Determination and/or the Balance Sheet, the Revolving Agent (acting for and on behalf of the Hedge Counterparties) shall be entitled to enforce the Guarantee up to the amount which, according to the Management Determination or the Balance Sheet, as the case may be, can be enforced in compliance with the limitations set out in paragraph (b) above. In relation to any additional amounts for which the German GmbH Debtor is liable under the Guarantee, the Hedge Counterparties shall be entitled to further pursue their claims (if any) and the relevant German GmbH Debtor shall be entitled to prove that this amount is necessary for maintaining its stated share capital (calculated as of the date the demand under the Guarantee was made). |
(f) | No reduction of the amount enforceable under this Clause 16.13 will prejudice the right of the Hedge Counterparties to continue enforcing the Guarantee (subject always to the operation of the limitations set out above at the time of such enforcement) until full satisfaction to the claims guaranteed. |
16.14 | Spanish Guarantee Limitation |
(a) | The obligations under this Clause 16 of any Debtor incorporated in Spain (a Spanish Debtor ) as a sociedad de responsabilidad limitada shall (i) not extend to any obligation incurred by any Debtor as a result of such Debtor borrowing (or guaranteeing the borrowing of) funds (but only in respect of those funds) for the purpose of (A) acquiring quotas ( participaciones sociales ) representing the share capital of such Spanish Debtor or quotas ( participaciones sociales ) or shares ( acciones ) representing the share capital of a company within its group or (B) refinancing a previous debt incurred by any Debtor for the acquisition of quotas ( participaciones sociales ) representing the share capital of such Spanish Debtor or quotas ( participaciones sociales) or shares ( acciones ) representing the share capital of a company within its group, and shall (ii) be deemed not to be undertaken or incurred by a Spanish Debtor to the extent that the same would constitute unlawful financial assistance within the meaning of article 143 of the Spanish Royal Legislative Decree 1/2010, of July 2, approving the consolidated text of the Corporate Enterprises Act ( Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital ) and, in that case, all provisions of this Agreement shall be construed accordingly in the sense that, in no case, can any guarantee or Security given by a Spanish Debtor secure repayment of the abovementioned funds. |
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(b) | For the purposes of paragraph (a) above, a reference to the group of a Spanish Debtor shall mean such Spanish Debtor and any other companies constituting a group as such term is defined under article 42 of the Spanish Commercial Code ( Código de Comercio) . |
(c) | The obligations under this Clause 16, any Spanish Debtor incorporated as a sociedad anónima shall (i) not extend to any obligation incurred by any Debtor as a result of such Debtor borrowing (or guaranteeing the borrowing of) funds (but only in respect of those funds) for the purpose of (A) acquiring shares ( acciones ) representing the share capital of such Spanish Debtor or shares ( acciones ) or quotas ( participaciones sociales) representing the share capital of its holding company or (B) refinancing a previous debt incurred by any Debtor for the acquisition of shares ( acciones ) representing the share capital of such Spanish Debtor or shares ( acciones ) or quotas ( participaciones sociales) representing the share capital of its holding company, and shall (ii) be deemed not to be undertaken or incurred by a Spanish Debtor to the extent that the same would constitute unlawful financial assistance within the meaning of article 150 of the Spanish Royal Legislative Decree 1/2010, of July 2, approving the consolidated text of the Corporate Enterprises Act ( Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital), and, in that case, all provisions of this Agreement shall be construed accordingly in the sense that, in no case, can any guarantee or Security given by a Spanish Debtor secure repayment of the above-mentioned funds. |
(d) | For the purposes of paragraph (c) above, a reference to a holding company of a Spanish Debtor shall mean the company which, directly or indirectly, owns the majority of the voting rights of such Spanish Debtor or that may have a dominant influence on such Spanish Debtor. It shall be presumed that one company has a dominant influence on another company when: |
(i) | any of the scenarios set out in section 1 of article 42 of the Spanish Commercial Code ( Código de Comercio) are met; or |
(ii) | when at least half plus one of the members of the managing body of the Spanish Debtor are also members of the managing body or top managers ( altos directivos) of the dominant company or of another company controlled by such dominant company. |
16.15 | Irish Guarantee Limitation |
The guarantee and indemnity contained in this Clause 16 (the Guarantee ) shall not apply to any liability of a Debtor incorporated in the Ireland to the extent that it would result in this Guarantee constituting unlawful financial assistance within the meaning of Section 60 of the Companies Act 1963 or any equivalent and applicable provisions under the laws of any relevant jurisdiction.
16.16 | Danish Guarantee Limitation |
Notwithstanding anything set out to the contrary in this Agreement (including without limitation Clause 2 ( Ranking and priority), Clause 15 ( Application of proceeds) and Clause 21 ( Indemnities )), the obligations of any Debtor incorporated in Denmark hereunder:
(a) | shall be deemed not to be assumed (and any Security created in relation thereto shall be limited to) if and to the extent required to comply with Danish statutory provisions on unlawful financial assistance at the date of this Agreement including, but not limited to, Sections 206 to 212 of the Danish Companies Act as amended and supplemented from time to time; and |
(b) |
shall, in relation to obligations not incurred as a result of borrowings by the Danish Debtor, further be limited to an amount equal to the higher of (i) the equity of the Danish Debtor at the date of this Agreement and (ii) the equity at the date when a claim is made against the Danish Debtor, in each case calculated in accordance with the Danish Debtors generally accepted accounting principles at the relevant time; provided, however, that this shall be adjusted to |
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include (if not already included) a statutory reserve in respect of any unpaid portion of the subscription price for shares issued by the Danish Debtor calculated in accordance with the Danish Debtors generally accepted accounting principles at the relevant time. |
16.17 | Belgian Guarantee Limitation |
The guarantee, indemnity and other obligations of any Belgian Debtor under this Clause 15 ( Hedge Counterparty Guarantee) shall not include any liability which would constitute unlawful financial assistance within the meaning of Article 629 of the Belgian Company Code and shall be limited, at any time, to a maximum aggregate amount equal to the greater of:
(a) | an amount equal to 90% of the Belgian Debtors net assets (as determined in accordance with the Belgian Company Code and accounting principles generally accepted in Belgium, but not taking intra-group debts into account as debts) as shown by the latest audited financial statements publicly available on the date of this Agreement; |
(b) | an amount equal to 90% of the Belgian Debtors net assets (as determined in accordance with the Belgian Company Code and accounting principles generally accepted in Belgium, but not taking intra-group debts into account as debts) as shown by the latest audited financial statements publicly available on the date on which the relevant demand is made; and |
(c) | the aggregate amount outstanding on the day prior to the date on which the relevant demand is made of any intra-group loans or facilities made to the Belgian Debtor by the Company or any Subsidiary of the Company using all or part of the proceeds of the Revolving Facility Agreement and the Senior Secured Notes (whether or not such intra-group loan is retained by the Belgian Debtor for its own purposes or on-lent to the Company or another Subsidiary of the Company). |
16.18 | Qualified Keepwell Provider; Non-Qualified ECP Guarantor |
(a) | The Qualified Keepwell Provider hereby absolutely, unconditionally and irrevocably, undertakes to provide such funds as may be needed by any Non-Qualified ECP Guarantor to honour all of such Non-Qualified ECP Guarantors obligations under this guarantee in respect of Swap Obligations (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering the Qualified Keepwell Providers obligations hereunder voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of the Qualified Keepwell Provider under this paragraph (a) shall remain in full force and effect until all Swap Obligations in respect of which a Non-Qualified ECP Guarantor has provided a guarantee have been fully and finally discharged. The Parties intend this provision to constitute, and this provision shall be deemed to constitute, a keepwell, support, or other agreement for the benefit of, each Non-Qualified ECP Guarantor for all purposes of Section 1a (18)(A)(v)(II) of the CEA. |
(b) | If, notwithstanding paragraph (a) above, there exists at any time any Non-Qualified ECP Guarantor that is providing a guarantee or granting security with respect to any Swap Obligation, any guarantee or security provided by such Non-Qualified ECP Guarantor shall not constitute a guarantee or security for Excluded Swap Obligations, and any reference in any Debt Document with respect to such Non-Qualified ECP Guarantor providing a guarantee or security for Swap Obligations or Secured Obligations shall be deemed to be all Swap Obligations other than the Excluded Swap Obligations (and each Party hereto hereby relinquishes, waives and releases any rights to enforce such guarantee or security in respect of such Excluded Swap Obligations). |
(c) | For the purposes of paragraphs (a) and (b) above, the following terms have the following meanings: |
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CEA means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) (as amended).
CFTC means the Commodity Futures Trading Commission.
ECP means an eligible contract participant as defined in the CEA and the applicable rules issued by the CFTC.
Excluded Swap Obligations means, with respect to any Debtor, any obligation (each a Swap Obligation) to pay or perform under any agreement, contract or transaction that constitutes a swap within the meaning of Section 1a(47) of the CEA if, and to the extent that, all or a portion of the guarantee of such Debtor of, or the grant by such Debtor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the CEA or any rule, regulation, or order of the CFTC (or the application or official interpretation of any thereof) by virtue of such Debtors failure for any reason to constitute an ECP at the time the guarantee of such Debtor, or a grant by such Debtor of a security interest, becomes effective with respect to such Swap Obligation.
Non-Qualified ECP Guarantor means, in respect of any Swap Obligation, a Debtor that is not a Qualified ECP Guarantor at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation.
Qualified ECP Guarantor means, in respect of any Swap Obligation, each Debtor that has total assets exceeding USD 10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or otherwise constitutes an ECP.
Qualified Keepwell Provider means the Company or, in respect of any Swap Obligation, if the Note Issuer is not an ECP at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation, any other Debtor notified by the Company to the Security Trustee and each Hedge Counterparty that is: (i) a corporation, partnership, proprietorship, organization, trust or other entity other than a commodity pool as defined in Section 1a(10) of the CEA and CFTC regulations thereunder that has total assets exceeding $10,000,000 or (ii) an ECP that can cause another person to qualify as an ECP under Section 1a(8)(A)(v)(II) of the CEA by entering into a keepwell.
Swap Obligation has the meaning given to it in the definition of Excluded Swap Obligation.
17. | THE SECURITY TRUSTEE |
17.1 | Trust |
(a) | The Security Trustee declares that it shall hold the Security Property (save for the Dutch law Transaction Security) on trust for the Secured Parties on the terms contained in this Agreement. |
(b) | Each Party agrees that the Security Trustee shall have only those duties, obligations and responsibilities expressly specified in this Agreement or in the Security Documents to which the Security Trustee is expressed to be a party (and no others shall be implied). |
17.2 | Parallel Debt |
(a) | Notwithstanding any other provision of this Agreement, each Debtor hereby irrevocably and unconditionally undertakes to pay to the Security Trustee, as creditor in its own right and not as representative or trustee of the other Secured Parties, sums equal to and in the currency of each amount payable by such Debtor to each of the Secured Parties under each of the Debt Documents as and when that amount falls due for payment under the relevant Debt Document or would have fallen due but for any discharge resulting from failure to another Secured Party to take appropriate steps, in insolvency proceedings affecting that Debtor, to preserve its entitlement to be paid that amount. |
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(b) | Subject to paragraph (d) below, the Security Trustee shall have its own independent right to demand payment in its own name of the amounts payable by each Debtor under this Clause 17.2, irrespective of any discharge (other than by way of payment) of such Debtors obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings affecting that Debtor, to preserve their entitlement to be paid those amounts. |
(c) | Any amount due and payable by the Debtors to the Security Trustee under this Clause 17.2 shall be decreased to the extent that the other Secured Parties have received (and are able to retain) payment in full of the corresponding amount under the other provisions of the Debt Documents and any amount due and payable by the Debtors to the other Secured Parties under those provisions shall be decreased to the extent that the Security Trustee has received (and is able to retain) payment in full of the corresponding amount under this Clause 17.2. Any amount due and payable by the Debtors to the Security Trustee under this Clause 17.2 shall be increased to the extent that the Secured Parties are entitled to an increase of the corresponding amount under the other Debt Documents. |
(d) | The rights of the Secured Parties (other than the Security Trustee) to receive payment of amounts payable by each Debtor under the Debt Documents are several and are separate and independent from, and without prejudice to, the rights of the Security Trustee to receive payment under this Clause 17.2. |
17.3 | Joint and Several Creditor |
(a) | Each of the Debtors and the Secured Parties agree that the Security Trustee shall be the joint and several creditor (together with the relevant Secured Party) of each and every obligation of such Debtor towards each of the Secured Parties under the Debt Documents and that accordingly the Security Trustee will have its own independent right to demand performance by the relevant Debtor of such obligation. However, any discharge of a Debtor of any such obligation to one of the Security Trustee or a Secured Party shall, to the same extent, discharge such Debtor vis-à-vis the other party, and a Secured Party and the Security Trustee shall not, by virtue of this Clause 17.3, be entitled to pursue the Debtor concurrently for the same obligation. |
(b) | Without limiting or affecting the Security Trustees rights against any Debtor (whether under this Clause or under any other provision of any Debt Document), the Security Trustee agrees with each Secured Party that, subject as set out in the next sentence, it will not exercise its rights as a joint and several creditor with a Secured Party except with the consent of the relevant Secured Party. However, for the avoidance of doubt, nothing in the previous sentence shall in any way limit the Security Trustees right to act in the protection or preservation of rights under or to enforce any Debt Document as contemplated by this Agreement and/or the relevant Debt Document (or to do any act reasonably incidental to any of the foregoing). |
17.4 | Appointment as agent and administrator in relation to German Security Interests |
(a) | In relation to the German Security Interests, the Security Trustee shall: |
(i) | hold, administer and (subject to the same having become enforceable and to the terms of this Agreement) realise any such German Security Interest which is Security transferred or assigned ( Sicherungseigentum/Sicherungsabtretung ) or otherwise granted under a non-accessory security right ( nicht-akzessorische Sicherheit) to it in its own name as trustee ( treuhänderisch ) for the benefit of the Secured Parties; and |
(ii) |
administer and (subject to the same having become enforceable and to the terms of this Agreement) realise in its own name and on its own behalf in its capacity as |
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Creditor of its rights pursuant to Clause 17.2 ( Parallel Debt) and/or in the name of and on behalf of the Secured Parties any German Security Interest which is pledged ( Verpfändung ) or otherwise granted to it or any Secured Party under an accessory security right ( akzessorische Sicherheit) in its own name and on its own behalf or in the name and on behalf of any Secured Party. |
(b) | Each Secured Party (other than the Security Trustee) hereby authorises the Security Trustee to accept as its representative ( Stellvertreter ) any pledge or other creation of any accessory security right made to such Secured Party in relation to the Debt Documents and to act and execute on its behalf as its representative ( Stellvertreter ), subject to the terms of the Debt Documents, amendments or releases of, accessions and alterations to, and to carry out similar dealings with regard to any German Security Document which creates a pledge or any other accessory security right ( akzessorische Sicherheit) . |
(c) | Each Secured Party which is or becomes a party to this Agreement, any Revolving Facility Document or any Senior Secured Notes Document ratifies and approves all acts and declarations previously done by the Security Trustee on such Secured Partys behalf (including for the avoidance of doubt the declarations made by the Security Trustee as representative without power of attorney ( Vertreter ohne Vertretungsmacht)) in relation to the creation of any pledge ( Pfandrecht ) on behalf and for the benefit of any Secured Party in respect of the German Security Documents. |
(d) | Each relevant Debtor and each relevant Secured Party agrees that the administration and realisation of the Senior Security Interests created pursuant to German Security Documents entered into between them in addition to this Agreement shall be subject to the relevant terms of this Agreement. |
(e) | The Security Trustee shall and is hereby authorised by each of the Secured Parties (and to the extent it may have any interest therein, every other party hereto) to execute on behalf of itself and each other Party where relevant without the need for any further referral to, or authority from, any other person all necessary releases or confirmations of any security created under the German Security Interests in relation to the disposal of any asset which is permitted under the German Security Interests or consented or agreed upon in accordance with the Debt Documents. |
(f) | Each Secured Party hereby irrevocably authorises the Security Trustee to act on its behalf and if required under applicable law, or if otherwise appropriate, in its name and on its behalf in connection with the preparation, execution and delivery of the German Security Interests and the perfection and monitoring of the German Security Interests, including but not limited to, any share pledge, mortgage, assignment or transfer of title for security purposes. The Security Trustee is authorised to make all statements necessary or appropriate in connection with the foregoing sentence. |
(g) | Each of the Debtors and the Secured Parties hereby relieves the Security Trustee from any restrictions on representing several persons and self-dealing under any applicable law, and in particular from the restrictions pursuant to section 181 of the German Civil Code ( Bürgerliches Gesetzbuch BGB) in order to enable the Security Trustee to perform its duties and obligations as Security Trustee hereunder. |
(h) | It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trust expressed to be created by this Clause 17.4, the relationship of the Secured Parties to the Security Trustee in relation to any German Security Interest shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Clause 17.4 shall have full force and effect between the Parties. |
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17.5 | Appointment as agent and administrator in relation to Spanish Security Interests |
(a) | In relation to the Spanish Security Interests, the Security Trustee shall: |
(i) | accept, hold, administer and (subject to the same having become enforceable and to the terms of this Agreement) realise any such Spanish Security Interest which is Security granted transferred or assigned or otherwise granted under a non-accessory security right to the Secured Parties or to the Security Trustee in its own name as trustee or security agent for the benefit of the Secured Parties or on behalf of the Secured Parties; and |
(ii) | administer, enforce and (subject to the same having become enforceable and to the terms of this Agreement) realise in the name of and on behalf of the Secured Parties any Spanish Security Interest which is pledged or otherwise transferred to any Secured Party under an accessory security right in the name and on behalf of the Secured Parties. |
(b) | Each Secured Party (other than the Security Trustee) hereby authorises the Security Trustee to accept as its representative any pledge or other creation of any accessory security right made to such Secured Party in relation to the Debt Documents and to act and execute on its behalf as its representative, subject to the terms of the Debt Documents, amendments or releases of, accessions and alterations to, and to carry out similar dealings with regard to any Spanish Security Document which creates a pledge or any other accessory security right. |
(c) | Each Secured Party which becomes a party to any Revolving Facility Document or any Senior Secured Notes Document ratifies and approves all acts and declarations previously done by the Security Trustee on such Secured Partys behalf (including for the avoidance of doubt the declarations made by the Security Trustee as representative in relation to the creation of any pledge on behalf and for the benefit of any Secured Party in respect of the Spanish Security Documents). |
(d) | Each relevant Debtor and each relevant Secured Party agrees that the Spanish Security Documents entered into between them in addition to this Agreement shall be subject to the relevant terms of this Agreement. |
(e) | The Security Trustee shall and is hereby authorised by each of the Secured Parties (and to the extent it may have any interest therein, every other party hereto) to execute on behalf of itself and each other Party where relevant without the need for any further referral to, or authority from, any other person all necessary releases or confirmations of any security created under the Spanish Security Documents in relation to the disposal of any asset which is permitted under the Spanish Security Documents or consented or agreed upon in accordance with the Debt Documents. |
(f) | Each Secured Party hereby irrevocably authorises the Security Trustee to act on its behalf and if required under applicable law, or if otherwise appropriate, in its name and on its behalf in connection with the acceptance, preparation, execution, enforcement and delivery of the Spanish Security Interests and Spanish Security Documents and the perfection and monitoring of the Spanish Security Interests and the Spanish Security Documents, including but not limited to, any share pledge, mortgage, assignment or transfer of title for security purposes. The Security Trustee is authorised to make all statements necessary or appropriate in connection with the foregoing sentence and collect all amounts payable to any Secured Party in respect of any Transaction Security Document in one or more accounts opened by the Security Trustee for such purpose, and the Security Trustee shall thereafter distribute any such amounts due to the Secured Parties in accordance with the provisions of this Agreement. |
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(g) | It is hereby agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect to the trust expressed to be created by this Clause 17.5, the relationship of the Secured Parties to the Security Trustee in relation to any Spanish Security Interest shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Clause 17.5 shall have full force and effect between the Parties. |
17.6 | French Security |
The Security Trustee is hereby appointed as agent ( mandataire ) of the Secured Parties pursuant to Article 1984 et seq. of the French Code Civil, to represent and act on behalf of each Secured Party in relation to any actions required or advisable in connection with the entry into, performance, management and foreclosure of, and in respect of any dispute arising from or in connection with, any French Security Interest created pursuant to any French Security Document, pursuant and subject to the provisions of Clauses 17.7 ( No independent power) to 17.23 ( Winding up of trust) ( inclusive ), which shall apply mutatis mutandis for the purposes of the Security Trustee acting as agent (mandataire) of the Secured Parties pursuant to Article 1984 et seq. of the French Code Civil.
17.7 | Appointment of the Security Trustee in relation to Belgian Security Documents |
(a) | For the purposes of this Clause 16.7, Belgian Security Document means any Security Document governed by Belgian law. |
(b) | Each Secured Party (other than the Security Trustee) hereby appoints the Security Trustee as: |
(i) | its representative ( vertegenwoordiger / représentant) within the meaning of article 5 of the Belgian Financial Collateral Act of 15 December 2004 in respect of the Belgian Security Documents relating to financial instruments and cash on account; and |
(ii) | its representative ( lasthebber / mandataire) within the meaning of Article 1984 et seq. of the Belgian Civil Code in respect of any Belgian Security Document other than any mentioned in paragraph (i) above, |
to represent and act on behalf of each Secured Party in relation to any action required or advisable in connection with the entry into, performance, management and foreclosure of, and in respect of any dispute arising from or in connection with, any Belgian Security Document, pursuant and subject to the provisions of Clauses 17.8 ( No independent power) to 17.23 ( Winding up of trust) ( inclusive ), which shall apply mutatis mutandis for the purposes of the Security Trustee acting as representative of the Secured Parties within the meaning of paragraphs (i) and (ii) above.
17.8 | No independent power |
Subject to Clause 15.3 ( Treatment of RCF Cash Cover and Revolving Facility Cash Collateral), the Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any rights or powers arising under the Security Documents except through the Security Trustee.
17.9 | Instructions to Security Trustee and exercise of discretion |
(a) |
Subject to paragraphs (d) and (e) below, the Security Trustee shall act in accordance with any instructions given to it by an Instructing Group or, if so instructed by an Instructing Group, refrain from exercising any right, power, authority or discretion vested in it as Security Trustee and shall be entitled to assume that (i) any instructions received by it from a Representative, the Creditors or a group of Creditors are duly given in accordance with the terms of the Debt Documents; (ii) unless it has received actual notice of revocation, that those |
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instructions or directions have not been revoked; (iii) if it receives any instruction to act in respect of the Transaction Security, that all applicable conditions under the Debt Documents for so acting have been satisfied and (iv) may rely on a certificate from any person (A) as to any matter or fact or circumstance which might reasonably be expected to be within the knowledge of that person; or (B) to the effect that such a person approves of any particular dealing, transaction, step, action or thing, as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate. |
(b) | The Security Trustee shall be entitled to request instructions, or clarification of any direction, from an Instructing Group (or if this Agreement stipulates the matter is a decision for any other Creditor or group of Creditors from that Creditor or group of Creditors) as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it. |
(c) | Save as provided in Clause 13 ( Enforcement of Transaction Security), and save in the case of decisions stipulated to be a matter for any other Creditor or group of Creditors under this Agreement and unless a contrary intention appears in this Agreement any instructions given to the Security Trustee by an Instructing Group shall override any conflicting instructions given by any other Parties. |
(d) | Paragraph (a) above shall not apply: |
(i) | where a contrary indication appears in this Agreement; |
(ii) | where this Agreement requires the Security Trustee to act in a specified manner or to take a specified action; |
(iii) | in respect of any provision which protects the Security Trustees own position in its personal capacity as opposed to its role of Security Trustee for the Secured Parties including, without limitation, the provisions set out in Clause 17.11 ( Security Trustees discretions) to Clause 17.26 ( Disapplication ); |
(iv) | in respect of the exercise of the Security Trustees discretion to exercise a right, power or authority under any of: |
(A) | Clause 14.1 ( Non-Distressed Disposals); |
(B) | Clause 15.1 ( Order of application); |
(C) | Clause 15.2 ( Prospective liabilities); |
(D) | Clause 15.3 ( Treatment of RCF Cash Cover and Revolving Facility Cash Collateral); and |
(E) | Clause 15.6 ( Permitted Deductions) . |
(e) | If giving effect to instructions given by an Instructing Group would (in the Security Trustees opinion) have an effect equivalent to an Intercreditor Amendment, the Security Trustee shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Trustee) whose consent would have been required in respect of that Intercreditor Amendment. |
(f) | In exercising any discretion to exercise a right, power or authority under the Debt Documents where either: |
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(i) | it has not received any instructions from an Instructing Group as to the exercise of that discretion; or |
(ii) | the exercise of that discretion is subject to paragraph (d)(iv) above, |
the Security Trustee shall: (A) other than where paragraph (B) applies do so having regard to the interests of all the Secured Parties; or if (in its opinion) there is a Creditor Conflict in relation to the matter in respect of which the discretion is to be exercised, do so having regard only to the interests of all the Super Senior Creditors.
(g) | In determining the amount of the Senior Secured Notes Liabilities of any Senior Secured Noteholder or group of Senior Secured Noteholders for any purposes under this Agreement whether requests from, or the consent of, the Majority Senior Creditors have been obtained the Security Trustee shall only be required to consider: |
(i) | in respect of Senior Secured Noteholders (other than Additional Senior Secured Notes Creditors), instructions from the Senior Secured Notes Trustee (in accordance with the relevant Senior Secured Notes Documents) indicating the amount of the Senior Secured Notes Liabilities held by the relevant Senior Secured Noteholders requesting or consenting to such action; and |
(ii) | in respect of Additional Senior Secured Notes Creditors, instructions from the applicable Additional Senior Secured Notes Trustee (in accordance with the applicable Senior Secured Debt Instrument) indicating the amount of the Additional Senior Secured Notes Liabilities held by the relevant Additional Senior Secured Notes Creditors. |
(h) | In determining the amount of the Senior Unsecured Notes Liabilities of any Senior Unsecured Noteholder or group of Senior Unsecured Noteholders for any purposes under this Agreement whether requests from, or the consent of, the Majority Senior Unsecured Notes Creditors have been obtained the Security Trustee shall only be required to consider instructions from the relevant Senior Unsecured Notes Trustee (in accordance with the relevant Senior Unsecured Notes Documents) indicating the amount of the Senior Unsecured Notes Liabilities held by the relevant Senior Unsecured Noteholders requesting or consenting to such action. |
(i) | The Security Trustee may refrain from acting in accordance with any instructions of any Creditor or group of Creditors until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Debt Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions. |
(j) | The Security Trustee may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Trustee (and so separate from any lawyers instructed by any Primary Creditor) if the Security Trustee in its reasonable opinion deems this to be desirable. |
(k) | The Security Trustee may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Security Trustee or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying. |
(l) | The Security Trustee, any Receiver and any Delegate may act in relation to the Debt Documents and the Security Property through its officers, employees and agents and shall not: |
(i) | be liable for any error of judgment made by any such person; or |
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(ii) | be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person, |
unless such error or such loss was directly caused by the Security Trustees, Receivers or Delegates gross negligence or wilful misconduct.
(m) | Unless this Agreement expressly specifies otherwise, the Security Trustee may disclose to any other Party any information it reasonably believes it has received as security trustee under this Agreement. |
(n) | Notwithstanding any other provision of any Debt Document to the contrary, the Security Trustee is not obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. |
(o) | Notwithstanding any provision of any Debt Document to the contrary, the Security Trustee is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. |
17.10 | Security Trustees Actions |
Without prejudice to the provisions of Clause 13 ( Enforcement of Transaction Security) and Clause 17.9 ( Instructions to Security Trustee and exercise of discretion), the Security Trustee may (but shall not be obliged to), in the absence of any instructions to the contrary, act (or refrain from acting) in the exercise of any of its powers and duties under the Debt Documents as it considers in its discretion to be appropriate.
17.11 | Security Trustees discretions |
The Security Trustee may:
(a) | assume (unless it has received actual notice to the contrary from a Hedge Counterparty or from one of the Representatives) that (i) no Event of Default has occurred and no Debtor or any other grantor of Transaction Security is in breach of or default under its obligations under any of the Debt Documents and (ii) any right, power, authority or discretion vested by any Debt Document in any person has not been exercised; |
(b) | if it receives any instructions or directions under Clause 13 ( Enforcement of Transaction Security) to take any action in relation to the Transaction Security, assume that all applicable conditions under the Debt Documents for taking that action have been satisfied; |
(c) | engage, pay for and rely on the advice or services of any legal advisers, accountants, tax advisers, surveyors or other experts (whether obtained by the Security Trustee or by any other Secured Party) whose advice or services may at any time seem necessary, expedient or desirable; |
(d) | rely upon any communication or document believed by it to be genuine and, as to any matters of fact which might reasonably be expected to be within the knowledge of a Secured Party, any Creditor, Subordinated Creditor, a Debtor or any other grantor of Transaction Security, upon a certificate signed by or on behalf of that person; and |
(e) |
refrain from acting in accordance with the instructions of any Party (including bringing any legal action or proceeding arising out of or in connection with the Debt Documents) until it has received any indemnification and/or security that it may in its discretion require (whether |
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by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in so acting. |
17.12 | Security Trustees obligations |
The Security Trustee shall promptly:
(a) | copy to (i) each Representative and (ii) each Hedge Counterparty the contents of any notice or document received by it from any Debtor or any other grantor of Transaction Security under any Debt Document; |
(b) | forward to a Party the original or a copy of any document which is delivered to the Security Trustee for that Party by any other Party provided that, except where a Debt Document expressly provides otherwise, the Security Trustee is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party; |
(c) | inform (i) each Representative and (ii) each Hedge Counterparty of the occurrence of any Event of Default or any default by a Debtor or any other grantor of Transaction Security in the due performance of or compliance with its obligations under any Debt Document of which the Security Trustee has received notice from any other Party; and |
(d) | to the extent that a Party (other than the Security Trustee) is required to calculate a Common Currency Amount, and upon a request by that Party, notify that Party of the relevant Security Trustees Spot Rate of Exchange. |
17.13 | Excluded obligations |
(a) | Notwithstanding anything to the contrary in the Debt Documents, the Security Trustee shall not: |
(i) | be bound to enquire as to (i) whether or not any Event of Default has occurred or (ii) the performance, default or any breach by a Debtor or any other grantor of Transaction Security of its obligations under any of the Debt Documents; |
(ii) | be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account; |
(iii) | be bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other information if disclosure would, or might in its reasonable opinion, constitute a breach of any law or be a breach of fiduciary duty; |
(iv) | have or be deemed to have any relationship of trust or agency with, any Debtor or any other grantor of Transaction Security or any Subordinated Creditor. |
(b) | The Security Trustees duties under the Debt Documents are solely mechanical and administrative in nature. |
(c) | The Security Trustee shall only have those duties, obligations and responsibilities expressly specified in the Debt Documents to which it is expressed to be a party (and no others shall be implied). |
(d) | Nothing in this Agreement constitutes the Security Trustee as an agent, trustee or fiduciary of any Debtor or any Subordinated Creditor. |
(e) | The Security Trustee shall not be bound to enquire: |
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(i) | whether or not any Default has occurred; |
(ii) | as to the performance, default or any breach by any Party of its obligations under any Debt Document; or |
(iii) | whether any other event specified in any Debt Document has occurred. |
17.14 | Exclusion of liability |
None of the Security Trustee, any Receiver nor any Delegate shall accept responsibility or be liable for:
(a) | the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Security Trustee or any other person in or in connection with any Debt Document or the transactions contemplated in the Debt Documents, or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document; |
(b) | the legality, validity, effectiveness, adequacy or enforceability of any Debt Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(c) | any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or refraining from taking any action in relation to any of the Debt Documents, the Security Property or otherwise, whether in accordance with an instruction from a Representative or otherwise unless directly caused by its gross negligence or wilful misconduct; |
(d) | the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Debt Documents, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, the Debt Documents or the Security Property; |
(e) | any shortfall which arises on the enforcement or realisation of the Security Property; or |
(f) | any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise. |
(g) | any damages, costs, losses, any diminution in value or any liability whatsoever arising as a result of: |
(i) | any act, event or circumstance not reasonably within its control; or |
(ii) | the general risks of investment in, or the holding of assets in, any jurisdiction, |
(iii) | including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets; breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action. |
(h) | Nothing in this Agreement shall oblige the Security Trustee to carry out: |
(i) | any know your customer or other checks in relation to any person; or |
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(ii) | any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Primary Creditor, |
(iii) | on behalf of any Primary Creditor and each Primary Creditor confirms to the Security Trustee that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Security Trustee. |
(i) | Without prejudice to any provision of any Debt Document excluding or limiting the liability of the Security Trustee, any Receiver or Delegate, any liability of the Security Trustee, any Receiver or Delegate arising under or in connection with any Debt Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Trustee, Receiver or Delegate (as the case may be) or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Trustee, Receiver or Delegate (as the case may be) at any time which increase the amount of that loss. In no event shall the Security Trustee, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Security Trustee, Receiver or Delegate (as the case may be) has been advised of the possibility of such loss or damages. |
17.15 | No proceedings |
No Party (other than the Security Trustee, that Receiver or that Delegate) may take any proceedings against any officer, employee or agent of the Security Trustee, a Receiver or a Delegate in respect of any claim it might have against the Security Trustee, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Debt Document or any Security Property and any officer, employee or agent of the Security Trustee, a Receiver or a Delegate may rely on this Clause subject to Clause 1.3 (Third Party Rights) and the provisions of the Third Parties Rights Act.
17.16 | Own responsibility |
Without affecting the responsibility of any Debtor or any other grantor of Transaction Security for information supplied by it or on its behalf in connection with any Debt Document, each Secured Party confirms to the Security Trustee that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Debt Document including but not limited to:
(a) | the financial condition, status and nature of each member of the Group and each grantor of Transaction Security; |
(b) | the legality, validity, effectiveness, adequacy and enforceability of any Debt Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(c) | whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Debt Document, the Security Property, the transactions contemplated by the Debt Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document or the Security Property; |
(d) |
the adequacy, accuracy and/or completeness of any information provided by the Security Trustee or by any other person under or in connection with any Debt Document, the |
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transactions contemplated by any Debt Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Debt Document; and |
(e) | the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property, |
and each Secured Party warrants to the Security Trustee that it has not relied on and will not at any time rely on the Security Trustee in respect of any of these matters.
17.17 | No responsibility to perfect Transaction Security |
The Security Trustee shall not be liable for any failure to:
(a) | require the deposit with it of any deed or document certifying, representing or constituting the title of any Debtor or any other grantor of Transaction Security to any of the Charged Property; |
(b) | obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Debt Documents or the Transaction Security; |
(c) | register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any jurisdiction or to give notice to any person of the execution of any of the Debt Documents or of the Transaction Security; |
(d) | take, or to require any of the Debtors or any other grantor of Transaction Security to take, any steps to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under the laws of any jurisdiction; or |
(e) | require any further assurances in relation to any of the Security Documents. |
17.18 | Insurance by Security Trustee |
(a) | The Security Trustee shall not be under any obligation to insure any of the Charged Property, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Debt Documents. The Security Trustee shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance. |
(b) | Where the Security Trustee is named on any insurance policy as an insured party, it shall not be responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless a Representative shall have requested it to do so in writing and the Security Trustee shall have failed to do so within fourteen days after receipt of that request. |
17.19 | Custodians and nominees |
The Security Trustee may appoint and pay any person to act as a custodian or nominee on any terms in relation to any assets of the trust as the Security Trustee may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created under this Agreement and the Security Trustee shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct, omission or default on the part of any
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person appointed by it under this Agreement or be bound to supervise the proceedings or acts of any person.
17.20 | Acceptance of title |
The Security Trustee shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any of the Debtors or any other grantor of Transaction Security may have to any of the Charged Property and shall not be liable for or bound to require any Debtor or any other grantor of Transaction Security to remedy any defect in its right or title.
17.21 | Refrain from illegality |
Notwithstanding anything to the contrary expressed or implied in the Debt Documents, the Security Trustee may refrain from doing anything which in its opinion will or may be contrary to any relevant law, directive or regulation of any jurisdiction and the Security Trustee may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
17.22 | Business with the Debtors |
The Security Trustee may accept deposits from, lend money to, and generally engage in any kind of banking or other business with any of the Debtors and any other grantor of Transaction Security.
17.23 | Winding up of trust |
If the Security Trustee, with the approval of each of the Representatives and each Hedge Counterparty, determines that (a) all of the Secured Obligations and all other obligations secured by the Security Documents have been fully and finally discharged and (b) none of the Secured Parties is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Debtor pursuant to the Debt Documents:
(a) | the trusts set out in this Agreement shall be wound up and the Security Trustee shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Trustee under each of the Security Documents; and |
(b) | any Retiring Security Trustee shall release, without recourse or warranty, all of its rights under each of the Security Documents. |
17.24 | Powers supplemental |
The rights, powers and discretions conferred upon the Security Trustee by this Agreement shall be supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Trustee by general law or otherwise.
17.25 | Trustee division separate |
(a) | In acting as trustee for the Secured Parties, the Security Trustee shall be regarded as acting through its trustee division which shall be treated as a separate entity from any of its other divisions or departments. |
(b) | If information is received by another division or department of the Security Trustee, it may be treated as confidential to that division or department and the Security Trustee shall not be deemed to have notice of it. |
(c) | Notwithstanding any other provision of any Debt Document to the contrary, the Security Trustee is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty. |
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17.26 | Disapplication |
Section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Trustee in relation to the trusts constituted by this Agreement. Where there are any inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 and the provisions of this Agreement, the provisions of this Agreement shall, to the extent allowed by law, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act.
17.27 | Intra-Group Lenders and Debtors: Power of Attorney |
Each Intra-Group Lender and Debtor by way of security for its obligations under this Agreement irrevocably appoints the Security Trustee to be its attorney to do anything which that Intra-Group Lender or Debtor has authorised the Security Trustee or any other Party to do under this Agreement or is itself required to do under this Agreement but has failed to do (and the Security Trustee may delegate that power on such terms as it sees fit).
17.28 | Information from the Creditors |
Each Creditor shall supply the Security Trustee with any information that the Security Trustee may reasonably specify as being necessary or desirable to enable the Security Trustee to perform its functions as Security Trustee.
17.29 | Security Trustees management time and additional remuneration |
In the event that an Event of Default has occurred and is continuing any amount payable to the Security Trustee under Clause 21.3 ( Primary Creditors indemnity ), Clause 20 ( Costs and expenses ) or Clause 21.1 ( Debtors Indemnity ) shall include the cost of utilising the Security Trustees management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Security Trustee may notify to the Company and the Primary Creditors, and is in addition to any other fee paid or payable to the Security Trustee.
18. | CHANGE OF SECURITY TRUSTEE AND DELEGATION |
18.1 | Resignation of the Security Trustee |
(a) | The Security Trustee may resign and appoint one of its affiliates as successor by giving notice to the Company, each Representative and the Hedge Counterparties. |
(b) | Alternatively the Security Trustee may resign by giving not less than 30 days notice to the other Parties in which case (prior to the Revolving Facility Discharge Date) the Majority Revolving Lenders or (after the Revolving Facility Discharge Date and prior to the Senior Secured Notes Discharge Date) the Senior Secured Notes Trustee(s) may appoint a successor Security Trustee (after consultation with the Company). |
(c) | If the Majority Revolving Lenders (or, after the Revolving Facility Discharge Date and prior to the Senior Secured Notes Discharge Date, the Senior Secured Notes Trustee(s)) have not appointed a successor Security Trustee in accordance with paragraph (b) above within 20 days after the notice of resignation was given, the Security Trustee (after consultation with the Representatives) may appoint a successor Security Trustee which must be a financial institution of good standing and have an office in the United Kingdom through which it will be acting for the purposes of the Debt Documents to which it is party including this Agreement. |
(d) |
The retiring Security Trustee (the Retiring Security Trustee ) shall, at its own cost, make available to the successor Security Trustee such documents and records and provide such |
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assistance as the successor Security Trustee may reasonably request for the purposes of performing its functions as Security Trustee under the Debt Documents. |
(e) | The Security Trustees resignation notice shall only take effect upon the earlier of: (i) the appointment of a successor and (ii) the transfer of all of the Security Property to that successor |
(f) | Upon the appointment of a successor, the Retiring Security Trustee shall be discharged from any further obligation in respect of the Debt Documents (other than its obligations under paragraph (b) of Clause 17.23 ( Winding up of trust ) and under paragraph (d) above) but shall, in respect of any act or omission by it whilst it was the Security Trustee, remain entitled to the benefit of Clauses 0 ( The Security Trustee ), 21.1 ( Debtors indemnity ) and 21.3 ( Primary Creditors indemnity ). Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party. |
(g) | The Majority Revolving Lenders (or, after the Revolving Facility Discharge Date and prior to the Senior Secured Notes Discharge Date, the Senior Secured Notes Trustee(s)) may, by notice to the Security Trustee, require it to resign in accordance with paragraph (b) above. In this event, the Security Trustee shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Company. |
18.2 | Delegation |
(a) | Each of the Security Trustee, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Debt Documents. |
(b) | That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Trustee, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties and it shall not be bound to supervise, or be in any way responsible for any loss incurred by reason of any misconduct or default on the part of any such delegate or sub delegate. |
18.3 | Additional Security Trustees |
(a) | The Security Trustee may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it (i) if it considers that appointment to be in the interests of the Secured Parties or (ii) for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Trustee deems to be relevant or (iii) for obtaining or enforcing any judgment in any jurisdiction, and the Security Trustee shall give prior notice to the Company and each of the Representatives of that appointment. |
(b) | Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Trustee by this Agreement) and the duties and obligations that are conferred or imposed by the instrument of appointment. |
(c) | The remuneration that the Security Trustee may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Trustee. |
19. | CHANGES TO THE PARTIES |
19.1 | Assignments and transfers |
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No Party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities except as permitted by this Clause 19.
19.2 | Change of Revolving Lender |
(a) | No person who is a lender of any Revolving Creditor Liabilities made available under a Revolving Facility Agreement other than the Original Revolving Facility Agreement to any Debtor shall become a Revolving Lender unless (if not already a Party) at the same time, it accedes to this Agreement as a Revolving Lender pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ). |
(b) | A Revolving Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities if: |
(i) | that assignment or transfer is in accordance with the terms of the relevant Revolving Facility Agreement to which it is a party; and |
(ii) | any assignee or transferee has (if not already party to this Agreement as a Revolving Lender) acceded to this Agreement, as a Revolving Lender, pursuant to Clause 19.9 |
( Creditor/Representative Accession Undertaking ).
19.3 | Change of Hedge Counterparty |
A Hedge Counterparty may transfer any of its rights and benefits or obligations in respect of the Hedging Agreements to which it is a party to another Revolving Lender or an Affiliate of a Revolving Lender if such transferee has (if not already party to this Agreement as a Hedge Counterparty) accedes to this Agreement as a Hedge Counterparty pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ).
19.4 | Change of Representative |
No person shall become a Representative unless (if not already a Party) at the same time, it accedes to this Agreement as a Representative pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ).
19.5 | Change of Intra-Group Lender |
Subject to Clause 7.4 ( Acquisition of Intra-Group Liabilities ) and to the terms of the other Debt Documents, any Intra-Group Lender may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of the Intra-Group Liabilities to another member of the Group if that member of the Group has (if not already party to this Agreement as an Intra-Group Lender) acceded to this Agreement as an Intra-Group Lender, pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ).
19.6 | New Intra-Group Lender |
If any Intra-Group Lender or any member of the Group makes any loan to or grants any credit to or makes any other financial arrangement having similar effect with any Debtor, in an aggregate amount of EUR 2,000,000 (or its equivalent) or more, the Company will procure that the person giving that loan, granting that credit or making that other financial arrangement (if not already party to this Agreement as an Intra-Group Lender) accedes to this Agreement, as an Intra-Group Lender pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ).
19.7 | New Ancillary Lender |
If any Affiliate of a Revolving Lender becomes an Ancillary Lender in accordance with clause 9.8 ( Affiliates of Lenders as Ancillary Lenders ) of the Original Revolving Facility Agreement, it shall not
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be entitled to share in any of the Transaction Security or in the benefit of any guarantee or indemnity in respect of any of the liabilities arising in relation to its Ancillary Facilities unless it has (if not already party to this Agreement as a Revolving Lender) acceded to this Agreement as a Revolving Lender and to any Revolving Facility Agreement as an Ancillary Lender pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ).
19.8 | New Additional Senior Secured Notes Creditor |
(a) | No person who is a lender of any Additional Senior Secured Notes Liabilities made available to any Debtor by way of loan shall become an Additional Senior Secured Notes Creditor unless (if not already a Party) at the same time, it accedes to this Agreement as an Additional Senior Secured Notes Creditor pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ). |
(b) | An Additional Senior Secured Notes Creditor may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Debt Documents or the Liabilities if: |
(i) | that assignment or transfer is in accordance with the terms of the relevant Additional Senior Secured Debt Instrument to which it is a party; and |
(ii) | any assignee or transferee has acceded to this Agreement as an Additional Senior Secured Notes Creditor, pursuant to Clause 19.9 ( Creditor/Representative Accession Undertaking ). |
19.9 | Creditor/Representative Accession Undertaking |
With effect from the date of acceptance by the Security Trustee and, in the case of an Affiliate of a Revolving Lender, the relevant Revolving Agent, of a Creditor/Representative Accession Undertaking duly executed and delivered to the Security Trustee by the relevant acceding party or, if later, the date specified in that Creditor/Representative Accession Undertaking:
(a) | any Party ceasing entirely to be a Creditor or Representative shall be discharged from further obligations towards the Security Trustee and other Parties under this Agreement and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and |
(b) | as from that date, the replacement or new Creditor or Representative shall assume the same obligations and become entitled to the same rights, as if it had been an original Party to this Agreement in that capacity; and |
(c) | any new Ancillary Lender (which is an Affiliate of a Revolving Lender) shall also become party to any relevant Revolving Facility Agreement as an Ancillary Lender and shall assume the same obligations and become entitled to the same rights as if it had been an original party to such Revolving Facility Agreement as an Ancillary Lender. |
19.10 | New Debtor |
(a) | If any member of the Group: |
(i) | incurs any Liabilities; or |
(ii) | gives any security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities, |
in each case, under or with respect to Liabilities owing under the Debt Documents (other than in respect of Intra-Group Liabilities owing to an Intra-Group Lender of less than EUR
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2,000,000) the Debtors will procure that the person incurring those Liabilities or giving that assurance accedes to this Agreement as a Debtor, in accordance with paragraph (b) below, no later than contemporaneously with the incurrence of those Liabilities or the giving of that assurance.
(b) | With effect from the date of acceptance by the Security Trustee of a Debtor Accession Deed duly executed and delivered to the Security Trustee by the new Debtor or, if later, the date specified in the Debtor Accession Deed, the new Debtor shall assume the same obligations (subject to any limitations set out in the Debtor Accession Deed to which it is party) and become entitled to the same rights as if it had been an original Party to this Agreement as a Debtor. |
19.11 | Additional parties |
(a) | Each of the Parties appoints the Security Trustee to receive on its behalf each Debtor Accession Deed and Creditor/Representative Accession Undertaking delivered to the Security Trustee and the Security Trustee shall, as soon as reasonably practicable after receipt by it, sign and accept the same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Agreement or, where applicable, by any Revolving Facility Agreement. |
(b) | In the case of a Creditor/Representative Accession Undertaking delivered to the Security Trustee by any new Ancillary Lender (which is an Affiliate of a Revolving Lender): |
(i) | the Security Trustee shall, as soon as practicable after signing and accepting that Creditor/Representative Accession Undertaking in accordance with paragraph (a) above, deliver that Creditor/Representative Accession Undertaking to the relevant Revolving Agent; and |
(ii) | the relevant Revolving Agent shall, as soon as practicable after receipt by it, sign and accept that Creditor/Representative Accession Undertaking if it appears on its face to have been completed, executed and delivered in the form contemplated by this Agreement. |
19.12 | Resignation of a Debtor |
(a) | Without prejudice to Clauses 9 ( New Money and Refinancing ) and 14.2 ( Distressed Disposals ), no Representative shall accept a Resignation Letter (as defined in the Revolving Facility Agreement) from a Revolving Guarantor under clause 26.5 ( Resignation of a Guarantor ) of the Original Revolving Facility Agreement unless each Hedge Counterparty has notified the Security Trustee that no payment is due from that Revolving Guarantor to that Hedge Counterparty under Clause 16 ( Hedge Counterparty Guarantee ). The Security Trustee shall, upon receiving that notification, notify such Representative. |
(b) | The Company may request that a Debtor ceases to be a Debtor by delivering to the Security Trustee a Debtor Resignation Request. |
(c) | The Security Trustee shall accept a Debtor Resignation Request and notify the Company and each other Party of its acceptance if: |
(i) | the Company has confirmed that no Event of Default is continuing or would result from the acceptance of the Debtor Resignation Request; |
(ii) | to the extent that the Revolving Facility Discharge Date has not occurred, each Revolving Agent notifies the Security Trustee that that Debtor is not, or has ceased to be, a Borrower or a Guarantor (as defined under any Revolving Facility Agreement); |
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(iii) | each Hedge Counterparty notifies the Security Trustee that that Debtor is under no actual or contingent obligations to that Hedge Counterparty in respect of the Hedging Liabilities; |
(iv) | to the extent that the Senior Secured Notes Discharge Date has not occurred, each Senior Secured Notes Trustee notifies the Security Trustee that the Debtor is not, or has ceased to be a borrower, issuer or guarantor (under the Senior Secured Notes Documents); |
(v) | to the extent that the Senior Unsecured Notes Discharge Date has not occurred, each Senior Unsecured Notes Trustee notifies the Security Trustee that the Debtor is not, or has ceased to be an issuer or a guarantor (under the Senior Unsecured Notes Documents); and |
(vi) | the Company confirms that that Debtor is under no actual or contingent obligations in respect of the Intra-Group Liabilities. |
(d) | Upon notification by the Security Trustee to the Company of its acceptance of the resignation of a Debtor, that member of the Group shall cease to be a Debtor and shall have no further rights or obligations under this Agreement as a Debtor. |
20. | COSTS AND EXPENSES |
20.1 | Security Trustees ongoing costs |
(a) | In the event of (i) a Default or (ii) the Security Trustee considering it necessary or expedient or (iii) the Security Trustee being requested by a Debtor or an Instructing Group or any Representative to undertake duties which the Security Trustee and the Company agree to be of an exceptional nature and/or outside the scope of the normal duties of the Security Trustee under the Debt Documents, the Company shall pay to the Security Trustee any additional remuneration (together with any applicable VAT) that may be agreed between them. |
(b) | If the Security Trustee and the Company fail to agree upon the nature of those duties or upon any additional remuneration, that dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Trustee and approved by the Company or, failing approval, nominated (on the application of the Security Trustee) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Company) and the determination of any investment bank shall be final and binding upon the parties to this Agreement. |
20.2 | Transaction expenses |
The Company shall, promptly on demand, pay the Security Trustee the amount of all costs and expenses (including legal fees up to any agreed caps (if any)) (together with any applicable VAT) reasonably incurred by the Security Trustee and any Receiver or Delegate in connection with the negotiation, preparation, printing, execution, syndication and perfection of:
(a) | this Agreement and any other documents referred to in this Agreement and the Transaction Security; and |
(b) | any other Debt Documents executed after the date of this Agreement. |
20.3 | Stamp taxes |
The Company shall pay and, within three (3) Business Days of demand, indemnify the Security Trustee against any cost, loss or liability the Security Trustee incurs in relation to all stamp duty, registration and other similar Tax payable in respect of any Debt Document.
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20.4 | Interest on demand |
If any Creditor or Debtor fails to pay any amount payable by it under this Agreement on its due date, interest shall accrue on the overdue amount (and be compounded with it) from the due date up to the date of actual payment (both before and after judgment and to the extent interest at a default rate is not otherwise being paid on that sum) at the rate which is one per cent. per annum over the rate at which the Security Trustee was being offered, by leading banks in the London interbank market, deposits in an amount comparable to the unpaid amounts in the currencies of those amounts for any period(s) that the Security Trustee may from time to time select.
20.5 | Enforcement and preservation costs |
The Company shall, within three (3) Business Days of demand, pay to the Security Trustee the amount of all costs and expenses (including legal fees and together with any applicable VAT) incurred by it in connection with the enforcement of or the preservation of any rights under any Debt Document and the Transaction Security and any proceedings instituted by or against the Security Trustee as a consequence of taking or holding the Transaction Security or enforcing these rights.
21. | INDEMNITIES |
21.1 | Debtors indemnity |
Each Debtor shall promptly indemnify the Security Trustee and every Receiver and Delegate against any cost, loss or liability (other than loss of profit or to the extent incurred as a result of gross negligence or wilful misconduct) (together with any applicable VAT) incurred by any of them:
(a) | in relation to or as a result of: |
(i) | any failure by the Company to comply with obligations under Clause 20 ( Costs and Expenses ); |
(ii) | the taking, holding, protection or enforcement of the Transaction Security; |
(iii) | the exercise of any of the rights, powers, discretions and remedies vested in the Security Trustee, each Receiver and each Delegate by the Debt Documents or by law; or |
(iv) | any default by any Debtor or any other grantor of Transaction Security in the performance of any of the obligations expressed to be assumed by it in the Debt Documents; or |
(b) | which otherwise relates to any of the Security Property or the performance of the terms of this Agreement (otherwise than as a result of its gross negligence or wilful misconduct). |
Each Debtor expressly acknowledges and agrees that the continuation of its indemnity obligations under this Clause 21.1 will not be prejudiced by any release or disposal under Clause 14.2 ( Distressed Disposals ) taking into account the operation of that Clause 14.2.
21.2 | Priority of indemnity |
The Security Trustee and every Receiver and Delegate may indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in Clause 21.1 ( Debtors indemnity ) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.
21.3 | Primary Creditors indemnity |
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(a) | Each Primary Creditor (except for any Senior Secured Notes Trustee and except for any Senior Secured Noteholder save to the extent of any amounts payable to such Senior Secured Noteholder (or the relevant Senior Secured Notes Trustee on its behalf) by the Security Trustee) shall (in the proportion that the Liabilities due to it bears to the aggregate of the Liabilities due to all the Primary Creditors for the time being (or, if the Liabilities due to each of those Primary Creditors is zero, immediately prior to their being reduced to zero)), indemnify the Security Trustee and every Receiver and every Delegate, within three (3) Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Trustees, Receivers or Delegates gross negligence or wilful misconduct) in acting as Security Trustee, Receiver or Delegate under the Debt Documents (unless the relevant Security Trustee, Receiver or Delegate has been reimbursed by a Debtor pursuant to a Debt Document) and the Debtors shall jointly and severally indemnify each Primary Creditor against any payment made by it under this Clause 21. |
(b) | For the purposes only of paragraph (a) above, to the extent that any hedging transaction under a Hedging Agreement has not been terminated or closed out, the Hedging Liabilities due to any Hedge Counterparty in respect of that hedging transaction will be deemed to be: |
(i) | if the relevant Hedging Agreement is based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of those hedging transactions, if the date on which the calculation is made was deemed to be an Early Termination Date (as defined in the relevant ISDA Master Agreement) for which the relevant Debtor is the Defaulting Party (as defined in the relevant ISDA Master Agreement); or |
(ii) | if the relevant Hedging Agreement is not based on an ISDA Master Agreement, the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction, if the date on which the calculation is made was deemed to be the date on which an event similar in meaning and effect (under that Hedging Agreement) to an Early Termination Date (as defined in any ISDA Master Agreement) occurred under that Hedging Agreement for which the relevant Debtor is in a position similar in meaning and effect (under that Hedging Agreement) to that of a Defaulting Party (under and as defined in the same ISDA Master Agreement), |
that amount, in each case, to be certified by the relevant Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement.
(c) | Subject to paragraph (d) below, the Company shall immediately on demand reimburse any Primary Creditor for any payment that Primary Creditor makes to the Security Trustee pursuant to paragraph (a) above. |
(d) | Paragraph (c) above shall not apply to the extent that the indemnity payment in respect of which the Primary Creditor claims reimbursement relates to a liability of the Security Trustee to a Debtor. |
21.4 | The Companys indemnity to Primary Creditors |
The Company shall promptly and as principal obligor indemnify each Primary Creditor against any cost, loss or liability (together with any applicable VAT), whether or not reasonably foreseeable, incurred by any of them in relation to or arising out of the operation of Clause 14.2 ( Distressed Disposals ).
22. | INFORMATION |
22.1 | Information and dealing |
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(a) | The Creditors shall provide to the Security Trustee from time to time (through their respective Representatives in the case of a Revolving Lender or a Senior Secured Noteholder) any information that the Security Trustee may reasonably specify as being necessary or desirable to enable the Security Trustee to perform its functions as trustee. |
(b) | Subject to clause 33.8 ( Communication when Agent is Impaired Agent ) of the Original Revolving Facility Agreement each Revolving Lender and each Senior Secured Noteholder shall deal with the Security Trustee exclusively through its Representative and the Hedge Counterparties shall deal directly with the Security Trustee and shall not deal through any Agent. |
(c) | No Representative shall be under any obligation to act as agent or otherwise on behalf of any Hedge Counterparty except as expressly provided for in, and for the purposes of, this Agreement. |
22.2 | Disclosure |
Notwithstanding any agreement to the contrary, each of the Debtors consents, until the Final Discharge Date, to the disclosure by any of the Primary Creditors, the Agents and the Security Trustee to each other (whether or not through an Agent or the Security Trustee) of such information concerning the Debtors as any Primary Creditor, any Agent or the Security Trustee shall see fit.
22.3 | Notification of prescribed events |
(a) | If a Revolving Facility Event of Default either occurs or ceases to be continuing the relevant Revolving Agent shall, upon becoming aware of that occurrence or cessation, notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Hedge Counterparty. |
(b) | If a Senior Secured Notes Event of Default either occurs or ceases to be continuing the relevant Senior Secured Notes Trustee shall, upon becoming aware of that occurrence or cessation, notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Hedge Counterparty. |
(c) | If a Revolving Acceleration Event occurs the relevant Revolving Agent shall notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each other Party. |
(d) | If a Senior Secured Notes Acceleration Event occurs the relevant Senior Secured Notes Trustee shall notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each other Party. |
(e) | If the Security Trustee enforces, or takes formal steps to enforce, any of the Transaction Security it shall notify each Party of that action. |
(f) | If any Primary Creditor exercises any right it may have to enforce, or to take formal steps to enforce, any of the Transaction Security it shall notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Party of that action. |
(g) | If a Debtor defaults on any Payment due under a Hedging Agreement, the Hedge Counterparty which is party to that Hedging Agreement shall, upon becoming aware of that default, notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Revolving Agent, each other Hedge Counterparty and each Senior Secured Notes Trustee. |
(h) |
If a Hedge Counterparty terminates or closes-out, in whole or in part, any hedging transaction under any Hedging Agreement under Clause 4.9 ( Permitted Enforcement: Hedge |
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Counterparties ) it shall notify the Security Trustee and the Security Trustee shall, upon receiving that notification, notify each Representative and each other Hedge Counterparty. |
23. | NOTICES |
23.1 | Communications in writing |
Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated, may be made by fax or letter.
23.2 | Security Trustees communications with Revolving Lenders, Senior Secured Notes Trustees, Senior Unsecured Notes Trustees and Hedge Counterparties |
The Security Trustee shall be entitled to carry out all dealings:
(a) | with the Revolving Lenders, the Senior Secured Noteholders and the Senior Unsecured Noteholders through their respective Representatives and may give to the Representatives, as applicable, any notice or other communication required to be given by the Security Trustee to a Revolving Lender, Senior Secured Noteholder and Senior Unsecured Noteholders; and |
(b) | with each Hedge Counterparty directly with that Hedge Counterparty. |
23.3 | Addresses |
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with this Agreement is:
(a) | in the case of the Company: |
InterXion Holding N.V.
Tupolevlaan 24
1119 NX Schiphol-Rijk
The Netherlands
Fax: +31 (0) 208 880 7601
Attention: D.C. Ruberg;
(b) | in the case of the Security Trustee: |
Barclays Bank PLC
7th Floor
5 The North Colonnade
Canary Wharf
London E14 4BB
Fax: +44 (0)20 7773 4893
Attention: Duncan Nash;
(c) | in the case of the Original Senior Secured Notes Trustee: |
The Bank of New York Mellon, London Branch
One Canada Square
London E14 5AL
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Fax: +44 (0)20 7964 2536
Attention: Trustee Administration; and
(d) | in the case of each other Party, that notified in writing to the Security Trustee on or prior to the date on which it becomes a Party, |
or any substitute address, fax number or department or officer which that Party may notify to the Security Trustee (or the Security Trustee may notify to the other Parties, if a change is made by the Security Trustee) by not less than five (5) Business Days notice.
23.4 | Delivery |
(a) | Any communication or document made or delivered by one person to another under or in connection with this Agreement will only be effective: |
(i) | if by way of fax, when received in legible form; or |
(ii) | if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, |
and, if a particular department or officer is specified as part of its address details provided under Clause 23.3 ( Addresses ), if addressed to that department or officer.
(b) | Any communication or document to be made or delivered to the Security Trustee will be effective only when actually received by the Security Trustee and then only if it is expressly marked for the attention of the department or officer identified with the Security Trustees signature below (or any substitute department or officer as the Security Trustee shall specify for this purpose). |
(c) | Any communication or document made or delivered to the Company in accordance with this Clause 23.4 will be deemed to have been made or delivered to each of the Debtors. |
23.5 | Notification of address and fax number |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 23.3 ( Addresses ) or changing its own address or fax number, the Security Trustee shall notify the other Parties.
23.6 | Electronic communication |
(a) | Any communication to be made between the Security Trustee and a Representative, a Revolving Lender or a Hedge Counterparty, under or in connection with this Agreement may be made by electronic mail or other electronic means, if the Security Trustee and the relevant Representative, Revolving Lender or Hedge Counterparty: |
(i) | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
(ii) | notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and |
(iii) | notify each other of any change to their address or any other such information supplied by them. |
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(b) | Any electronic communication made between the Security Trustee and a Representative, a Revolving Lender or a Hedge Counterparty will be effective only when actually received in readable form and in the case of any electronic communication made by a Revolving Lender, Hedge Counterparty or Representative to the Security Trustee only if it is addressed in such a manner as the Security Trustee shall specify for this purpose. |
23.7 English language
(a) | Any notice given under or in connection with this Agreement must be in English. |
(b) | All other documents provided under or in connection with this Agreement must be: |
(i) | in English; or |
(ii) | if not in English, and if so required by the Security Trustee, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
24. | PRESERVATION |
24.1 | Partial invalidity |
If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of that provision under the law of any other jurisdiction will in any way be affected or impaired.
24.2 | No impairment |
If, at any time after its date, any provision of a Debt Document (including this Agreement) is not binding on or enforceable in accordance with its terms against a person expressed to be a party to that Debt Document, neither the binding nature nor the enforceability of that provision or any other provision of that Debt Document will be impaired as against the other party(ies) to that Debt Document.
24.3 | Remedies and waivers |
No failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
24.4 | Waiver of defences |
The provisions of this Agreement will not be affected by an act, omission, matter or thing which, but for this Clause 24.4, would reduce, release or prejudice the subordination and priorities expressed to be created by this Agreement including (without limitation and whether or not known to any Party):
(a) | any time, waiver or consent granted to, or composition with, any Debtor, any other grantor of Transaction Security or other person; |
(b) | the release of any Debtor, any other grantor of Transaction Security or any other person under the terms of any composition or arrangement with any creditor of any member of the Group or any grantor of Transaction Security; |
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(c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Debtor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Security; |
(d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Debtor, any other grantor of Transaction Security or other person; |
(e) | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of a Debt Document or any other document or security; |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under any Debt Document or any other document or security; |
(g) | any intermediate Payment of any of the Liabilities owing to the Primary Creditors in whole or in part; or |
(h) | any insolvency or similar proceedings. |
24.5 | Priorities not affected |
Except | as otherwise provided in this Agreement the priorities referred to in Clause 2 ( Ranking and Priority ) will: |
(a) | not be affected by any reduction or increase in the principal amount secured by the Transaction Security in respect of the Liabilities owing to the Primary Creditors or by any intermediate reduction or increase in, amendment or variation to any of the Debt Documents, or by any variation or satisfaction of, any of the Liabilities or any other circumstances; |
(b) | apply regardless of the order in which or dates upon which this Agreement and the other Debt Documents are executed or registered or notice of them is given to any person; and |
(c) | secure the Liabilities owing to the Primary Creditors in the order specified, regardless of the date upon which any of the Liabilities arise or of any fluctuations in the amount of any of the Liabilities outstanding. |
25. | CONSENTS, AMENDMENTS AND OVERRIDE |
25.1 | Required consents |
(a) | Subject to paragraphs (b) and (c) below and to Clause 25.4 ( Exceptions ), this Agreement may be amended or waived only with the consent of the Company, the Representatives and the Security Trustee. |
(b) | An amendment that has the effect of changing or which relates to: |
(i) | curing defects, resolving ambiguities or reflecting changes of a minor, technical or administrative nature, may be made by the Security Trustee and the Company; and |
(ii) | the requirements of any person proposing to act as a Representative which are customary for persons acting in such capacity, may be made by the Security Trustee and the Company. |
(c) | Subject to paragraph (b) above, if any amendment or waiver may impose new or additional obligations on a Party under this Agreement, the prior written consent of that Party is required. |
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25.2 | Amendments and Waivers: Transaction Security Documents |
(a) | Subject to paragraphs (b) and (c) below and to Clause 25.4 ( Exceptions ) and unless the provisions of any Debt Document expressly provide otherwise, the Security Trustee may, if authorised by an Instructing Group, and if the Company consents, amend the terms of, waive any of the requirements of or grant consents under, any of the Transaction Security Documents which shall be binding on each Party. |
(b) | Subject to paragraph (c) below and paragraph (c) of Clause 25.4 ( Exceptions ), the prior consent of each Representative is required to authorise any amendment or waiver of, or consent under, any Transaction Security Document which would affect the nature or scope of the Charged Property or the manner in which the proceeds of enforcement of the Transaction Security are distributed. |
(c) | The prior consent of the Revolving Agent only is required to authorise any amendment or waiver of, or consent under, any Transaction Security Document that is entered into only for the benefit of the Super Senior Creditors (or any of them). |
25.3 | Effectiveness |
Any amendment, waiver or consent given in accordance with this Clause 25 will be binding on all Parties and the Security Trustee may effect, on behalf of any Creditor, any amendment, waiver or consent permitted by this Clause 25.
25.4 | Exceptions |
(a) | Subject to paragraph (c) below, if the amendment, waiver or consent may impose new or additional obligations on or withdraw or reduce the rights of any Party other than: |
(i) | in the case of a Primary Creditor, in a way which affects or would affect Primary Creditors of that Partys class generally; or |
(ii) | in the case of a Debtor, to the extent consented to by the Company under paragraph (a) of Clause 25.2 ( Amendments and Waivers: Transaction Security Documents ), |
the consent of that Party is required.
(b) | Subject to paragraph (c) below, an amendment, waiver or consent which relates to the rights or obligations of a Representative, the Security Trustee (including, without limitation, any ability of the Security Trustee to act in its discretion under this Agreement) or a Hedge Counterparty may not be effected without the consent of that Representative or, as the case may be, the Security Trustee or that Hedge Counterparty. |
(c) | Neither paragraph (a) nor (b) above, nor paragraph (b) of Clause 25.2 ( Amendments and Waivers: Transaction Security Documents ) shall apply: |
(i) | to any release of Transaction Security, claim or Liabilities; or |
(ii) | to any consent, |
which, in each case, the Security Trustee gives in accordance with Clause 13 ( Proceeds of Disposals ).
25.5 | Disenfranchisement of Defaulting Lenders |
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(a) | For so long as a Defaulting Lender has any Available Commitment: |
(i) | in ascertaining: |
(A) | the Majority Revolving Lenders, the Majority Super Senior Creditors or the Majority Senior Creditors; or |
(B) | whether: |
(1) | any relevant percentage (including, for the avoidance of doubt, unanimity) of Super Senior Credit Participations or (as applicable) Senior Credit Participations; or |
(2) | the agreement of any specified group of Primary Creditors, |
has been obtained to approve any request for a Consent or to carry any other vote or approve any action under this Agreement,
that Defaulting Lenders Revolving Commitments will be reduced by the amount of its Available Commitments and, to the extent that that reduction results in that Defaulting Lenders Revolving Commitments being zero, that Defaulting Lender shall be deemed not to be a Revolving Lender.
(b) | For the purposes of this Clause 25.5, the Security Trustee may assume that the following Creditors are Defaulting Lenders: |
(i) | any Revolving Lender which has notified the Security Trustee that it has become a Defaulting Lender; |
(ii) | any Revolving Lender to the extent that the relevant Revolving Agent has notified the Security Trustee that that Revolving is a Defaulting Lender; and |
(iii) | any Revolving Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender in the Revolving Facility Agreement has occurred, |
unless it has received notice to the contrary from the Revolving Lender concerned (together with any supporting evidence reasonably requested by the Security Trustee) or the Security Trustee is otherwise aware that the Revolving Lender has ceased to be a Defaulting Lender.
25.6 | Calculation of Super Senior Credit Participations and Senior Credit Participations |
For the purpose of ascertaining whether any relevant percentage of Super Senior Credit Participations or Senior Credit Participations has been obtained under this Agreement, the Security Trustee may notionally convert the Super Senior Credit Participations or (as applicable) Senior Credit Participations into their Common Currency Amounts.
25.7 | Deemed consent |
If, at any time prior to the Super Senior Discharge Date, the Revolving Lenders give a Consent in respect of the Revolving Facility Documents then, if that action was permitted by the terms of this Agreement, the Intra-Group Lenders will (or will be deemed to):
(a) | give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and |
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(b) | do anything (including executing any document) that the Revolving Lenders may reasonably require to give effect to paragraph (a) of this Clause 25.7. |
25.8 | Excluded consents |
Clause 25.7 ( Deemed consent ) does not apply to any Consent which has the effect of:
(a) | increasing or decreasing the Liabilities; |
(b) | changing the basis upon which any Permitted Payments are calculated (including the timing, currency or amount of such Payments); |
(c) | changing the terms of this Agreement or of any Security Document. |
25.9 | No liability |
None of the Revolving Lenders nor any Revolving Agent will be liable to any other Creditor or Debtor for any Consent given or deemed to be given under this Clause 25.
25.10 | Agreement to override |
Unless expressly stated otherwise in this Agreement, this Agreement overrides anything in the Debt Documents to the contrary provided however , that nothing herein shall override any consent rights of any member of the Group arising under a Revolving Facility Document with respect to such Revolving Facility Document or a Senior Secured Notes Document with respect to such Senior Secured Notes Document.
26. | SENIOR SECURED NOTES TRUSTEES |
26.1 | Liability |
(a) | It is expressly understood and agreed by each Party that this Agreement is executed and delivered by any Senior Secured Notes Trustee not individually or personally but solely in its capacity as trustee in the exercise of the powers and authority conferred and vested in it under the Senior Secured Notes Documents for and on behalf of the Senior Secured Noteholders, and it shall have no liability for acting for itself or in any capacity other than as trustee and nothing in this Agreement shall impose on it any obligation to pay any amount out of its personal assets. Prior to taking any action under this Agreement any Senior Secured Notes Trustee may request and rely upon an opinion of counsel or opinion of another qualified expert, at the expense of the Company. |
(b) | Notwithstanding any other provision of this Agreement, each Senior Secured Notes Trustees respective obligations hereunder (if any) to make any payment or repayment (however described) of any amount or to hold any amount on trust shall be only to make payment or repayment (however described) of such amount to or hold any such amount on trust to the extent that (i) it has actual knowledge that such obligation has arisen and (ii) it has received and has not distributed to the relevant recipient any such amount. |
(c) |
It is further understood by each Party that in no case shall any Senior Secured Notes Trustee be (i) personally responsible or accountable in damages or otherwise to any other Party for any loss, damage or claim incurred by reason of any act or omission performed or omitted by any Senior Secured Notes Trustee in good faith in accordance with this Agreement or any of the Debt Documents in a manner such Senior Secured Notes Trustee believed to be within the scope of the authority conferred on it by this Agreement or any of the Debt Documents or by law, or (ii) personally liable for or on account of any of the statements, representations, warranties, covenants or obligations stated to be those of any other Party, all such liability, if any, being expressly waived by the Parties and any person claiming by, through or under such |
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Party; provided that , in the case of sub paragraphs (i) and (ii) above, each Senior Secured Notes Trustee (or any successor Senior Secured Notes Trustee) shall be personally liable under this Agreement for its own gross negligence or wilful misconduct. Notwithstanding any other provisions of this Agreement or any other Senior Secured Notes Document to which the Senior Secured Notes Trustee is a party to, in no event shall the Senior Secured Notes Trustee be liable for special, indirect, punitive or consequential loss or damages of any kind whatsoever (including but not limited to lost profits) whether or not foreseeable even if the Senior Secured Notes Trustee has been advised of the likelihood of such loss or damage and regardless of whether the claim for loss or damage is made in negligence, for breach of contract or otherwise. |
(d) | It is also acknowledged that no Senior Secured Notes Trustee shall have any responsibility for the actions of any individual Senior Secured Noteholder. |
26.2 | No Fiduciary Duty |
No Senior Secured Notes Trustee shall be deemed to owe any fiduciary duty to any Creditor (each a Third Party and collectively, the Third Parties ) (save in respect of such persons for whom it acts as trustee pursuant to the relevant Senior Secured Notes Indenture) and shall not be personally liable to any Third Party if it shall in good faith mistakenly pay over or distribute to any Third Party or to any other person cash, property or securities to which any other Third Party shall be entitled by virtue of this Agreement or otherwise save to the extent that the same results from its negligence or wilful misconduct. With respect to any Third Party, each Senior Secured Notes Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in the Debt Documents and this Agreement and no implied agreement, covenants or obligations with respect to the other Third Parties shall be read into this Agreement against any Senior Secured Notes Trustee.
26.3 | No Action |
No Senior Secured Notes Trustee shall have any obligation to take any action under this Agreement unless it is indemnified or secured to its satisfaction (whether by way of payment in advance or otherwise) in accordance with the terms of the relevant Senior Secured Notes Indenture provided that this shall not affect any obligation arising under this Agreement to turnover monies received by it. No Senior Secured Notes Trustee is required to indemnify any person whether or not a Party, in respect of any of the transactions contemplated by this Agreement.
26.4 | Other Parties Not Affected |
This Clause 26 is intended to afford protection to each Senior Secured Notes Trustee only. No provision of this Clause 26 shall alter or change the rights and obligations as between the other parties to this Agreement in respect of each other.
26.5 | Notices |
(a) | Each Senior Secured Notes Trustee shall at all times be entitled to and may rely on any notice, consent or certificate given or granted by any other Representative or the Security Trustee pursuant to the terms of this Agreement without being under any obligation to enquire or otherwise determine whether any such notice, consent or certificate has been given or granted by the relevant Representative or the Security Trustee and shall not be, in any circumstances, held liable for so relying. |
(b) |
In acting under and in accordance with this Agreement and without prejudice to its obligations under this Agreement, each Senior Secured Notes Trustee is entitled to seek instructions from the Senior Secured Noteholders, at any time, and where it so acts on the instructions of the requisite percentage of the Senior Secured Noteholders, such Senior Secured Notes Trustee |
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shall not incur any liability to any person for so acting, other than in accordance with the relevant Senior Secured Notes Indenture. |
26.6 | Trustee Liabilities |
Subject to Clause 15.1 ( Order of application ), no provision of this Agreement shall alter or otherwise affect the rights and obligations of any Debtor to make payments in respect of the Senior Secured Notes Trustee Liabilities as and when the same are due and payable and receipt and retention by any Senior Secured Notes Trustee of the same or taking of any step or action by any Senior Secured Notes Trustee in respect of its rights under the Senior Secured Notes Documents to the same.
26.7 | Provisions survive Termination |
The provisions of this Clause 26 shall survive the termination of this Agreement.
26.8 | Resignation |
Any Senior Secured Notes Trustee may resign or be removed in accordance with the terms of the Senior Secured Note Indenture provided that a replacement Senior Secured Notes Trustee agrees with the Parties to become the replacement Senior Secured Notes Trustee under this Agreement in accordance with Clause 19.4 ( Change of Representative ).
26.9 | Reliance and Information |
Any Senior Secured Notes Trustee may rely and shall be fully protected in acting or refraining from acting upon any notice or other document reasonably believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person. Each Creditor confirms that it has not relied exclusively on any information provided to it by any Senior Secured Notes Trustee. No Senior Secured Notes Trustee is obliged to check the adequacy, accuracy or completeness of any document it forwards to another Party.
26.10 | Trustee division separate |
(a) | In acting as trustee for Senior Secured Noteholders, a Senior Secured Notes Trustee shall be regarded as acting through its trustee division which shall be treated as a separate entity from any of its other divisions or departments. |
(b) | If information is received by another division or department of any Senior Secured Notes Trustee, it may be treated as confidential to that division or department and that Senior Secured Notes Trustee shall not be deemed to have notice of it. |
26.11 | Senior Unsecured Notes Trustees |
Upon the accession of any Senior Unsecured Notes Trustee to this Agreement the provisions of this Clause 26 shall be deemed to also apply to such Senior Unsecured Notes Trustee as if each reference in this Clause 26 to a Senior Secured Notes Trustee, Senior Secured Notes Documents, Senior Secured Notes Indenture and Senior Secured Noteholders were also references to that Senior Unsecured Notes Trustee, the Senior Unsecured Notes Documents and the Senior Unsecured Notes Indenture to which that Senior Unsecured Notes Trustee is a party and the Senior Unsecured Noteholders represented by that Senior Unsecured Notes Trustee, as appropriate.
27. | COUNTERPARTS |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
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28. | GOVERNING LAW |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law save in relation to Clause 17.6 ( French Security ) which is governed and shall be construed in accordance with French law.
29. | ENFORCEMENT |
29.1 | Jurisdiction |
(a) | Subject to Sub-clauses (c) and (d) of this Clause 29.1 the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute ). |
(b) | The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. |
(c) | Subject to Sub-clause (d) of this Clause 29.1 this Clause 29.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions. |
(d) | Notwithstanding Sub-clauses (a) and (c) of this Clause 29.1, with respect to any action or proceeding under this Agreement involving any French Debtor, each of the Parties: (i) irrevocably agrees to submit to the jurisdiction of the courts of England, (ii) waive any other jurisdiction to which it may be entitled by reason of its present or future domicile or otherwise, and (iii) waives any objection on the ground of venue or forum non conveniens. |
29.2 | Service of process |
(a) | Without prejudice to any other mode of service allowed under any relevant law: |
(i) | each Debtor (unless incorporated in England and Wales): |
(A) | irrevocably appoints Interxion Carrier Hotel Ltd. as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement and Interxion Carrier Hotel Ltd., by its execution of this Agreement, accepts that appointment; and |
(B) | agrees that failure by a process agent to notify the relevant Debtor of the process will not invalidate the proceedings concerned; |
(b) | If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Company (in the case of an agent for service of process for a Debtor), must immediately (and in any event within three days of such event taking place) inform the Security Trustee and the Representatives and appoint another agent on terms acceptable to each Revolving Agent or, after the Super Senior Discharge Date, each Senior Secured Notes Trustee. Failing this, the Revolving Agents or, after the Super Senior Discharge Date, the Senior Secured Notes Trustees may appoint another agent for this purpose. |
(c) | Each Debtor not incorporated in England and Wales expressly agrees and consents to the provisions of this Clause 29 and Clause 28 ( Governing Law ). |
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30. | SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN |
30.1 | Security Trustee accounting |
For the purposes of the Debt Documents (including the guarantees under this Agreement or the Revolving Facility Agreement), the Security Trustee, in its capacity as such, shall open and maintain in its book a special credit account for each creditor party under a Debt Document (a Creditor Party ). In each of such accounts the Security Trustee shall debit the amounts owed by a Debtor to a Creditor Party, including the interest, fees, expenses, default interest, additional costs and any other amounts that are payable by a Debtor pursuant to a Debt Document. Likewise, all amounts received by the Security Trustee from a Debtor pursuant a Debt Document shall be credited in that account, so that the sum of the balance of the credit account represents the amount owed by a Debtor to a Creditor Party at any time.
30.2 | Individual account of each Creditor Party |
In addition to the special unified account referred to in Clause 30.1above, each Creditor Party shall open and maintain in its books a special credit account from which the interest, fees, expenses, default interest, additional costs and any other amounts that a Debtor owes to such Creditor Party hereunder shall be debited and in which all amounts received by the Creditor Party from the Debtor under the relevant Debt Document shall be credited.
30.3 | Determination of balance due in the event of enforcement before the Spanish courts |
In the event of enforcement of a Debt Document (including the guarantees under this Agreement or the Revolving Facility Agreement) before the Spanish courts, the Security Trustee shall settle the credit accounts referred to above in Clauses 30.1 ( Security Trustee accounting ) and 30.2 ( Individual account of each Creditor Party ). It is expressly agreed for purposes of enforceability via judicial or out-of-court methods pursuant to Spanish Law, that the balance due from the accounts referred to in this Clauses 30.1 ( Security Trustee accounting ) and 30.2 ( Individual account of each Creditor Party ) resulting from the certificate issued for such purpose by the Security Trustee shall be deemed a liquid, due and payable amount enforceable against a Debtor, provided that it is evidenced in a notarial document that the settlement was made in the form agreed to by the parties in the enforceable instrument documenting this Agreement ( título ejecutivo ) and that the balance due matches with the balance that appears in the corresponding open account of the Creditor Party in connection to the relevant Debt Document.
The Security Trustee shall previously notify the Debtor of the amount due as a result of the settlement.
30.4 | Enforcement before the Spanish courts |
In the event that a Creditor Party decides, for the purposes of the enforcement of a Debt Document (that has been raised to the status of public document in Spain) before the Spanish courts, to commence the ordinary enforcement proceeding set forth in Articles 517, et seq. , of the Law of Civil Procedure ( Ley de Enjuciamiento Civil ), the Parties expressly agree for purposes of Article 571, et seq. , of such Law of Civil Procedure that the settlement to determine the summarily enforceable debt be made by the Security Trustee. Therefore, the following will be sufficient for the commencement of the summary proceedings: (i) the notarial deed ( escritura de elevación a público ) evidencing this Agreement (or the relevant Debt Document that has been raised to the status of public document in Spain); (ii) a certificate, issued by the Security Trustee, of the debt for which the Debtor is liable, as well as the extract of the debit and credit entries and the entries corresponding to the application of interest that determines the actual balance for which enforcement is requested and the document providing evidence ( documento fehaciente ) that the settlement of the debt has been carried out in the form agreed to in this Agreement; and (iii) a notarial document providing evidence of the prior notice to the Debtor of the amount due as a result of the settlement.
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The Debtor shall bear all taxes, expenses and duties accruing or that are incurred on by reason of the notarial instruments referred to in the previous paragraph.
30.5 | Public deed |
This Agreement has been executed in a private document. Each Party shall be entitled to request to the other the formalisation of this Agreement and/or a Debt Document into a public deed before a Spanish Notary Public at any moment. The Company shall bear all costs and expenses relating to such formalisation. The public deed by which this Agreement is raised to the status of public document will confirm in Spanish the guarantee granted by a Spanish Debtor under Clause 16 ( Hedge Counterparty guarantee ) of this Agreement and the appointment of the Security Trustee under Clause 17.5 ( Appointment as agent and administrator in relation to Spanish Security Interests ).
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement and executed as a deed by the Intra-Group Lenders and the Debtors and is intended to be and is delivered by them as a deed on the date specified above.
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SCHEDULE 1
THE REVOLVING LENDERS
Name of Revolving Lender
ABM AMRO Bank N.V.
Banc of America Securities Limited
Barclays Bank PLC
Citibank N.A., London Branch
Credit Suisse AG, London Branch
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SCHEDULE 2
THE INTRA-GROUP LENDERS AND DEBTORS
Part 1 The Intra-Group Lenders
Company Name |
Place of Incorporation/
|
Registration Number |
||
InterXion Holding N.V. |
Netherlands | 33301892 | ||
InterXion HeadQuarters B.V. |
Netherlands | 34128125 | ||
InterXion Nederland B.V. |
Netherlands | 34116837 | ||
InterXion Operational B.V. |
Netherlands | 34389232 | ||
InterXion Datacenters B.V. |
Netherlands | 27174186 | ||
InterXion Belgium NV |
Belgium | RPR Brussels 0471.625.579 | ||
InterXion Danmark ApS |
Denmark | CVR No. 2514 7022 | ||
Interxion France SAS |
France | 423 945 799 RCS Paris | ||
InterXion Deutschland GmbH |
Germany | HRB 47103, commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main | ||
Interxion Ireland Limited |
Ireland | 321944 | ||
InterXion España SA |
Spain | CIF A 82517731 | ||
InterXion Carrier Hotel Ltd |
England | 03753969 | ||
InterXion Europe Limited |
England | 04157840 |
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Part 2 The Debtors
Company Name |
Place of Incorporation/
|
Registration Number |
||
InterXion Holding N.V. |
Netherlands | 33301892 | ||
InterXion HeadQuarters B.V. |
Netherlands | 34128125 | ||
InterXion Nederland B.V. |
Netherlands | 34116837 | ||
InterXion Operational B.V. |
Netherlands | 34389232 | ||
InterXion Datacenters B.V. |
Netherlands | 27174186 | ||
InterXion Belgium NV |
Belgium | RPR Brussels 0471.625.579 | ||
InterXion Danmark ApS |
Denmark | CVR No. 2514 7022 | ||
Interxion France SAS |
France | 423 945 799 RCS Paris | ||
InterXion Deutschland GmbH |
Germany | HRB 47103, commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt am Main | ||
Interxion Ireland Limited |
Ireland | 321944 | ||
InterXion España SA |
Spain | Commercial Registry of Madrid, volume 14952, section 8, book 0, page M-249071 | ||
InterXion Carrier Hotel Ltd |
England | 03753969 | ||
InterXion Europe Limited |
England | 04157840 |
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SCHEDULE 3
FORM OF DEBTOR ACCESSION DEED
THIS AGREEMENT is made on [ ] and made between:
(1) | [ Insert Full Name of New Debtor ] (the Acceding Debtor ); and |
(2) | [ Insert Full Name of Current Security Trustee ] (the Security Trustee ), for itself and each of the other parties to the intercreditor agreement referred to below. |
This agreement is made on [ date ] by the Acceding Debtor in relation to an intercreditor agreement (the Intercreditor Agreement ) dated [ ] between, amongst others, [ ] as security agent, [ ] as Revolving Agent, the Creditors and the Debtors (each as defined in the Intercreditor Agreement).
The Acceding Debtor intends to [incur Liabilities under the following documents]/[give a guarantee, indemnity or other assurance against loss in respect of Liabilities under the following documents]:
[ Insert details (date, parties and description) of relevant documents ]
the Relevant Documents .
IT IS AGREED as follows:
1. | Terms defined in the Intercreditor Agreement shall, unless otherwise defined in this Agreement, bear the same meaning when used in this Agreement. |
2. | The Acceding Debtor and the Security Trustee agree that the Security Trustee shall hold: |
(a) | [ any Security in respect of Liabilities created or expressed to be created pursuant to the Relevant Documents; |
(b) |
all proceeds of that Security; and ] 1 |
(c) | all obligations expressed to be undertaken by the Acceding Debtor to pay amounts in respect of the Liabilities to the Security Trustee as trustee for the Secured Parties (in the Relevant Documents or otherwise) and secured by the Transaction Security together with all representations and warranties expressed to be given by the Acceding Debtor (in the Relevant Documents or otherwise) in favour of the Security Trustee as trustee for the Secured Parties, |
on trust for the Secured Parties on the terms and conditions contained in the Intercreditor Agreement.
3. | The Acceding Debtor confirms that it intends to be party to the Intercreditor Agreement as a Debtor, undertakes to perform all the obligations expressed to be assumed by a Debtor under the Intercreditor Agreement and agrees that it shall be bound by all the provisions of the Intercreditor Agreement as if it had been an original party to the Intercreditor Agreement subject to the following limitations: |
[ ]
4. |
[In consideration of the Acceding Debtor being accepted as an Intra-Group Lender for the purposes of the Intercreditor Agreement, the Acceding Debtor also confirms that it intends to be party to the Intercreditor Agreement as an Intra-Group Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by an Intra-Group Lender and agrees that it |
1 |
Include to the extent that the Security created in the Relevant Documents is expressed to be granted to the Security |
Trustee as trustee for the Secured Parties.
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shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement]. 2 |
5. |
[ This Accession Agreement Letter will be formalised in a Spanish Public Document at the cost of the Company, so that it may have the status of a public document and for all purposes contemplated in Article 517, number 4 of the Spanish Civil Procedural Law (Law 1/2000 of 7th January) (Ley de Enjuiciamiento Civil). The public deed raising this Accession Document to the status of public document must reproduce in Spanish the clause 29 of the Agreement (Special Provisions regarding enforcement under the Laws of Spain), the confirmation of the personal guarantee granted by a Spanish Debtor under Clause 15 (Hedge Counterparty Guarantee) of this Agreement and the granting of authority by the Secured Parties to the Security Trustee under Clause 16.5 (Appointment as agent and administrator in relation to Spanish Security Interests) ] 3 |
[6]/[7] | This Agreement and any non-contractual obligations arising out of or in connection with it are is governed by, English law. |
THIS AGREEMENT has been signed on behalf of the Security Trustee and executed as a deed by the Acceding Debtor and is delivered on the date stated above.
2 |
Include this paragraph in the relevant Debtor Accession Deed if the Acceding Debtor is also to accede as an Intra- |
Group Lender to the Intercreditor Agreement.
3 |
Include this paragraph if the Acceding Debtor is a company incorporated under the laws of Spain. |
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in the presence of | ||||
Signature of witness | ||||
Name of witness | ||||
Address of witness | ||||
Occupation of witness] |
Address for notices:
Address:
Fax:
The Security Trustee
[ Full Name of Current Security Trustee ]
By:
Date:
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SCHEDULE 4
FORM OF CREDITOR/REPRESENTATIVE ACCESSION UNDERTAKING
To: | [ Insert full name of current Security Trustee ] for itself and each of the other parties to the Intercreditor Agreement referred to below. |
[ To: |
[Insert full name of current Revolving Agent] as Revolving Agent .] 4 |
From: | [ Acceding Creditor/Representative ] |
THIS UNDERTAKING is made on [ date ] by [ insert full name of new Revolving Lender/Additional Senior Secured Notes Creditor/Senior Unsecured Notes Creditor/Hedge Counterparty/Revolving Agent/Senior Secured Notes Trustee/Senior Unsecured Notes Trustee/Intra-Group Lender] ] (the Acceding [ Revolving Lender/Additional Senior Secured Notes Creditor / Senior Unsecured Notes Creditor/ Hedge Counterparty/Revolving Agent/ Senior Secured Notes Trustee/Senior Unsecured Notes Trustee / Intra-Group Lender ]) in relation to the intercreditor agreement (the Intercreditor Agreement ) dated [] between, among others, [ INSERT NAME OF SECURITY TRUSTEE ] as security agent, [ INSERT NAME OF REVOLVING AGENT ] as Revolving Agent, the Creditors and the Debtors (each as defined in the Intercreditor Agreement). Terms defined in the Intercreditor Agreement shall, unless otherwise defined in this Undertaking, bear the same meanings when used in this Undertaking.
In consideration of the Acceding [Revolving Lender/Additional Senior Secured Notes Creditor/Senior Unsecured Notes Creditor/Hedge Counterparty/Revolving Agent/ Senior Secured Notes Trustee/Senior Unsecured Notes Trustee/Intra-Group Lender ] being accepted as a [ Revolving Lender/Additiona l Senior Secured Notes Creditor/Senior Unsecured Notes Creditor/Hedge Counterparty/Intra-Group Lender/Revolving Agent/ Senior Secured Notes Trustee/Senior Unsecured Notes Trustee/ ] for the purposes of the Intercreditor Agreement, the Acceding [ Revolving Lender/Additional Senior Secured Notes Creditor/Senior Unsecured Notes Creditor/Hedge Counterparty/Revolving Agent/ Senior Secured Notes Trustee/Senior Unsecured Notes Trustee/Intra-Group Lender ] confirms that, as from [ date ], it intends to be party to the Intercreditor Agreement as a [ Revolving Lender/Additional Senior Secured Notes Creditor/Senior Unsecured Notes Creditor/Hedge Counterparty/Revolving Agent/ Senior Secured Notes Trustee/Senior Unsecured Notes Trustee/Intra-Group Lender ] and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a [ Revolving Lender/Additional Senior Secured Notes Creditor/Senior Unsecured Notes Creditor/Hedge Counterparty/Revolving Agent/ Senior Secured Notes Trustee/Senior Unsecured Notes Trustee/Intra-Group Lender ] and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
[ The Acceding Lender is an Affiliate of a Revolving Lender and has become a provider of an Ancillary Facility. In consideration of the Acceding Lender being accepted as an Ancillary Lender for the purposes of any Revolving Facility Agreement, the Acceding Lender confirms, for the benefit of the parties to any Revolving Facility Agreement, that, as from [date], it intends to be party to any Revolving Facility Agreement as an Ancillary Lender, and undertakes to perform all the obligations expressed in the Revolving Facility Agreement to be assumed by a Finance Party and agrees that it shall be bound by all the provisions of any Revolving Facility Agreement, as if it had been an original party to any Revolving Facility Agreement as an Ancillary Lender .]
This Undertaking and any non-contractual obligations arising out of or in connection with it are governed by English law.
THIS UNDERTAKING has been entered into on the date stated above [ and is executed as a deed by the Acceding Creditor, if it is acceding as an Intra-Group Lender and is delivered on the date stated above].
Acceding [ Creditor/Representative ]
4 |
Include only in the case of an Ancillary Lender which is an Affiliate of a Revolving Lender. |
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[ EXECUTED as a DEED ]
[ insert full name of Acceding
Creditor/Representative ]
By: |
||||
Address: |
||||
Fax: |
||||
Accepted by the Security Trustee |
[ Accepted by the Revolving Agent ] | |||
for and on behalf of |
for and on behalf of | |||
[ Insert full name of current Security Trustee ] |
[ Insert full name of Revolving Agent ] | |||
Date: |
Date:] 5 |
5 |
Include only in the case of an Ancillary Lender which is an Affiliate of a Revolving Lender. |
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SCHEDULE 5
FORM OF DEBTOR RESIGNATION REQUEST
To: [ ] as Security Trustee
From: [ resigning Debtor ] and [ the Company ]
Dated:
Dear Sirs
[ Company ] - [ ] Intercreditor Agreement
dated [ ] (the Intercreditor Agreement)
(1) | We refer to the Intercreditor Agreement. This is a Debtor Resignation Request. Terms defined in the Intercreditor Agreement have the same meaning in this Debtor Resignation Request unless given a different meaning in this Debtor Resignation Request. |
(2) | Pursuant to Clause [ 19.13 ] ( Resignation of a Debtor ) of the Intercreditor Agreement we request that [ resigning Debtor ] be released from its obligations as a Debtor under the Intercreditor Agreement. |
(3) | We confirm that: |
(i) | no Event of Default is continuing or would result from the acceptance of this request; and |
(ii) | [ resigning Debtor ] is under no actual or contingent obligations in respect of the Intra-Group Liabilities. |
(4) | This letter and any non-contractual obligations arising out of or in connection with it are governed by English law. |
[Company] |
[resigning Debtor] | |
By: |
By: |
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SCHEDULE 6
PART I
SENIOR SECURED NOTES PARAMETERS
Issuer: | The Company | |
Redemption Date: | Not have any scheduled repayment or redemption date earlier than the termination date under any Revolving Facility Agreement, at the time of issuance of such Senior Secured Notes | |
Guarantees and Security: | As set out in Clause 5.2 ( Security: Senior Secured Notes Creditors ) |
PART II
SENIOR UNSECURED NOTES PARAMETERS
Issuer: | The Company | |
Redemption Date: | Not earlier than the final scheduled maturity date for any Senior Secured Notes that have been issued and are outstanding, or the termination date under any Revolving Facility Agreement, at the time of issuance of such Senior Unsecured Notes | |
Guarantees and Security: | As set out in Clause 6.2(c) ( Restriction on Payment and dealings: Senior Unsecured Notes Liabilities ) |
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SCHEDULE 7
TRANSACTION SECURITY DOCUMENTS
1. | Transaction Security Documents |
(a) | The following share security: |
(i) | a share pledge agreement in relation to the shares in InterXion HeadQuarters B.V. made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(ii) | a share pledge agreement in relation to the shares in InterXion Nederland B.V. made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(iii) | a share pledge agreement in relation to the shares in InterXion Datacenters B.V. made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(iv) | a share pledge agreement in relation to the shares in InterXion Operational B.V. made between InterXion Holding N.V. as pledgor and the Security Trustee; |
(v) | a share pledge agreement in relation to the shares in Interxion France SAS made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(vi) | a share pledge agreement in relation to the shares in InterXion Deutschland GmbH made between, inter alios , InterXion Operational B.V. as pledgor and the Security Trustee; |
(vii) | a share charge agreement in relation to the shares in InterXion Carrier Hotel Limited made between InterXion Operational B.V. as pledgor and the Security Trustee; |
(viii) | a share pledge agreement in relation to the shares in InterXion Belgium N.V. made between InterXion Operational B.V. and InterXion HeadQuarters B.V. as pledgors and the Security Trustee; and |
(ix) | a share charge agreement in relation to the shares in Interxion Ireland Limited made between InterXion Operational B.V. as chargor and the Security Trustee. |
(b) | Security granted to the Security Trustee (and in relation to InterXion Deutschland GmbH, the other pledgees listed in the relevant Transaction Security Document) by the Company and each other Debtor (save for InterXion Danmark ApS and InterXion España S.A.) over its rights in respect of any inter-company loan receivables owed to it by any member of the Group. |
(c) | Security granted to the Security Trustee (and in relation to InterXion Deutschland GmbH, the other pledgees listed in the relevant Transaction Security Document) by the Company and each other Debtor (save for InterXion Danmark ApS and InterXion España S.A.) over all its banks accounts other than any bank account that is a blocked account with a bank that has provided a guarantee or other assurance against loss on behalf of a Debtor in respect of rental lease, supplier or stock payments including those bank accounts listed in schedule 13 ( Continuing Security ) of the Original Revolving Facility Agreement. |
2. | Where relevant in a particular jurisdiction the Transaction Security referred to in paragraph 1 above shall be granted to the Security Trustee and the other Secured Parties listed in the relevant Transaction Security Document. |
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SCHEDULE 8
SECURITY ENFORCEMENT PRINCIPLES
1. | It shall be the primary and over-riding aim of any enforcement of the Transaction Security to achieve the Security Enforcement Objective. |
2. | The Security Enforcement Principles may be amended, varied or waived with the prior written consent of the Majority Super Senior Creditors, the Majority Senior Secured Notes Creditors and the Security Trustee. |
3. | The Transaction Security will be enforced and other action as to Enforcement will be taken such that either: |
(a) | all proceeds of Enforcement are received by the Security Trustee in cash for distribution in accordance with Clause 15 ( Application of Proceeds); or |
(b) | sufficient proceeds from Enforcement will be received by the Security Trustee in cash to ensure that when the proceeds are applied in accordance with Clause 15 ( Application of Proceeds), the Super Senior Liabilities are repaid and discharged in full (unless the Majority Super Senior Creditors agree otherwise). |
4. | The Enforcement Action must be prompt and expeditious and reasonably expected to realise proceeds from the assets subject to Enforcement Action within six (6) months of the date the first Enforcement instruction were issued by the Majority Senior Secured Notes Creditors pursuant to paragraph (b) of Clause 13.3 ( Enforcement Instructions) . |
5. | On: |
(a) | a proposed Enforcement of any of the Transaction Security over assets other than shares in a member of the Group, where the aggregate book value of such assets exceeds EUR 5,000,000 (or its equivalent); or |
(b) | a proposed Enforcement of any of the Transaction Security over some or all of the shares in a member of the Group over which Transaction Security exists, |
the Security Trustee shall appoint a Financial Adviser to opine as expert that the proceeds received from any such Enforcement are fair from a financial point of view after taking into account all relevant circumstances (the Financial Advisers Opinion) provided that, if the Enforcement Action is conducted by way of Public Auction, no Financial Advisers Opinion shall be required in relation to such Enforcement Action.
6. | The Security Trustee shall be under no obligation to appoint a Financial Adviser or to seek the advice of a Financial Adviser, unless expressly required to do so by this Schedule or as specified in the definition of Public Auction. |
7. | The Financial Advisers Opinion (or any equivalent opinion obtained by the Security Trustee in relation to any other Enforcement of the Transaction Security that such action is fair from a financial point of view after taking into account all relevant circumstances) will be conclusive evidence that the Security Enforcement Principles have been met. |
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SIGNATURES
THE COMPANY
EXECUTED AS A DEED
By: | INTERXION HOLDING N.V. |
as the Company
/s/ David Ruberg |
Signature of Authorised Representative | |
D Ruberg | Name of Authorised Representative |
THE DEBTORS AND INTRA-GROUP LENDERS
EXECUTED AS A DEED
By: | INTERXION HOLDING N.V. |
as Debtor and Intra-Group Lender
/s/ David Ruberg |
Signature of Authorised Representative | |
D Ruberg | Name of Authorised Representative |
EXECUTED AS A DEED
By: | INTERXION HEADQUARTERS B.V. |
as Debtor and Intra-Group Lender
/s/ J. Camman |
Signature of Authorised Representative | |
J. Camman | Name of Authorised Representative |
EXECUTED AS A DEED
By: | INTERXION NEDERLAND B.V. |
as Debtor and Intra-Group Lender
/s/ J. Camman |
Signature of Authorised Representative | |
J. Camman | Name of Authorised Representative |
EXECUTED AS A DEED
By: | INTERXION OPERATIONAL B.V. |
as Debtor and Intra-Group Lender
/s/ J. Camman |
Signature of Authorised Representative | |
J. Camman | Name of Authorised Representative |
EXECUTED AS A DEED
By: | INTERXION DATACENTERS B.V. |
as Debtor and Intra-Group Lender
/s/ J. Camman |
Signature of Authorised Representative | |
J. Camman | Name of Authorised Representative |
EXECUTED AS A DEED | ||||
By: | INTERXION BELGIUM NV | |||
as Debtor and Intra-Group Lender | ||||
/s/ J. Camman | Signature | |||
J. Camman | Name | |||
Director | Title | |||
in the presence of | ||||
/s/ Jeanette Van Moorsel | Signature of witness | |||
Jeanette Van Moorsel | Name of witness | |||
Duin En Kruidberg 6 | ||||
1187 JJ Amstelveen | ||||
The Netherlands | Address of witness | |||
Executive Assistant | Occupation of witness |
EXECUTED AS A DEED | ||||
By: | INTERXION DANMARK ApS | |||
as Debtor and Intra-Group Lender |
||||
/s/ J. Camman | Signature | |||
J. Camman | Name | |||
Director | Title |
EXECUTED AS A DEED | ||
By: | INTERXION FRANCE SAS | |
as Debtor and Intra-Group Lender |
By: | /s/ J. Camman | |
J. Camman | ||
Title: | Director General | |
By: | /s/ D. Ruberg | |
D. Ruberg | ||
Title: | Proxy holder |
EXECUTED AS A DEED | ||||
By: |
INTERXION DEUTSCHLAND GMBH
|
|||
as Debtor and Intra-Group Lender | ||||
/s/ J. Camman | Signature | |||
J. Camman | Name | |||
Director | Title |
SIGNED AND DELIVERED as a deed by a duly authorised attorney of INTERXION IRELAND LIMITED as Debtor and Intra-Group Lender |
||
By: | /s/ J. Camman | |
Name: J. Camman | ||
Title: Authorised Attorney |
In the presence of:
Signature of witness: | /s/ Jeanette Van Moorsel | |
Name of witness: | Jeanette Van Moorsel | |
Address: | Duin En Kruidberg 6 | |
1187 JJ Amstelveen | ||
The Netherland | ||
Occupation of witness | Executive Assistant |
EXECUTED AS A DEED | ||||
By: | INTERXION ESPAÑA SA | |||
as Debtor and Intra-Group Lender | ||||
/s/ J. Camman | Signature | |||
J. Camman | Name | |||
Director | Title | |||
in the presence of | ||||
/s/ Jeanette Van Moorsel | Signature of witness | |||
Jeanette Van Moorsel | Name of witness | |||
Duin En Kruidberg 6 | ||||
1187 JJ Amstelveen | ||||
The Netherlands | Address of witness | |||
Executive Assistant | Occupation of witness |
EXECUTED AS A DEED | ||||
By: | INTERXION CARRIER HOTEL LIMITED | |||
as Debtor and Intra-Group Lender | ||||
/s/ J. Camman | Signature | |||
J. Camman | Name | |||
Director | Title | |||
in the presence of | ||||
/s/ Jeanette Van Moorsel | Signature of witness | |||
Jeanette Van Moorsel | Name of witness | |||
Duin En Kruidberg 6 | ||||
1187 JJ Amstelveen | ||||
The Netherlands | Address of witness | |||
Executive Assistant | Occupation of witness |
EXECUTED AS A DEED | ||||
By: | INTERXION EUROPE LIMITED | |||
as Debtor and Intra-Group Lender | ||||
/s/ J. Camman | Signature | |||
J. Camman | Name | |||
Director | Title | |||
in the presence of | ||||
/s/ Jeanette Van Moorsel | Signature of witness | |||
Jeanette Van Moorsel | Name of witness | |||
Duin En Kruidberg 6 | ||||
1187 JJ Amstelveen | ||||
The Netherlands | Address of witness | |||
Executive Assistant | Occupation of witness |
THE REVOLVING AGENT
|
||
BARCLAYS BANK PLC
as Revolving Agent |
||
By: |
/s/ Niels Pederson |
|
Name: | Niels Pederson |
THE REVOLVING LENDERS
|
||||||||
ABM AMRO BANK NV
as Revolving Agent |
||||||||
By: |
/s/ B. A. Schermers |
/s/ ILF KALTHOFF |
||||||
B. A. Schermers | ILF KALTHOFF |
BANC OF AMERICA SECURITIES LIMITED
as Revolving Lender
By: | /s/ Mauro Maioli | |
Mauro Maioli, Director |
BARCLAYS BANK PLC
as Revolving Lender
By: |
/s/ Niels Pederson |
|
Name: | Niels Pederson |
CITIBANK NA, LONDON BRANCH
as Revolving Lender
By: | /s/ Heath Lohrman | |
Heath Lohrman, Vice President |
CREDIT SUISSE AG, LONDON BRANCH
as Revolving Lender |
||||||||
By: | /s/ Antonia Lester | /s/ Mathew Cestar | ||||||
Antonia Lester | Mathew Cestar | |||||||
Director | Managing Director |
Witnessed by: | /s/ Alex Cobb | |
Alex Cobb | ||
Banker Credit Suisse One Cabot Square London E14 4QJ |
THE ORIGINAL SENIOR SECURED NOTES TRUSTEE
THE BANK OF NEW YORK MELLON, LONDON BRANCH
as Senior Secured Notes Trustee |
||
By: | /s/ Françoise Rivière | |
Françoise Rivière Vice President |
THE ORIGINAL HEDGE COUNTERPARTY
BARCLAYS BANK PLC
as Hedge Counterparty
|
By: |
/s/ Niels Pederson |
|
Name: | Niels Pederson |
THE SECURITY TRUSTEE
BARCLAYS BANK PLC
as Security Trustee
|
By: |
/s/ Niels Pederson |
|
Name: | Niels Pederson |