UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 6-K

 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13a-16 OR 15d-16

UNDER THE SECURITIES EXCHANGE ACT OF 1934

 

 

For the month of May 2017

Commission File Number: 001-37669

 

 

Nomad Foods Limited

(Translation of registrant’s name in English)

 

 

No. 5 New Square

Bedfont Lakes Business Park

Feltham, Middlesex TW14 8HA

+ (44) 208 918 3200

(Address of Principal Executive Offices)

 

 

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

Form 20-F  ☒             Form 40-F  ☐

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

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

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

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

 

 

 

Except as specifically stated herein, this Form 6-K is incorporated by reference into the Registration Statement on Form F-3 (“ Form F-3 ”) of Nomad Foods Limited (the “ Company ”) (File No. 333-217044), initially filed by the Company with the Securities and Exchange Commission (the “ Commission ”) on March 30, 2017 and declared effective by Commission on May 2, 2017. The Company is also filing, and incorporating by reference into the Form F-3, the documents set forth in Exhibits 99.1, 99.2 and 99.3 of the following Exhibit Index.

On April 28, 2017, the Company entered into an Amendment and Restatement Agreement by and among the Company, Nomad Foods Europe Midco Limited (“ Midco ”), Credit Suisse AG, London Branch, as security agent and agent on behalf of certain other finance parties thereto, and the other lenders and parties thereto (the “ Amendment and Restatement Agreement ”) relating to that certain Senior Facilities Agreement dated July 3, 2014 (as amended and restated from time to time, including pursuant to an amendment and restatement agreement dated October 23, 2015, the “ Senior Facilities Agreement ”). Pursuant to the Amendment and Restatement Agreement, as of the closing of the refinancing on May 3, 2017, the Senior Facilities Agreement was amended and restated (as amended and restated the “ Amended Senior Facilities Agreement ”) to, among other things (i) refinance the existing term loan facilities by establishing a € 500.0 million term facility and a $610.0 million term facility, both with maturity dates extending to May 2024, (ii) extend the maturity of its € 80.0 million revolving credit facility until May 2023 and (iii) renegotiate the terms of certain covenants contained therein, each as more fully described in the Amended Senior Facilities Agreement. The Euro denominated term loan bears interest at a rate per annum equal to EURIBOR plus 3.00% and each of the USD denominated term loan and revolving facility bears interest at a rate per annum equal to LIBOR/EURIBOR (as applicable) plus 2.75%. If EURIBOR or LIBOR is less than zero, EURIBOR or LIBOR (as the case may be) shall be deemed to be zero. Pursuant to the Amendment and Restatement Agreement, at the closing, the Company also entered into an amended and restated Intercreditor Agreement originally dated July 3, 2014 by and among the Company, Credit Suisse AG, London Branch, as security agent and certain other parties thereto (the “ Amended Intercreditor Agreement ”). The descriptions of the Amended Senior Facilities Agreement and Amended Intercreditor Agreement contained herein are not intended to be complete and are qualified in their entirety by reference to the full text of the Amended Senior Facilities Agreement and the Amended Intercreditor Agreement, which are attached hereto as Exhibits 99.1 and 99.2, respectively, and are incorporated herein by reference.

On May 3, 2017, the Company entered into an Indenture (the “ Indenture ”) by and among the Company, Nomad Foods BondCo Plc, an indirect, wholly-owned subsidiary of the Company (the “ Issuer ”), the Company’s direct and indirect subsidiaries named as guarantors therein (together with the Company, the “ Guarantors ”) and Deutsche Trustee Company Limited, as trustee thereunder, pursuant to which the Issuer issued € 400.0 million aggregate principal amount of 3.250% senior secured notes due 2024 (the “ Notes ”). The Notes will mature on May 15, 2024. Interest on the Notes shall accrue at the rate of 3.250% per annum and will be payable semi-annually in arrears on May 15 and November 15, commencing on November 15, 2017. The Notes are fully and unconditionally guaranteed on a senior basis by the Guarantors, subject to the limitations set forth in the Indenture. The Notes contain customary covenants and events of default. The description of the Indenture contained herein is not intended to be complete and is qualified in its entirety by reference to the full text of the Indenture, which is attached hereto as Exhibit 99.3 and is incorporated herein by reference.

The net proceeds received in connection with the amendment and restatement of the senior credit facilities and from the issuance of the Notes were used to repay the Company’s existing senior indebtedness including the existing € 500.0 million floating rate senior secured notes due 2020 issued by the Issuer.

On May 3, 2017, the Company issued a press release announcing the closing of the refinancing transactions. A copy of the press release is furnished as Exhibit 99.4 hereto.

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.

 

NOMAD FOODS LIMITED
By:  

/s/ Paul Kenyon

Name:   Paul Kenyon
Title:   Chief Financial Officer

Dated: May 3, 2017

Exhibit Index

 

Exhibit
Number

  

Exhibit Title

99.1    Senior Facilities Agreement, dated as of May 3, 2017, by, among others, the Company and Credit Suisse AG, London Branch, as amended pursuant to the Amendment and Restatement Agreement.
99.2    Intercreditor Agreement, dated as of May 3, 2017, by, among others, the Company and Credit Suisse AG, London Branch, as amended pursuant to the Amendment and Restatement Agreement.
99.3    Indenture, dated as of May 3, 2017 by and among the Company, the guarantors named therein and Deutsche Trustee Company Limited, as trustee.
99.4    Press Release issued by the Company on May 3, 2017 relating to the closing of the refinancing transactions.

Exhibit 99.1

The taking of (a) any of the Finance Documents (including this document) or (b) any certified copy thereof or (c) any document which constitutes substitute documentation thereof including written confirmations or references (the “Stamp Duty Sensitive Documents”) into Austria may cause the imposition of Austrian stamp duty. The same, inter alia, applies to (i) the sending of Stamp Duty Sensitive Documents to an Austrian addressee by fax, (ii) the sending of any e-mail communication to which an electronic scan copy (e.g., pdf or tif) of a Stamp Duty Sensitive Document is attached to an Austrian addressee and (iii) the sending of any e-mail communication carrying an electronic or digital signature which refers to a Stamp Duty Sensitive Document to an Austrian addressee. Accordingly, in particular, keep any Stamp Duty Sensitive Documents outside of Austria and avoid (A) sending Stamp Duty Sensitive Documents by fax to an Austrian addressee, (B) sending any e-mail communication to which an electronic scan copy of a Stamp Duty Sensitive Document is attached to an Austrian addressee and (C) sending any e-mail communication carrying an electronic or digital signature which refers to a Stamp Duty Sensitive Document to an Austrian addressee.

SENIOR FACILITIES AGREEMENT

originally dated 3 July 2014

as amended and restated from time to time including pursuant to the 2017 Amendment and

Restatement Agreement

for

NOMAD FOODS LIMITED

as Listco

with

CREDIT SUISSE AG, LONDON BRANCH

as left lead bank in respect of Facility B1

and

CREDIT SUISSE AG, LONDON BRANCH and DEUTSCHE BANK AG, LONDON BRANCH

as physical bookrunners in respect of Facility B1

and

GOLDMAN SACHS BANK USA

as left lead bank in respect of Facility B2

and

GOLDMAN SACHS BANK USA and UBS LIMITED

as global co-ordinators in respect of Facility B2

and

CREDIT SUISSE AG, LONDON BRANCH, DEUTSCHE BANK AG, LONDON BRANCH,

GOLDMAN SACHS BANK USA AND UBS LIMITED

as mandated lead arrangers and bookrunners

with

CREDIT SUISSE AG, LONDON BRANCH

acting as Agent

and

CREDIT SUISSE AG, LONDON BRANCH

acting as Security Agent

 

LOGO

Ref: L- 238225

CONTENTS

 

CLAUSE    PAGE  
SECTION 1  
INTERPRETATION  
1.   Definitions and interpretation      2  
SECTION 2  
THE FACILITIES  
2.   The Facilities      48  
3.   Purpose      55  
4.   Conditions of Utilisation      55  
SECTION 3  
UTILISATION  
5.   Utilisation - Loans      58  
6.   Utilisation - Letters of Credit      59  
7.   Letters of Credit      62  
8.   Optional Currencies      65  
9.   Ancillary Facilities      65  
SECTION 4  
REPAYMENT, PREPAYMENT AND CANCELLATION  
10.   Repayment      70  
11.   Illegality, voluntary prepayment and cancellation      70  
12.   Mandatory prepayment      72  
13.   Restrictions      77  
SECTION 5  
COSTS OF UTILISATION  
14.   Interest      79  
15.   Interest Periods      79  
16.   Changes to the calculation of interest      80  
17.   Fees      81  
SECTION 6  
ADDITIONAL PAYMENT OBLIGATIONS  
18.   Tax gross-up and indemnities      84  
19.   Increased Costs      93  
20.   Other indemnities      94  
21.   Mitigation by the Lenders      95  
22.   Costs and expenses      96  
SECTION 7  
GUARANTEE  
23.   Guarantee and indemnity      97  
SECTION 8  
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT  
24.   Representations      106  
25.   Information undertakings      111  
26.   Financial covenant      115  
27.   General undertakings      125  
28.   Events of Default      137  

 

- i -

SECTION 9
CHANGES TO PARTIES
29.   Changes to the Lenders    144
30.   Debt Purchase Transactions    150
31.   Changes to the Obligors    154
SECTION 10
THE FINANCE PARTIES
32.   Role of the Agent, the Arrangers, the Issuing Bank and others    158
33.   Conduct of business by the Finance Parties    167
34.   Sharing among the Finance Parties    167
SECTION 11
ADMINISTRATION
35.   Payment mechanics    170
36.   Set-off    172
37.   Notices    172
38.   Calculations and certificates    176
39.   Partial invalidity    176
40.   Remedies and waivers    176
41.   Amendments and waivers    177
42.   Confidentiality    179
43.   Counterparts    182
SECTION 12
GOVERNING LAW AND ENFORCEMENT
44.   Governing law    183
45.   Enforcement    183
46.   General Austrian limitation    185

THE SCHEDULES

 

SCHEDULE   PAGE  

SCHEDULE 1 The Parties

    186  

SCHEDULE 2 Conditions Precedent and Conditions Subsequent

    189  

SCHEDULE 3 Requests

    200  

SCHEDULE 4 Form of Transfer Certificate and Lender Accession Undertaking

    205  

SCHEDULE 5 Form of Accession Letter

    209  

SCHEDULE 6 Form of Resignation Letter

    211  

SCHEDULE 7 Form of Compliance Certificate

    213  

SCHEDULE 8 LMA Form of Confidentiality Undertaking

    215  

SCHEDULE 9 Timetables

    220  

SCHEDULE 10 Form of Letter of Credit

    223  

SCHEDULE 11 Material Companies

    227  

SCHEDULE 12 Security Principles

    228  

SCHEDULE 13 Form of Lender Accession Notice

    236  

SCHEDULE 14 Form of Additional Facility Notice

    239  

SCHEDULE 15 Forms of Notifiable Debt Purchase Transaction Notice

    241  

 

- ii -

THIS AGREEMENT is dated 3 July 2014 as amended and restated from time to time, including on the 2017 Effective Date pursuant to the 2017 Amendment and Restatement Agreement, and made between:

 

(1) NOMAD FOODS LIMITED , a public listed company incorporated in the British Virgin Islands with registered number 1818482 (“ Listco ”);

 

(2) NOMAD FOODS EUROPE MIDCO LIMITED , a company incorporated in England and Wales with registered number 5879252 (“ Midco ”);

 

(3) NOMAD FOODS LUX S.À R.L. , a private limited liability company (société à responsabilité limitée ), registered with the Luxembourg Register of Commerce and Companies with registered address at 19 rue de Bitbourg, Luxembourg, Grand Duchy of Luxembourg (“ Luxco ”);

 

(4) NOMAD FOODS US LLC , a single member limited liability company organised in Delaware, the US for the sole purpose of acting as co-borrower in respect of Facility B2 (or any Additional Facility denominated in US$) (“ US Co-Borrower ”);

 

(5) THE ENTITIES listed in Part I of Schedule 1 ( The Parties ) as borrowers (the “ Original Borrowers ”);

 

(6) THE ENTITIES listed in Part I of Schedule 1 ( The Parties ) as guarantors (the “ Original Guarantors ”);

 

(7) CREDIT SUISSE AG, LONDON BRANCH , as left lead bank in respect of Facility B1 and GOLDMAN SACHS BANK USA , as left lead bank in respect of Facility B2 (together, the “ Left Lead Banks ”);

 

(8) CREDIT SUISSE AG, LONDON BRANCH and DEUTSCHE BANK AG, LONDON BRANCH , as physical bookrunners of Facility B1 (the “ Physical Bookrunners ”);

 

(9) GOLDMAN SACHS BANK USA and UBS LIMITED , as global co-ordinators of Facility B2 (the “ Global Co-ordinators ”);

 

(10) CREDIT SUISSE AG, LONDON BRANCH , DEUTSCHE BANK AG, LONDON BRANCH , GOLDMAN SACHS BANK USA and UBS LIMITED , as mandated lead arrangers and bookrunners (whether acting individually or together, and together with the Left Lead Banks, the Physical Bookrunners and the Global Co-ordinators, the “ Arrangers ”);

 

(11) THE FINANCIAL INSTITUTIONS referred to in Part II of Schedule 1 ( The Parties ) (the “ Original Lenders ”);

 

(12) CREDIT SUISSE AG, LONDON BRANCH , as agent of the other Finance Parties (the “ Agent ”); and

 

(13) CREDIT SUISSE AG, LONDON BRANCH , as security agent for the Secured Parties (the “ Security Agent ”).

 

1

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

In this Agreement:

“ 2017 Additional Facility Effective Time ” has the meaning given to the term “Additional Facility Effective Time” in the 2017 Amendment and Restatement Agreement.

“ 2017 Allocations Table ” has the meaning given to the term “Allocations Table” in the 2017 Amendment and Restatement Agreement.

“ 2017 Effective Date ” has the meaning given to the term “Effective Date” in the 2017 Amendment and Restatement Agreement.

“ 2017 Funds Flow Statement ” has the meaning given to the term “Funds Flow Statement” in the 2017 Amendment and Restatement Agreement.

“ 2017 Amendment and Restatement Agreement ” means the amendment and restatement agreement, in relation to this Agreement and the Intercreditor Agreement, dated 28 April 2017 between, among others, Listco, Midco, Luxco, the US Co-Borrower and the Agent.

“ Acceptable Bank ” means:

 

  (a) a Lender and, to the extent not a Lender, the list of banks with whom the Group has certain banking arrangements as at the Closing Date as agreed between Listco and the Arrangers prior to the Closing Date;

 

  (b) any bank or financial institution which has a rating for its long-term debt obligations of BBB- or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa3 or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or

 

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

“ Accession Letter ” means a document substantially in the form set out in Schedule 5 ( Form of Accession Letter ) or any other form agreed by the Agent and Listco.

“ Accounting Principles ” means generally accepted accounting principles in the jurisdiction of incorporation of the relevant member of the Group or International Accounting Standards.

“ Acquired Debt ” has the meaning given to it in paragraph (e) of the definition of Permitted Financial Indebtedness.

“ Acquired Group ” means, in relation to Permitted Acquisition under paragraph (d) of the definition of ‘Permitted Acquisition’, the entity (and its Subsidiaries) or business or undertaking (as the case may be) acquired by the Group pursuant to such Permitted Acquisition.

“ Acquisition Costs ” means all non-periodic fees, costs and expenses, stamp, registration and other Taxes incurred or required to be paid by any member of the Group in connection with any Permitted Acquisition or the Transaction Documents.

 

2

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

“ Additional Facility ” has the meaning given to it in Clause 2.4 ( Additional Facilities ).

“ Additional Facility Commencement Date ” means, in respect of an Additional Facility, the date specified as the “Commencement Date” in the Additional Facility Notice relating to that Additional Facility.

“ Additional Facility Commitment ” means, in respect of an Additional Facility Lender and an Additional Facility, the Base Currency Amount specified as its Lender Commitment in the Additional Facility Notice delivered by that Additional Facility Lender, to the extent not cancelled, reduced or transferred by such Additional Facility Lender under this Agreement.

“ Additional Facility Documents ” means, in relation to any Additional Facility, the Additional Facility Debt Instrument, any fee letter entered into, under or in connection with the Additional Facility and any other document or instrument relating to that Additional Facility and designated as such by Listco and the relevant Additional Facility Lender.

“ Additional Facility Debt Instrument ” means, in relation to any Additional Facility, the indenture, facility agreement, or other equivalent document by which that Additional Facility is issued or, as the case may be, made available.

“ Additional Facility Lender ” has the meaning given to it in Clause 2.4 ( Additional Facilities ).

“ Additional Facility Loan ” means an Additional Facility Revolving Loan and/or an Additional Facility Term Loan.

“ Additional Facility Notice ” means a notice substantially in the form set out in Schedule 14 ( Form of Additional Facility Notice ) or any other form agreed by the Agent and Listco.

“ Additional Facility Revolving Loan ” means loans made or to be made under an Additional Revolving Facility or the principal amount outstanding for the time being of those loans under an Additional Revolving Facility.

“ Additional Facility Term Loan ” means loans made or to be made under an Additional Term Facility or the principal amount outstanding for the time being of those loans under an Additional Term Facility.

“ Additional Guarantor ” means a company which becomes a Guarantor in accordance with Clause 31 ( Changes to the Obligors ).

“ Additional Obligor ” means an Additional Borrower or an Additional Guarantor.

“ Additional Revolving Facility ” means any revolving facility established by Listco as an Additional Facility under Clause 2.4 ( Additional Facilities ).

“ Additional Term Facility ” means any term facility established by Listco as an Additional Facility under Clause 2.4 ( Additional Facilities ).

“ 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.

 

3

“ Agent’s Spot Rate of Exchange ” means the Agent’s spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.

“ Ancillary Commencement Date ” means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall (unless a contrary indication appears in the 2017 Amendment and Restatement Agreement) be a Business Day within the Availability Period for the applicable Revolving Facility.

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

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

“ Ancillary Facility ” means any ancillary facility made available by an Ancillary Lender in accordance with Clause 9 ( Ancillary Facilities ).

“ Ancillary Lender ” means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 9 ( Ancillary Facilities ).

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

 

  (a) the principal amount under each overdraft facility and on demand short-term loan facility (net of any credit balances on any account of any Borrower of an Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that such credit balance is freely available to be set off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility) (ignoring, for this purpose, where agreed by the Ancillary Lender, any liability in respect of BACS facilities);

 

  (b) the face amount of each guarantee, bond and letter of credit under that Ancillary Facility (to the extent not repaid or prepaid); and

 

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

in each case, as determined by such Ancillary Lender in accordance with the relevant Ancillary Document or normal banking practice.

“ Anti-Corruption Laws ” means the US Foreign Corrupt Practices Act 1977, the UK Bribery Act 2010, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and any other applicable anti-bribery or anti-corruption law or regulation.

“ Anti-Money Laundering Laws ” means all applicable financial record keeping and reporting requirements and anti-money laundering statutes in all jurisdictions in which the member of the Group conducts its business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency.

 

4

“ Auditors ” means any firm of independent accountants appointed by Listco as its auditors from time to time.

“ Austrian Capital Maintenance Rules ” has the meaning given to it in Clause 23.12 ( Limitations on obligations of Austrian Guarantors ).

“ Austrian Guarantor ” has the meaning given to it in Clause 23.5 ( Guarantor intent ).

“ Austrian Obligor ” means an Obligor incorporated in the Republic of Austria.

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

“ Availability Period ” means:

 

  (a) in relation to Facility B1 and Facility B2, the period from and including the 2017 Additional Facility Effective Time to and including 11:59 pm on the 2017 Effective Date;

 

  (b) in relation to the Original Revolving Facility, the period from (and including) the 2017 Effective Date to (and including) the date falling one Month prior to the Termination Date applicable to the Original Revolving Facility; and

 

  (c) in relation to any Additional Facility, the period specified in the Additional Facility Notice relating to that Additional Facility.

“ Available Amount ” has the meaning ascribed to such term in Clause 26.4 ( Baskets ).

“ Available Commitment ” means, in relation to a Facility, a Lender’s Commitment under that Facility minus (subject to Clause 9.7 ( Affiliates of Lenders as Ancillary Lenders ) and as set out below):

 

  (a) the amount (or, in the case of a Revolving Facility only, the Base Currency Amount) of its participation in any outstanding Utilisations under that Facility and, in the case of a Revolving Facility only, the Base Currency Amount of the aggregate of its Ancillary Commitments; and

 

  (b) in relation to any proposed Utilisation amount (or, in the case of a Revolving Facility only, the Base Currency Amount), the amount of its participation in any other Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date and, in the case of a Revolving Facility only, the Base Currency Amount of its Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date.

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

 

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

 

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

 

5

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

“ Base Currency ” means:

 

  (a) for Facility B1 and the Original Revolving Facility, euro;

 

  (b) for Facility B2, US Dollars; and

 

  (c) in relation to any Additional Facility, such currency as is agreed between Listco and the applicable Additional Facility Lenders.

“ Base Currency Amount ” means:

 

  (a) in relation to a Utilisation, the amount specified in the Utilisation Request delivered by a Borrower for that Utilisation (or, in the case of a Utilisation under a Revolving Facility, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request in accordance with the terms of this Agreement) and, in the case of a Letter of Credit, as adjusted under Clause 6.7 ( Revaluation of Letters of Credit ) at annual intervals; and

 

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

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

“ Belgian Additional Obligor ” means an Additional Obligor incorporated in Belgium.

“ Belgian Companies Code ” means the Belgian Companies Code of 7 May 1999, as amended from time to time.

“ Belgian Obligor ” means an Obligor incorporated in Belgium.

“ Bidco ” means Nomad Foods Europe Limited, a company incorporated in England and Wales with registered number 5879466, which is a wholly-owned subsidiary of Midco.

“ Bondco ” means Nomad Foods Bondco plc, a company incorporated in England and Wales with registered number 09094345, which is a wholly-owned subsidiary of Midco.

“ Borrower ” means a Term Facility Borrower or a Revolving Facility Borrower.

“ Borrowings ” has the meaning given to that term in Clause 26.1 ( Financial definitions ).

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

 

  (a)

the interest (but, for the avoidance of doubt, excluding any Margin) which a Lender should have received for the period from the date of receipt of all or any part of its

 

6

  participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period,

exceeds:

 

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

“ Business Day ” means a day (other than a Saturday or Sunday) on which banks are open for general business in London and Tortola (British Virgin Islands) 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.

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

“ Cash ” means cash in hand (or in transit or in tills or payments made by cheques or debit cards or credit cards which are yet to be received in cleared funds) and credit balances or amounts on deposit with an Acceptable Bank which are freely transferable and freely convertible and accessible by a member of the Group within 90 days or held in a blocked account and not subject to any Security (other than one arising under the Transaction Security Documents).

“ Cash Equivalent Investments ” means, at any time:

 

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

 

  (b) any investment in marketable debt obligations issued or guaranteed by the government of the United States, the United Kingdom, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year of the relevant date of calculation and not convertible or exchangeable into any other security;

 

  (c) debt securities maturing within one year of the relevant date of calculation which are not convertible or exchangeable into any other security, are rated either BBB- or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa3 or higher by Moody’s Investors Service Limited (or, if no rating is available in respect of the debt securities, the issue of which has, in respect of its long-term debt obligations, an equivalent rating);

 

  (d) open market commercial paper not convertible or exchangeable into any other security:

 

  (i) for which a recognised trading market exists;

 

  (ii) issued by an issuer incorporated in the United States, the United Kingdom, any member state of the European Economic Area or any Participating Member State;

 

  (iii) which matures within one year of the relevant date of calculation; and

 

7

  (iv) which has a credit rating of either BBB- or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa3 or higher by Moody’s Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

  (e) bills of exchange issued in the United States, the United Kingdom, any member state of the European Economic Area or any Participating Member State eligible for rediscount at the relevant central bank and accepted by an Acceptable Bank (or any dematerialised equivalent);

 

  (f) any investment accessible within 90 days in money market funds which has a credit rating of either BBB- or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa3 or higher by Moody’s Investors Service Limited and which invests substantially all its assets in securities of the types described in paragraphs (a) to (e) above; or

 

  (g) any other debt security approved by the Majority Lenders,

in each case, to which any member of the Group is beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than one arising under the Transaction Security Documents).

“ Cashflow ” has the meaning given to that term in Clause 26.1 ( Financial definitions ).

“ Change of Control ” means:

 

  (a) any person or persons acting in concert gain control directly or indirectly of more than 50 per cent. of the voting shares of Listco (where “ acting in concert ” means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition of shares in Listco by any of them, either directly or indirectly, to obtain or consolidate control of Listco);

 

  (b) Listco ceases to control directly or indirectly the entire issued share capital of Midco; or

 

  (c) shares of Listco cease to be admitted to trading on the New York Stock Exchange (unless such shares are substantially contemporaneously admitted to trading on the London Stock Exchange).

“ Charged Property ” has the meaning given to such term in the Intercreditor Agreement.

“ Clean-Up Default ” means, in respect of a Permitted Acquisition under paragraphs (d) and (e) of the definition of ‘Permitted Acquisition’, any Default or Event of Default which is subsisting on or arising after the completion of such Permitted Acquisition but prior to expiry of the relevant Clean-Up Period relating to that Permitted Acquisition to the extent it relates exclusively to a member of the Acquired Group of such Permitted Acquisition (or any obligation to procure or ensure in relation to a member of that Acquired Group).

“ Clean-Up Period ” means, in respect of a Permitted Acquisition under paragraphs (d) and (e) of the definition of ‘Permitted Acquisition’, the period from the date of completion of such Permitted Acquisition to the date falling 120 days thereafter.

“ Closing Date ” means the date on which Facility B1 and Facility B2 are utilised.

 

8

“ Code ” means the US Internal Revenue Code of 1986.

“ Commitment ” means an Original Revolving Facility Commitment, a Facility B1 Commitment, a Facility B2 Commitment or an Additional Facility Commitment.

“ Compliance Certificate ” means a certificate substantially in the form set out in Schedule 7 ( Form of Compliance Certificate ).

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

 

  (a) any member of the Group or any of its advisers; or

 

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

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

 

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

 

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

 

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

“ Confidentiality Undertaking ” means a confidentiality undertaking substantially in the agreed form as set out in Schedule 8 ( LMA Form of Confidentiality Undertaking ) or in any other form agreed between Listco and the Agent, in each case capable of being relied on by Listco and not to be amended in any material respect other than as agreed to by Listco (acting reasonably).

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

“ Consolidated Total Net Debt ” has the meaning given to such term in Clause 26.1 ( Financial definitions ).

“ Credit Facility ” has the meaning given to such term in the Intercreditor Agreement.

“ CTA ” means the Corporation Tax Act 2009.

“ Debt Cover ” has the meaning given to such term in Clause 26.1 ( Financial definitions ).

 

9

“ Debt Cover Condition ” has the meaning given to such term in Clause 27.35 ( Covenant suspension/relaxation ).

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

 

  (a) owns or purchases by way of assignment or transfer;

 

  (b) enters into any sub-participation in respect of; or

 

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

any Commitment or amount outstanding under or in respect of this Agreement.

“ Declared Default ” means an Event of Default under paragraph (a) of that definition in respect of which a notice of acceleration has been served pursuant to paragraph (a) of Clause 28.16 ( Acceleration ).

“ Default ” means:

 

  (a) an Event of Default under paragraph (a) of that definition or any event or circumstance specified as such in Clause 28 ( Events of Default ) which would (with the expiry of a grace period in, or the giving of notice under, Clause 28 ( Events of Default ), or any combination of any of the foregoing) be an Event of Default under paragraph (a) of that definition; and

 

  (b) with respect to each Revolving Facility only, a Financial Covenant Event of Default or any requirement of Clause 26 ( Financial covenant ) not being satisfied which would (with the expiry of the period for remedy provided for in paragraph (d) of Clause 26.3 ( Financial testing )) be an Event of Default.

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

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

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

“ Disruption Event ” means either or both of:

 

  (a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

  (b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

  (i) from performing its payment obligations under the Finance Documents; or

 

  (ii) from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

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“ Dutch Additional Obligor ” means an Additional Obligor incorporated in the Netherlands.

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

“ Dutch Financial Supervision Act ” means the Dutch Financial Supervision Act ( Wet op het financieel toezicht ) dated 28 September 2006 published in the Dutch government gazette nr. 475 on 31 October 2006, as amended from time to time.

“ Dutch Obligor ” means an Obligor incorporated in the Netherlands.

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

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

 

  (a) the pollution or protection of the environment;

 

  (b) harm to or the protection of human health;

 

  (c) the conditions of the workplace; or

 

  (d) any emission or substance capable of causing harm to any living organism or the environment.

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

“ ERISA ” means the US Employee Retirement Income Security Act 1974 (or any successor legislation thereto).

“ EURIBOR ” means, in relation to any Loan in euro:

 

  (a) the applicable Screen Rate; or

 

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

 

  (c) (if no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks as the rate which the relevant Reference Bank could borrow funds in the European interbank market,

as of (in the case of paragraphs (a) and (c) above) the Specified Time on the Quotation Day for euro for a period equal in length to the Interest Period of the relevant Loan, and provided that (in each case) if any such rate is below zero, EURIBOR will be deemed to be zero.

“ Euro Denominated Facility ” means each of Facility B1, the Original Revolving Facility and any Additional Facility denominated in euro.

“ Event of Default ” means:

 

  (a) with respect to each Facility, any event or circumstance specified as such in Clause 28 ( Events of Default ); and

 

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  (b) with respect to each Revolving Facility only, a Financial Covenant Event of Default.

“ Excess Cashflow ” has the meaning given to that term in Clause 26.1 ( Financial definitions ).

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

“ Facility ” means a Term Facility, a Revolving Facility or an Additional Facility.

“ Facility B1 ” means the term loan facility made available under this Agreement as described in paragraph (a)(i) of Clause 2.1 ( The Facilities ).

“ Facility B1 Commitment ” means:

 

  (a) in relation to an Original Lender of Facility B1, the amount in euro set opposite its name under the heading “Facility B1 Commitment” in the 2017 Allocations Table (being, for the avoidance of any doubt, in the case of Credit Suisse International, as at the 2017 Additional Facility Effective Time, a principal amount equal to €234,168,934.17) and the amount of any other Facility B1 Commitment transferred to it under this Agreement; and

 

  (b) in relation to any other Lender, the amount in euro of any Facility B1 Commitment transferred to it under this Agreement,

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

“ Facility B1 Loan ” means a loan made or to be made under Facility B1 or the principal amount outstanding for the time being of that loan (including, for the avoidance of doubt, any loan deemed to have been made under Facility B1 upon the occurrence of the 2017 Additional Facility Effective Time pursuant to the 2017 Amendment and Restatement Agreement).

“ Facility B2 ” means the term loan facility made available under this Agreement as described in paragraph (a)(ii) of Clause 2.1 ( The Facilities ).

“ Facility B2 Commitment ” means:

 

  (a) in relation to an Original Lender of Facility B2, the amount in US$ set opposite its name in Part II of Schedule 1 ( The Parties ) and the amount of any other Facility B2 Commitment transferred to it under this Agreement; and

 

  (b) in relation to any other Lender, the amount in US$ of any Facility B2 Commitment transferred to it under this Agreement,

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

“ Facility B2 Loan ” means a loan made or to be made under Facility B2 or the principal amount outstanding for the time being of that loan.

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

“ FATCA ” means:

 

  (a) sections 1471 to 1474 of the Code, any associated regulations and other official guidance;

 

12

  (b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation or official guidance referred to in paragraph (a) above; and

 

  (c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the United States Internal Revenue Service, the government of the United States or any governmental or taxation authority in any other jurisdiction.

“ FATCA Application Date ” means:

 

  (a) in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the United States), 1 July 2014;

 

  (b) in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the United States), 1 January 2019; or

 

  (c) in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA after the date of this Agreement.

“ FATCA Deduction ” means a deduction or withholding from a payment under a Finance Document required by FATCA.

“ FATCA Exempt Party ” means a Party that is entitled to receive payments free from any FATCA Deduction.

“ Federal Reserve Board ” means the Board of Governors of the Federal Reserve System of the United States (or any successor thereto).

“ Fee Letter ” means:

 

  (a) any letter or letters between:

 

  (i) the Agent and Listco; or

 

  (ii) the Security Agent and Listco,

setting out any of the fees referred to in Clause 17 ( Fees ); and

 

  (b) any other agreement setting out fees referred to in Clause 17.4 ( Fees payable in respect of Letters of Credit ) or Clause 17.5 ( Interest, commission and fees on Ancillary Facilities ).

“ Finance Document ” means this Agreement, any Accession Letter, any Lender Accession Notice, any Additional Facility Document, any Additional Facility Notice (including for the avoidance of doubt, the Additional Facility Notice in respect of Facility B1 and Facility B2), any Ancillary Document, any Compliance Certificate, any Fee Letter, each Mandate Document, the Intercreditor Agreement, any Resignation Letter, any Selection Notice, any Transaction Security Document, any Utilisation Request, the 2017 Amendment and Restatement Agreement and any other document designated as a “Finance Document” by the Agent and Listco.

 

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“ Finance Party ” means the Agent, the Arrangers, the Security Agent, a Lender, the Issuing Bank or any Ancillary Lender.

“ Financial Covenant Event of Default ” means, subject to paragraph (d) of Clause 26.3 ( Financial testing ) and paragraph (f) of Clause 1.2 ( Construction ), any requirement of Clause 26.2 ( Financial condition ) is not satisfied.

“ Financial Indebtedness ” means, at any time, Borrowings together with:

 

  (a) indebtedness owed by one member of the Group to another member of the Group;

 

  (b) for the purposes of Clause 28.4 ( Cross default ) only, indebtedness arising under derivative transactions (taking into account only the marked to market value of any net payments); and

 

  (c) indebtedness arising under any agreements in relation to Subordinated Debt.

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

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

“ Finco ” means Nomad Foods Europe Finco Limited, a company incorporated in England and Wales with registered number 5879462, which is a wholly-owned subsidiary of Holdco.

“ Findus Italy ” means C.S.I. - Compagnia Surgelati Italiana S.p.A., a company incorporated in Italy with Fiscal Code 07015700961 and whose registered office is at Roma (RO), via Caterina Troiani 75, Italy.

“ Fraudulent Transfer Law ” means any applicable US Bankruptcy Law or any applicable US state fraudulent transfer or conveyance law.

“ Funds Flow Statement ” means a funds flow statement (included sources and uses) in the agreed form.

“ German Additional Obligor ” means an Additional Obligor incorporated in Germany.

“ German Borrower ” means a Borrower incorporated in Germany.

“ German Obligor ” means an Obligor incorporated in Germany.

“ German Property ” means the automated cold storage warehouse in which UBG Vermietungs GmbH & Co. OHG has a freehold interest at Aeckern 4, 48734 Reken, Germany.

“ Group ” means Listco and each of its Subsidiaries for the time being.

“ Group Structure Chart ” means the group structure chart in the agreed form relating to the Group as delivered to the Agent pursuant to Clause 4.1 ( Conditions precedent ).

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

“ Guarantor Company ” means any member of the Group which is (or which is required to become) a Guarantor.

“ Guarantor Coverage ” has the meaning it is given in Clause 27.29 ( Guarantors ).

“ Hedging Agreement ” has the meaning given to it in the Intercreditor Agreement.

 

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“ Holdco ” means Nomad Foods Europe Holdco Limited, a company incorporated in England and Wales with registered number 5879245, which is a wholly-owned subsidiary of Topco.

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

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

“ Information Memorandum ” means the information memorandum dated April 2017 prepared in connection with Facility B1 and Facility B2.

“ Intellectual Property ” means:

 

  (a) any patents, trademarks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered; and

 

  (b) the benefit of all applications and rights to use such assets of each member of the Group.

“ Intercreditor Agreement ” means the intercreditor agreement originally dated on 3 July 2014 as amended pursuant to the 2017 Amendment and Restatement Agreement, between, among others, Listco, Midco, Luxco, the US Co-Borrower and the Security Agent.

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

“ Interpolated Screen Rate ” means, in relation to EURIBOR or LIBOR for any Loan, the rate which results from interpolating on a linear basis between:

 

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

 

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

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

“ Intra-Group Loans ” means the loans made by one member of the Group to another member of the Group.

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

“ ITA ” means the Income Tax Act 2007.

“ Italian Civil Code ” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.

 

15

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

“ L/C Proportion ” means, in relation to a Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender’s Available Commitment under the relevant Revolving Facility to the relevant Available Facility under the relevant Revolving Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender.

“ Legal Reservations ” means:

 

  (a) the principle that equitable remedies may be granted or refused at the discretion of a court, the principle of reasonableness and fairness and the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors;

 

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

 

  (c) similar principles, rights and defences under the laws of any Relevant Jurisdiction; and

 

  (d) any other general principles or matters which are set out as to matters of law in the legal opinions delivered to the Agent under Part I of Schedule 2 ( Conditions Precedent and Conditions Subsequent ).

“ Lender ” means:

 

  (a) any Original Lender;

 

  (b) any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 29 ( Changes to the Lenders ); and

 

  (c) upon their accession to this Agreement and the Intercreditor Agreement, any Additional Facility Lender,

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

“ Lender Accession Notice ” means a notice substantially in the form set out in Schedule 13 ( Form of Lender Accession Notice ) or any other form agreed by the Agent and Listco.

“ Letter of Credit ” means:

 

  (a) a letter of credit, substantially in the form set out in Schedule 10 ( Form of Letter of Credit ) or in any other form requested by a Revolving Facility Borrower (or Listco on its behalf) and agreed by the Agent and the Issuing Bank; or

 

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

“ LIBOR ” means, in relation to any Loan:

 

  (a) the applicable Screen Rate; or

 

16

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

 

  (c) (if no Screen Rate is available for the currency or Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London interbank market,

as of (in the case of paragraphs (a) and (c) above) the Specified Time on the Quotation Day for the offering of deposits in the currency of that Loan and for a period equal in length to the Interest Period for that Loan, and provided that (in each case) if any such rate is below zero, LIBOR will be deemed to be zero.

“ Listco Affiliate ” means any Affiliates of Listco (excluding any member of the Group).

“ LMA ” means the Loan Market Association.

“ Loan ” means a Term Loan or a Revolving Facility Loan.

“ Local Facilities ” means current account, overdraft, letter of credit, foreign exchange and SWIFT and BACS facilities made available to a member of the Group together with any guarantee given by another member of the Group in respect of any Borrowing thereunder.

“ LTM EBITDA ” means Consolidated EBITDA as stated in the most recent Compliance Certificate, calculated in accordance with Clause 26.3 ( Financial testing ).

“ Majority Lenders ” means:

 

  (a) (for the purposes of paragraph (a) of Clause 41.1 ( Required consents ), in the context of a waiver in relation to a proposed Utilisation under a Facility) of the condition in Clause 4.1 ( Conditions precedent )), a Lender or Lenders whose Available Commitments with respect to the relevant Facility aggregate more than 66 2 / 3  per cent. of the Available Facility; and

 

  (b) (in any other case), a Lender or Lenders whose Commitments aggregate more than 66 2 / 3  per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66 2 / 3  per cent. of the Total Commitments immediately prior to that reduction).

“ Majority RCF Lenders ” means a Revolving Facility Lender or Revolving Facility Lenders whose Revolving Facility Commitments aggregate more than 66  2 ⁄ 3  per cent. of the Total Revolving Facility Commitments (or, if the Total Revolving Facility Commitments have been reduced to zero, aggregated more than 66  2 ⁄ 3  per cent. of the Total Revolving Facility Commitments immediately prior to that reduction).

“ Mandate Documents ” means:

 

  (a) the mandate letter between, among others, each of the Arrangers (or their Affiliates) and Listco dated 6 April 2017;

 

  (b) the bond engagement letter between, among others, each of the Arrangers (or their Affiliates) and Listco dated 6 April 2017;

 

17

  (c) each other mandate document entered into in connection with the above letters and designated a Mandate Document by Listco and the Arrangers (or their Affiliates); and

 

  (d) any other mandate and/or fee letter relating to any Additional Facility designated a Mandate Document by Listco and the relevant arrangers of that Additional Facility.

“ Mandatory Prepayment Account ” means an interest-bearing account:

 

  (a) held by a Borrower with the Agent, the Security Agent or any Acceptable Bank;

 

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

 

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

 

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

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

“ Margin ” means:

 

  (a) in relation to any Facility B1 Loan, 3.00 per cent. per annum;

 

  (b) in relation to any Facility B2 Loan, 2.75 per cent. per annum;

 

  (c) in relation to any Original Revolving Facility Loan, 2.75 per cent. per annum;

 

  (d) in relation to any Additional Facility, the percentage rate per annum as set out in the Additional Facility Notice relating to that Additional Facility;

 

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

 

  (f) in relation to any other Unpaid Sum, the highest rate specified above.

“ Margin Stock ” means “margin stock” as defined in Regulation U.

“ Material Adverse Effect ” means a material adverse effect on:

 

  (a) the consolidated business, assets or financial condition of the Group taken as a whole such that the Group taken as a whole would be reasonably likely to be unable to perform its payment obligations under any of the Finance Documents; or

 

  (b) subject to the Legal Reservations and the Perfection Requirements, the validity or enforceability of any Security granted pursuant to any of the Finance Documents in any way which is materially adverse to the interests of the Lenders under the Finance Documents taken as a whole, and, if capable of remedy, not remedied within 20 Business Days of Listco becoming aware of the issue or being given notice of the issue by the Agent.

“ Material Company ” means, at any time:

 

  (a) an Obligor;

 

  (b) each Nomad Holdco; or

 

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  (c) any other member of the Group which:

 

  (i) is listed in Schedule 11 ( Material Companies ) while such member of the Group satisfies the criteria in paragraph (ii) below; or

 

  (ii) has earnings before interest, tax, depreciation and amortisation calculated on the same basis as Consolidated EBITDA, representing 5 per cent. or more of Consolidated EBITDA, or has total assets (calculated on the same basis as Total Assets), representing 5 per cent. or more of the Total Assets of the Group, calculated on a consolidated basis.

Compliance with the conditions set out in paragraph (b)(ii) above shall be determined by reference to the most recent Compliance Certificate and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited consolidated financial statements of the Group (or, if such audited financial statements are not available or required by law, such other appropriate accounts as Listco and the Agent shall agree).

However, if a Subsidiary has been acquired since the date as at which the latest audited consolidated financial statements of the Group were prepared, the financial statements shall be deemed to be adjusted as set out in paragraph (c) of Clause 26.3 ( Financial testing ) in order to take into account the acquisition of that Subsidiary.

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

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

 

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

 

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

 

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

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

“ Net Proceeds ” means the cash proceeds received by any member of the Group after the Closing Date (and, if the recipient is not a wholly-owned Subsidiary of a member of the Group, the proceeds proportionate to the interest held by the Group in the recipient) in connection with any disposal or insurance claim, after deducting:

 

  (a) fees, costs and expenses incurred by any member of the Group with respect to that disposal or claim to persons who are not members of the Group (including, without limitation, bonus payments to management of the disposed business);

 

19

  (b) any Tax incurred and required to be paid or reserved for by the seller or claimant in connection with that disposal or claim (as reasonably determined by the seller or claimant) or the transfer of the proceeds thereof intra-Group;

 

  (c) amounts retained to cover anticipated liabilities reasonably expected to arise in connection with the disposal; and

 

  (d) costs of closure, relocation, reorganisation and restructuring, and costs incurred preparing the asset for disposal.

“ New Debt Financing ” has the meaning given to such term in the Intercreditor Agreement.

“ New Equity ” means (a) a subscription for shares in Listco by any of its shareholders or (b) any other form of equity contribution to Listco from any of its shareholders which, in each case, is not redeemable prior to the latest Termination Date for each of the Facilities.

“ Nomad Holdco ” means each of Listco, Topco, Holdco, Finco, Midco, Bondco, Bidco, Luxco and the US Co-Borrower.

“ Obligor ” means a Borrower or a Guarantor.

“ Obligors’ Agent ” means Listco, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.3 ( Obligors’ Agent ).

“ Optional Currency ” means, in relation to a Revolving Facility Utilisation, a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.2 ( Conditions relating to Optional Currencies ).

“ Original Facilities ” means the Facilities other than any Additional Facility.

“ Original Financial Statements ” means the most recent audited annual consolidated financial statements of the Group as delivered to the Agent pursuant to Clause 4.1 ( Conditions precedent ).

“ Original Obligor ” means an Original Borrower or an Original Guarantor.

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

“ Original Revolving Facility Lender ” means a Lender which has an Original Revolving Facility Commitment.

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

“ Original Revolving Facility Borrower ” means a Borrower listed in Part I of Schedule 1 ( The Parties ) as a Revolving Facility Borrower.

“ Original Revolving Facility Commitment ” means:

 

  (a) in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Original Revolving Facility Commitment” in the 2017 Allocations Table and the amount of any other Original Revolving Facility Commitment transferred to it under this Agreement; and

 

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  (b) in relation to any other Lender, the amount in the Base Currency of any Original Revolving Facility Commitment transferred to it under this Agreement,

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

“ Original Senior Secured Notes ” has the meaning given to that term in the Intercreditor Agreement.

“ Original Term Facility Borrower ” means a Borrower listed in Part I of Schedule 1 ( The Parties ) as a Term Facilities Borrower.

“ Pari Passu Debt Loan ” has the meaning given to that term in the Intercreditor Agreement.

“ Participating Member State ” means any member state of the European Union that adopts or has adopted, and in each case continues to adopt, the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

“ Party ” means a party to this Agreement.

“ Perfection Requirements ” means the making or the procuring of the appropriate registrations, filings, endorsements, notarisations, stampings and/or notifications of the Transaction Security Documents and/or the Transaction Security created thereunder in order to perfect the Transaction Security.

“ Permitted Acquisition ” means:

 

  (a) an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal or a Permitted Transaction;

 

  (b) an acquisition of securities which are Cash Equivalent Investments;

 

  (c) the acquisition by a member of the Group (other than Listco) of the share of the other joint venture partner under the terms of any joint venture agreement existing on the Closing Date;

 

  (d) an acquisition (not being an acquisition by Listco) of (A) the issued share capital of a limited liability company provided that following such acquisition the Group shall own more than fifty (50) per cent. of such shares, or (B) any business or undertaking (or part thereof) provided that following such acquisition the Group shall own the majority of such business or undertaking but only if:

 

  (i) no Event of Default is continuing on the acquisition contract date for the acquisition or would occur as at the acquisition contract date as a result of the acquisition;

 

  (ii) following the completion of such acquisition, the target entity and its Subsidiaries become members of the Group or (as the case may be) the relevant business or undertaking is acquired by a member or members of the Group;

 

  (iii) the business of the target and its Subsidiaries or the relevant acquired business or undertaking (as the case may be) is similar, complementary or related to the business of the Group; and

 

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  (iv) the target entity and its Subsidiaries or (as the case may be) the relevant acquired business or undertaking is not incorporated in and does not carry on any of its business or operations in a Sanctioned Country; or

 

  (e) the acquisition of the issued share capital of a limited liability company (including by way of formation) which has not traded prior to the date of the acquisition.

“ Permitted Disposal ” means any sale, lease, licence, transfer or other disposal which, except in the case of paragraph (b) below, is on arm’s length terms and which is:

 

  (a) of trading assets made by any member of the Group in the ordinary course of trading of the disposing entity;

 

  (b) of any asset by a member of the Group (the “ Disposing Company ”) to another member of the Group (the “ Acquiring Company ”), but, if the Disposing Company is a Guarantor, the Acquiring Company must also be a Guarantor and if the Disposing Company has given Security over the asset the Acquiring Company must, subject to the Security Principles, give equivalent Security over the asset;

 

  (c) of any asset from an Obligor to a member of the Group which is not an Obligor, provided that the aggregate amount transferred by all Obligors (net of the value of any assets transferred from a member of the Group which is not an Obligor to an Obligor) does not exceed at any time EUR 50,000,000 or its equivalent;

 

  (d) of assets (other than shares, businesses or intellectual property) in exchange for other assets reasonably comparable or superior as to type or quality for use in the business;

 

  (e) of assets (other than shares in any member of the Group) which are obsolete or which are no longer required for the relevant person’s business or operations (including, for the avoidance of any doubt, any Intellectual Property which Listco determines is no longer required for the business or operations of the Group);

 

  (f) of Cash or Cash Equivalent Investments;

 

  (g) constituted by a licence of Intellectual Property;

 

  (h) to a Joint Venture, to the extent permitted by Clause 27.8 ( Joint Ventures );

 

  (i) of assets compulsorily acquired by any governmental authority;

 

  (j) a lease or licence of Real Property in the ordinary course of business;

 

  (k) of the German Property, provided that the German Property must be leased back to the Group on terms to be agreed immediately upon disposal;

 

  (l) arising as a result of any Permitted Security (including by way of release of proceeds from any escrow or similar arrangements relating to any Senior Secured Creditor Liabilities (as defined in the Intercreditor Agreement) or Second Lien Debt Liabilities (as defined in the Intercreditor Agreement)) or Permitted Transaction;

 

  (m) of fixed assets where the proceeds of disposal are used within 12 Months of that disposal to purchase replacement fixed assets comparable or superior as to type, value and quality;

 

  (n) of any asset pursuant to a contractual arrangement existing as at the Closing Date;

 

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  (o) of receivables for cash payable on or about the time of disposal on a non-recourse basis (other than customary warranties as to title); or

 

  (p) of assets for cash where the net consideration receivable (when aggregated with the net consideration receivable for any other sale, lease, licence, transfer or other disposal not allowed under the preceding paragraphs) does not exceed the higher of (i) EUR 100,000,000 (or its equivalent) and (ii) 30 per cent. of LTM EBITDA in any Financial Year of Listco.

“ Permitted Financial Indebtedness ” means Financial Indebtedness:

 

  (a) constituting the Original Senior Secured Notes, or arising under any of the Finance Documents or otherwise to the extent permitted under Clause 2.4 ( Additional Facilities ) or arising under any agreements in relation to Subordinated Debt, in each case provided that the relevant creditor (or representative thereof) is a party to the Intercreditor Agreement in such capacity, and subject always to the terms of this Agreement and the Intercreditor Agreement;

 

  (b) to the extent covered by a Letter of Credit or other letter of credit, guarantee or indemnity issued under an Ancillary Facility;

 

  (c) arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency or interest rates and not for investment or speculative purposes;

 

  (d) arising under a Permitted Loan, Permitted Guarantee, Permitted Transaction or Permitted Joint Venture;

 

  (e) of any person acquired by a member of the Group after the Closing Date which is incurred under arrangements in existence at the date of acquisition, but not incurred or the principal amount increased (otherwise than by capitalisation of interest) or its maturity date extended in contemplation of, or since, that acquisition (any such Financial Indebtedness being “ Acquired Debt ”), provided that, for the Relevant Period ending on the Quarter Date falling immediately prior to the date of completion of the relevant acquisition, Debt Cover is less than or equal to 5.25:1, with such Debt Cover calculated (x)  pro forma as if that Acquired Debt had been drawn in full at the beginning of such Relevant Period; (y)  pro forma for the relevant acquisition, as if such acquisition had occurred at the beginning of such Relevant Period and after taking into account (as applicable) any Pro Forma Adjustment in relation to such acquisition and for such Relevant Period; and (z)  pro forma for any Permitted Payment in the period following such Quarter Date, in each case, as confirmed by a certificate from Listco containing the relevant calculations;

 

  (f) under finance or capital leases of vehicles, plant, equipment or computers, provided that the aggregate capital value of all such items so leased under outstanding leases by members of the Group does not exceed the higher of (i) EUR 50,000,000 (or its equivalent) and (ii) 15 per cent. of LTM EBITDA at any time;

 

  (g) raised by the leaseback of the German Property;

 

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  (h) raised by the issue of redeemable shares which are either held by another member of the Group or not redeemable at the option of their holder until after the latest Termination Date for each of the Facilities;

 

  (i) raised under Local Facilities, provided that the aggregate amount of that indebtedness does not exceed at any time EUR 35,000,000 (or its equivalent);

 

  (j) arising under any cash pooling or management arrangement with an Acceptable Bank;

 

  (k) falling within paragraph (f) of the definition of ‘Borrowings’;

 

  (l) arising in connection with any forward contracts for fish stock entered into in the ordinary course of business; and

 

  (m) not permitted by the preceding paragraphs (although permitted to be used for any purpose, including any of those set out in the above paragraphs) and the outstanding principal amount of which does not exceed the higher of (i) EUR 100,000,000 (or its equivalent) and (ii) 2.5 per cent. of Total Assets at any time.

“ Permitted Guarantee ” means:

 

  (a) any guarantee arising under the Finance Documents, and, provided that such guarantee is subject to the terms of the Intercreditor Agreement, the Senior Secured Finance Documents (as defined in the Intercreditor Agreement) and/or the Second Lien Debt Documents (as defined in the Intercreditor Agreement);

 

  (b) a guarantee by a member of the Group of the obligations of an Obligor which is a member of the Group;

 

  (c) a guarantee by an Obligor of the obligations of a member of the Group not being an Obligor, provided that the aggregate amount guaranteed does not exceed EUR 50,000,000 or its equivalent in aggregate for all such guarantees at any time;

 

  (d) a guarantee by a member of the Group which is not an Obligor of the obligations of another member of the Group which is not an Obligor;

 

  (e) guarantees granted by persons or undertakings acquired pursuant to a Permitted Acquisition and existing at the time of such acquisition, provided that such guarantees are discharged within a period of six Months after the date of the acquisition;

 

  (f) guarantees of Acquired Debt granted by persons or undertakings acquired pursuant to a Permitted Acquisition and existing at the time of such acquisition;

 

  (g) guarantees of Permitted Transactions and Treasury Transactions not prohibited under Clause 27.27 ( Treasury Transactions );

 

  (h) guarantees to landlords;

 

  (i) guarantees or counter-indemnities in favour of financial institutions which have guaranteed rent obligations of a member of the Group;

 

  (j) the endorsement of negotiable instruments in the ordinary course of trade;

 

  (k) any guarantees guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of business;

 

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  (l) any guarantee of a Joint Venture to the extent permitted by Clause 27.8 ( Joint Ventures );

 

  (m) any guarantee in respect of Permitted Financial Indebtedness (other than any Acquired Debt);

 

  (n) any guarantee given in respect of the netting or set-off arrangements permitted pursuant to paragraph (b) of the definition of ‘Permitted Security’;

 

  (o) any guarantee granted in connection with a Permitted Disposal in an amount not exceeding the value of the asset disposed of;

 

  (p) any indemnity granted to the trustee of any employee share option or unit trust scheme;

 

  (q) a guarantee required by applicable law to be issued to secure claims of employees in respect of part-time work arrangements, transfer of employment relationships or similar claims;

 

  (r) guarantees and counter-indemnities granted by members of the Group as required by the Swedish PRI Pensionsgaranti; and

 

  (s) any guarantee not permitted by the preceding paragraphs and the outstanding principal amount of which does not exceed the higher of (i) EUR 20,000,000 (or its equivalent) and (ii) 5 per cent. of LTM EBITDA in aggregate for the Group at any time;

“ Permitted Holding Company Activity ” means:

 

  (a) normal holding company activities, including (without limitation) those referred to in the definition of ‘Permitted Payments’ as carried on at that level;

 

  (b) any Permitted Loans in respect of Permitted Joint Ventures (other than a Permitted Loan to a Permitted Joint Venture entered by Bondco);

 

  (c) any Permitted Loans in respect of Permitted Payments;

 

  (d) any Permitted Financial Indebtedness, Permitted Guarantee or Permitted Security (or other liabilities incurred under the Finance Documents or falling under paragraph (a) of the definition of ‘Permitted Financial Indebtedness’);

 

  (e) guarantees of Permitted Financial Indebtedness other than Subordinated Debt;

 

  (f) the provision of management and administrative services, research and development and marketing and the secondment of employees;

 

  (g) any Permitted Transaction (other than under paragraphs (d) and (g) of that definition);

 

  (h) in the case of Bidco, the holding of Intellectual Property of the Group on behalf of itself and the Group;

 

  (i) any Permitted Share Issue under paragraphs (b) of that definition;

 

  (j) in the case of Listco, acting as a Holding Company of Topco, and in the case of each other Nomad Holdco, acting as a Holding Company of each member of the Group of which it is a Holding Company from time to time; and

 

  (k) any Permitted Acquisition (other than, in the case of Listco, Permitted Acquisitions falling under paragraphs (c) or (d) of the definition of Permitted Acquisition);

 

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  (l) in the case of Listco, complying with any relevant listing rules or securities laws;

 

  (m) the entry into and performance of its obligations under any engagement letter, purchase agreement, escrow agreement, indenture and/or any other document entered into in connection with the incurrence of any Senior Secured Notes and/or any Second Lien Debt Notes (provided that, in each case, such document, transaction and performance is not prohibited by this Agreement or the Intercreditor Agreement).

“ Permitted Joint Venture ” means:

 

  (a) any investment in any Joint Venture pursuant to any agreement existing on the Closing Date (provided that the amount of such investment is not increased after the Closing Date);

 

  (b) any other investment (other than by Listco) in any Joint Venture the business of which is similar, complementary or related to the business of the Group (a “ Joint Venture Investment ”), provided that:

 

  (i) no member of the Group is to incur unlimited liability in respect of its involvement in a Joint Venture;

 

  (ii) no Event of Default is continuing or would result from such investment being made; and

 

  (iii) for the Relevant Period ending on the Quarter Date falling immediately prior to the date of such Joint Venture Investment (calculated pro forma taking into account such Joint Venture Investment and any Financial Indebtedness incurred to fund such Joint Venture Investment (and, in relation to the period following the Closing Date but prior to the first Quarter Date to occur after Closing Date, calculated pro forma for the transactions occurring on the Closing Date)), Debt Cover does not exceed 5.25:1 (and such Debt Cover calculation shall be confirmed by a certificate from Listco).

“ Permitted Loan ” means:

 

  (a) any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities and any advance payment made in relation to capital expenditure in the ordinary course of business;

 

  (b) a loan made to a Joint Venture to the extent permitted under Clause 27.8 ( Joint Ventures );

 

  (c) subject to the terms of the Intercreditor Agreement, any loan made for the purposes of enabling an Obligor which is a member of the Group to meet its payment obligations under the Finance Documents, to make a Permitted Payment, (to the extent not prohibited by a Finance Document) a payment under an Intra-Group Loan or to facilitate compliance with applicable law;

 

  (d)

a loan made by an Obligor which is a member of the Group to another Obligor which is a member of the Group, or made by a member of the Group which is not an Obligor to another member of the Group, provided that , in the event that a member of the Group which is not an Obligor is a creditor in relation to Financial Indebtedness made available

 

26

  to any Obligor having a value in aggregate in excess of EUR 5,000,000 (or its equivalent) at any time, such member of the Group which is not an Obligor will accede to the Intercreditor Agreement as an Intra-Group Lender (as such term is defined in the Intercreditor Agreement);

 

  (e) any loan made by an Obligor which is a member of the Group to a member of the Group which is not an Obligor or to a member of the Group whose shares are subject to the Transaction Security, so long as the aggregate amount of the Financial Indebtedness under any such loans does not exceed EUR 50,000,000 or its equivalent at any time;

 

  (f) a loan made by a member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group does not exceed EUR 5,000,000 or its equivalent at any time;

 

  (g) any loans made to an employee share option scheme or unit trust scheme up to an aggregate amount of EUR 5,000,000 or its equivalent;

 

  (h) any deferred consideration on Permitted Disposals;

 

  (i) any loans existing on the Closing Date;

 

  (j) loans which constitute Permitted Financial Indebtedness (except under paragraph (c) of that definition); and

 

  (k) any loan (other than a loan made by a member of the Group to another member of the Group) so long as the aggregate amount of the Financial Indebtedness under any such loans does not exceed the higher of (i) EUR 20,000,000 (or its equivalent) and (ii) 5 per cent. of LTM EBITDA at any time.

“ Permitted Payment ” means:

 

  (a) the making of a loan, a payment of a dividend by Listco, a payment of interest on or repayment of principal of any Subordinated Debt, or a reduction of the number of issued shares in Listco (or any other buy-back, redemption or re-purchase by Listco of shares in Listco or any other reduction in the number of issued shares in Listco), provided that:

 

  (i) after taking into account the payment, repayment, repurchase or reduction, Debt Cover (calculated pro forma for the proposed dividend, payment or reduction and pro forma for the source of funding for such dividend, payment, repayment, repurchase or reduction, including, as applicable, any Financial Indebtedness incurred to fund such dividend, payment, repayment, repurchase or reduction and/or (but without double counting) any reduction in Cash) is equal to or less than 3.75:1; and

 

  (ii) no Event of Default is continuing or would arise from the relevant dividend, payment, repayment, repurchase or reduction being made;

 

27

  (b) the making of a loan, a payment of a dividend by Listco, a payment of interest on or repayment of principal of any Subordinated Debt, or a reduction of the number of issued shares in Listco (or any other buy-back, redemption or re-purchase by Listco of shares in Listco or any other reduction in the number of issued shares in Listco), provided that:

 

  (i) after taking into account the payment, repayment, repurchase or reduction, Debt Cover (calculated pro forma for the proposed dividend, payment, repayment, repurchase or reduction, including the reduction in Cash consequent on using Retained Cash to fund such dividend, payment, repayment, repurchase or reduction) is equal to or less than 4.25:1; and

 

  (ii) it is funded from Retained Cash; and

 

  (iii) no Event of Default is continuing or would arise from the relevant dividend, payment, repayment, repurchase or reduction being made;

 

  (c) the making of a loan, a payment of a dividend by Listco, a payment of interest on or repayment of principal of any Subordinated Debt, or a reduction of the number of issued shares in Listco (or any other buy-back, redemption or re-purchase by Listco of shares in Listco or any other reduction in the share capital of Listco), provided that:

 

  (i) after taking into account the payment, repayment, re-purchase or reduction, Debt Cover (calculated pro forma for the proposed dividend, payment, reduction, repayment or re-purchase, including the reduction in Cash consequent on making any such dividend, payment, repayment, re-purchase or reduction under this paragraph (c)) is equal to or less than 4.50:1;

 

  (ii) it is not funded with the proceeds of any Financial Indebtedness;

 

  (iii) the aggregate amount of payments by Listco under this paragraph (c) does not exceed EUR 100,000,000 over the life of the Facilities; and

 

  (iv) no Event of Default is continuing or would arise from the relevant dividend, payment, repayment, re-purchase or reduction being made;

 

  (d) a reduction of the number of issued shares in Listco (or any other buy-back, redemption or re-purchase by Listco of shares in Listco or any other reduction in the number of issued shares in Listco), provided that:

 

  (i) payment, repayment (in each case to the extent not otherwise restricted under a Finance Document), reduction or re-purchase, Debt Cover (calculated pro forma for the proposed payment, repayment (in each case to the extent not otherwise restricted under a Finance Document), reduction or re-purchase, including the reduction in Cash consequent on making any such payment under this paragraph (d)) is equal to or less than 4.50:1;

 

  (ii) it is not funded with the proceeds of any Financial Indebtedness and the aggregate amount of payments by Listco under this paragraph (d) does not exceed EUR 150,000,000 over the life of the Facilities; and

 

  (iii) no Event of Default is continuing or would arise from the relevant payment, repayment or reduction being made;

 

  (e) the making of a loan, a payment of a dividend, a payment of interest on or repayment of principal of any loan (in each case) by a member of the Group to another member of the Group or a reduction of share capital by any member of the Group (other than Listco) (or any other buy-back or re-purchase by such member of the Group of its share capital) (in each case to the extent not otherwise restricted under a Finance Document);

 

28

  (f) the payment of a dividend or distribution of share premium reserve or redemption, repurchase, defeasement, retirement, repayment or reduction of its share capital by a member of the Group (other than Listco), provided that , if such a member of the Group is not a wholly-owned Subsidiary of its Holding Company, the dividend or distribution or other payment attributable to its minority shareholders shall be proportionate to their shareholding;

 

  (g) a payment which is a Permitted Transaction or which constitutes the issuance in-kind of New Equity or any payment in-kind, dividend in-kind or distribution in-kind, in each case, by Listco to any of its shareholders;

 

  (h) a payment to fund the purchase of any of the management equity (together with the purchase or repayment of any related loans) and/or to make other compensation payments to departing management; and

 

  (i) any payments not permitted by the preceding paragraphs, in an aggregate annual amount not exceeding the higher of (i) EUR 10,000,000 and (ii) 3 per cent. of LTM EBITDA per Financial Year.

“ Permitted Security ” means:

 

  (a) any lien arising by operation of law or agreement of similar effect and in the ordinary course of trading and, if arising as a result of any default or omission by any member of the Group, which does not subsist for a period of more than 60 days;

 

  (b) any Security arising under any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of members of the Group (including an Ancillary Facility which is an overdraft comprising more than one account) but only so long as such arrangement is not established with the primary intention of preferring any lenders;

 

  (c) any Security or Quasi-Security over or affecting any asset acquired by a member of the Group after the Closing Date if:

 

  (i) the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Group;

 

  (ii) the principal amount secured has not been increased (otherwise than by a capitalisation of interest) in contemplation of or since the acquisition of that asset by a member of the Group; and

 

  (iii) the Security or Quasi-Security is (i) in relation to any Acquired Debt or (ii) removed or discharged within six Months of the date of acquisition of such asset;

 

  (d) any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the Closing Date, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group if:

 

  (i) the Security or Quasi-Security was not created in contemplation of the acquisition of that company;

 

29

  (ii) the principal amount secured has not increased (otherwise than by a capitalisation of interest) in contemplation of or since the acquisition of that company; and

 

  (iii) the Security or Quasi-Security is (i) in relation to any Acquired Debt or (ii) removed or discharged within six Months of that company becoming a member of the Group;

 

  (e) any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of business and, unless disputed in good faith, not arising as a result of any default or omission by any member of the Group that is continuing for a period of more than 60 days;

 

  (f) any Security or Quasi-Security arising in connection with a disposal which is a Permitted Disposal or arising in connection with a Permitted Acquisition;

 

  (g) any Security or Quasi-Security arising as a consequence of any finance lease permitted pursuant to paragraph (f) of the definition of ‘Permitted Financial Indebtedness’;

 

  (h) any Security under netting or set-off arrangements under Treasury Transactions not prohibited under Clause 27.27 ( Treasury Transactions );

 

  (i) any Security arising as a result of legal proceedings discharged within 30 days or otherwise contested in good faith (and not otherwise constituting an Event of Default);

 

  (j) any Transaction Security (provided that such Security is subject to the terms of the Intercreditor Agreement), including cash collateral to secure obligations under the Finance Documents, and any Security arising in connection with any escrow or similar arrangements relating to any Senior Secured Creditor Liabilities (as defined in the Intercreditor Agreement) or Second Lien Debt Liabilities (as defined in the Intercreditor Agreement);

 

  (k) any Security over any rental deposits in respect of any property leased or licensed by a member of the Group in respect of amounts representing not more than 12 Months’ rent for that property;

 

  (l) any Security over documents of title and goods as part of a documentary credit transaction entered into in the ordinary course of business;

 

  (m) any Security granted by a member of the Group not being an Obligor to a financial institution as part of the arrangements with that institution to provide Local Facilities to that member of the Group in an amount not exceeding in aggregate EUR 5,000,000 or its equivalent for all such members of the Group at any time;

 

  (n) any Security over shares in Joint Ventures to secure obligations to the other joint venture partners;

 

  (o) any Security over bank accounts in favour of the account holding bank and granted as part of that financial institution’s standard terms and conditions;

 

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  (p) any Security which does not secure any outstanding actual or contingent obligation;

 

  (q) any Security arising by operation of law in respect of taxes being contested in good faith;

 

  (r) any Security required to be created by applicable law to secure claims of employees in respect of part-time work arrangements;

 

  (s) any rights of way, pre-emption rights, land charges of owners and similar rights relating to land or buildings and not securing Financial Indebtedness;

 

  (t) any Security granted by members of the Group incorporated in Sweden in favour of, and as required by, the Swedish PRI Pensionsgaranti;

 

  (u) any Security securing indebtedness, the outstanding principal amount of which (when aggregated with the outstanding principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under the preceding paragraphs) does not exceed the higher of (i) EUR 50,000,000 (or its equivalent) and (ii) 15 per cent. of LTM EBITDA at any time; or

 

  (v) cash collateral (including, without limitation, cash in blocked accounts) to secure the obligations of any member of the Group arising under any letter of credit or similar instrument issued at the request of any such member of the Group.

“ Permitted Share Issue ” means an issue of:

 

  (a) New Equity;

 

  (b) shares by a member of the Group (other than Listco) which is a Subsidiary to its immediate Holding Company or to another member of the Group or to a minority shareholder proportionate to its existing holding where (if the existing shares of the Subsidiary are the subject of the Transaction Security) the newly issued shares (to the extent held by a member of the Group) also become subject to the Transaction Security on the same terms;

 

  (c) shares to a member of the Group pursuant to a Permitted Acquisition;

 

  (d) shares where the issue constitutes a Permitted Transaction; or

 

  (e) shares where the issuance is part of a Permitted Joint Venture.

“ Permitted Transaction ” means:

 

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

 

  (b) the solvent liquidation or reorganisation of any member of the Group which is not an Obligor so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other members of the Group;

 

  (c) unless an Event of Default is then outstanding, a reorganisation on a solvent basis of an Obligor (other than any Nomad Holdco or a Borrower) where:

 

  (i) all of the business, assets or shares of that member remain within the Group and the value or percentage of any minority interest in any member of the Group held by any person which is not a member of the Group is not increased; and

 

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  (ii) if the assets or the shares in it were subject to the Transaction Security immediately prior to such reorganisation, the Lenders will enjoy (subject to the Security Principles, in the reasonable opinion of the Agent and supported by any professional opinions and reports as it reasonably requires) the same or equivalent guarantees from it (or its successor) and the same or equivalent Security over the same assets and over the shares in it (or, in each case, its successor) after the reorganisation;

 

  (d) transactions (other than the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading on arm’s length terms;

 

  (e) any conversion of Intra-Group Loans into distributable reserves or registered share capital;

 

  (f) any acquisition by a member of the Group, or a loan to a trust or special purpose vehicle to fund the acquisition, of shares and loan notes of directors and employees whose appointment and/or contract is terminated;

 

  (g) the entry into of service and supply agreements with third party service providers in relation to the collection and settlement of outstanding customer invoices; or

 

  (h) unless an Event of Default is then outstanding, a reorganisation or merger on a solvent basis of any of Topco, Holdco or Finco with any of Topco, Holdco or Finco where:

 

  (i) the surviving entity of such reorganisation or merger continues to hold, directly or indirectly, the entire issued share capital of Midco; and

 

  (ii) the Lenders will enjoy (subject to the Security Principles, in the reasonable opinion of the Agent and supported by any professional opinions and reports as it reasonably requires): (x) the same or equivalent guarantees from the surviving entity of such reorganisation or merger after such reorganisation or merger as the Lenders did prior to such reorganisation or merger; and (y) Transaction Security over the same asset classes which were subject to Transaction Security immediately prior to such reorganisation or merger and, in particular, will enjoy Transaction Security over all of the shares of the surviving entity and all of the shares of Midco after such reorganisation or merger.

“ Qualifying Lender ” has the meaning given to that term in Clause 18.1 ( Definitions ).

“ Quarter Date ” means the last day of a Financial Quarter.

“ Quasi-Security ” has the meaning given to that term in Clause 27.12 ( Negative pledge ).

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

 

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

 

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

 

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

unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market

 

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practice in the Relevant Interbank Market (and, if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).

“ RCF Declared Default ” means a Financial Covenant Event of Default in respect of which a notice of acceleration has been served pursuant to paragraph (b) of Clause 28.16 ( Acceleration ).

“ RCF Drawings ” has the meaning given to such term in Clause 26.2 ( Financial condition ).

“ Real Property ” means:

 

  (a) any freehold, leasehold or immovable property; and

 

  (b) any buildings, fixtures, fittings, fixed plant or machinery from time to time situated on or forming part of that freehold, leasehold or immovable property.

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

“ Reference Banks ” means, in relation to LIBOR or EURIBOR, the principal London offices of three commercial banks (each of which satisfy the ratings requirement set out in paragraph (b) of the definition of ‘Acceptable Bank’) as may be appointed by the Agent in consultation with Listco.

“ Regulation T ”, “ Regulation U ” or “ Regulation X ” means Regulation T, U or X, as the case may be, of the Federal Reserve Board, as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“ Related Fund ”, in relation to a trust, fund or other entity (the “ first fund ”), means another trust, fund or other entity which is:

 

  (a) managed or advised by the same investment manager or investment adviser as the first fund; or

 

  (b) managed or advised by an Affiliate of the investment manager or investment adviser of the first fund,

and in either case, has substantially the same investment criteria and objectives.

“ Relevant Interbank Market ” means, in relation to euro, the European interbank market and, in relation to any other currency, the London interbank market.

“ Relevant Jurisdiction ” means, in relation to an Obligor:

 

  (a) its jurisdiction of incorporation; and

 

  (b) where relevant, any jurisdiction whose laws govern any of the Transaction Security Documents entered into by it.

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

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

“ Repeating Representations ” means each of the representations set out in Clause 24.2 ( Status ), Clause 24.3 ( Binding obligations ), Clause 24.4 ( Non-conflict with other obligations ), Clause 24.5 ( Power and authority ) and Clause 24.6 ( Validity and admissibility in evidence ).

 

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“ Representative ” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

“ Resignation Letter ” means a letter substantially in the form set out in Schedule 6 ( Form of Resignation Letter ) or any other form agreed by the Agent and Listco.

“ Restricted Party ” means any individual or entity that is:

 

  (a) listed on, or owned or controlled (as such terms, including any applicable ownership and control requirements, are defined and construed in applicable Sanctions laws and regulations or in any official guidance in relation to such Sanctions laws and regulations) by a person listed on, a Sanctions List;

 

  (b) a government of a Sanctioned Country;

 

  (c) an agency or instrumentality of, or an entity directly or indirectly owned or controlled by, a government of a Sanctioned Country;

 

  (d) resident or located in, operating from, or incorporated under the laws of, a Sanctioned Country;

 

  (e) to the best knowledge and belief of the Obligors (after due and careful enquiry), otherwise a target of Sanctions, or a person or entity whom it would be a breach of any applicable Sanctions for any Finance Party or any affiliate of a Finance Party to deal with; or

 

  (f) to the best knowledge and belief of the Obligors (after due and careful enquiry), acting on behalf of any of the persons or entities listed in paragraphs (a) to (e) above, for the purpose of evading or avoiding, or having the intended effect of evading or avoiding, or facilitating the evasion or avoidance of, any Sanctions.

“ Restructuring Expenditure ” means any expenditure incurred to finance or refinance costs and expenses related to restructuring (including, without limitation, relocations, redundancies, carve-outs and corporate reorganisations) or to refinance such expenditure (including the proceeds of utilisations of a Revolving Facility).

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

“ Revolving Facility ” means the Original Revolving Facility and/or (as the context requires) any Additional Revolving Facility.

“ Revolving Facility Borrower ” means:

 

  (a) any Original Revolving Facility Borrower; and

 

  (b) any Additional Borrower under a Revolving Facility.

“ Revolving Facility Commitment ” means any Original Revolving Facility Commitment or Additional Facility Commitment in relation to an Additional Revolving Facility.

“ Revolving Facility Lender ” means a Lender which has a Revolving Facility Commitment.

“ Revolving Facility Loan ” means an Original Revolving Facility Loan or an Additional Facility Revolving Loan.

“ Revolving Facility Utilisation ” means a Revolving Facility Loan or a Letter of Credit.

 

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“ Rollover Loan ” means one or more Revolving Facility Loans:

 

  (a) made or to be made on the same day that:

 

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

 

  (ii) a demand by the Agent pursuant to a drawing in respect of a Letter of Credit is due to be met;

 

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

 

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

 

  (d) made or to be made to the same Borrower for the purpose of:

 

  (i) refinancing that maturing Revolving Facility Loan;

 

  (ii) satisfying the relevant claim in respect of that Letter of Credit; or

 

  (iii) replacing an expiring Letter of Credit in an amount not greater than that expiring Letter of Credit.

“ Sanctions ” means applicable economic or financial sanctions or trade embargoes or other comprehensive prohibitions against transaction activity pursuant to anti-terrorism laws, export control laws or other laws or regulations imposed, administered, enacted or enforced from time to time by any Sanctions Authority.

“ Sanctioned Country ” means any country or other territory subject to a general export, import, financial or investment embargo under any Sanctions, which, as of the Closing Date, include Crimea (as defined and construed in the applicable Sanctions laws and regulations), Cuba, Iran, North Korea, Sudan and Syria.

“ Sanctions Authority ” means:

 

  (a) the United States;

 

  (b) the United Nations Security Council;

 

  (c) the European Union (or any of its member states);

 

  (d) the United Kingdom;

 

  (e) Switzerland;

 

  (f) Singapore;

 

  (g) Hong Kong or

 

  (h) the respective governmental institutions of any of the foregoing including, without limitation, Her Majesty’s Treasury, the UK Department for Business, Innovation & Skills, the State Secretariat for Economic Affairs of Switzerland, the Swiss Directorate of Public International Law, the Office of Foreign Assets Control of the US Department of the Treasury, the US Department of Commerce, the US Department of State and any other agency of the US government.

 

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“ Sanctions List ” means any of the lists of specifically designated nationals or designated or sanctioned individuals or entities (or equivalent) issued by any Sanctions Authority, each as amended, supplemented or substituted from time to time.

“ Screen Rate ” means:

 

  (a) in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person that takes over administration of that rate) for the relevant currency and period as displayed on pages LIBOR01 and LIBOR02 of the Thomson Reuters screen (or any replacement page which displays that rate); and

 

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

or (in each case) on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page(s) or service(s) cease to be available, the Agent may (in consultation with Listco) specify any other page or service displaying the relevant rate.

“ Second Lien Debt ” has the meaning given such term in the Intercreditor Agreement.

“ Second Lien Debt Notes ” has the meaning given to such term in the Intercreditor Agreement.

“ Second Lien Debt Purchase ” means any repayment, prepayment, purchase, defeasance, redemption, acquisition or retirement (or any other transaction of similar effect) of Second Lien Debt Liabilities (as defined in the Intercreditor Agreement).

“ Secured Parties ” has the meaning given to such term in the Intercreditor Agreement.

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

“ Security Principles ” are the security principles set out in Schedule 12 ( Security Principles ).

“ Selection Notice ” means a notice substantially in the form set out in Part II of Schedule 3 ( Requests ) given in accordance with Clause 15 ( Interest Periods ) in relation to a Term Facility, or any other form agreed by the Agent and Listco.

“ Senior Secured Noteholders ” has the meaning given to that term in the Intercreditor Agreement.

“ Senior Secured Notes ” has the meaning given to such term in the Intercreditor Agreement.

“ Spanish Civil Procedural Law ” means Law 1/2000 of 7 January ( Ley de Enjuiciamiento Civil ), as amended from time to time.

“ Spanish Commercial Code ” means the Spanish Royal Legislative Decree dated 22 August 1885, approving the Spanish Commercial Code ( Código de Comercio ), as amended from time to time.

 

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“ Spanish Companies Law ” means Spanish Royal Legislative Decree 1/2010, of 2 July, approving the Spanish Capital Companies Law ( Ley de Sociedades de Capital ), as amended from time to time.

“ Spanish Insolvency Law ” means Spanish Law 22/2003, of 9 July, on Insolvency ( Ley 22/2003, de 9 de julio, Concursal ), as amended from time to time.

“ Spanish Guarantor ” means a Guarantor incorporated in Spain.

“ Spanish Obligor ” means an Obligor incorporated in Spain.

“ Spanish Public Document ” means, a documento público, being either an escritura pública or a póliza or efecto intervenido por fedatario público.

“ Specified Time ” means a time determined in accordance with Schedule 9 ( Timetables ).

“ Structural Adjustment ” has the meaning given to such term in Clause 41.2 ( Exceptions ).

“ Subordinated Debt ” means any loans made to Listco which are subordinated to the Facilities pursuant to the Intercreditor Agreement and on the terms set out in the Intercreditor Agreement applying to “Subordinated Liabilities”, including the accession of the relevant creditor to the terms of the Intercreditor Agreement as a “Subordinated Creditor”.

“ Subordinated Liabilities ” has the meaning given to such term in the Intercreditor Agreement.

“ Subsidiary ” means, in relation to any company or corporation, a company or corporation:

 

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

 

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

 

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

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

“ Super Majority Lenders ” means a lender or lenders whose Commitments aggregate more than 90 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 90 per cent. of the Total Commitments immediately prior to that reduction).

“ Swedish Obligor ” means an Obligor incorporated in Sweden.

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

 

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“ 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).

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

“ Term Facility ” means Facility B1, Facility B2 or an Additional Term Facility.

“ Term Facility Borrower ” means:

 

  (a) any Original Term Facility Borrower; and

 

  (b) any Additional Borrower under the Term Facilities.

“ Term Loan ” means a Facility B1 Loan, Facility B2 Loan or an Additional Facility Term Loan.

“ Termination Date ” means:

 

  (a) in relation to Facility B1, 15 May 2024;

 

  (b) in relation to Facility B2, 15 May 2024;

 

  (c) in relation to the Revolving Facility, 15 May 2023; and

 

  (d) in relation to any Additional Facility, the date set out in the Additional Facility Notice relating to that Additional Facility.

“ Topco ” means Nomad Foods Europe Holdings Limited, a company incorporated in England and Wales with registered number 5879473.

“ Total Additional Facility Commitments ” means the aggregate of the Additional Facility Commitments (being zero on the 2017 Effective Date).

“ Total Assets ” means the total gross assets of the Group (calculated on a consolidated basis) as set out in the most recent financial statements delivered to the Agent pursuant to Clause 25.1 ( Financial Statements ), excluding any intangible assets and goodwill.

“ Total Commitments ” means the aggregate of the Total Facility B1 Commitments, Total Facility B2 Commitments, Total Original Revolving Facility Commitments and Total Additional Facility Commitments.

“ Total Facility B1 Commitments ” means the aggregate of the Facility B1 Commitments (being, as at the 2017 Additional Facility Effective Time, the aggregate amount of Facility B1 Commitments set out in the 2017 Allocations Table).

“ Total Facility B2 Commitments ” means the aggregate of the Facility B2 Commitments (being, as at the 2017 Additional Facility Effective Time, US$ 610,000,000).

“ Total Revolving Facility Commitments ” means the aggregate of the Total Original Revolving Facility Commitments and the Total Additional Facility Commitments with respect to Additional Revolving Facilities.

 

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“ Total Original Revolving Facility Commitments ” means the aggregate of the Original Revolving Facility Commitments (being, as at the 2017 Effective Date, EUR 80,000,000).

“ Transaction Documents ” means the Finance Documents.

“ Transaction Security ” has the meaning given to that term in the Intercreditor Agreement.

“ Transaction Security Documents ” means any document described as a Transaction Security Document in schedule 2 ( Conditions Precedent ) of the 2017 Amendment and Restatement Agreement and/or Schedule 2 ( Conditions Precedent and Conditions Subsequent ) and/or under the Intercreditor Agreement and any other document, instrument or agreement creating or evidencing or purporting to create or evidence Transaction Security.

“ Transfer Certificate and Lender Accession Undertaking ” means an agreement substantially in the form set out in Schedule 4 ( Form of Transfer Certificate and Lender Accession Undertaking ) or any other form agreed between the Agent and Listco.

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

 

  (a) the proposed Transfer Date specified in the Transfer Certificate and Lender Accession Undertaking; and

 

  (b) the date on which the Agent executes the Transfer Certificate and Lender Accession Undertaking.

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

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

“ US ” and “ United States ” means the United States of America, its territories and possessions.

“ USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 of the United States.

“ US Bankruptcy Law ” means the United States Bankruptcy Code of 1978 (Title 11 of the United States Code), any other United States federal or state bankruptcy, insolvency or similar law.

“ US Borrower ” means a Borrower that is organized, incorporated or formed under the laws of the United States or any State thereof (including the District of Columbia).

“ US Guarantor ” means a Guarantor that is organized, incorporated or formed under the laws of the United States or any State thereof (including the District of Columbia).

“ US Obligor ” means a US Borrower or a US Guarantor.

“ US Tax Obligor ” means:

 

  (i) a Borrower which is resident for tax purposes in the United States; or

 

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

“ US$ Denominated Facility ” means Facility B2 and any Additional Facility denominated in US$.

 

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“ Utilisation ” means a Loan or a Letter of Credit.

“ Utilisation Date ” means the date on which a Utilisation is made.

“ Utilisation Request ” means a notice substantially in the relevant form set out in Part IA or Part 1B of Schedule 3 ( Requests ) or any other form agreed by the Agent and Listco.

“ VAT ” means:

 

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

 

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

 

1.2 Construction

 

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

 

  (i) any “ Arranger ”, the “ Agent ”, any “ Finance Party ”, any “ Issuing Bank ”, any “ Lender ”, any “ Obligor ”, any “ Party ”, the “ Security Agent ” 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 Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

 

  (ii) a document in “ agreed form ” is a document which is agreed in writing by or on behalf of Listco and the Agent;

 

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

 

  (iv) the “ European interbank market ” means the interbank market for euro operating in Participating Member States;

 

  (v) a “ Finance Document ” or a “ Transaction Document ” or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented, extended or restated (however fundamentally);

 

  (vi) a “ guarantee ” means (other than in Clause 23 ( Guarantee and indemnity )) any guarantee, letter of credit, bond, indemnity or similar assurance against loss;

 

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

 

  (viii) “ law ” shall be construed as any law (including common or customary law), statute, constitution, decree, judgement, treaty, regulation, directive, by-law, order or any other legislative measure of any government, supranational, local government, statutory or regulatory body or court. Any reference in this Agreement to any “law” shall be construed as a reference to such measure as the same may have been or from time to time may be amended or, as the case may be, re-enacted;

 

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

 

  (x) a “ person ” includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) of two or more of the foregoing;

 

  (xi) a “ regulation ” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, compliance with which is customary for entities or persons such as the relevant entity or person) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

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

 

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

 

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

 

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

 

(d) A Borrower providing “ cash cover ” for a Letter of Credit or an Ancillary Facility means a Borrower paying an amount in the currency of the Letter of Credit (or, as the case may be, Ancillary Facility) to an interest-bearing account in the name of the Borrower and the following conditions being met:

 

  (i) the account is with the Agent (if the cash cover is to be provided for all the Lenders) or with a Finance Party or Ancillary Lender (if the cash cover is to be provided for that Finance Party or Ancillary Lender);

 

  (ii) 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 a Finance Party amounts due and payable to it under this Agreement in respect of that Letter of Credit or Ancillary Facility; and

 

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

 

(e) A default, Default, an Event of Default or a Financial Covenant Event of Default is “ continuing ” if it has not been remedied or waived.

 

(f) In relation to any Financial Covenant Event of Default caused by the failure to meet the requirements of Clause 26.2 ( Financial condition ) on any Quarter Date but where the requirements of Clause 26.2 ( Financial condition ) are complied with on the next Quarter Date, then the Financial Covenant Event of Default caused by the failure to meet the requirements of Clause 26.2 ( Financial condition ) on the former Quarter Date shall be deemed remedied to the satisfaction of the Revolving Facility Lenders unless, prior to that next Quarter Date, the Agent or Revolving Facility Lenders have exercised any of their rights under paragraph (b) of Clause 28.16 ( Acceleration ).

 

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(g) A Borrower “ repaying ” or “ prepaying ” a Letter of Credit or Ancillary Outstandings means:

 

  (i) that Borrower providing cash cover for that Letter of Credit or in respect of the Ancillary Outstandings;

 

  (ii) the maximum amount payable under the Letter of Credit or Ancillary Facility being reduced or cancelled; or

 

  (iii) the Issuing Bank or Ancillary Lender being satisfied that it has no further liability under that Letter of Credit or Ancillary Facility,

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

 

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

 

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

 

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

 

(k) For the purposes of Clause 26.2 ( Financial condition ), ‘ drawn ’ in relation to a Letter of Credit or bank guarantee shall be construed as a reference to the relevant amount being due and payable under or in relation to that Letter of Credit or bank guarantee (as applicable) and ‘ undrawn ’ shall be construed accordingly.

 

(l) In ascertaining the Majority Lenders or the Super Majority Lenders or whether any given percentage of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents or for the purpose of the allocation of any repayment or prepayment or for the purposes of taking any step, decision, direction or exercise of discretion which is calculated by reference to drawn amounts, any Commitments and/or participations in Utilisations not denominated in euro shall (as the context requires) be deemed to be converted into euro at the Agent’s Spot Rate of Exchange.

 

(m) Any buy-back by Listco of any issued shares in Listco or any redemption or repurchase by Listco of shares in Listco or any other reduction in the number of issued shares in Listco may, in each case, be made, to the extent constituting a Permitted Payment, in respect of any shares in Listco notwithstanding when those shares in Listco were first issued by it or (if those shares in Listco are redeemable shares) when those shares are expressed to be redeemable.

 

1.3 Belgian terms

In this Agreement, where it relates to any Belgian entity or Security, a reference to:

 

  (a) a “ liquidator ”, “ receiver ”, “ administrative receiver ”, “ administrator ”, “ compulsory manager ” or other similar officer includes any curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, gerechtelijk deskundige/expert judiciaire, mandataris ad hoc/mandataire ad hoc, ondernemingsbemiddelaar/m é diateur d’entreprise, as applicable, and sekwester/s é questre ;

 

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  (b) a “ Security ” includes any mortgage ( hypotheek/hypoth è que ), pledge ( pand/nantissement ), any mandate to grant a mortgage, a pledge or any other real security ( mandaat/mandat ), privilege ( voorrecht/privil è ge ), reservation of title arrangement ( eigendomsvoorbehoud/r é serve de propri é t é ), any real security ( zakelijke zekerheid/s û ret é r é elle ) and any transfer by way of security ( overdracht ten titel van zekerheid/transfert à titre de garantie );

 

  (c) a person being “ unable to pay its debts ” is that person being in a state of cessation of payments ( staking van betaling/cessation de paiements );

 

  (d) a “ suspension of payments ”, “ moratorium of any indebtedness ” or “ reorganisation ” includes any gerechtelijke reorganisatie/r é organisation judiciaire , as applicable;

 

  (e) a “ composition ”, “ compromise ”, “ assignment ” or “ arrangement ” includes a minnelijk akkoord met schuldeisers/accord amiable avec des cr é anciers , or gerechtelijke reorganisatie/r é organisation judiciaire , as applicable;

 

  (f) “ winding up ”, “ administration ” or “ dissolution ” includes any vereffening/liquidation, ontbinding/dissolution, faillissement/faillite and sluiting van een onderneming/fermeture d’une enterprise ;

 

  (g) an “ attachment ”, “ sequestration ”, “ distress ”, “ execution ” or “ analogous process ” includes any uitvoerend beslag/saisie ex é cutoire and bewarend beslag/saisie conservatoire ;

 

  (h) an “ amalgamation ”, “ demerger ”, “ merger ”, “ consolidation ” or “ corporate reconstruction ” includes a overdracht van algemeenheid/transfert d’universalit é , overdracht van bedrijfstak/transfert de branche d’activit é , splitsing/scission and fusie/fusion and assimilated transaction in accordance with article 676 and 677 of the Belgian Companies Code ( gelijkgestelde verrichting/op é ration assimil é e );

 

  (i) “ gross negligence ” means “ zware fout/faute lourde ”;

 

  (j) “ wilful misconduct ” or “ wilful breach ” means “ opzet/intention ”;

 

  (k) “ constitutional documents ” means the deed of incorporation ( oprichtingsakte/ acte constitutive ), statuten/statuts uittreksel van de Kruispuntbank voor Ondernemingen/extrait de la Banque Carrefour des Entreprises and a non-bankruptcy certificate;

 

  (l) “ guarantee ” means, only for the purpose of the guarantee granted by any Belgian Guarantor under this Agreement, an independent guarantee and not a surety ( borg/cautionnement ); and

 

  (m) an Obligor being “ incorporated ” in Belgium or of which its “ jurisdiction of incorporation ” is Belgium, means that such Obligor has its principal place of business ( voornaamste vestiging/ é tablissement principal (within the meaning of the Belgian Law of 16 July 2004 on the conflicts of law code)) in Belgium.

 

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1.4 Italian terms

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

 

  (a) a winding-up, administration or dissolution or the like includes, without limitation, any scioglimento , liquidazione and any other proceedings or legal concepts similar to the foregoing;

 

  (b) a receiver, administrative receiver, administrator or the like includes, without limitation, a curatore , commissario giudiziale , commissario liquidatore , commissario straordinario , liquidatore , or any other person performing the same function of each of the foregoing;

 

  (c) an insolvency proceeding includes, without limitation, any procedura concorsuale (including fallimento , concordato preventivo , accordo di ristrutturazione dei debiti, liquidazione coatta amministrativa , amministrazione straordinaria and cessione dei beni ai creditori pursuant to Article 1977 of the Italian Civil Code) and any other proceedings or legal concepts similar to the foregoing;

 

  (d) a step or procedure taken in connection with insolvency proceedings in respect of any person includes such person formally making a proposal to assign its assets pursuant to Article 1977 of the Italian Civil Code ( cessione dei beni ai creditori ) or filing a petition for a concordato preventivo , accordo di ristrutturazione dei debiti, or entering into a similar arrangement for the majority of such person’s creditors; and

 

  (e) an attachment includes a pignoramento.

 

1.5 Dutch terms

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

 

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

 

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

 

  (ii) obtaining an unconditional positive advice ( advies ) from the competent works council(s);

 

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

 

  (i) declared bankrupt ( failliet verklaard ); or

 

  (ii) dissolved ( ontbonden );

 

  (c) a moratorium includes surs é ance van betaling and granted a moratorium includes ( voorlopige ) surs é ance verleend ;

 

  (d) a trustee in bankruptcy includes a curator ;

 

  (e) an administrator includes a bewindvoerder ;

 

  (f) a security right includes any mortgage ( hypotheek ), pledge ( pandrecht ), financial collateral agreement ( financi ë lezekerheidsovereenkomst ), retention of title arrangement ( eigendomsvoorbehoud ), right of retention ( recht van retentie ), right to reclaim goods ( recht van reclame ), and, in general, any right in rem ( beperkt recht ), created for the purpose of granting security ( goederenrechtelijke zekerheid ); and

 

  (g) a subsidiary includes a dochtermaatschappij as defined in Article 2:24a of the Dutch Civil Code;

 

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

 

  (i) an attachment includes a beslag .

 

1.6 Spanish terms

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

 

  (a) “ financial assistance ” has the meaning stated under:

 

  (i) Article 150 of the Spanish Companies Law for a Spanish public company ( Sociedad Anónima ) or in any other legal provision that may substitute such Article 150 or be applicable to any Spanish Obligor in respect of such financial assistance; or

 

  (ii) Article 143 of the Spanish Companies Law for a Spanish limited liability company ( Sociedad de Responsabilidad Limitada ) or in any other legal provision that may substitute such Article 143 or be applicable to any Spanish Obligor in respect of such financial assistance;

 

  (b) “ insolvency ” ( concurso or any other equivalent legal proceeding) and any step or proceeding related to it has the meaning attributed to them under the Spanish Insolvency Law and “ insolvency proceeding ” includes, without limitation, a declaración de concurso , necessary or voluntary ( necesario o voluntario ) and the filing of the notice foreseen in Article 5 bis of the Spanish Insolvency Law;

 

  (c) “ winding-up, administration or dissolution ” includes, without limitation, disolución , liquidación , or administración concursal or any other similar proceedings;

 

  (d) “ compulsory manager ”, “ receiver, administrative receiver, administrator ” or the like includes, without limitation, administración del concurso or any other person performing the same function;

 

  (e) “composition, compromise, assignment or arrangement with any creditor” includes, without limitation, the celebration of a convenio ;

 

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

 

  (g) “ matured obligation ” includes, without limitation, any crédito líquido , vencido y exigible ;

“ guarantee ” includes any garantía , aval or guarantee which is independent from the debt to which it relates;

 

  (h) a grant, creation or transfer of a “ security ” includes any in rem or garantía real and any transfer by way of security;

 

  (i) “ security interest ” includes any mortgage ( hipoteca ), pledge ( prenda ), and, in general, any right in rem ( garantia real ) governed by Spanish law, created for the purpose of granting security.

 

  (j) “ trustee, fiduciary and fiduciary duty ” has in each case the meaning given to such term under any applicable law;

 

  (k) “ set off rights ” includes, to the extent legally possible, the rights to compensate under Royal Decree 5/2005; and

 

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  (l) “ wilful misconduct ” includes dolo .

 

1.7 Swedish provisions

 

(a) If any party to this agreement that is incorporated in Sweden (the “ Obligated Party ”) is required to hold an amount on trust on behalf of another party (the “ Beneficiary ”), the Obligated Party shall hold such money as agent for the Beneficiary on a separate account in accordance with the Swedish Act of 1944 in respect of assets held on account (Sw. Lag (1944:181) om redovisningsmedel ) and shall promptly pay or transfer the same to the Beneficiary or as the Beneficiary may direct.

 

(b) For the avoidance of doubt, the Parties agree that any novation effected in accordance with Clause 29 ( Changes to the Lenders ) shall, in relation to any Transaction Security governed by Swedish law, take effect as an assignment and assumption and transfer of such security interests.

 

(c) Notwithstanding any other provisions in this Agreement or any other Finance Document, the sale, lease, transfer or disposal of assets subject to Transaction Security governed by Swedish law shall always be subject to the prior written consent of the Security Agent, such consent to be granted at the Security Agent’s sole discretion on a case by case basis.

 

1.8 Luxembourg terms

In this Agreement:

 

  (a) Luxembourg legal concepts expressed in English terms in this Agreement may not correspond to the original French or German terms relating thereto;

 

  (b) where it relates to an Obligor incorporated in Luxembourg, a reference to:

 

  (i) an inability to pay debts or discharge liabilities as they fall due, include, any cessation de paiement for the purpose of Luxembourg law;

 

  (ii) a winding up, dissolution or administration includes a Luxembourg entity:

 

  (A) being declared bankrupt ( faillite déclarée );

 

  (B) being subject to liquidation judiciaire ; and

 

  (C) having filed for controlled management ( gestion contrôlée );

 

  (iii) a moratorium includes a reprieve from payment ( sursis de paiement ) or a concordat préventif de faillite ;

 

  (iv) a trustee in bankruptcy includes a curateur ;

 

  (v) an administrator includes a commissaire or a juge délégué ;

 

  (vi) an attachment includes a saisie ;

 

  (vii) a lien or security interest includes any hypothèque, nantissement, gage, privilege, sûreté réelle, droit de retention , and any type of security in rem ( sûreté réelle ) or agreement or arrangement having similar effect and any transfer of title by way of security;

 

  (viii) a “ set-off ” includes, for purposes of Luxembourg law, a legal set-off;

 

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  (ix) by-laws or constitutional documents includes its up-to-date (restated) articles of association ( statuts ); and

 

  (x) a director includes a gérant or an administrateur .

 

1.9 Exchange rate fluctuations

 

(a) Subject to paragraph (c) below, when assessing compliance with any monetary limits, thresholds, baskets and other exceptions to the representations and warranties, undertakings and Events of Defaults under the Finance Documents, any amount not denominated in the Base Currency shall be converted into an amount in the Base Currency at the rate (x) which Listco (acting reasonably and in good faith) has used and has notified to the Agent; or at the option of Listco (y) using the Agent’s Spot Rate of Exchange, in each case, as at the date of the Group incurring or making the relevant disposal, acquisition, investment, lease, loan, debt, security or guarantee or (as the case may be) taking the other relevant action.

 

(b) Subject to paragraph (c) below, no Event of Default or breach of any representation and warranty or undertaking under this Agreement or the other Finance Documents shall arise as a result of a monetary limit, threshold, basket or exception being exceeded solely due to a change in the Base Currency equivalent of any amount in another currency due to fluctuations in exchange rates.

 

(c) Paragraphs (a) and (b) above shall not apply to or in respect of the calculation of Debt Cover or for the purpose of testing any financial covenant.

 

1.10 Currency symbols and definitions

 

(a) “ £ ”, “ Sterling ” and “ sterling ” denote the lawful currency of the United Kingdom, “ Euro ”, “ euro ”, “ €  ” and “ EUR ” denote the single currency of the Participating Member States and “ US$ ” and “ US Dollars ” denote the lawful currency of the United States.

 

(b) The “ equivalent ” in any currency (the “ first currency ”) of any amount in another currency (the “ second currency ”) shall be construed as a reference to the amount in the first currency which could be purchased with that amount in the second currency at the Agent’s Spot Rate of Exchange (or at about such time and on such date as the Agent may from time to time reasonably determine to be appropriate in the circumstances).

 

1.11 Third party rights

 

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

 

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

 

1.12 Intercreditor Agreement

 

(a) This Agreement is subject to, and has the benefit of, the Intercreditor Agreement.

 

(b) Terms used and not defined in this Agreement shall have the meaning given to them in the Intercreditor Agreement unless contrary indication appears in this Agreement.

 

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SECTION 2

THE FACILITIES

 

2. THE FACILITIES

 

2.1 The Facilities

 

(a) Subject to the terms of this Agreement, the Lenders make available:

 

  (i) to Midco, a euro term loan facility in an aggregate amount equal to the Total Facility B1 Commitments;

 

  (ii) to Luxco and the US Co-Borrower, a US$ term loan facility in an aggregate amount equal to the Total Facility B2 Commitments; and

 

  (iii) to the Revolving Facility Borrowers, a multicurrency revolving credit facility in an aggregate Base Currency Amount which is equal to the Total Original Revolving Facility Commitments.

 

(b) Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available an Ancillary Facility to any of the Borrowers.

 

2.2 Finance Parties’ rights and obligations

 

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

 

(b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.

 

(c) A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

 

2.3 Obligors’ Agent

 

(a) Each Obligor (other than Listco) by its execution of this Agreement or an Accession Letter (as the case may be) irrevocably appoints Listco to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

  (i) Listco on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Accession Letter, Additional Facility Notice or other Finance Document, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor (including, without limitation, by increasing the obligations of such Obligor howsoever fundamentally, whether by increasing the liabilities guaranteed or otherwise), without further reference to or the consent of that Obligor; and

 

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

 

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and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

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

 

(c) To the extent legally permissible, each of the Obligors hereby releases the Obligors’ Agent from any restrictions on representing several persons and self-dealing under any applicable law, and in particular from the restrictions of Section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ), to make use of any authorisation granted under this Agreement and to perform its duties and obligations as Obligors’ Agent hereunder and under or in connection with the Finance Documents.

 

(d) In connection with the raising of any Finance Document into a Spanish Public Document, Listco shall act as the agent of each Obligor and is hereby authorised on behalf of each Obligor to enter into, enforce the rights of each Obligor under and represent each Obligor in respect of the granting of a Spanish Public Document.

 

2.4 Additional Facilities

 

(a) Any member of the Group may enter into, and incur Financial Indebtedness under, any New Debt Financing (whether or not by way of an Additional Facility) in accordance with the terms of this Clause 2.4 and the Intercreditor Agreement.

 

(b) Additional Facilities may become committed in accordance with this Clause 2.4 and subject to the terms of this Agreement if Listco delivers a duly completed Additional Facility Notice in the agreed form to the Agent signed by Listco and the provider of such Additional Facility in accordance with this Clause 2.4.

 

(c) Listco may at any time or times notify the Agent by delivery of an Additional Facility Notice that it wishes to add one or more additional facilities into this Agreement, either as a new facility and/or as an additional tranche of any existing facility (each an “ Additional Facility ”). An Additional Facility may be made available by way of term or revolving facilities (including loans or letters of credit) or in the form of any of the following facilities:

 

  (i) an overdraft facility;

 

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

 

  (iii) a short-term loan facility;

 

  (iv) a derivatives facility;

 

  (v) a foreign exchange facility; or

 

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  (vi) any other facility or accommodation required in connection with the business of the Group and which is agreed by Listco with an Additional Facility Lender.

 

(d) No consent of any Finance Party is required to establish a New Debt Financing (other than any Lender which is to provide the relevant New Debt Financing and the Agent (in each case, in the case of a New Debt Financing by way of an Additional Facility) provided that, unless otherwise agreed by the Majority Lenders (or, in the case of paragraph (xi) below, all the Lenders):

 

  (i) any transaction funded with a New Debt Financing must be otherwise permitted under the Finance Documents;

 

  (ii) no New Debt Financing may be provided by, or be beneficially owned by, a member of the Group or a Listco Affiliate;

 

  (iii) in the case of a New Debt Financing by way of an Additional Facility, that Additional Facility must rank pari passu with, in right of payment and ranking of security, the other Facilities under the Finance Documents and must be established under, and included within, this Agreement and that Additional Facility may be denominated in euro, US Dollars, Sterling or any other currency agreed between Listco and the relevant Additional Facility Lenders;

 

  (iv) the all-in yield applicable to any New Debt Financing in the form of a Credit Facility or a Pari Passu Debt Loan denominated in euro or US Dollars, (including, for the avoidance of doubt, any Additional Facility but excluding any bridge facility with an initial maturity of not more than one year (and provided that upon being converted into extended term loans, such extended term loans comply with the provisions of this paragraph (iv)) and customary interim facilities (established to fund a Permitted Acquisition on a certain funds basis)) does not exceed 0.50 per cent. per annum above the corresponding all-in yield of: (x) Facility B1 (with respect to any such New Debt Financing denominated in euro) or (y) Facility B2 (with respect to any such New Debt Financing denominated in US$), unless the Margin on Facility B1 or Facility B2 (as the case may be) is increased so that the all-in yield for the applicable New Debt Financing does not exceed 0.50 per cent. per annum above the increased all-in yield for Facility B1 or Facility B2 (as the case may be); provided that, in determining the applicable all-in yield under this paragraph (iv):

 

  (A) subject to paragraph (D) any original issue discount or upfront fee paid in connection with Facility B1 or Facility B2 (as the case may be and, in either case, based on a three-year average life to maturity or lesser remaining life to maturity) shall be included;

 

  (B) any amendments to the Margin on Facility B1 or Facility B2 (as the case may be) that became effective subsequent to the Closing Date but prior to the date of determination of the all-in yield shall be included;

 

  (C) any EURIBOR or LIBOR rate floor applicable to the relevant New Debt Financing and/or to Facility B1 or Facility B2 (as the case may be) on the date of determination of the all-in yield shall be equated to interest margin for determining the applicable all-in yield by adding to the interest rate margin the amount by which the EURIBOR or (as applicable) the LIBOR rate then applicable (ignoring any floor to such rate) is less than the applicable floor rate; and

 

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  (D) arrangement, work, commitment, structuring, underwriting and/or any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with Facility B1 or Facility B2 (as the case may be) or to one or more arrangers (or their Affiliates) in their respective capacities as such applicable to the relevant New Debt Financing shall be excluded to the extent such amounts are not shared generally with the syndicate lenders under that New Debt Financing;

 

  (v) other than in the case of a bridge facility with an initial maturity of not more than one year (and provided that upon being converted into extended term loans, such extended term loans comply with the provisions of this paragraph (v)) and customary interim facilities (established to fund a Permitted Acquisition on a certain funds basis), neither the final repayment date of any New Debt Financing nor any scheduled repayment instalment date (other than in respect of (X) any Additional Facility which is a revolving facility or (Y) a nominal 1 per cent. amortisation with respect to any New Debt Financing in the form of an Additional Facility, a Credit Facility or a Pari Passu Debt Loan denominated in US$) may fall prior to the later to occur of the Termination Date for Facility B1 and the Termination Date for Facility B2 and, in relation to any Second Lien Debt, the date falling 6 months after the later to occur of the Termination Date for Facility B1 and the Termination Date for Facility B2;

 

  (vi) no New Debt Financing shall have a right to receive prepayments in priority to the Original Facilities under paragraph (a) of Clause 12.3 ( Application of mandatory prepayments );

 

  (vii) the relevant creditor (or representative thereof) is a party to the Intercreditor Agreement in the relevant capacity including, in relation to a person which is to be a lender under an Additional Facility, if that person is not already a Lender it shall become party to the Intercreditor Agreement as a “Credit Facility Lender” prior to first utilisation of such Additional Facility;

 

  (viii) in relation to any New Debt Financing by way of Senior Secured Notes, Pari Passu Debt Notes or Second Lien Debt Notes, the issuer is an ‘Issuer’ under and as defined in the Intercreditor Agreement and in relation to any Second Lien Debt Loan (as defined in the Intercreditor Agreement), the borrower is not a Subsidiary of Midco;

 

  (ix) either (x) utilisation or issue or (y), at Listco’s option, in the case of a Permitted Acquisition to be funded by a New Debt Financing on a certain funds basis establishment (only) of any New Debt Financing for any transaction shall be subject to the conditions that:

 

  (A) no Event of Default has occurred and is continuing at the time of a utilisation or issue or, (at Listco’s option, in the case of a Permitted Acquisition to be funded by a New Debt Financing on a certain funds basis), establishment of that New Debt Financing and no Event of Default will occur as a direct result of making such utilisation or issuance or, (at Listco’s option, in the case of a Permitted Acquisition to be funded by a New Debt Financing on a certain funds basis) establishing that New Debt Financing; and

 

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  (B) for the Relevant Period ending on the Quarter Date falling immediately prior to the date of utilisation or issuance or, (at Listco’s option, in the case of a Permitted Acquisition to be funded by a New Debt Financing on a certain funds basis) establishment of such New Debt Financing, Debt Cover (calculated (x)  pro forma as if that New Debt Financing had been drawn or issued in full at the beginning of such Relevant Period but taking into account, for the purposes of such calculation, the application of such New Debt Financing and, where such New Debt Financing is to be used to fund a Permitted Acquisition under paragraph (d) of that definition, calculated pro forma for such Permitted Acquisition as if such acquisition had occurred at the beginning of such Relevant Period and after taking into account any Pro Forma Adjustment in relation to such acquisition and for such Relevant Period; and (y)  pro forma for any Permitted Payment in the period following such Quarter Date), does not exceed 5.25:1, in each case, as confirmed by a certificate from Listco containing the relevant calculations;

 

  (x) Listco delivers to the Agent before the date on which the relevant New Debt Financing is to be established:

 

  (A) in the case of any New Debt Financing by way of an Additional Facility, a duly executed copy of each Additional Facility Document relating to the relevant Additional Facility; and

 

  (B) a certification from Listco confirming that the foregoing conditions to the relevant New Debt Financing have been satisfied (save to the extent that a confirmation has been received from the Agent that these conditions have been waived by (x) each of the Additional Facility Lenders in the case of any New Debt Financing by way of an Additional Facility, and (y) the Majority Lenders); and

 

  (xi) no term of the New Debt Financing would otherwise require all Lender consent under Clause 41 ( Amendments and waivers ).

 

(e) An Additional Facility Notice shall be irrevocable and no Additional Facility Notice will be regarded as having been duly completed unless it specifies the following matters in respect of the relevant Additional Facility:

 

  (i) the proposed Borrower;

 

  (ii) the persons to become Additional Facility Lenders in respect of that Additional Facility;

 

  (iii) to the extent applicable to the relevant Additional Facility:

 

  (A) the Base Currency Amount being made available and the currency or currencies in which that Additional Facility is available for utilisation;

 

  (B) the rate of interest applicable to that Additional Facility (including any applicable Margin, EURIBOR or LIBOR floor and Margin ratchet);

 

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  (C) the Termination Date (together with, if applicable, any other scheduled repayment dates) for that Additional Facility;

 

  (D) the Availability Period for that Additional Facility; and

 

  (E) the Additional Facility Commencement Date for that Additional Facility.

An Additional Facility Notice must be delivered to the Agent no later than 3 Business Days prior to the Utilisation Date under that Additional Facility.

 

(f) Subject to the conditions set out in paragraphs (a) to (e) above being satisfied, following receipt by the Agent of a duly completed Additional Facility Notice and with effect from the relevant Additional Facility Commencement Date (or any later date on which the conditions set out in paragraph (g) below are satisfied):

 

  (i) the Lenders in respect of the relevant Additional Facility (each an “ Additional Facility Lender ”) shall make available that Additional Facility in the aggregate principal amount set out in the Additional Facility Notice;

 

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

 

  (iii) each such Additional Facility Lender shall become a Party as a “Lender”;

 

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

 

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

 

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

 

  (i) receipt by the Agent of the Additional Facility Notice and a Lender Accession Notice from each person referred to in the relevant Additional Facility Notice as an Additional Facility Lender and Listco, provided that no Lender Accession Notice shall be required from any such person which is already a Party as a Lender; and

 

  (ii) in relation to an Additional Facility Lender which is not already a Lender:

 

  (A) that Additional Facility Lender entering into a Creditor/Agent Accession Undertaking (as defined in the Intercreditor Agreement); and

 

  (B) the performance by the Agent of all necessary “know your customer” or other similar identification checks under all applicable laws and regulations in relation to that Additional Facility Lender making available an Additional Facility, the completion of which the Agent shall promptly notify to Listco.

 

(h)

Each Obligor irrevocably authorises the Obligors’ Agent to sign each Additional Facility Notice on its behalf and each Finance Party irrevocably authorises and instructs the Agent and the Security Agent to acknowledge, execute and confirm acceptance of each Additional Facility Notice, Lender Accession Notice and, if applicable, Creditor/Agent Accession Undertaking (as

 

53

  defined in the Intercreditor Agreement) on its behalf. Upon countersigning a duly completed Additional Facility Notice, the Agent shall inform the Lenders and shall provide a copy of each such executed Additional Facility Notice, Lender Accession Notice and, if applicable, Creditor/Agent Accession Undertaking (as defined in the Intercreditor Agreement) to the Lenders and Listco. To the extent legally possible, each Obligor hereby relieves the Obligors’ Agent from the restrictions pursuant to section 181 of the German Civil Code ( Bürgerliches Gesetzbuch ) and similar restrictions applicable to it pursuant to any other applicable law.

 

(i) Without prejudice to clause 8 ( New Credit Facilities, Pari Passu Debt, Second Lien Debt and Hedging Agreements ) of the Intercreditor Agreement, the Finance Parties shall be required to enter into any amendment to or replacement of the then current Finance Documents (including for the purpose of reflecting the terms of any Additional Facility in the Finance Documents) and/or take such other action as is required by Listco in order to facilitate the establishment of any Additional Facility otherwise permitted by this Agreement, including in relation to any changes to, the taking of, or the release coupled with the retaking of, any guarantee or Security provided that, unless otherwise agreed by the Majority Lenders, neither the Agent nor the Security Agent shall be required to execute a release of assets from any existing Transaction Security or a release of any existing guarantee under Clause 23 ( Guarantee and indemnity ) pursuant to this paragraph (i) unless:

 

  (i) replacement security will (substantially contemporaneously with the relevant release) be provided pursuant to which the relevant Lenders (or the Security Agent on their behalf) will continue to have security in respect of the applicable assets or, as the case may be, a replacement guarantee will (substantially contemporaneously with the relevant release) be provided; and

 

  (ii) Listco has confirmed to the Security Agent that it has determined in good faith (taking into account any applicable legal limitations and other relevant considerations) that it is either not possible or not commercially practicable to implement such Additional Facility by granting new supplementary Transaction Security and/or amending the terms of the existing Transaction Security instead,

provided further that, for the avoidance of doubt, nothing in this paragraph will prohibit or restrict the execution of (or the right to require the execution of) any additional guarantee or Transaction Security Documents and/or any supplemental agreements, confirmations and/or any other similar or equivalent documents, provided that all such guarantees, security documents and/or supplemental agreements, confirmations and/or equivalent documents (as the case may be) are in favour of each of the Finance Parties (or the Agent or Security Agent on their behalf or for their benefit).

The Agent and the Security Agent are each irrevocably authorised and instructed by each Finance Party to execute any such amended or replacement Finance Documents as may be required pursuant to this paragraph (i) and/or take such action on behalf of the Finance Parties contemplated by this paragraph (i) (and shall do so on the request of and at the cost of Listco).

 

(j)

Except as provided in paragraph (d) above, the terms applicable, or which may be disapplied in relation to, any Additional Facility will be those agreed by the Additional Facility Lenders in respect of that Additional Facility and the Obligors’ Agent (including, without limitation, any terms

 

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  as to margin, margin protection, fees, prepayment and repayment). If there is any inconsistency between any such term agreed or disapplied in respect of an Additional Facility and any term of this Agreement, the term agreed in respect of the Additional Facility shall prevail (without prejudice to paragraph (d) above).

 

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

 

(l) Each Obligor confirms that its guarantee and indemnity obligations set out in Clause 23 ( Guarantee and indemnity ) and/or any Accession Letter or other Finance Document will extend to include the Additional Facility Loans and other obligations arising under the Additional Facilities subject to any limitations specifically set out in Clause 23 ( Guarantee and indemnity ), the relevant Accession Letter or elsewhere in the Finance Documents (and that the Transaction Security Documents shall be construed accordingly).

 

3. PURPOSE

 

3.1 Purpose

 

(a) The Borrower of Facility B1 and Facility B2 shall apply all amounts under those Facilities towards refinancing indebtedness and paying any related fees, costs and expenses, in each case, in accordance with the 2017 Amendment and Restatement Agreement and the 2017 Funds Flow Statement.

 

(b) Each Revolving Facility Borrower shall apply all amounts borrowed by it under a Revolving Facility, any Letter of Credit and any utilisation of any Ancillary Facility towards:

 

  (i) the general corporate purposes of the Group (including to fund Restructuring Expenditure); and

 

  (ii) the provision of cash collateral pursuant to paragraph (v) of Permitted Security,

provided that a maximum aggregate amount of EUR 75,000,000 may be drawn over the life of the Original Revolving Facility to fund Restructuring Expenditure.

 

(c) The Borrower of any Additional Facility shall, subject to the terms of this Agreement, apply all utilisations under that Facility in a manner permitted by this Agreement and the Additional Facility Documents relevant to that Additional Facility.

 

3.2 Monitoring

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

 

4. CONDITIONS OF UTILISATION

 

4.1 Conditions precedent

 

(a) The Lenders will only be obliged to comply with Clause 5.4 ( Lenders’ participation ) in respect of a Utilisation under a Facility, if on or before the Utilisation Date for that Utilisation, the Agent has received (or, acting on the instructions of the Arrangers, has waived the requirement to receive) all of the documents and other evidence listed in schedule 2 ( Conditions Precedent ) of the 2017 Amendment and Restatement Agreement in form and substance satisfactory to the Agent (acting reasonably).

 

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

 

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

 

  (i) in the case of a Rollover Loan, no notice of acceleration or cancellation has been given pursuant to Clause 28.16 ( Acceleration ) as a result of the occurrence of an Event of Default; and

 

  (ii) in the case of any other Utilisation:

 

  (A) no Default is continuing or would result from the proposed Utilisation; and

 

  (B) in the case of any Utilisation to be made on the Closing Date, on the date of the Utilisation Request and on the proposed Utilisation Date, each of the representations and warranties set out in Clause 24 ( Representations ) are true and accurate and, in the case of any other any Utilisation, the Repeating Representations are true and accurate (in all material respects in the case of Repeating Representations to which a materiality test is not already applied in accordance with their terms).

 

4.2 Conditions relating to Optional Currencies

 

(a) A currency will constitute an Optional Currency in relation to a Revolving Facility Utilisation if it is:

 

  (i) in the case of the Original Revolving Facility, sterling or US$;

 

  (ii) in the case of an Additional Revolving Facility, any currencies specified in the Additional Facility Notice relating to that Additional Revolving Facility; or

 

  (iii) any other currency which is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market at the Specified Time or, if later, on the date the Agent receives the relevant Utilisation Request and the Utilisation Date for that Utilisation and which has been approved by the Agent (acting on the instructions of all the Lenders participating in the relevant Revolving Facility acting reasonably) on or prior to receipt by the Agent of the relevant Utilisation Request for that Utilisation.

 

(b) If the Agent has received a written request from Listco for a currency to be approved under paragraph (a)(iii) above, the Agent will confirm to Listco by the Specified Time:

 

  (i) whether or not the Lenders have granted their approval; and

 

  (ii) if approval has been granted, the minimum amount (approximately equivalent to the minimum amount for a Utilisation in the Base Currency) for any subsequent Utilisation in that currency.

 

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4.3 Maximum number of Utilisations

 

(a) A Borrower (or Listco) may not deliver a Utilisation Request if, as a result of the proposed Utilisation:

 

  (i) 30 or more Revolving Facility Loans;

 

  (ii) more than 1 Facility B1 Loan;

 

  (iii) more than 1 Facility B2 Loan; or

 

  (iv) more than 15 Additional Facility Loans.

would be outstanding (unless otherwise agreed by Listco and the Agent).

 

(b) A Borrower (or Listco) may not request that a Facility B1 Loan, Facility B2 Loan or an Additional Facility Term Loan be divided.

 

(c) Any Loan made by a single Lender under Clause 8.2 ( Unavailability of a currency ) shall not be taken into account in this Clause 4.3.

 

(d) A Borrower (or Listco) may not request that a Letter of Credit be issued under the Revolving Facility if, as a result of the proposed Utilisation, more than 16 Letters of Credit would be outstanding.

 

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SECTION 3

UTILISATION

 

5. UTILISATION - LOANS

 

5.1 Delivery of a Utilisation Request

A Borrower (or Listco on its behalf) may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

5.2 Completion of a Utilisation Request for Loans

 

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

 

  (i) it identifies the Facility to be utilised;

 

  (ii) to the extent applicable, the requirements of paragraph (f) of Clause 26.3 ( Financial testing ) are satisfied;

 

  (iii) the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

 

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

 

  (v) the proposed Interest Period complies with Clause 15 ( Interest Periods ).

 

(b) Multiple Utilisations may be requested in a Utilisation Request where the proposed Utilisation Date is the Closing Date. Only one Utilisation may be requested in each subsequent Utilisation Request.

 

(c) There shall be no requirement to comply with the requirements of Clause 5.1 ( Delivery of a Utilisation Request ) and the other paragraphs of this Clause 5.2 in respect of Utilisations under Facility B1 as at the 2017 Additional Facility Effective Time and this Facility shall be automatically utilised upon the occurrence of the 2017 Additional Facility Effective Time to the extent provided for, and in accordance with the terms of, the 2017 Amendment and Restatement Agreement.

 

5.3 Currency and amount

 

(a) The currency specified in a Utilisation Request must be:

 

  (i) in relation to a Facility B1, in euro;

 

  (ii) in relation to a Facility B2, in US$;

 

  (iii) in relation to the Revolving Facility, in the Base Currency or an Optional Currency; and

 

  (iv) in relation to a relevant Additional Facility, as specified in the Additional Facility Documents relating to that Additional Facility.

 

(b) The amount of the proposed Utilisation must be in an amount the Base Currency Amount of which does not exceed the relevant Available Facility and must also be:

 

  (i) for Facility B1, the Total Facility B1 Commitments;

 

  (ii) for Facility B2, the Total Facility B2 Commitments;

 

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  (iii) for the Original Revolving Facility:

 

  (A) if the currency selected is the Base Currency, a minimum of EUR 1,000,000 or, if less, the Available Facility;

 

  (B) if the currency selected is sterling, a minimum of £750,000 or, if less, the Available Facility; or

 

  (C) if the currency selected is an Optional Currency, the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.2 ( Conditions relating to Optional Currencies ) or, if less, the Available Facility; or

 

  (iv) in relation to the relevant Additional Facility, as specified in the Additional Facility Documents relating to that Additional Facility.

 

5.4 Lenders’ participation

 

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

 

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

 

(c) The Agent shall determine the Base Currency Amount of each Revolving Facility Loan which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation in that Loan by the Specified Time.

 

(d) Each Lender under Facility B1 shall make its participation in any Facility B1 Loan to be made upon the occurrence of the 2017 Additional Facility Effective Time available in accordance with the terms of the 2017 Amendment and Restatement Agreement.

 

5.5 Limitations on Utilisations

 

(a) No Facility B1 Loan or Facility B2 Loan shall be made unless Loans under each of those Facilities are made at the same time and each of Facility B1 and Facility B2 are utilised in full.

 

(b) The Revolving Facility shall not be utilised unless Facility B1 and Facility B2 have been (or will simultaneously be) utilised in full.

 

(c) The maximum aggregate:

 

  (i) Base Currency Amount of all Letters of Credit; and

 

  (ii) the amount of the Ancillary Commitments of all the Lenders,

together shall not at any time exceed EUR 50,000,000.

 

6. UTILISATION - LETTERS OF CREDIT

 

6.1 Revolving Facility

 

(a) A Revolving Facility may be utilised by way of Letters of Credit.

 

(b) Other than Clause 5.5 ( Limitations on Utilisations ), Clause 5 ( Utilisation - Loans ) does not apply to Utilisations by way of Letters of Credit.

 

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6.2 Delivery of a Utilisation Request for Letters of Credit

A Revolving Facility Borrower (or Listco on its behalf) may request a Letter of Credit to be issued by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

6.3 Completion of a Utilisation Request for Letters of Credit

Each Utilisation Request for a Letter of Credit is irrevocable and will not be regarded as having been duly completed unless:

 

  (a) it specifies that it is for a Letter of Credit;

 

  (b) it identifies whether the Letter of Credit is to be made under the Original Revolving Facility or under an Additional Revolving Facility;

 

  (c) it identifies the Revolving Facility Borrower of the Letter of Credit;

 

  (d) it identifies the Issuing Bank which is to issue the Letter of Credit;

 

  (e) the proposed Utilisation Date is a Business Day within the Availability Period applicable to the relevant Revolving Facility;

 

  (f) the currency and amount of the Letter of Credit comply with Clause 6.4 ( Currency and amount );

 

  (g) the form of Letter of Credit is attached and is agreed with the Issuing Bank or is in the form set out in Schedule 10 ( Form of Letter of Credit );

 

  (h) the delivery instructions for the Letter of Credit are specified;

 

  (i) the Term of the Letter of Credit is specified;

 

  (j) the beneficiary of the Letter of Credit is a person which the Issuing Bank and each Lender are not prohibited from dealing with by any applicable law or regulation; and

 

  (k) to the extent applicable, the requirements of paragraph (f) of Clause 26.3 ( Financial testing ) are satisfied.

 

6.4 Currency and amount

 

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

 

(b) Subject to paragraph (a) of Clause 5.5 ( Limitations on Utilisations ), the amount of the proposed Letter of Credit must be an amount whose Base Currency Amount is not more than the Available Facility and which is:

 

  (i) if the currency selected is euro, a minimum of EUR 1,000,000 or, if less, the Available Facility;

 

  (ii) if the currency selected is sterling, a minimum of £750,000 or, if less, the Available Facility; or

 

  (iii) if the currency selected is an Optional Currency (other than sterling), the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.2 ( Conditions relating to Optional Currencies ) or, if less, the Available Facility.

 

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6.5 Issue of Letters of Credit

 

(a) If the conditions set out in this Agreement have been met, the Issuing Bank shall issue the Letter of Credit on the Utilisation Date.

 

(b) Subject to paragraph (a)(i) of Clause 4.1 ( Conditions precedent ), the Issuing Bank will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:

 

  (i) Facility B1 and Facility B2 have been (or are at the same time) utilised in full;

 

  (ii) in the case of a Letter of Credit to be renewed in accordance with Clause 6.6 ( Renewal of a Letter of Credit ), no notice of acceleration or cancellation has been given pursuant to Clause 28.16 ( Acceleration ) as a result of the occurrence of an Event of Default and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation;

 

  (iii) in relation to a Utilisation to be made on the Closing Date, on the date of the Utilisation Request, each of the representations and warranties set out in Clause 24 ( Representations ) are true and accurate;

 

  (iv) in relation to any other Utilisation, on the date of the Utilisation Request and on the proposed Utilisation Date, the Repeating Representations that are stipulated to be made by each Obligor on the date of the Utilisation Request and on the proposed Utilisation Date are true and accurate (in all material respects in the case of Repeating Representations to which a materiality test is not already applied in accordance with their terms); and

 

  (v) it would not be unlawful for the Issuing Bank to issue the Letter of Credit.

 

(c) The amount of each Lender’s participation in each Letter of Credit will be equal to the proportion borne by its Available Commitment to the Available Facility (in each case in relation to the relevant Revolving Facility) immediately prior to the issue of the Letter of Credit.

 

(d) The Agent shall determine the Base Currency Amount of each Letter of Credit which is to be issued in an Optional Currency and shall notify the Issuing Bank and each Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.

 

6.6 Renewal of a Letter of Credit

 

(a) A Revolving Facility Borrower (or Listco on its behalf) may request that any Letter of Credit issued on behalf of that Revolving Facility Borrower be renewed by delivery to the Agent of a Renewal Request in substantially similar form to a Utilisation Request for a Letter of Credit by the Specified Time.

 

(b) The Finance Parties shall treat any Renewal Request in the same way as a Utilisation Request for a Letter of Credit, except that the conditions set out in paragraph (g) of Clause 6.3 ( Completion of a Utilisation Request for Letters of Credit ) shall not apply.

 

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(c) The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:

 

  (i) its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and

 

  (ii) its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

 

(d) If the conditions set out in this Agreement have been met, the Issuing Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.

 

6.7 Revaluation of Letters of Credit

 

(a) If any Letters of Credit are denominated in an Optional Currency, the Agent shall, at annual intervals after the date of the respective Letter of Credit, recalculate the Base Currency Amount of each Letter of Credit by notionally converting into the Base Currency the outstanding amount of that Letter of Credit on the basis of the Agent’s Spot Rate of Exchange on the date of calculation.

 

(b) Listco shall, if requested by the Agent within five Business Days of any calculation under paragraph (a) above, ensure that within three Business Days sufficient Revolving Facility Utilisations are prepaid to prevent the Base Currency Amount of the Revolving Facility Utilisations exceeding the Total Revolving Facility Commitments (after deducting the total Ancillary Commitments) by more than 5 per cent. following any adjustment to a Base Currency Amount under paragraph (a) above.

 

6.8 Cash cover

If the Facilities are prepaid in full, or on the Termination Date for a Revolving Facility there are Letters of Credit outstanding under that Revolving Facility, Listco shall:

 

  (a) provide cash cover in an amount not exceeding the amount of each such Letter of Credit;

 

  (b) provide counter-indemnification by a financial institution approved by the Issuing Bank in respect of each such Letter of Credit; or

 

  (c) at the request of the Issuing Bank, use all reasonable endeavours to procure the release of the Issuing Bank from its obligations under each such Letter of Credit.

 

7. LETTERS OF CREDIT

 

7.1 Immediately payable

If a Letter of Credit or any amount outstanding under a Letter of Credit is expressed to be immediately payable, the Borrower that requested (or on behalf of which Listco requested) the issue of that Letter of Credit shall repay or prepay that amount immediately.

 

7.2 Claims under a Letter of Credit

 

(a) Each Revolving Facility Borrower irrevocably and unconditionally authorises the Issuing Bank to pay any claim made or purported to be made under a Letter of Credit requested by it (or requested by Listco on its behalf) and which appears on its face to be in order (in this Clause 7, a “ claim ”).

 

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(b) Each Revolving Facility Borrower shall immediately on demand, or if such payment is being funded by a Revolving Facility Loan within three Business Days of demand, pay to the Agent for the Issuing Bank an amount equal to the amount of any claim.

 

(c) Each Revolving Facility Borrower acknowledges that the Issuing Bank:

 

  (i) is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and

 

  (ii) deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

 

(d) The obligations of a Revolving Facility Borrower under this Clause 7.2 will not be affected by:

 

  (i) the sufficiency, accuracy or genuineness of any claim or any other document; or

 

  (ii) any incapacity of, or limitation on the powers of, any person signing a claim or other document.

 

7.3 Indemnities

 

(a) Each Revolving Facility Borrower shall immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit requested by (or on behalf of) that Revolving Facility Borrower.

 

(b) Each Lender shall (according to its L/C Proportion) immediately on demand indemnify the Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit (unless the Issuing Bank has been reimbursed by an Obligor pursuant to a Finance Document).

 

(c) If any Lender is not permitted (by its constitutional documents or any applicable law) to comply with paragraph (b) above, then that Lender will not be obliged to comply with paragraph (b) above and shall instead be deemed to have taken, on the date the Letter of Credit is issued (or, if later, on the date the Lender’s participation in the Letter of Credit is transferred or assigned to the Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Letter of Credit in an amount equal to its L/C Proportion of that Letter of Credit. On receipt of demand from the Agent, that Lender shall pay to the Agent (for the account of the Issuing Bank) an amount equal to its L/C Proportion of the amount demanded.

 

(d) The Revolving Facility Borrower which requested (or on behalf of which Listco requested) a Letter of Credit shall immediately on demand reimburse any Lender for any payment it makes to the Issuing Bank under this Clause 7.3 in respect of that Letter of Credit.

 

(e) The obligations of each Lender under this Clause 7 are continuing obligations and will extend to the ultimate balance of sums payable by that Lender in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.

 

(f)

The obligations of any Lender or Revolving Facility Borrower under this Clause 7 will not be affected by any act, omission, matter or thing which, but for this Clause 7, would reduce, release

 

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  or prejudice any of its obligations under this Clause 7 (without limitation and whether or not known to it or any other person), including:

 

  (i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or any other person;

 

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

 

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

 

  (iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under a Letter of Credit or any other person;

 

  (v) any amendment (however fundamental) or replacement of a Finance Document, any Letter of Credit (if made with the consent of Listco) or any other document or security;

 

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

 

  (vii) any insolvency or similar proceedings.

 

7.4 Rights of contribution

No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7.

 

7.5 Settlement conditional

Any settlement or discharge between a Lender and the Issuing Bank shall be conditional upon no security or payment to the Issuing Bank by a Lender or any other person on behalf of a Lender being avoided or reduced by virtue of any laws relating to bankruptcy, insolvency, liquidation or similar laws of general application and, if any such security or payment is so avoided or reduced, the Issuing Bank shall be entitled to recover the value or amount of such security or payment from such Lender subsequently as if such settlement or discharge had not occurred.

 

7.6 Exercise of rights

The Issuing Bank shall not be obliged before exercising any of the rights, powers or remedies conferred upon it in respect of any Lender by this Agreement or by law:

 

  (a) to take any action or obtain judgment in any court against any Obligor;

 

  (b) to make or file any claim or proof in a winding-up or dissolution of any Obligor; or

 

  (c) to enforce or seek to enforce any other security taken in respect of any of the obligations of any Obligor under this Agreement.

 

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8. OPTIONAL CURRENCIES

 

8.1 Selection of currency

A Revolving Facility Borrower (or Listco on its behalf) shall select the currency of a Revolving Facility Utilisation in a Utilisation Request.

 

8.2 Unavailability of a currency

If before the Specified Time on any Quotation Day:

 

  (a) a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or

 

  (b) a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,

the Agent will give notice to the relevant Revolving Facility Borrower to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 8.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount or, in respect of a Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.

 

8.3 Agent’s calculations

Each Lender’s participation in a Loan will be determined in accordance with paragraph (b) of Clause 5.4 ( Lenders’ participation ).

 

9. ANCILLARY FACILITIES

 

9.1 Type of Facility

An Ancillary Facility may be by way of:

 

  (a) an overdraft facility;

 

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

 

  (c) a short-term loan facility;

 

  (d) a derivatives facility;

 

  (e) a foreign exchange facility; or

 

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

 

9.2 Availability

 

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

 

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(b) An Ancillary Facility shall not be made available unless, not later than three Business Days prior to the Ancillary Commencement Date for an Ancillary Facility, the Agent has received from Listco:

 

  (i) a notice in writing requesting the establishment of an Ancillary Facility and specifying:

 

  (A) whether the Ancillary Facility is to be made under the Original Revolving Facility or under an Additional Revolving Facility;

 

  (B) the proposed Revolving Facility Borrower(s) (or Affiliates of a Revolving Facility Borrower) which may use the Ancillary Facility;

 

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

 

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

 

  (E) the proposed Ancillary Lender;

 

  (F) the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility (if not denominated in the Base Currency) and, if the Ancillary Facility is an overdraft facility comprising more than one account, its maximum gross amount (that amount being the “ Designated Gross Amount ”) and its maximum net amount (that amount being the “ Designated Net Amount ”); and

 

  (G) the proposed currency of the Ancillary Facility;

 

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

 

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

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

No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender.

 

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

 

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

 

  (ii) the Ancillary Facility will be available,

with effect from the date agreed by Listco and the Ancillary Lender.

 

9.3 Terms of Ancillary Facilities

 

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

 

(b) However, those terms:

 

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

 

  (ii) may allow only Revolving Facility Borrowers (or Affiliates of Borrowers nominated pursuant to Clause 9.8 ( Affiliates of Borrowers )) to use the Ancillary Facility;

 

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

 

  (iv) may not allow the Ancillary Commitment of an Ancillary Lender to exceed the Available Commitment with respect to the relevant Revolving Facility of that Ancillary Lender (or that of its Affiliate); and

 

  (v) must require that the Ancillary Commitment is reduced to nil, and that all Ancillary Outstandings are repaid (or cash cover provided in respect of all the Ancillary Outstandings) not later than the Termination Date for the relevant Revolving Facility.

 

(c) If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail, except for (i) Clause 38.3 ( Day count convention ) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility and (ii) an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail.

 

(d) Interest, commission and fees on Ancillary Facilities are dealt with in Clause 17.5 ( Interest, commission and fees on Ancillary Facilities ).

 

9.4 Repayment of Ancillary Facility

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

  (i) the unutilised Revolving Facility Commitment of the Ancillary Lender will be increased by the amount of the respective Ancillary Commitment; and

 

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

 

(e) On the making of a Utilisation under a Revolving Facility to refinance Ancillary Outstandings:

 

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

 

  (ii) the relevant Ancillary Facility shall be cancelled.

 

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

 

9.5 Ancillary Outstandings

Each Revolving Facility Borrower and each Ancillary Lender agrees with and for the benefit of each Lender that:

 

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

 

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

 

9.6 Information

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

 

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9.7 Affiliates of Lenders as Ancillary Lenders

 

(a) Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Revolving Facility Commitment is the amount set out opposite the relevant Lender’s name in the 2017 Allocations Table and/or the amount of any Revolving Facility Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement. For the purposes of calculating the Lender’s Available Commitment with respect to the Revolving Facility, the Lender’s Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates.

 

(b) Listco shall specify any relevant Affiliate of a Lender in any notice delivered by Listco to the Agent pursuant to paragraph (b)(i) of Clause 9.2 ( Availability ).

 

(c) An Affiliate of a Lender which becomes an Ancillary Lender shall accede to this Agreement and the Intercreditor Agreement by delivery to the Security Agent of a duly completed Creditor/Agent Accession Undertaking (as defined in the Intercreditor Agreement).

 

(d) If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (as defined in Clause 29 ( Changes to the Lenders ), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.

 

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

 

9.8 Affiliates of Borrowers

 

(a) Subject to the terms of this Agreement, an Affiliate of a Revolving Facility Borrower may with the approval of the relevant Lender become a borrower with respect to an Ancillary Facility.

 

(b) Listco shall specify any relevant Affiliate of a Revolving Facility Borrower in any notice delivered by Listco to the Agent pursuant to paragraph (b)(i) of Clause 9.2 ( Availability ).

 

(c) If a Revolving Facility Borrower ceases to be a Borrower under this Agreement in accordance with Clause 31.3 ( Resignation of a Borrower ), its Affiliate shall cease to have any rights under this Agreement or any Ancillary Document (unless that Affiliate is also the Affiliate of another Borrower).

 

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

 

(e) Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Revolving Facility Borrower being under no obligations under any Finance Document or Ancillary Document (unless that Affiliate is also the Affiliate of another Borrower).

 

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SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

 

10. REPAYMENT

 

10.1 Repayment of Term Loans

 

(a) The Borrower under Facility B1 shall repay the Facility B1 Loans in full on the Termination Date for Facility B1 in euro.

 

(b) The Borrower under Facility B2 shall repay the Facility B2 Loans by (i) on 15 May 2018 and on each subsequent anniversary of such date, repaying an amount which reduces the Base Currency Amount of the outstanding aggregate Facility B2 Loans by an amount equal to 1.00 per cent of the aggregate of all Facility B2 Loans utilised on the Closing Date; and (ii) on the Termination Date for Facility B2, repaying the remaining Facility B2 Loans in full.

 

(c) The Borrower(s) in relation to each Additional Facility shall repay (or procure the repayment of) any amounts owing under that Facility in the manner specified in the Additional Facility Documents relating to that Additional Facility.

 

(d) The Borrowers may not reborrow any part of a Term Facility which is repaid.

 

10.2 Repayment of Revolving Facility Loans

Each Revolving Facility Borrower which has drawn a Revolving Facility Loan shall repay that Loan on the last day of its Interest Period.

 

10.3 Repayment of Ancillary Facilities

On the Termination Date applicable to the relevant Revolving Facility, each Revolving Facility Borrower under an Ancillary Facility shall repay all amounts (if any) owing or outstanding under that Ancillary Facility.

 

11. ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

 

11.1 Illegality

If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in any Utilisation:

 

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

 

  (b) upon the Agent notifying Listco, the Commitments of that Lender will be immediately cancelled or, as the case may be, on such date that Lender’s Commitments shall be transferred to another person pursuant to Clause 29.11 ( Replacement of Lenders ); and

 

  (c) each Borrower shall repay that Lender’s participation in the Utilisations made to that Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified Listco or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) or, as the case may be, on such date that Lender’s participation in the Utilisations shall be transferred at par to another person as set out in Clause 29.11 ( Replacement of Lenders ).

 

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11.2 Illegality in relation to an Issuing Bank

If it becomes unlawful for an Issuing Bank to issue or leave outstanding any Letter of Credit in any jurisdiction, then:

 

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

 

  (b) upon the Agent notifying Listco, the Issuing Bank shall not be obliged to issue any Letter of Credit in that jurisdiction;

 

  (c) Listco shall procure that the relevant Borrower shall use its best endeavours to procure the release of each Letter of Credit issued by that Issuing Bank and outstanding at such time; and

 

  (d) unless any other Lender (or other person pursuant to Clause 29.11 ( Replacement of Lenders )) has agreed to be an Issuing Bank pursuant to the terms of this Agreement, the Revolving Facility shall cease to be available for the issue of Letters of Credit in that jurisdiction.

 

11.3 Cancellation

 

(a) Listco may, if it gives the Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of EUR 1,000,000 in relation to Euro Denominated Facilities or US$1,000,000 in relation to US$Denominated Facilities (or its equivalent)) of an Available Facility. Any cancellation under this Clause 11.3 shall reduce the Commitments of the Lenders rateably under that Facility.

 

(b) In relation to each Facility, any Commitments which, at the end of the Availability Period applicable to that Facility, are unutilised shall immediately and automatically be cancelled at such time.

 

11.4 Voluntary prepayment of Term Loans

 

(a) Subject to the Intercreditor Agreement and to paragraph (c) below, a Borrower to which a Term Loan has been made may, if it or Listco gives the Agent not less than five Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of that Term Loan (but, if in part, being a minimum amount of EUR 1,000,000 in relation to Euro Denominated Facilities or $1,000,000 in relation to US$ Denominated Facilities (or the equivalent)).

 

(b) A Term Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the applicable Available Facility is zero).

 

11.5 Voluntary prepayment of Revolving Facility Utilisations

Subject to paragraph (b) below, a Borrower to which a Revolving Facility Utilisation has been made may, if such Borrower or Listco gives the Agent not less than five Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Revolving Facility Utilisation (but, if in part, being an amount that reduces the Base Currency Amount of the Revolving Facility Utilisation by a minimum amount of EUR 1,000,000 (or its equivalent)).

 

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11.6 Right of cancellation and repayment in relation to a single Lender or Issuing Bank

 

(a) If:

 

  (i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 18.2 ( Tax gross-up );

 

  (ii) any Lender or Issuing Bank claims indemnification from an Obligor under Clause 18.3 ( Tax indemnity ) or Clause 19.1 ( Increased Costs );

 

  (iii) a Market Disruption Event occurs pursuant to Clause 16 ( Changes to the calculation of interest ) in relation to certain but not all the Lenders; or

 

  (iv) at any time a Lender becomes a Non-Consenting Lender,

Listco may, whilst the circumstance giving rise to the requirement or indemnification continues, give the Agent notice:

 

  (A) (if such circumstances relate to a Lender) of cancellation of the Commitments of that Lender and its intention to procure the repayment of that Lender’s participation in the Utilisations or to require the transfer of that Lender’s rights and obligations pursuant to Clause 29.11 ( Replacement of Lenders ); or

 

  (B) (if such circumstances relate to the Issuing Bank) of repayment of any outstanding Letter of Credit issued by it and cancellation of its appointment as an Issuing Bank under this Agreement in relation to any Letters of Credit to be issued in the future or its request to transfer that Issuing Bank’s rights and obligations pursuant to Clause 29.11 ( Replacement of Lenders ).

 

(b) On receipt of a notice referred to in paragraph (a) above in relation to a Lender, the Commitments of that Lender shall immediately be reduced to zero or transferred to another person pursuant to Clause 29.11 ( Replacement of Lenders ).

 

(c) On the last day of each Interest Period which ends after Listco has given notice under paragraph (a)(i), (ii) or (iii) above in relation to a Lender (or, if earlier, the date specified by Listco in that notice), each Borrower to which a Utilisation is outstanding shall repay that Lender’s participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents or the relevant Lender shall transfer its rights and obligations pursuant to Clause 29.11 ( Replacement of Lenders ).

 

(d) On the last day of each Interest Period which ends after Listco has given notice under paragraph (a)(iv) above in relation to a Lender (or, if earlier, the date specified by Listco in that notice), each Borrower to which a Utilisation is outstanding shall, with the consent of each of the Lenders forming the Majority Lenders (unless the prepayment is funded by New Equity or Subordinated Debt received after the Closing Date or Retained Cash) repay that Lender’s participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents and/or the relevant Lender shall transfer its rights and obligations pursuant to Clause 29.11 ( Replacement of Lenders ).

 

12. MANDATORY PREPAYMENT

 

12.1 Exit

 

(a) Upon the occurrence of:

 

  (i) a Change of Control; or

 

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  (ii) the sale of all or substantially all of the assets of the Group, whether in a single transaction or a series of related transactions,

Listco shall immediately notify the Agent (who shall notify the Finance Parties), and each Lender shall be entitled to require, by written notice to the Obligors’ Agent received not later than the date 30 days after the date on which the Lenders received notice that such event has occurred, that its Commitments are cancelled and all outstanding Utilisations (together with all other amounts accrued or owing under the Finance Documents) in respect of that Lender become immediately due and payable, whereupon:

 

  (A) all such amounts will become immediately due and payable and the Borrowers will immediately prepay or procure the prepayment of all Utilisations and Ancillary Outstandings provided by that Lender, together with accrued interest and all other amounts accrued or owing under the Finance Documents to and in respect of that Lender;

 

  (B) each Borrower will immediately repay or procure the repayment of all sums advanced to it under any Ancillary Facility (including all Ancillary Outstandings), together with all other amounts accrued or owing by the Obligors in connection therewith, made available by that Lender (provided that a Borrower and an Ancillary Facility Lender may agree, as between themselves only and notwithstanding paragraph (1) above, that any Ancillary Facilities will continue to remain available on a bilateral basis between such parties and not under (or subject to the terms of) the Finance Documents (in which case such Ancillary Facilities will be treated as repaid in full for all purposes under the Finance Documents)); and

 

  (C) the Commitments of that Lender will be cancelled and such Lender shall have no Commitments or obligation to participate in further Utilisations requested under this Agreement.

 

12.2 Disposal, insurance and Excess Cashflo w

 

(a) For the purposes of this Clause 12.2, Clause 12.3 ( Application of mandatory prepayments ) and Clause 12.4 ( Mandatory Prepayment Account ):

“ Disposal ” means a sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).

“ Disposal Proceeds ” means the Net Proceeds received by any member of the Group (including any amount received in repayment of intercompany debt) for any Disposal made by any member of the Group, except for Excluded Disposal Proceeds.

“ Excluded Disposal Proceeds ” means the Net Proceeds of any Disposal which is or which are:

 

  (i) of trading assets made by any member of the Group in the ordinary course of trading of the disposing entity;

 

  (ii) of any asset by a member of the Group (the “ Disposing Company ”) to another member of the Group (the “ Acquiring Company ”), but if the Disposing Company is a Guarantor, the Acquiring Company must also be a Guarantor and if the Disposing Company has given Security over the asset the Acquiring Company must, subject to the Security Principles, give equivalent Security over the asset;

 

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  (iii) of any asset from an Obligor to a member of the Group which is not an Obligor provided that the aggregate amount transferred by all Obligors (net of the value of any assets transferred from a member of the Group which is not an Obligor to an Obligor) does not exceed at any time EUR 60,000,000 (or its equivalent);

 

  (iv) of assets (other than shares, businesses or intellectual property) in exchange for other assets reasonably comparable or superior as to type or quality for use in the business;

 

  (v) of Cash or Cash Equivalent Investments;

 

  (vi) constituted by a licence of Intellectual Property;

 

  (vii) made to a Joint Venture, to the extent permitted by Clause 27.8 ( Joint Ventures );

 

  (viii) arising as a result of any Permitted Security or Permitted Transaction;

 

  (ix) a lease or licence of Real Property in the ordinary course of business;

 

  (x) an individual Disposal not falling under the preceding paragraphs where the Net Proceeds from that Disposal are an amount less than EUR 10,000,000 (or its equivalent);

 

  (xi) applied or committed to be applied or designated by the board of directors of Listco for application in the purchase of assets, Permitted Acquisitions and Capital Expenditure within 12 Months of receipt (or such longer period as the Majority Lenders may agree), provided that if so designated or committed, they are actually so applied within 18 Months of receipt; or

 

  (xii) disposals not falling under the preceding paragraphs, the Net Proceeds of which when aggregated with the Net Proceeds of other Disposals made in the same Financial Year of Listco and not falling under the preceding paragraphs do not exceed an amount of EUR 50,000,000 (or its equivalent) in any Financial Year.

“ Excluded Insurance Proceeds ” means any Net Proceeds of insurance claims:

 

  (i) which are third party liability, business interruption or similar claims;

 

  (ii) which do not exceed an amount of EUR 10,000,000 (or its equivalent) in aggregate in any Financial Year; or

 

  (iii) which are applied, committed to be so applied or designated by the board of directors of Listco to be so applied:

 

  (A) to meet a third party claim; or

 

  (B) to the replacement, reinstatement and/or repair of the assets in respect of which the relevant insurance claim was made,

within 12 Months of receipt (or such longer period as the Majority Lenders may agree), provided that if so designated or committed they are actually so applied within 18 Months of receipt.

 

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“ Insurance Proceeds ” means the Net Proceeds of any insurance claim received by any member of the Group, except for Excluded Insurance Proceeds.

 

(b) Listco shall ensure that the Borrowers shall prepay Utilisations at the times and in the order of application contemplated by Clause 12.3 ( Application of mandatory prepayments ) in respect of:

 

  (i) the amount of Disposal Proceeds; and

 

  (ii) the amount of Insurance Proceeds.

 

(c) Excess Cashflow

For any Financial Year of Listco commencing with the Financial Year ending on 31 December 2018, Listco shall ensure that the Borrowers prepay Utilisations at the time and in the order of application contemplated by Clause 12.3 ( Application of mandatory prepayments ) in an amount equal to:

 

  (i) in respect of each Financial Year at the end of which Debt Cover is greater than 4.5:1, 50 per cent. of the Excess Cashflow for that Financial Year;

 

  (ii) in respect of each Financial Year at the end of which Debt Cover is equal to or less than 4.5:1 but greater than 3.75:1, 25 per cent. of Excess Cashflow for that Financial Year; and

 

  (iii) for the avoidance of doubt, in respect of each Financial Year at the end of which Debt Cover is equal to or less than 3.75:1, none of the Excess Cashflow for that Financial Year,

(and, for this purpose, Debt Cover shall be calculated after taking into account any prepayment to be made under this paragraph (c) to the extent not leading to double counting), provided that from the applicable percentage of Excess Cashflow shall be deducted:

 

  (A) any voluntary prepayments made during that Financial Year; and

 

  (B) an amount of EUR 60,000,000 as a de minimis amount.

 

12.3 Application of mandatory prepayments

 

(a) A prepayment made under Clause 12.2 ( Disposal, insurance and Excess Cashflow ) shall be applied in the following order:

 

  (i) first, in prepayment of Term Loans as contemplated below;

 

  (ii) secondly, in cancellation of Available Commitments under each Revolving Facility (and the Available Commitments of the Lenders under each Revolving Facility will be cancelled rateably);

 

  (iii) thirdly, in prepayment and cancellation of Revolving Facility Utilisations and of Revolving Facility Commitments; and

 

  (iv) fourthly, in repayment and cancellation of the Ancillary Outstandings and Ancillary Commitments.

 

(b) A prepayment under Clause 12.2 ( Disposal, insurance and Excess Cashflow ) shall prepay the Term Loans if after the applicable Availability Period, in amounts which reduce each of the Term Loans by the same proportion and pro rata across those Loans.

 

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(c) Unless Listco makes an election under paragraph (d) below, the Borrowers shall apply such amount against prepayments and cancellations which are due under this Agreement in accordance with paragraph (a) above at the following times:

 

  (i) in the case of any prepayment relating to the amounts of Disposal Proceeds or Insurance Proceeds, promptly upon receipt of those proceeds; and

 

  (ii) subject to Clause 12.6 ( Right to refuse prepayment ), in the case of any prepayment relating to an amount of Excess Cashflow, on the last day of the first Interest Period ending at least 15 Business Days after the date of delivery of the annual consolidated accounts of Listco pursuant to Clause 25.1 ( Financial statements ) for the relevant Financial Year.

 

(d) Listco may, by giving the Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) prior written notice, elect that any amounts to be applied in prepayment pursuant to Clause 12.2 ( Disposal, insurance and Excess Cashflow ) be paid into the Mandatory Prepayment Account.

 

(e) If Listco has made an election under paragraph (d) above but an Event of Default under Clause 28.1 ( Non-payment ) has occurred and is continuing or a notice of acceleration or cancellation has been given pursuant to Clause 28.16 ( Acceleration ), that election shall no longer apply and the amount of the relevant prepayment shall be immediately due and payable (unless the Majority Lenders otherwise agree in writing).

 

(f) The Agent shall notify the Lenders as soon as possible of any prepayment of any Term Loan to be made under Clause 11.4 ( Voluntary prepayment of Term Loans ) or Clause 12.2 ( Disposal, insurance and Excess Cashflow ).

 

12.4 Mandatory Prepayment Account

 

(a) Listco shall ensure that:

 

  (i) Disposal Proceeds and Insurance Proceeds in respect of which Listco has made an election under paragraph (d) of Clause 12.3 ( Application of mandatory prepayments ) are paid into a Mandatory Prepayment Account promptly upon receipt by a member of the Group; and

 

  (ii) an amount equal to any Excess Cashflow in respect of which Listco has made an election under paragraph (d) of Clause 12.3 ( Application of mandatory prepayments ) is paid into a Mandatory Prepayment Account promptly after such election,

and Listco and each Borrower irrevocably authorise the Agent to apply amounts credited to the Mandatory Prepayment Account which are required to be applied pursuant to paragraph (b) or (c) of Clause 12.2 ( Disposal, insurance and Excess Cashflow ) to pay amounts due and payable under Clause 12.3 ( Application of mandatory prepayments ) and otherwise under the Finance Documents on the last day of the Interest Period relating to the relevant Term Loan.

A Lender, Security Agent or Agent with which a Mandatory Prepayment Account is held acknowledges and agrees that (A) interest shall accrue at normal commercial rates on amounts credited to that account and, subject to there being no Event of Default continuing, that the account holder shall be entitled to withdraw or transfer such interest (which shall be paid in accordance with the mandate relating to such account) and (B) such Mandatory Prepayment Account is subject to the Transaction Security.

 

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12.5 General

 

(a) All prepayments to be made under Clause 12.2 ( Disposal, insurance and Excess Cashflow ) are subject to permissibility under local law (including, without limitation, financial assistance, corporate benefit restrictions on up-streaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant members of the Group). There will be no requirement to make any prepayment where the Tax or other cost to the Group of making that payment or making the relevant funds available to another member of the Group to enable such payment to be made is disproportionate to the amount to be prepaid. For the avoidance of doubt, such payment is disproportionate if the costs exceed an amount equal to 3 per cent. of the amount to be prepaid. Listco shall ensure that all members of the Group will use their reasonable endeavours to overcome any restrictions and/or minimise any costs of a prepayment. If at any time those restrictions are removed, any relevant proceeds will be applied in prepayment of the Facilities at the end of the next Interest Period.

 

(b) Notwithstanding Clause 12.3 ( Application of mandatory prepayments ), if a Borrower is unable to up-stream moneys required to be prepaid in accordance with this Clause 12 but can prepay Term Loans made to it otherwise than in accordance with the order of prepayment described in Clause 12.3 ( Application of mandatory prepayments ), then that Borrower will prepay Term Loans made to it unless the relevant Borrower certifies to the Lender that it is not able to as a result of matters described in paragraph (a) above.

 

12.6 Right to Refuse Prepayment

 

(a) Subject to paragraph (b) below, if a Lender (a “ Non -Accepting Lender ”) to which a proposed payment under paragraph (c) of Clause 12.2 ( Disposal, insurance and Excess Cashflow ) would otherwise be made, gives notice to the Agent by 11.00 a.m. on the third Business Day prior to the date on which a prepayment referred to in paragraph (c) of Clause 12.2 ( Disposal, Insurance and Excess Cashflow ) is to be made (or such shorter period as the Agent may agree) of its intention to waive its right to receive such prepayment, that Lender will be deemed to have waived its right to receive such prepayment to the extent specified in that notice.

 

(b) If any Non-Accepting Lender delivers any notice under paragraph (a) above, the amount in respect of which that Non-Accepting Lender has been deemed to have waived its right to prepayment under paragraph (a) above (the “ Waived Amount ”) shall be retained by the Group or (at Listco’s option) offered on a pro rata basis to the other Lenders under the Term Facilities.

 

13. RESTRICTIONS

 

13.1 Notices of cancellation or prepayment

 

(a) Subject to paragraph (b) below, any notice of cancellation or prepayment given by any Party under Clause 11 ( Illegality, voluntary prepayment and cancellation ) or Clause 12 ( Mandatory prepayment ) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

(b) Any notice of prepayment and/or cancellation given by Listco under paragraph (a) of Clause 11.3 (C ancellation ), Clause 11.4 ( Voluntary prepayment of Term Loans ) and/or Clause 11.5 ( Voluntary prepayment of Revolving Facility Utilisations ) may provide that the relevant prepayment and/or cancellation (as applicable) referred to therein is conditional.

 

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13.2 Interest and other amounts

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs and subject to Clause 17.6 ( Call premium ), without premium or penalty.

 

13.3 No reborrowing of Term Facilities

No Borrower may reborrow any part of a Term Facility which is prepaid.

 

13.4 Reborrowing of Revolving Facility

Unless a contrary indication appears in this Agreement, any part of a Revolving Facility which is prepaid may be reborrowed in accordance with the terms of this Agreement.

 

13.5 Prepayment in accordance with Agreement

No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments, except at the times and in the manner expressly provided for in this Agreement.

 

13.6 No reinstatement of Commitments

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

13.7 Agent’s receipt of notices

If the Agent receives a notice under Clause 11 ( Illegality, voluntary prepayment and cancellation ) or Clause 12 ( Mandatory prepayment ), it shall promptly forward a copy of that notice to either Listco or the affected Lender, as appropriate.

 

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SECTION 5

COSTS OF UTILISATION

 

14. INTEREST

 

14.1 Calculation of interest

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

 

  (a) Margin; and

 

  (b) LIBOR or, in relation to any Loan in euro, EURIBOR.

 

14.2 Payment of interest

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

 

14.3 Default interest

 

(a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 1 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 14.3 shall be immediately payable by the Obligor on demand by the Agent.

 

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

 

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

 

  (ii) the rate of interest applying to the overdue amount during that first Interest Period shall be 1 per cent. per annum higher than the rate which would have applied if the overdue amount had not become due.

 

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

 

14.4 Notification of rates of interest

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

 

15. INTEREST PERIODS

 

15.1 Selection of Interest Periods

 

(a) A Borrower (or Listco on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan is a Term Loan and has already been borrowed) in a Selection Notice.

 

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(b) Each Selection Notice for a Term Loan is irrevocable and must be delivered to the Agent by the Borrower (or Listco on behalf of the Borrower) to which that Term Loan was made not later than the Specified Time.

 

(c) If a Borrower (or Listco) fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will be one Month.

 

(d) Subject to this Clause 15, a Borrower (or Listco) may select an Interest Period:

 

  (i) in respect of any Euro Denominated Facility, of one, two, three or six Months; or

 

  (ii) in respect of any US$ Denominated Facility, of one, two or three Months; or

 

  (iii) (in either case) any other period agreed between Listco and the Agent (if such period is longer than six Months, acting on the instructions of all the Lenders under the relevant Facility). In addition, a Borrower (or Listco on its behalf) may select an Interest Period of a period necessary so that the last day of the relevant Interest Period matches any relevant payments under the Hedging Agreements.

 

(e) Each Interest Period for a Term Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

 

(f) A Revolving Facility Loan has one Interest Period only.

 

(g) An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its facility.

 

(h) Prior to the date on which the Arrangers confirm to Listco that syndication of Facility B1 or (as applicable) Facility B2 has been completed, Interest Periods for Facility B1 or (as applicable) Facility B2 shall, if requested by the Arrangers, be one Month (or such shorter period as the Arrangers and Listco may agree).

 

15.2 Non-Business Days

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

 

15.3 Consolidation and division of Term Loans

If two or more Interest Periods:

 

  (i) relate to Term Loans in the same currency made under the same Facility;

 

  (ii) end on the same date; and

 

  (iii) are made to the same Borrower,

those Term Loans will, unless that Borrower (or Listco on its behalf) specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Term Loan on the last day of the Interest Period.

 

16. CHANGES TO THE CALCULATION OF INTEREST

 

16.1 Absence of quotations

Subject to Clause 16.2 ( Market disruption ), if LIBOR or, if applicable, EURIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable LIBOR or EURIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.

 

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16.2 Market disruption

 

(a) If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender’s share of that Loan for the Interest Period shall be the rate per annum which is the sum of:

 

  (i) the Margin; and

 

  (ii) the rate notified to the Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

(b) In this Agreement “ Market Disruption Event ” means:

 

  (i) at or about noon on the Quotation Day for the relevant Interest Period, the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Agent to determine LIBOR or, if applicable, EURIBOR for the relevant currency and Interest Period; or

 

  (ii) before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 50 per cent. of that Loan) that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of LIBOR or, if applicable, EURIBOR.

 

16.3 Alternative basis of interest or funding

 

(a) If a Market Disruption Event occurs and the Agent or Listco so requires, the Agent and Listco shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

 

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

 

16.4 Break Costs

 

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

 

(b) Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

 

17. F EES

 

17.1 Commitment fee

Listco shall pay, or cause to be paid, to the Agent:

 

  (i) (for the account of each Original Revolving Facility Lender) a fee in the Base Currency in relation to the Original Revolving Facility, computed at the rate of 40 per cent. of the Margin in relation to the Original Revolving Facility Loans on that Lender’s Available Commitment under the Original Revolving Facility on and from the 2017 Effective Date until the end of the Availability Period applicable to the Original Revolving Facility; and

 

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  (ii) (for the account of each relevant Additional Facility Lender) a commitment fee computed at the rate and in respect of any Additional Facility, as determined in accordance with the terms of any Additional Facility Notice,

provided that (for the avoidance of doubt) no such fee shall accrue or be payable in respect of Facility B1 or Facility B2.

The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the relevant Availability Period, on the last day of the relevant Availability Period and on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective (or, in the case of an Additional Facility Loan, at such other times and/or (as the case may be) for such other periods as determined in accordance with the terms of any Additional Facility Notice).

 

17.2 Arrangement fee

Subject to a Utilisation being made under this Agreement, Listco shall pay, or cause to be paid, to the Arrangers an arrangement or any other fee in the amount and at the times agreed in a Fee Letter or a Mandate Document.

 

17.3 Agency fee

Subject to a Utilisation being made under this Agreement, Listco shall pay, or cause to be paid, to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

17.4 Fees payable in respect of Letters of Credit

 

(a) Each Borrower shall pay to the Agent for the account of the Issuing Bank a fronting fee at the rate of 0.125 per cent. per annum on the outstanding amount which is counter-indemnified by the other Lenders of each Letter of Credit requested by it for the period from the issue of that Letter of Credit until its Expiry Date.

 

(b) Each Borrower shall pay to the Agent (for the account of each Lender) a Letter of Credit fee (computed at the rate per annum equal to the Margin applicable to a Revolving Facility Loan) on the outstanding amount of each Letter of Credit requested by it for the period from the issue of that Letter of Credit until its Expiry Date. This fee shall be distributed according to each Lender’s L/C Proportion of that Letter of Credit.

 

(c) The accrued fronting fee and Letter of Credit fee on a Letter of Credit set out in paragraphs (a) and (b) above, respectively, shall be payable on the last day of each successive period of three Months (or such shorter period as shall end on the Expiry Date for that Letter of Credit) starting on the date of issue of that Letter of Credit. The accrued fronting fee and Letter of Credit fee are also payable to the Agent on the cancelled amount of any Lender’s Revolving Facility Commitment at the time the cancellation is effective if that Commitment is cancelled in full and the Letter of Credit is prepaid or repaid in full.

 

(d) If a Borrower cash covers any part of a Letter of Credit then:

 

  (i) no fronting fee shall be payable to the Issuing Bank (but the Letter of Credit fee shall be payable for the account of each Lender but calculated, for this purpose, at the rate of 50 per cent. of the Margin applicable to the Revolving Facility) until the expiry of the Letter of Credit; and

 

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  (ii) each Borrower will be entitled to withdraw the interest accrued on the cash cover to pay the fees set out in paragraph (i) above.

 

17.5 Interest, commission and fees on Ancillary Facilities

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

 

17.6 Call premium

 

(a) If any Re-pricing Event occurs at any time during the period from (and including) the Closing Date to (and including) the date falling six Months after the Closing Date, Listco shall pay, or cause to be paid, to the Agent on the date of such Re-pricing Event (for the account of each Lender whose participations in Utilisations are the subject of the relevant Re-pricing Event), in each case, a fee in an aggregate amount equal to one per cent. of that Lender’s participation in those Utilisations which are subject to that Re-pricing Event.

 

(b) In this Clause:

“ Re-pricing Event ” means:

 

  (i) any prepayment or repayment of any Utilisation with the proceeds of, or any conversion or rollover of Utilisations into, any new, additional or replacement, securities, issuance, facility, tranche or commitment (or any increase in any securities, issuance, facility, tranche or commitment) the all-in yield (determined in a manner consistent with that described in paragraph (d)(iv) of Clause 2.4 ( Additional Facilities ) of which as of the date of establishment is lower than the all-in yield (calculated on the same basis) applicable to the relevant Facility in respect of which the relevant Utilisation to be prepaid or repaid (or, as applicable, converted or rolled-over) relates as of the date of establishment of the relevant new, additional or replacement, securities, issuance, facility, tranche or commitment (or increase in any securities, issuance, facility, tranche or commitment); or

 

  (ii) any amendment to any Finance Document the effect of which is to reduce the all-in yield applicable to any Facility (in each case, calculated on a consistent basis and excluding any arrangement, structuring or other upfront fees and any prepayment fees payable in connection therewith or consequent thereon),

but in each case excluding any prepayment, repayment or amendment in connection with a Change of Control.

 

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SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

 

18. TAX GROSS-UP AND INDEMNITIES

 

18.1 Definitions

 

(a) In this Agreement:

“ Domestic Lender ” means, in relation to any Obligor other an Obligor incorporated in the United Kingdom, a Lender that is lending through a Facility Office in, and is resident for tax purposes in, the jurisdiction of incorporation of that Obligor (the “ Relevant Tax Jurisdiction ”) (provided that interest payments received through such Facility Office are included within the taxable profits of that Facility Office for the purpose of calculating that Lender’s taxable income in such jurisdiction).

“ Protected Party ” means a Finance Party which is or will be subject to any liability or required to make any payment for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

“ Qualifying Lender ” means:

 

  (i) a UK Qualifying Lender;

 

  (ii) a Domestic Lender;

 

  (iii) a Treaty Lender;

 

  (iv) a Lender to which all payments of interest and other payments on an advance under a Finance Document can be made by the relevant Obligor making the payment without a Tax Deduction being imposed; or

 

  (v) a Lender which Listco has confirmed in writing to the Agent is to be treated as a Qualifying Lender.

“ UK Qualifying Lender ” means:

 

  (i) a Lender (other than a Lender within paragraph (ii) below) which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

  (A) a Lender:

 

  (1) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document; or

 

  (2) in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made,

and which is within the charge to United Kingdom corporation tax in respect of any payments made in respect of that advance,

 

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  (B) a Lender which is:

 

  (1) a company resident in the United Kingdom for United Kingdom tax purposes;

 

  (2) a partnership, each member of which is:

 

  (a) a company so resident in the United Kingdom; or

 

  (b) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of Section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

  (3) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of Section 19 of the CTA) of that company; or

 

  (ii) a Lender that is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.

“ Tax Confirmation ” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

  (i) a company resident in the United Kingdom for United Kingdom tax purposes; or

 

  (ii) a partnership each member of which is:

 

  (A) a company so resident in the United Kingdom; or

 

  (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of Section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

  (iii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of Section 19 of the CTA) of that company.

“ Tax Credit ” means a credit against, relief or remission for, or repayment of, any Tax.

“ Tax Deduction ” means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

“ Tax Payment ” means either the increase in a payment made by an Obligor to a Finance Party under Clause 18.2 ( Tax gross-up ) or a payment under Clause 18.3 ( Tax indemnity ).

 

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“ Treaty Lender ” means a Lender which:

 

  (i) is treated as a resident of a Treaty State for the purposes of the Treaty;

 

  (ii) does not carry on a business in the jurisdiction of incorporation of the respective Obligor (or, where Listco is the relevant Obligor, the United Kingdom, unless and until such time as Listco ceases to be resident in the United Kingdom for United Kingdom tax purposes) through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and

 

  (iii) fulfils any other condition which must be fulfilled under the double taxation agreement by residents of the Treaty State for such resident to obtain exemption from taxation on interest in the Obligor’s Relevant Jurisdiction, subject to the completion of procedural formalities.

“ Treaty State ” means a jurisdiction having a double taxation agreement (a “ Treaty ”) with the jurisdiction of incorporation of the relevant Obligor (or, where Listco is the relevant Obligor, the United Kingdom, unless and until such time as Listco ceases to be resident in the United Kingdom for United Kingdom tax purposes) which makes provision for full exemption from tax imposed by the jurisdiction of incorporation of the relevant Obligor on interest.

“ UK Non-Bank Lender ” means:

 

  (i) where a Lender becomes a Party on the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation to the Agent or Listco in connection with this Agreement;

 

  (ii) where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Transfer Certificate and Lender Accession Undertaking or the Lender Accession Notice which it executes on becoming a Party.

Unless a contrary indication appears, in this Clause 18 a reference to “ determines ” or “ determined ” means a determination made in the absolute discretion of the person making the determination.

 

18.2 Tax gross-up

 

(a) Subject to Clause 18.8 ( Tax gross-up by Guarantors ), each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

(b) Listco shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender or Issuing Bank shall notify the Agent on becoming so aware in respect of a payment payable to that Lender or Issuing Bank. If the Agent receives such notification from a Lender or Issuing Bank it shall promptly notify Listco and that Obligor.

 

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

 

(d)

Other than with respect to the US Co-Borrower, an Obligor is not required to make an increased payment to a Lender under paragraph (c) above for a Tax Deduction in respect of Tax imposed

 

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  by the respective Obligor’s Relevant Jurisdiction from a payment, if on the date on which the payment falls due:

 

  (i) the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority;

 

  (ii) the relevant Lender is a Qualifying Lender solely under paragraph (i)(B) of the definition of ‘UK Qualifying Lender’; and

 

  (A) the Board of HM Revenue and Customs has given (and not revoked) a direction (a “ Direction ”) under section 931 of the ITA which relates to that payment and that Lender has received from that Obligor or Listco a certified copy of that Direction; and

 

  (B) the payment could have been made to the Lender without any Tax Deduction in the absence of that Direction; or

 

  (iii) the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of ‘UK Qualifying Lender’ and;

 

  (A) the relevant Lender has not given a Tax Confirmation to Listco; and

 

  (B) the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to Listco, on the basis that the Tax Confirmation would have enabled Listco to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA;

 

  (iv) the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) below; or

 

  (v) the relevant Lender is a Treaty Lender and the relevant Obligor is incorporated in the United Kingdom and it has not received a direction (other than that of a provisional nature) from HM Revenue and Customs which is in full force and effect entitling the relevant Obligor to make such payment to that Lender without deducting United Kingdom Tax.

 

(e) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

(f) Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

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(g) A Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction (including the filing of any relevant tax forms prior to the end of an Interest Period).

 

(h) A UK Non-Bank Lender shall promptly notify Listco and the Agent if there is any change in the position from that set out in the Tax Confirmation given by it.

 

(i) A Guarantor shall only be obliged to make a payment for or on account of a Tax Deduction if that payment would have been required to be made by the respective Obligor on the underlying liability.

 

18.3 Tax indemnity

 

(a) Subject to Clause 18.8 ( Tax gross-up by Guarantors ), each Obligor shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

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

 

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

 

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

 

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

 

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

 

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

 

  (A) is compensated for by an increased payment under Clause 18.2 ( Tax gross-up );

 

  (B) would have been compensated for by an increased payment under Clause 18.2 ( Tax gross-up ) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 18.2 ( Tax gross-up ) applied;

 

  (C) where the relevant Finance Party is a Lender, to the extent such loss, liability or cost would not have been suffered if the relevant Finance Party was a Qualifying Lender, but on the relevant date that Finance Party is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or

 

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

 

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(c) A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify Listco (or the relevant Obligor).

 

(d) A Protected Party shall, on receiving a payment from an Obligor under this Clause 18.3, notify the Agent.

 

18.4 Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

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

 

  (b) that Finance Party has obtained, utilised and retained that Tax Credit,

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

 

18.5 Lender status confirmation

Each Lender which becomes a Party to this Agreement after the Closing Date shall state, in the Transfer Certificate and Lender Accession Undertaking or the Lender Accession Notice which it executes on becoming a party (or, if it becomes a Lender pursuant to an assignment, in a notice delivered to Listco), which of the following categories it falls into:

 

  (a) a Qualifying Lender (other than a Treaty Lender); or

 

  (b) a Treaty Lender.

If a New Lender does not provide information as to its status in accordance with this Clause 18.5 then such New Lender shall be treated for the purposes of this Agreement as if it is not a Qualifying Lender until such time as it provides such information.

Any Lender of Facility B1 or Revolving Facility Lender which was a Qualifying Lender immediately prior to (in the case of a Lender of Facility B1) the 2017 Additional Facility Effective Time and (in the case of a Revolving Facility Lender) the 2017 Effective Date (in each case, in its capacity as a Lender under (and as defined in) the Original Facilities Agreement (as defined in the 2017 Amendment and Restatement Agreement)) shall continue to be a Qualifying Lender in its capacity as a Lender of Facility B1 or a Revolving Facility Lender notwithstanding the occurrence of the 2017 Additional Facility Effective Time (or any redesignation of commitments or participations as contemplated in the 2017 Amendment and Restatement Agreement) or (as applicable) the 2017 Effective Date or any provision of this Agreement to the contrary.

 

18.6 Stamp taxes

 

(a) Listco shall pay, or cause to be paid, and, within three Business Days of demand, indemnify each Finance Party and Arranger against any cost, loss or liability that the Finance Party or Arranger incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document, provided that this Clause 18.6 shall not apply in respect of any stamp duty, registration and other similar Taxes which are payable in respect of an assignment, transfer or other alienation of any kind by a Lender of any its rights and/or obligations under a Finance Document.

 

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(b) The Parties hereto agree that no Party shall bring, send to or otherwise produce in Austria (i) an original copy, notarised copy, certified copy or a substitute documentation ( Ersatzbeurkundung und/oder rechtsbezeugende Beurkundung ) of any Finance Document or other document which refers to any Finance Document, or (ii) a copy of any Finance Document or other document which refers to any Finance Document signed or endorsed by one or more Parties (the “ Stamp Duty Sensitive Documents ”); in addition, the Parties hereto agree that no Party shall send (iii) Stamp Duty Sensitive Documents to an Austrian addressee by fax, (iv) any e-mail communication to which an electronic scan copy (e.g. pdf or tif) of a Stamp Duty Sensitive Document is attached to an Austrian addressee or (v) any e-mail communication carrying an electronic or digital signature which refers to a Stamp Duty Sensitive Document to an Austrian addressee other than in the event that:

 

  (i) this does not cause a liability of a Party to pay stamp duty or other Tax in Austria;

 

  (ii) a Party wishes to enforce any of its rights under or in connection with such Finance Document in Austria and is only able to do so (including, without limitation, for reason of any objection or defence raised by an Obligor or a Guarantor in any form of proceedings in Austria) by bringing, sending to or otherwise producing in Austria (1) an original copy, notarised copy or certified copy of the relevant Finance Document or other document which refers to any Finance Document or (2) a copy of any Finance Document or other document which refers to any Finance Document signed or endorsed by one or more Party and it would not be sufficient for that Party to bring, send to or otherwise produce in Austria a simple copy (a copy which is not an original copy, notarised copy or certified copy) of the relevant Finance Document or other document which refers to any Finance Document for the purposes of such enforcement; in furtherance of the foregoing, a Party shall (I) not object to the introduction into evidence of an uncertified copy of any Finance Document or other document which refers to any Finance Document or raise a defence to any action or to the exercise of any remedy on the basis of an original or certified copy of any Finance Document or other document which refers to any Finance Document not having been introduced into evidence, unless such uncertified copy actually introduced into evidence does not accurately reflect the content of the original document and (II) if such Party is a party to the proceedings before such Austrian court or authority, stipulate as to the accuracy ( Echtheit ) of an uncertified copy of any such Finance Document or other document which refers to any Finance Document, unless such uncertified copy actually introduced into evidence does not accurately reflect the content of the original document; or

 

  (iii) a Party is required by law, governmental body, court, authority or agency pursuant to any law or legal requirement, to bring an original or certified copy of any Finance Document or other document which refers to any Finance Document into Austria.

 

(c)

If and to the extent that a breach by any Party of any obligation under paragraph (b) of this Clause 18.6 results in any cost, loss or liability being incurred by any of the other Parties in relation to any Austrian stamp duty payable in respect to any Finance Document, the Party responsible for such breach shall pay and indemnify such other Parties against any such cost,

 

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  loss or liability which such other Parties incur as a consequence of such breach, provided that a Finance Party shall only be liable where such cost, loss or liability is incurred as a result of its gross negligence or wilful misconduct.

 

18.7 Value added tax

 

(a) All amounts set out in or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and, accordingly, subject to paragraph (c) below, if VAT is chargeable on any supply made by any Finance Party to any Party under a Finance Document and that Finance Party (or any other member of any group of which it is a member for VAT purposes) is required to account to the relevant tax authority for the VAT, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).

 

(b) If VAT is chargeable on any supply made by any Finance Party (the “ Supplier ”) to any other Finance Party (the “ Recipient ”) under a Finance Document, and any Party (the “ Relevant Party ”) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Relevant Party an amount equal to any credit or repayment from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply.

 

(c) Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that neither it nor any other member of any group of which it is a member for VAT purposes is entitled to credit or repayment from the relevant tax authority in respect of the VAT.

 

18.8 Tax gross-up by Guarantors

A Guarantor shall not be required to make an additional payment under Clause 18.2 ( Tax gross-up ) or Clause 18.3 ( Tax indemnity ) in respect of a Guarantee Payment Amount to the extent that the Borrower which is principally liable for the amounts which constitute the Guarantee Payment Amount would not be required to make an additional payment under Clause 18.2 ( Tax gross-up ) or Clause 18.3 ( Tax indemnity ) if it were to make payment of the Guarantee Payment Amount in place of the relevant Guarantor and, if required to make such payment, the Guarantor would only be liable to the same extent as such Borrower. For the purposes of this Clause 18.8, “ Guarantee Payment Amount ” means any amount for which a Guarantor is liable pursuant to the operation of Clause 23 ( Guarantee and indemnity ).

 

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18.9 FATCA Information

 

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

 

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

 

  (A) a FATCA Exempt Party; or

 

  (B) not a FATCA Exempt Party;

 

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

 

  (iii) supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

 

(b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be, a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

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

 

  (i) any law or regulation;

 

  (ii) any fiduciary duty; or

 

  (iii) any duty of confidentiality.

 

(d) If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

18.10 FATCA Deduction

 

(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify Listco, the Agent and the other Finance Parties.

 

18.11 US Tax Treatment

The Parties, if and to the extent permitted under of applicable law, agree to treat any Loan to the US Co-Borrower as a Loan to Luxco (and not as a Loan to the US Co-Borrower) for US federal income tax purposes.

 

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19. INCREASED COSTS

 

19.1 Increased Costs

 

(a) Subject to Clause 19.3 ( Exceptions ), Listco shall, within three Business Days of a demand by the Agent, pay, or cause to be paid, for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation, (ii) compliance with any law or regulation made after the Closing Date or (iii) the implementation or application of or compliance with the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “ Dodd-Frank Act ”) and any requests, rules, guidelines or directives made under, or issued in connection with, the Dodd-Frank Act.

 

(b) In this Agreement “ Increased Costs ” means:

 

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

 

  (ii) an additional or increased cost; or

 

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

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

 

19.2 Increased Cost claims

 

(a) A Finance Party intending to make a claim pursuant to Clause 19.1 ( Increased Costs ) shall promptly and in any event within 6 months of the occurrence of the event giving rise to the claim notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify Listco.

 

(b) Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

 

(c) In respect of Clause 19.1 ( Increased Costs ), this Clause 19.2 and the payment of any Increased Costs attributable to the implementation of or compliance with Dodd-Frank Act, the obligation to pay such costs to the Lender shall be subject to the Lender confirming to Listco, at the relevant time that any such costs are due, that the payment of such costs is consistent with the general approach that the Lender is taking for similar facilities with similarly rated obligors.

 

(d) Nothing in paragraph (c) above shall require the relevant Lender to disclose any information which is of a price sensitive nature or where that Lender is under a contractual duty of confidentiality or where the provision of such information will result in a breach of law or regulation.

 

19.3 Exceptions

 

(a) Clause 19.1 ( Increased Costs ) does not apply to the extent any Increased Cost is:

 

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

 

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

 

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  (iii) compensated for by Clause 18.3 ( Tax indemnity ) (or would have been compensated for under Clause 18.3 ( Tax indemnity ) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 18.3 ( Tax indemnity ) applied);

 

  (iv) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

 

20. OTHER INDEMNITIES

 

20.1 Currency indemnity

 

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

 

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

 

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

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

 

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

 

20.2 Other indemnities

Listco shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Arranger and each other Finance Party against (i) any Break Costs of any Lender that arise as a result of any condition to any prepayment and/or cancellation of any Facility as specified in any notice of prepayment and/or cancellation given by Listco under Clause 11.3 ( Cancellation ), Clause 11.4 (V oluntary prepayment of Term Loans ) and/or Clause 11.5 ( Voluntary prepayment of Revolving Facility Utilisations ) not being satisfied and the corresponding prepayment and/or cancelation not being made (or not being made in full) on the date specified in such notice, and (ii) any cost, loss or liability incurred by it as a result of:

 

  (a) the occurrence of any Event of Default;

 

  (b) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including, without limitation, any cost, loss or liability arising as a result of Clause 34 ( Sharing among the Finance Parties );

 

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

 

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  (d) issuing or making arrangements to issue a Letter of Credit requested by Listco or a Borrower in a Utilisation Request, but not issued by reason of the operation of any one or more of the provisions of this Agreement; or

 

  (e) a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by a Borrower or Listco.

 

20.3 Indemnity to the Agent

Listco shall promptly indemnify the Agent against any reasonable cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

 

  (a) investigating any event which it reasonably believes is a Default;

 

  (b) entering into or performing any foreign exchange contract for the purposes of paragraph (b) of Clause 35.9 ( Change of currency ); or

 

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

 

20.4 Transaction indemnit y

Listco shall promptly indemnify each Arranger, each of the Agent and the Security Agent, and each of their respective Affiliates, and each officer or employee of any such person, against any reasonable cost, loss or liability incurred by an Arranger and/or the Agent and/or the Security Agent, or any of their respective Affiliates (or officer or employee of any such person) in connection with or arising out of the transactions contemplated by this Agreement, the 2017 Amendment and Restatement Agreement, the Intercreditor Agreement or any other Finance Document, unless such loss or liability is caused by the gross negligence or wilful misconduct of that Arranger or Agent or Security Agent or its Affiliate.

Any Affiliate or any officer or employee of an Arranger, Agent or Security Agent or any of their Affiliates may rely on this Clause 20.4.

 

21. MITIGATION BY THE LENDERS

 

21.1 Mitigation

 

(a) Each Finance Party shall, in consultation with Listco, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 11.1 ( Illegality ) (or, in respect of the Issuing Bank, Clause 11.2 ( Illegality in relation to an Issuing Bank )), Clause 18 ( Tax gross-up and indemnities ) or Clause 19.1 ( Increased Costs ) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

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

 

21.2 Limitation of liability

 

(a) Listco shall indemnify, or shall cause a member of the Group to indemnify, each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 21.1 ( Mitigation ).

 

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(b) A Finance Party is not obliged to take any steps under Clause 21.1 ( Mitigation ) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it in any material respect.

 

22. COSTS AND EXPENSES

 

22.1 Transaction expenses

Listco shall, within 20 Business Days of demand, pay, or cause to be paid, to the Agent, the Arrangers, the Issuing Bank and the Security Agent the amount of all reasonable legal costs and expenses (but, for the avoidance of doubt, no other costs or expenses) reasonably incurred by any of them (and, in the case of the Security Agent, by any Receiver or Delegate) in connection with the negotiation, preparation, perfection and syndication of:

 

  (a) the Finance Documents and any other documents referred to in this Agreement, the 2017 Amendment and Restatement Agreement, the Intercreditor Agreement and the Transaction Security; and

 

  (b) any other Finance Documents executed after the Closing Date.

 

22.2 Amendment costs

If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 35.9 ( Change of currency ), Listco shall, within three Business Days of demand, reimburse, or cause a member of the Group to reimburse, each of the Agent and the Security Agent for the amount of all reasonable costs and expenses (including legal fees) incurred by the Agent and the Security Agent (and, in the case of the Security Agent, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.

 

22.3 Enforcement and preservation costs

Listco shall, within three Business Days of demand, pay, or cause to be paid, to each Arranger and each other Finance Party the amount of all costs and expenses (including legal fees) incurred by it in connection with the enforcement of or, after a Declared Default or an RCF Declared Default, the preservation of any rights under any Finance Document and the Transaction Security and any proceedings instituted by or against the Security Agent as a consequence of taking or holding the Transaction Security or enforcing these rights.

 

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SECTION 7

GUARANTEE

 

23. GUARANTEE AND INDEMNITY

 

23.1 Guarantee and indemnity

Each Guarantor irrevocably and unconditionally, jointly and severally:

 

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

 

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

 

  (iii) indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance Party if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.

 

23.2 Continuing guarantee

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

 

23.3 Reinstatement

If any payment by an Obligor or any discharge given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event:

 

  (a) the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and

 

  (b) each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.

 

23.4 Waiver of defences

The obligations of each Guarantor under this Clause 23 will not be affected by an act, omission, matter or thing which, but for this Clause 23, would reduce, release or prejudice any of its obligations under this Clause 23 (without limitation and whether or not known to it or any Finance Party), including:

 

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

 

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

 

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

 

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

 

  (e) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (however fundamental and of whatsoever nature) or replacement of a Finance Document or any other document or security;

 

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

 

  (g) any insolvency or similar proceedings.

 

23.5 Guarantor intent

 

(a) Without prejudice to the generality of Clause 23.4 ( Waiver of defences ), each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purpose of or in connection with any of the following: acquisitions of any nature, increasing working capital, enabling investor distributions to be made, carrying out restructurings, refinancing existing facilities, refinancing any other indebtedness, making facilities available to new borrowers, any other variation or extension of the purposes for which any facility or amount might be made available from time to time, and any fees, costs and/or expenses associated with any of the foregoing.

 

(b) Notwithstanding any other provision of the Finance Documents the guarantee and indemnity granted by a Guarantor incorporated in Austria (an “ Austrian Guarantor ”), is meant to be and shall be interpreted as abstract guarantee ( abstrakter Garantievertrag ) and the obligations of such Austrian Guarantor shall be obligations as principal debtor and not as surety ( Bürgschaft ) and not as a joint obligation as a borrower ( Mitschuldner ) and such Austrian Guarantor undertakes to pay the amounts so demanded under or pursuant to this guarantee and indemnity unconditionally, irrevocably, upon first demand and without raising any defences or objections, set-off or counterclaim and without verification of the legal ground ( unbedingt, unwiderruflich, auf erste Aufforderung und unter Verzicht auf alle Einwendungen oder Einreden, ohne Aufrechnung oder die Geltendmachung von Gegenforderungen und ohne Prüfung des Rechtsgrunds ).

 

23.6 Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 23. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

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23.7 Appropriations

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

 

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

 

  (b) hold in an interest-bearing suspense account any money received from any Guarantor or on account of any Guarantor’s liability under this Clause 23.

 

23.8 Deferral of Guarantors’ rights

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

 

  (a) to be indemnified by an Obligor;

 

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

 

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

 

  (d) to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 23.1 ( Guarantee and indemnity );

 

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

 

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

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 35 ( Payment mechanics ).

 

23.9 Release of Guarantors’ right of contribution

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

 

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

 

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

 

23.10 Additional security

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

 

23.11 Limitations on obligations of German Guarantors

In relation to each Guarantor incorporated in the Federal Republic of Germany in the form of a GmbH or GmbH & Co. KG (a “ German Guarantor ”), the following limitations shall apply:

 

  (a) The Finance Parties agree, other than in accordance with the procedure set out in the following paragraphs of this Clause 23, not to enforce any guarantee created hereunder granted by a German Guarantor if and to the extent that such guarantee is an up-stream or cross-stream guarantee and the enforcement would otherwise lead to the situation that it would create or aggravate an existing under-balance ( Unterbilanz ) of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner) and that such German Guarantor did not have sufficient net assets (i.e. assets minus liabilities and liability reserves ( Reinverm ö gen )) to maintain its (or, in the case of a GmbH & Co. KG, its general partner’s) stated share capital ( Stammkapital ) whereby the net assets shall be determined in accordance with applicable law at the time of the determination, provided that for the purposes of the calculation of the amount to be enforced (if any) the following balance sheet items shall be adjusted as follows:

 

  (i) the amount of any increase of stated share capital of such German Guarantor (or, in the case of a GmbH & Co. KG, the stated share capital of its general partner) after the Closing Date which is not permitted under the Finance Documents shall be deducted from the stated share capital;

 

  (ii) loans and other contractual liabilities incurred by such German Guarantor, and/or, in the case of a GmbH & Co. KG, its general partner, in violation of the provisions of any of the Finance Documents shall be disregarded to the extent that such violation results from grossly negligent or wilful misbehaviour; and

 

  (iii) to the extent payment under the guarantee would deprive a German Guarantor, or (in the case of a GmbH & Co. KG) the general partner of such German Guarantor, of the liquidity necessary to fulfil its financial liabilities to its creditors (a “ Liquidity Impairment ”), then, for the determination of the net assets, the assets of such German Guarantor or, in the case of a GmbH & Co. KG, the assets of its general partner shall be calculated at the lesser of their book value ( Buchwert ) and their realisation value assuming a negative prognosis for the business continuance ( Liquidationswert bei negativer Fortführungsprognose ).

 

  (b)

The limitations set out in the preceding paragraph shall only apply if and to the extent that (i) within 15 Business Days following the making of a demand against a German

 

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  Guarantor under the guarantee created hereunder the relevant German Guarantor has confirmed in writing to the Agent (x) to what extent the guarantee is an up-stream or cross-stream guarantee as described in paragraph (a) above and (y) which amount of such cross-stream and/or up-stream guarantee cannot be enforced as it would cause the net assets of such German Guarantor or, in the case of a GmbH & Co. KG, its general partner to fall below its stated share capital or create or aggravate an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner) (taking into account the adjustments set out in paragraph (a) above) (the “ Management Determination ”); and (ii) if the Agent (acting on the instructions of the Majority Lenders) contests the Management Determination (arguing that no or a lesser amount would be necessary to maintain the stated share capital or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner)), within 40 Business Days of the date the Agent has notified the respective German Guarantor that the Majority Lenders have contested the Management Determination, the Agent receives a determination by auditors of international standard and reputation (the “ Auditor’s Determination ”) appointed by the German Guarantor of the amount that would have been necessary on the date the demand under the guarantee was made to maintain its or its general partner’s stated share capital or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner).

 

  (c) If the Agent acting on the instructions of the Majority Lenders disagrees with the Auditor’s Determination, it shall notify the respective German Guarantor accordingly. The Finance Parties shall only be entitled to enforce the guarantee up to the amount which is undisputed between themselves and the respective German Guarantor in accordance with the provisions of paragraph (b) above. In relation to the amount which is disputed by the Majority Lenders, the Finance Parties shall be entitled to further pursue their claims under this guarantee (if any) in court but shall bear the burden of proof that the Auditor’s Determination is incorrect; it being understood, for the avoidance of doubt, that the respective German Guarantor shall not be obliged to pay such further amount claimed by the Finance Parties on demand.

 

  (d) If the guarantee was enforced without limitation because the Management Determination and/or the Auditor’s Determination (as the case may be) was not delivered within the relevant timeframe, the Finance Parties shall repay to the respective German Guarantor any amount which is necessary to maintain its stated share capital or, in the case of a GmbH & Co. KG, that of its general partner or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner), calculated as of the date the demand under the guarantee was made and in accordance with paragraph (a) above.

 

  (e) In the case that any German Guarantor claims in accordance with the provisions of paragraphs (b) and (d) above that the guarantee granted hereunder can only be enforced in a limited amount (as set out above), the relevant German Guarantor (or, in the case of a GmbH & Co. KG, its general partner) shall realise 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 to the extent legally permitted and commercially justifiable.

 

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  (f) The limitations set out in this Clause 23 shall apply mutatis mutandis to all payment obligations of a German Guarantor incurred under or in connection with the Finance Documents in respect of the obligations of any of its Holding Companies or Affiliates (other than any of its Subsidiaries) under or in connection with the Finance Documents (by way of indemnification or otherwise).

 

  (g) The limitations set out in this Clause 23.11 do not apply if and to the extent that the German Guarantor is a party to a domination and/or profit and loss pooling agreement ( Beherrschungs- und/oder Gewinnabf ü hrungsvertrag ) as dominated entity, provided that the enforcement of the guarantee and/or other payment obligations does not lead to a violation of the capital maintenance requirement as set out in Section 30 para 1 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschr ä nkter Haftung ).

 

23.12 Limitations on obligations of Austrian Guarantors

 

(a) To the extent that the guarantee and indemnity in this Clause 23 is given by any Austrian Guarantor, any and all obligations ( Verpflichtungen ) and liabilities ( Haftungen ) of an Austrian Guarantor under such guarantee and indemnity shall at all times be limited so that at no time the assumption of a liability ( Haftungen ) and/or obligation ( Verpflichtung ) shall be required to the extent that such liability ( Haftung ) or obligation ( Verpflichtung ) would violate Austrian capital maintenance rules ( Kapitalerhaltungsvorschriften ) pursuant to Austrian company law, in particular sections 82 et seq. of the Austrian Act on Limited Liability Companies ( Gesetz ü ber Gesellschaften mit beschr ä nkter Haftung ) and/or sections 52 and 65 et seq. of the Austrian Stock Corporation Act ( Aktiengesetz ) (the “ Austrian Capital Maintenance Rules ”). Should any obligation ( Verpflichtung ) and/or liability ( Haftung ) of an Austrian Guarantor under the guarantee and indemnity in this Clause 23 violate or contradict the Austrian Capital Maintenance Rules and therefore be held invalid or unenforceable in whole or in part or should the assumption or enforcement of such obligation ( Verpflichtung ) or liability ( Haftung ) expose any managing director or member of the supervisory board of any Austrian Guarantor to personal liability or criminal responsibility, such obligation/or liability shall be deemed to be replaced by an obligation ( Verpflichtung ) and/or liability ( Haftung ) of a similar nature (i) which is in compliance with the Austrian Capital Maintenance Rules, (ii) which does not expose the managing directors or members of the supervisory board of the Austrian Guarantor to any personal liability or criminal responsibility; and (iii) which provides the best possible security interest admissible in accordance with the Austrian Capital Maintenance Rules in favour of the Finance Parties. By way of example, should it be held that the guarantee and indemnity pursuant to this Clause 23 contradicts the Austrian Capital Maintenance Rules in relation to any amount of the obligations secured by such guarantee and indemnity, the guarantee and indemnity pursuant to this Clause 23 shall be reduced to such an amount which is permitted pursuant to the Austrian Capital Maintenance Rules, and potentially even to zero.

 

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23.13 Limitations on obligations of Belgian Guarantors

The Finance Parties agree that the liability of any Guarantor incorporated in Belgium (a “ Belgian Guarantor ”) under the Finance Documents and the Senior Secured Notes Finance Documents (as defined in the Intercreditor Agreement) in relation to the Original Senior Secured Notes shall in all circumstances be limited to an amount equal to: (a) any intra-group loans or facilities made to a Belgian Guarantor by any other member of the Group (whether or not such intra-group loan is retained by the Belgian Guarantor for its own purposes or on-lent to another member of the Group); or (b) 85 per cent. of the 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) of that Belgian Guarantor calculated on the basis of the most recent audited annual accounts available at the date on which the relevant demand is made, whichever amount is higher. In addition, any guarantee granted by a Belgian Guarantor shall not include any liability which would constitute unlawful financial assistance, as determined under article 329 or 629 (or equivalent) of the Belgian Companies Code, nor unlawful dividend distribution, as determined under article 320 or 617 (or equivalent) of the Belgian Companies Code.

 

23.14 Limitations on obligations of Finnish Guarantors

The obligations and liabilities of each Guarantor incorporated in Finland (each a “ Finnish Guarantor ”) in its capacity as a Guarantor under the Finance Documents shall be limited if (and only if), and only to the extent they would constitute (i) unlawful financial assistance within the meaning of Chapter 13 Section 10 of the Finnish Companies Act (1.9.2006/624, as amended, the “ Finnish Companies Act ”) or (ii) unlawful distribution of assets within the meaning of Chapter 13 Section 1 of the Finnish Companies Act and it is agreed that the liability of each Finnish Guarantor under the Finance Documents only applies to the extent permitted by the above mentioned provisions of the Finnish Companies Act.

 

23.15 Limitations on obligations of Luxembourg Guarantors

 

(a) Notwithstanding the foregoing and any other provision of any Finance Document to the contrary, the obligations and liabilities of any Luxembourg Guarantor under any Finance Document for the obligations of any other Obligor (other than that Luxembourg Guarantor) which is not a Subsidiary of that Luxembourg Guarantor shall be limited at any time (with no double counting), to an aggregate amount not exceeding 90-95 per cent. of the greater of:

 

  (i)

the sum of (i) the Luxembourg Guarantor’s own funds ( capitaux propres ) (as referred to in Annex I to the Grand-Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the Luxembourg law of 19 December 2002 on the commercial companies’ register and the accounting and annual accounts of undertakings, as amended (the “ Own Funds ”)) and (ii) any intragroup debt owed by such Luxembourg Guarantor to any of its direct or indirect shareholders and to any member of the Group which is subordinated in accordance with the Debt Documents (as determined by Annex 1 of the Grand-Ducal Regulation of 18 December 2015 in relation to, inter alia, article 34 of the Luxembourg law of 19 December 2002 on the Register of Commerce and Companies, on accounting and on annual accounts of the companies) (the debts referred to in (ii) is referred to as the “ Subordinated Affiliate Debt ”), in each case as determined on the

 

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  basis of the then latest available annual accounts of the Luxembourg Guarantor duly established in accordance with applicable accounting rules, as at the date this Agreement was entered into; or

 

  (ii) the sum of (i) the Own Funds and (ii) the Subordinated Affiliate Debt, in each case as determined on the basis of the then latest available annual accounts of the Luxembourg Guarantor duly established in accordance with applicable accounting rules), as at the date on which the guarantee or security is called or enforced.

 

(b) Where, for the purpose of the above determination, (i) no duly established annual accounts are available for the relevant reference period (which will include a situation where, in respect of the determinations to be made above, no final annual accounts have been established in due time in respect of the then most recently ended financial year) or (ii) the relevant annual accounts do not adequately reflect the status of the Subordinated Affiliate Debt or Own Funds as envisaged above, in the sole opinion of the security agent, acting reasonably or (iii) the Luxembourg Guarantor has taken corporate or contractual actions having resulted in the increase or decrease of its Own Funds or its Subordinated Affiliate Debt since the close of its last financial year, the Own Funds and the Subordinated Affiliate Debt will be valued either (i) at the fair market value or (ii) if no such market value has been determined, in accordance with the generally accepted accounting principles in Luxembourg and the relevant provisions of the Luxembourg law of 19 December 2002 on the commercial companies’ register and the accounting and annual accounts of undertakings, as amended.

 

(c) For the purpose of calculating the amounts available from a Luxembourg Guarantor under the guarantee granted under this Clause 23, any amount called from such Luxembourg Guarantor pursuant to clause 28 ( Guarantee and Indemnity ) of the Intercreditor Agreement and/or under any Second Lien Debt Notes Guarantees (as defined in the Intercreditor Agreement) shall be taken into account, without double counting.

 

23.16 Limitations on obligations of Norwegian Guarantors

Without limiting the generality of the foregoing, the obligations and liabilities of any Guarantor incorporated in Norway (each a “ Norwegian Guarantor ”) in its relevant capacity under the Finance Documents shall be limited if (and only if) required by the mandatory provisions of the Norwegian Private Limited Liability Companies Act of 13 June 1997 No. 44 or the Norwegian Public Limited Liability Companies Act of 13 June 1997 No. 45 (as the case may be) (the “ Norwegian Companies Act ”), including but not limited to Sections 8-7 and 8-10 cf. Sections 1-3 and 1-4, regulating unlawful financial assistance and other restrictions on a Norwegian limited liability company’s capacity or ability to grant guarantees and joint and several liability, loans or security interests. It is understood that the obligations and liabilities of each Norwegian Guarantor under the Finance Documents shall always be interpreted so as to make each Norwegian Guarantor liable to the fullest extent permitted by the above provisions of the Norwegian Companies Act.

 

23.17 Limitations on obligations of Spanish Guarantors

Notwithstanding the foregoing and any other provisions of this Agreement, the obligations and liabilities of any Spanish Guarantor under this Clause 23 or any other provision of this Agreement, shall be deemed not to be assumed by such Spanish Guarantor to the extent that they constitute or may constitute unlawful financial assistance within the meaning of article 150

 

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of the Spanish Companies Law (where the company is a Spanish public company ( Sociedad Anónima )) or article 143 of the Spanish Companies Law (where the company is a Spanish limited liability company ( Sociedad de Responsabilidad Limitada )). Accordingly, the obligations and liabilities of any Spanish Guarantor under this Clause 23, Clause 31.4 ( Additional Guarantors ) or any other provision of this Agreement, the Intercreditor Agreement, any Accession Letter or Debtor Accession Deed (as defined in the Intercreditor Agreement) and any of the other Finance Documents shall not include and shall not be extended to any repayment obligations in respect of financing used in or towards (i) payment of or refinance of the purchase price or subscription for the shares or quotas in the Spanish Guarantor and/or the acquisition of or subscription for the shares or quotas in its controlling corporation directly or indirectly (or, where the company is a Spanish limited liability company ( Sociedad de Responsabilidad Limitada ), of any company of its group) or (ii) repaying or refinancing a financing used for the purposes stated in (i) above. Likewise, the obligations and liabilities of any Spanish Guarantor under this Clause 23, Clause 31.4 ( Additional Guarantors ) or any other provision of this Agreement, the Intercreditor Agreement, any Accession Letter or Debtor Accession Deed (as defined in the Intercreditor Agreement) and any of the other Finance Documents shall not include and shall not be extended to any obligations which could reasonably be expected to result in a breach of article 401 et seq of the Spanish Companies Law.

 

23.18 Limitations on obligations of Swedish Obligors

The obligations and liabilities of each Swedish Obligor under any Finance Document shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act ( Sw. Aktiebolagslag (2005:551 )) regulating:

 

  (a) unlawful distribution of assets and transfer of value ( Sw. värdeöverföring ) pursuant to Chapter 17, Sections 1 to 4 of the Swedish Companies Act; and

 

  (b) prohibited loans, security and guarantees pursuant to Chapter 21, Section 1 to 3 of the Swedish Companies Act.

 

23.19 Limitations on obligations of US Guarantors

Notwithstanding anything to the contrary contained herein or in any other Finance Document, the maximum liability of each US Guarantor under this Clause 23 ( Guarantee and indemnity ) shall in no event exceed an amount equal to the greatest amount that would not render such US Guarantor’s obligations hereunder and under the other Finance Documents subject to avoidance under the US Bankruptcy Laws or to being set aside, avoided or annulled under any Fraudulent Transfer Law.

 

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SECTION 8

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

 

24. REPRESENTATIONS

 

24.1 General

Each Obligor (unless otherwise stated below) makes the applicable representations and warranties set out in this Clause 24 on the dates set out in Clause 24.22 ( Times when representations made ) to each Finance Party.

Status, authorisations and governing law

 

24.2 Status

 

(a) It and each of its Subsidiaries (which is a Material Company) is duly incorporated with limited liability and validly existing under the law of its jurisdiction of incorporation.

 

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

 

24.3 Binding obligations

Subject to the Legal Reservations and, in the case of paragraph (b) below, the Perfection Requirements:

 

  (a) the obligations expressed to be assumed by it in each Transaction Document to which it is a party are legal, valid, binding and enforceable obligations; and

 

  (b) (without limiting the generality of paragraph (a) above) each Transaction Security Document to which it is a party creates the security interests which that Transaction Security Document purports to create and those security interests are valid and effective in all material respects.

 

24.4 Non-conflict with other obligations

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

 

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

 

  (b) contravene its constitutional documents in any material respect; or

 

  (c) breach any agreement or instrument binding upon it to an extent which has a Material Adverse Effect.

 

24.5 Power and authority

 

(a) It has the power to enter into, perform and deliver, and has taken or will have taken prior thereto all necessary action to authorise its entry into, performance and delivery of, the Transaction Documents to which it is or will be a party and the transactions contemplated by those Transaction Documents.

 

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

 

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24.6 Validity and admissibility in evidence

 

(a) Subject to the Legal Reservations and the Perfection Requirements, all Authorisations required:

 

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

 

  (ii) to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,

have been obtained or effected and are (or will be) in full force and effect.

 

(b) All Authorisations necessary for the conduct of the business, trade and ordinary activities of members of the Group have been obtained or effected and are in full force and effect if failure to obtain or effect those Authorisations has a Material Adverse Effect.

 

24.7 Governing law and enforcement

 

(a) Subject to the Legal Reservations, the choice of law by which a Finance Document (to which it is a party) is expressed to be governed will be recognised and enforced in its Relevant Jurisdictions.

 

(b) Subject to the Legal Reservations, any judgment obtained from a court expressed to have jurisdiction in relation to a Finance Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.

No default or tax liability

 

24.8 No default

 

(a) On the Closing Date:

 

  (i) no Event of Default is continuing; and

 

  (ii) no default (however defined) is continuing under any Transaction Document that is not a Finance Document which has a Material Adverse Effect.

 

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

 

24.9 Taxation

 

(a) It is not (and none of its Subsidiaries being a Material Company is) overdue (taking into account any extension or grace period) in the filing of any Tax returns to an extent which has or would have a Material Adverse Effect.

 

(b) The US Co-Borrower is and shall be treated as an entity disregarded from Luxco for US federal income tax purposes, the US Co-Borrower’s regarded owner is not and shall not be a US Tax Obligor, and the US Co-Borrower and its regarded owner are not engaged and shall not engage in a US trade or business for US tax purposes.

Provision of information - general

 

24.10 No misleading information

 

(a) All factual information contained in the Information Memorandum in relation to the Group and its holding companies is true and accurate in all material respects as at the date thereof or (as the case may be) as at the date the information is expressed to be given.

 

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(b) The expressions of opinion or intention provided in the Information Memorandum were made after careful consideration and were based on assumptions believed by Listco to be reasonable as at the date they were provided or as at the date (if any) they were stated.

 

(c) No information relating to the Group or its holding companies has been omitted from the Information Memorandum and no such information has been withheld that results in the Information Memorandum (taken as a whole) being untrue or misleading in any material respect as at its stated date.

 

24.11 Financial Statements

 

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

 

(b) The most recent financial statements delivered pursuant to Clause 25 ( Information undertakings ):

 

  (i) have been prepared in accordance with the Accounting Principles as applicable at the date of such financial statements; and

 

  (ii) give a true and fair view of (if audited) or (if unaudited) fairly present in all material respects (having regard to the fact that financial statements which are not audited are prepared for management purposes) its consolidated financial condition as at the end of, and consolidated results of operations for, the period to which they relate.

No proceedings or breach of laws

 

24.12 No proceedings pending or threatened

No litigation, arbitration or administrative proceedings or investigations of, or before, any court, arbitral body or agency which are likely to be adversely determined and, if adversely determined, would have a Material Adverse Effect, have been started or (to the best of its knowledge or belief) threatened against it or any of its Subsidiaries.

 

24.13 No breach of laws

It has not breached any law or regulation, which breach would have a Material Adverse Effect.

 

24.14 Environmental Laws

 

(a) Each member of the Group is in compliance with Clause 27.3 ( Environmental compliance ) and no circumstances have occurred which would prevent such compliance in a manner or to an extent which would have a Material Adverse Effect.

 

(b) No Environmental Claim has been commenced or is threatened against any member of the Group where that claim would have, if determined against that member of the Group, a Material Adverse Effect.

Ownership of assets

 

24.15 Legal and beneficial ownership

 

(a) So far as it is aware, it (and, in the case of each of its Subsidiary, that Subsidiary) is the sole legal and beneficial owner of the shares and assets over which it purports to grant Transaction Security.

 

(b) So far as it is aware, it (and, in the case of each of its Subsidiary, that Subsidiary) has good title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted, in each case to the extent that the absence thereof would have a Material Adverse Effect.

 

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24.16 Intellectual Property

 

(a) It:

 

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

 

  (ii) does not, in carrying on its business, infringe any Intellectual Property of any third party where such infringement would have a Material Adverse Effect; and

 

  (iii) has taken all formal or procedural actions (including payment of fees) required to maintain any Intellectual Property owned by it save to the extent that failure to do so would not have a Material Adverse Effect.

 

(b) So far as it is aware, there are no adverse circumstances relating to the validity, subsistence or use of any of its or its Subsidiaries’ Intellectual Property which would have a Material Adverse Effect.

Provision of information - Group

 

24.17 Holding Companies

 

(a) No Nomad Holdco has traded or incurred any liabilities or commitments (actual or contingent, present or future), other than any Permitted Holding Company Activity.

 

(b) Nomad Service USA Inc. has not traded or incurred any liabilities or commitments (actual or contingent, present or future), other than: (i) the employment of employees and the payment of those employees’ salaries; and (ii) other liabilities incidental to maintenance of its corporate existence.

 

24.18 Group Structure Chart

The Group Structure Chart delivered to the Agent pursuant to Clause 4.1 ( Conditions precedent ) shows all members of the Group (other than any dormant companies) and is true, accurate and complete in all material respects.

 

24.19 Dutch representations

 

(a) No notice under Article 36 of the Tax Collection Act ( Invorderingswet 1990 ) has been given by any Dutch Obligor.

 

(b) The centre of main interests of each Dutch Obligor (as referred to in Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings) is located in the Netherlands.

 

(c) Each Dutch Obligor is in compliance with the Dutch Financial Supervision Act and any regulations issued pursuant thereto.

 

24.20 US Regulations

 

(a) ERISA : No Obligor has incurred, or reasonably expects to incur, any liability under ERISA with respect to any “plan” (as such term is defined in Section 3(3) of ERISA), or under the terms of any such plan, in each case, which could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

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(b) Margin Regulations : No part of the proceeds of any Utilisation is being used for “buying” or “carrying” (within the meaning of Regulation T, U or X) any Margin Stock or for any purpose which violates the provisions of the regulations of the Federal Reserve Board.

 

(c) Investment Company Act : No Obligor is required to be registered as an “investment company” under the US Investment Company Act of 1940.

 

24.21 Anti-Corruption Laws, Anti-Money Laundering and Sanctions

 

(a) No member of the Group, nor any member of the Group’s respective directors or officers nor, to Listco’s best knowledge and belief (after due and careful inquiry), any member of the Group’s employees, affiliates, agents or representatives, is a person or entity that:

 

  (i) is a Restricted Party;

 

  (ii) has been engaged in any transaction, activity or conduct that could reasonably be expected to result in it being designated as a Restricted Party or result in a breach of any applicable Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws;

 

  (iii) is currently engaging in any transaction, activity or conduct that could result in a violation of applicable Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws;

 

  (iv) has received notice of, or is otherwise aware of, any claim, action, suit, proceedings or investigation involving it with respect to any applicable Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws; and/or

 

  (v) is acting on behalf of or at the direction of any Restricted Party in connection with the Facilities.

 

(b) Each member of the Group conducts its business in compliance with, and has instituted policies and procedures designed to ensure compliance with, applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws.

 

(c) Nothing in this Clause 24.21 shall create or establish an obligation or right for a Party (each, a “ Relevant Party ”) to the extent that, by agreeing to it, complying with it, exercising it, having such obligation or right, or otherwise, such Relevant Party (or any directors, officers or employees, agents and affiliates thereof) would be placed in violation of any foreign trade law or anti-boycott law applicable to it (including but not limited to Section 7 German Foreign Trade Regulation ( Außenwirtschaftsverordnung ) and Council Regulation (EC) 2271/1996), and the representations made in this Clause 24.21 shall be so limited in relation to any such Relevant Party and to that extent shall not be made by or apply to any such Relevant Party.

 

24.22 Times when representations made

 

(a) All the representations and warranties in this Clause 24 are made by each Obligor on the Closing Date.

 

(b) The representations and warranties set out in Clause 24.11 ( Financial Statements ) are deemed to be made by each Obligor on the date of delivery of the relevant financial statements.

 

(c) The Repeating Representations are deemed to be made by each Obligor on the date of each Utilisation Request and on each Utilisation Date.

 

(d) The Repeating Representations are deemed to be made by each Additional Obligor on the day on which it becomes (or it is proposed that it becomes) an Additional Obligor.

 

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(e) Each representation or warranty deemed to be made after the Closing Date shall be deemed to be made by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made.

 

25. INFORMATION UNDERTAKINGS

The undertakings in this Clause 25 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

In this Clause 25:

“ Annual Financial Statements ” means the financial statements for a Financial Year delivered pursuant to paragraph (a)(i) of Clause 25.1 ( Financial statements ).

“ Quarterly Financial Statements ” means the financial statements delivered pursuant to paragraph (b) of Clause 25.1 ( Financial statements ).

 

25.1 Financial statements

Listco shall supply to the Agent in sufficient copies for all the Lenders:

 

  (a) as soon as they are available, but in any event:

 

  (i) within 120 days after the end of each of its Financial Years, Listco’s audited consolidated financial statements for that Financial Year; and

 

  (ii) within any statutory time period allowed for the preparation thereof and only if requested by the Agent, the financial statements (consolidated if appropriate) of each Borrower for that Financial Year (if available or required by law to be prepared); and

 

  (b) as soon as they are available, but in any event within 90 days of the end of each Financial Quarter, Listco’s financial statements, on a consolidated basis for that Financial Quarter.

 

25.2 Provision and contents of Compliance Certificate

 

(a) Listco shall supply a Compliance Certificate to the Agent with:

 

  (i) each set of Annual Financial Statements; and

 

  (ii) each set of Quarterly Financial Statements.

 

(b) Each Compliance Certificate shall set out, among other things:

 

  (i) computations (in reasonable detail) as to compliance with Clause 26 ( Financial covenant ) or a certification that the financial covenant in Clause 26 ( Financial covenant ) is not required to be tested in accordance with Clause 26.2 ( Financial condition );

 

  (ii) details of the prepayments (if any) to be made from Excess Cashflow under Clause 12.2 ( Disposal, insurance and Excess Cashflow );

 

  (iii) LTM EBITDA for the Relevant Period to which that Compliance Certificate relates;

 

  (iv) confirmation that no Default is continuing (or, if a Default is continuing, specify the Default and the steps being taken to remedy it);

 

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  (v) Debt Cover for the Relevant Period and whether or not the Debt Cover Condition has been met; and

 

  (vi) set out the Total Assets.

 

(c) Each Compliance Certificate provided together with the Annual Financial Statements shall (in addition to the requirements of paragraph (b) above) list the Guarantors and (in reasonable detail) computations as to compliance with the coverage test pursuant to Clause 27.29 ( Guarantors ) to the extent that such Clause is required to be complied with at such time.

 

(d) Each Compliance Certificate shall be signed by two directors of Listco and, if required to be delivered with the consolidated Annual Financial Statements, shall be reported on by Listco’s Auditors on the proper extraction of the numbers used in the financial covenant calculations in such manner (if any) and on such conditions that the Auditors specify (unless at least two of the “Big Four” firms of auditors have adopted a general policy of not providing such reports).

 

25.3 Requirements as to financial statements

 

(a) Listco shall procure that each set of Annual Financial Statements and Quarterly Financial Statements includes a balance sheet, profit and loss account and cashflow statement. In addition, Listco shall procure that each set of Annual Financial Statements shall be audited by the Auditors.

 

(b) Each set of financial statements delivered by Listco pursuant to this Clause 25:

 

  (i) shall be certified on behalf of Listco by a director of Listco (without personal liability) as giving a true and fair view of (in the case of Annual Financial Statements for any Financial Year), or fairly representing (in other cases), the financial condition and operations of the Group as at the date on which those financial statements were drawn up;

 

  (ii) in the case of the consolidated financial statements of the Group, shall be accompanied by a statement of Listco comparing actual performance for the period to which the financial statements relate to the actual performance for the corresponding period in the preceding Financial Year; and

 

  (iii) shall be prepared using the Accounting Principles, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, Listco notifies the Agent that there has been a change in the Accounting Principles or the accounting practices and financial reference periods from those applied in the preparation of the Original Financial Statements and it delivers to the Agent:

 

  (A) a description of any change necessary for those financial statements to reflect the Accounting Principles or accounting practices applied in the preparation of the Original Financial Statements; and

 

  (B) sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Agent and the Revolving Facility Lenders to determine whether Clause 26 ( Financial covenant ) has been complied with and to determine the amount of any prepayments to be made from Excess Cashflow under Clause 12.2 ( Disposal, insurance and Excess Cashflow ).

 

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(c) If Listco notifies the Agent of a change in accordance with paragraph (iii) above or of a change of its Financial Year end, then Listco and the Agent shall enter into negotiations in good faith with a view to agreeing:

 

  (i) whether or not the change might result in any material alteration in the commercial effect of any of the terms of this Agreement; and

 

  (ii) if so, any amendments to this Agreement which may be necessary to ensure that the change does not result in any material alteration in the commercial effect of those terms,

and if any amendments are agreed they shall take effect and be binding on each of the Parties in accordance with their terms.

 

(d) If no such agreement is reached within 30 days of that notification of change, the Agent shall (if so requested by the Majority Lenders) instruct the Auditors of Listco or independent accountants (approved by Listco or, in the absence of such approval within five days of request by the Agent of such approval, a firm with recognised expertise) to determine any amendment to Clause 26.2 ( Financial condition ), the amount of any prepayments to be made from Excess Cashflow under Clause 12.2 ( Disposal, insurance and Excess Cashflow ) and any other terms of this Agreement which the Auditors or, as the case may be, accountants (acting as experts and not arbitrators) consider appropriate to ensure the change does not result in any material alteration in the commercial effect of the terms of this Agreement. Those amendments shall take effect when so determined by the Auditors or, as the case may be, accountants. The cost and expense of the Auditors or accountants shall be for the account of Listco.

 

(e) Any reference in this Agreement to any financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

 

25.4 Law and regulation

Notwithstanding any term of the Finance Documents to the contrary, all reporting updates and other information and disclosure requirements in the Finance Documents shall be subject to any legal or regulatory restrictions relating to the supply of information concerning Listco and its Subsidiaries (including, for the avoidance of doubt, the Group), including, without limitation, any requirements of the New York Stock Exchange or which result from the nature of the Senior Secured Notes.

 

25.5 Calls

 

(a) Listco shall ensure that a public trading and quarterly update call is held for each class of holders of its debt securities (and that the Agent and the Lenders are each invited to join each such call) with senior management of the Group not less frequently than once in each Financial Quarter.

 

(b) Listco shall notify the Agent of (and through the Agent, invite each Lender to join) any other public call held generally for its Senior Secured Noteholders or any class of holder of (or trustee in respect of) debt securities of the Group (including, for the avoidance of doubt, each such call for its Senior Secured Noteholders) with Listco providing reasonable notice of such call in advance, together with the applicable access code and such other information necessary for a Lender to directly join such call, provided that no Lender shall have a right to speak on any such call (other than to register attendance and complete or comply with any other procedural formality) without the prior consent of Listco.

 

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25.6 Year end

Listco shall notify the Agent of a change of its Financial Year end.

 

25.7 Information: miscellaneous

Listco shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

 

  (i) at the same time as they are despatched, copies of all documents despatched by Listco or any Obligor (other than in the ordinary course of business) to its creditors generally (or any class of them) and to its shareholders if required to be given to shareholders as a matter of mandatory law; and

 

  (ii) promptly on request, such factual information regarding the Group as any Finance Party through the Agent may reasonably request,

subject always to Clause 25.4 ( Law and regulation ).

 

25.8 Notification of default

Listco shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

 

25.9 “Know your customer” checks

 

(a) If:

 

  (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

 

  (ii) any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or

 

  (iii) a proposed assignment or transfer by a Lender of any of its rights and/or obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,

obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall, promptly upon the request of the Agent or any Lender, supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

(b) Each Lender shall, promptly upon the request of the Agent, supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

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(c) Listco shall, by not less than 10 Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 31 ( Changes to the Obligors ).

 

(d) Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, Listco shall, promptly upon the request of the Agent or any Lender, supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.

 

(e) In the event that Listco has delivered any Lender Accession Notice or Additional Facility Notice and the Lender referred to therein is not currently a Lender, Listco shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent in order for the Agent to carry out and be satisfied with the results of all necessary “know your customer” or other checks in relation to that Lender that it is required to carry out as a consequence of that person becoming a Lender.

 

26. FINANCIAL COVENANT

 

26.1 Financial definitions

In this Clause 26:

“ Borrowings ” means, at any time, the outstanding principal or capital amount of any indebtedness for or in respect of:

 

  (a) moneys borrowed;

 

  (b) acceptance credits (or dematerialised equivalents);

 

  (c) moneys raised under or pursuant to bonds (other than a performance bond or advance payment bond issued in respect of the obligations of any member of the Group incurred in the ordinary course of business), notes, debentures, loan stock or any similar instrument;

 

  (d) any finance or capital lease or hire purchase contract which would, in accordance with the Accounting Principles (for the avoidance of doubt, as applied in the preparation of the Original Financial Statements and so as to exclude operating leases to the extent they would otherwise be reclassified and treated as finance or capital leases), be treated as a finance or capital lease but only to the extent of such treatment;

 

  (e) receivables sold or discounted (other than to the extent there is no recourse);

 

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

 

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  (g) the acquisition cost of any asset where the deferred payment is arranged primarily as a method of raising finance and in circumstances where the due date for payment is more than 180 days after the expiry of the period customarily allowed by the relevant supplier save where the payment deferral results from non-satisfaction or delayed satisfaction of contract terms by the supplier or from contract terms establishing payment schedules tied to total or partial contract completion and/or to the results of operational testing procedures;

 

  (h) the sale price of any asset to the extent paid by the person liable before the time of sale or delivery where such advance payment is arranged primarily as a method of raising finance unless such arrangements are entered into customarily by customers of the Group;

 

  (i) any amount raised under any other transaction which would be treated as borrowing in accordance with the Accounting Principles; and

 

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

provided that indebtedness owed by one member of the Group to another member of the Group and Subordinated Debt shall not be taken into account and excluding, for the avoidance of doubt, pension liabilities and liabilities in respect of other provisions which are treated as borrowings under IFRS and any indebtedness under forward contracts for fish entered into in the ordinary course of business.

“ Capital Expenditure ” means any expenditure or obligation in respect of expenditure which, in accordance with the Accounting Principles, is treated as capital expenditure (other than any Permitted Acquisition and only taking into account the actual cash payment made where assets are replaced and part of the purchase price is paid by way of part exchange).

“ Cashflow ” means, in respect of any Relevant Period, Consolidated EBITDA for that Relevant Period (without double counting):

 

  (a) plus the amount of any rebate, refund or credit in respect of any Tax on profits, gains or income actually received in cash by any member of such Group during such period

 

  (b) plus to the extent not included in Consolidated EBITDA, the amount (net of any applicable withholding tax) of any dividends or other profit distributions received in cash by any member of the Group during such period from any person which is not itself a member of the Group;

 

  (c) minus all Capital Expenditure actually paid by a member of the Group during the Relevant Period except to the extent funded from:

 

  (i) Retained Cash;

 

  (ii) any Permitted Financial Indebtedness (other than a Revolving Facility);

 

  (iii) capital contributions received from landlords in relation to Real Property in respect of which a member of the Group is a tenant; or

 

  (iv) New Equity or Subordinated Debt received after the Closing Date;

 

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  (d) minus the aggregate of the consideration paid for or cost of any Permitted Acquisitions and the amount of any investment in a Permitted Joint Venture made in cash during that period to the extent not included in Consolidated EBITDA and in each case except to the extent funded from Retained Cash (to the extent permitted under the Finance Documents), any Permitted Financial Indebtedness, New Equity or Subordinated Debt received after the Closing Date;

 

  (e) plus the amount of any loan which was made in respect of a Joint Venture Investment which is repaid in cash to a member of the Group;

 

  (f) minus all amounts of Tax on profits, gains or income actually paid (other than any such Tax which is netted off against any proceeds received by the Group in accordance with paragraph (b) of the definition of ‘Net Proceeds’) and minus the amount of any withholding tax withheld from any amount paid to any member of the Group which has been taken into account in calculating Consolidated EBITDA for such period and minus any Increased Costs notified by any Finance Party pursuant to Clause 19.1 ( Increased Costs );

 

  (g) plus any decrease in and minus any increase of Working Capital between the beginning and end of such Relevant Period;

 

  (h) to the extent not taken into account in any other paragraph in this definition, minus all non-cash credits and release of provisions and plus all non-cash debits and other non-cash charges and provisions included in establishing Consolidated EBITDA for such period;

 

  (i) to the extent not taken into account in any other paragraph in this definition, plus any positive and minus any negative one-off, non-recurring, extraordinary or exceptional items received or which are paid by any member of the Group in cash during such period to the extent not already taken into account in calculating Consolidated EBITDA for such period or provided for in Acquisition Costs, Refinancing Costs or funded from Retained Cash, any Permitted Financial Indebtedness, New Equity or Subordinated Debt received after the Closing Date;

 

  (j) to the extent included in Consolidated EBITDA or in any other paragraph of this definition, excluding the effect of all cash movements associated with the Refinancing Costs (to the extent included in Cashflow);

 

  (k) plus any New Equity and/or any Subordinated Debt received after the Closing Date to the extent permitted under paragraph (d) of Clause 26.3 ( Financial testing );

 

  (l) deducting any fees, cash or charges of a non-recurring nature related to any equity offering, investments, acquisitions or Permitted Financial Indebtedness (whether or not successful) except to the extent funded from Retained Cash (to the extent permitted by the Finance Documents) or paid out of the proceeds raised on an equity or debt securities offering or other Permitted Financial Indebtedness; and

 

  (m) deducting the amount of management, consulting, investor and advisory fees (other than in respect of any cash movements falling under paragraph (l) above) paid to Listco to the extent not taken into account in Consolidated EBITDA and other than those funded from Retained Cash (to the extent permitted by the Finance Documents), any Permitted Financial Indebtedness, New Equity or Subordinated Debt received after the Closing Date.

 

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“ Consolidated EBITDA ” means, for any Relevant Period, the consolidated profits of the Group from ordinary activities:

 

  (a) before deducting Interest Payable, any other Interest for which any member of the Group is liable and any deemed finance charge in respect of any pension liabilities and other provisions;

 

  (b) before deducting any amount of Tax on profits, gains or income paid or payable by any member of the Group;

 

  (c) after adding back (to the extent otherwise deducted) any amount attributable to any amortisation whatsoever (including amortisation of any goodwill arising on any Permitted Acquisition, Acquisition Costs or Refinancing Costs), any depreciation whatsoever and any costs or provisions relating to any share option schemes of the Group existing on the Closing Date;

 

  (d) after deducting (to the extent included) Interest Income and/or any other Interest accruing in favour of any member of the Group;

 

  (e) excluding any items (positive or negative) of a one-off, non-recurring, extraordinary or exceptional nature (including, without limitation, the costs associated with any restructuring programme or any aborted equity or debt securities offering);

 

  (f) after deducting (to the extent otherwise included and not already deducted pursuant to paragraph (j) below) the amount of profit (or adding back the loss) of any member of the Group which is attributable to any third party (not being a member of the Group) which is a shareholder in such member of the Group;

 

  (g) after deducting (to the extent otherwise included) any gain over book value arising in favour of a member of the Group in the disposal of any asset (not being any disposals made in the ordinary course of trading) during such period and any gain arising on any revaluation of any asset during such period;

 

  (h) after adding back (to the extent otherwise deducted) any loss against book value incurred by a member of the Group on the disposal of any asset (not being any disposal made in the ordinary course of trading) during such period and any loss arising on any revaluation of any asset during such period;

 

  (i) after adding back Acquisition Costs and Refinancing Costs to the extent deducted;

 

  (j) after adding back (to the extent not otherwise included) the amount of any dividends or other profit distributions (net of withholding tax) received in cash by any member of the Group during such period from companies which are not members of the Group, and after deducting (to the extent not otherwise deducted) the amount of any dividends or other profit distributions paid in cash by any member of the Group during such period to companies which are not members of the Group;

 

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  (k) plus any New Equity and/or any Subordinated Debt received after the Closing Date to the extent permitted under paragraph (d) of Clause 26.3 ( Financial testing );

 

  (l) after adding (to the extent not already included) the realised gains or deducting (to the extent not otherwise deducted) the realised losses arising at maturity or on termination of forward foreign exchange and other currency hedging contracts entered into with respect to the operational cashflows of the Group (but taking no account of any unrealised gains or loss on any hedging instrument whatsoever);

 

  (m) after adding back (to the extent otherwise deducted) any fees, costs or charges of a non-recurring nature related to any equity offering, compensation payments to departing management, investments (including any Joint Venture Investment), acquisitions or Permitted Financial Indebtedness (whether or not successful);

 

  (n) after adding back (to the extent otherwise deducted) any costs or provisions relating to any share option or management incentive schemes of the Group existing at the Closing Date;

 

  (o) after adding the proceeds of any business interruption insurance;

 

  (p) after deducting the amount of profit of any entity (which is not a member of the Group) in which any member of the Group has an ownership interest to the extent that the amount of such profit included in the accounts of the Group exceeds the amount (net of any applicable withholding tax) received in cash by members of the Group through distributions by that entity; and

 

  (q) before taking into account any gain or loss arising from any Debt Purchase Transaction or any purchase or buy-back by Finco or any member of the Group of any liabilities under or in connection with any New Debt Financing (or any transaction having a similar economic effect).

“ Consolidated Net Finance Charges ” means, for any Relevant Period, the amount of Interest Payable during that period less Interest Income during that period.

“ Consolidated Total Net Debt ” means, at any time, the aggregate amount of all obligations of the Group for or in respect of Borrowings but:

 

  (a) including , in the case of finance leases, only the capitalised value therefor; and

 

  (b) deducting the aggregate amount of available Cash and Cash Equivalent Investments held by any member of the Group,

and so that no amount shall be included or excluded more than once.

“ Current Assets ” means the aggregate of trade receivables and other current assets (but excluding Cash and Cash Equivalent Investments) maturing within 12 Months of the date of computation and excluding :

 

  (a) receivables in relation to tax rebates or credits on profits;

 

  (b) extraordinary items, exceptional items and other non-operating items;

 

  (c) insurance claims; and

 

  (d) any accrued Interest owing to any member of the Group.

 

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“ Current Liabilities ” means the aggregate of all liabilities (including trade creditors and other current liabilities and accrued expenses) falling due within 12 Months of the date of computation but excluding :

 

  (a) liabilities for Borrowings and Interest;

 

  (b) liabilities for Tax on profits;

 

  (c) extraordinary items, exceptional items and other non-operating items;

 

  (d) insurance claims; and

 

  (e) liabilities in relation to dividends declared but not paid by Listco.

“ Debt Cover ” means, for any Relevant Period, the ratio of Consolidated Total Net Debt on the last day of that Relevant Period to Consolidated EBITDA for that Relevant Period.

“ Excess Cashflow ” means (without double counting), for any Financial Year of Listco (commencing with the Financial Year beginning 1 January 2017), Cashflow for that period less:

 

  (a) Net Debt Service (ignoring any reduction in Net Debt Service resulting from mandatory or voluntary prepayments made in previous Financial Years);

 

  (b) to the extent that the Net Proceeds giving rise to the relevant mandatory prepayment have been included in calculating Cashflow (and not deducted under paragraph (d) below), mandatory prepayments falling due (other than in respect of Excess Cashflow calculated for the immediately preceding Financial Year) during such period;

 

  (c) to the extent included in Cashflow, any amount of New Equity or Subordinated Debt received after the Closing Date;

 

  (d) the amount of Net Proceeds received by the Group which are permitted to be retained by the Group;

 

  (e) (to the extent otherwise included) Acquisition Costs, Refinancing Costs and Restructuring Expenditure, in each case, not funded by Borrowings; and

 

  (f) any payments falling under paragraph (f) of the definition of ‘Permitted Payment’, to the extent of payments to persons that are not members of the Group, and paragraph (h) of the definition of ‘Permitted Payment’,

and for the avoidance of doubt excluding (to the extent otherwise included) the proceeds of any Financial Indebtedness incurred pursuant to any Facility, any Additional Facility, the Senior Secured Notes or any New Debt Financing.

“ Financial Quarter ” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.

“ Financial Year ” means the annual accounting period of the Group ending on or about 31 December in each year.

“ Interest ” means interest and amounts in the nature of interest in respect of any Borrowings, including, without limitation:

 

  (a) the interest element of finance leases;

 

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  (b) discount and acceptance fees and costs payable (or deducted) in respect of any Borrowings;

 

  (c) fees payable in connection with the issue or maintenance of any bond, letter of credit, guarantee or other assurance against financial loss which constitutes Borrowings and is issued by a third party on behalf of a member of the Group and accrues after the Closing Date;

 

  (d) repayment and prepayment premiums payable or incurred in repaying or prepaying any Borrowings; and

 

  (e) commitment, utilisation and non-utilisation fees payable or incurred or accrued in respect of Borrowings.

“ Interest Income ” means, for the Relevant Period, the amount of Interest accrued (whether or not received) due to members of the Group during such period.

“ Interest Payable ” means for the Relevant Period, the aggregate of Interest accrued (whether or not paid or capitalised) in respect of any Borrowings of any member of the Group during that testing period but:

 

  (a) excluding any amortisation of fees, costs and expenses incurred in connection with the raising of any Borrowings;

 

  (b) excluding any Increased Costs notified by a Finance Party and payable by the Group pursuant to Clause 19.1 ( Increased Costs ); and

 

  (c) excluding any capitalised Interest, the amount of any discount amortised and other non-cash interest charges during the Relevant Period,

and calculated on the basis that:

 

  (i) the amount of Interest accrued will be increased by an amount equal to any amount payable by members of the Group under hedging agreements in respect of Interest in relation to that Relevant Period; and

 

  (ii) the amount of Interest accrued will be reduced by an amount equal to any amount payable to members of the Group under hedging agreements in respect of Interest in relation to that Relevant Period.

“ Net Debt Service ” means, in respect of any Relevant Period, the aggregate of:

 

  (a) Consolidated Net Finance Charges;

 

  (b) the aggregate of all scheduled payments of principal of any Borrowings (and in the case of the Term Facilities as adjusted as the result of any voluntary or mandatory prepayments made in previous Relevant Periods or the current Relevant Period) falling due for payment but excluding any amounts falling due under any overdraft or a Revolving Facility (including, without limitation, any Ancillary Facility) which were available for simultaneous redrawing according to the terms of such facility but for any voluntary cancellation; and

 

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  (c) the amount of the capital element of any payments in respect of that Relevant Period payable under any finance lease or capital lease entered into by any member of the Group,

and so that no amount shall be included more than once.

“ Quarter Date ” means each of 31 March, 30 June, 30 September and 31 December.

“ Refinancing Costs ” means fees, costs and expenses incurred by a member of the Group in connection with this Agreement and the transactions contemplated by the Mandate Documents as set out in the Funds Flow Statement.

“ Relevant Period ” means each period of 12 Months ending on the last day of Listco’s Financial Year and each period of 12 Months ending on the last day of each Financial Quarter of Listco’s Financial Year .

“ Retained Cash ” means (without double counting) the aggregate of:

 

  (a) Net Proceeds received at any time after 1 January 2017 and permitted to be retained (and not required to be reinvested in the Group’s business);

 

  (b) accumulated unspent Excess Cashflow arising from previous Financial Years (other than any Financial Year prior to the Financial Year commencing 1 January 2017) which the Group is not obliged to prepay (including any de minimis amount which has been permitted to be deducted in calculating that Excess Cashflow in previous Financial Years (other than any Financial Year prior to the Financial Year commencing 1 January 2017)); and

 

  (c) any Waived Amounts arising at any time after 1 January 2017,

in each case to the extent not already taken into account in any other paragraph of the relevant definition or otherwise applied in making payments, or satisfaction of consideration for transactions permitted under the Finance Documents.

“ Working Capital ” means, on any date, Current Assets less Current Liabilities.

 

26.2 Financial condition

Listco shall ensure that if, in respect of any Relevant Period ending after the Closing Date, the aggregate amount of:

 

  (i) all Revolving Facility Loans;

 

  (ii) drawn Letters of Credit; and

 

  (iii) Ancillary Outstandings (but excluding Ancillary Outstandings by way of undrawn letters of credit and undrawn bank guarantees under the relevant Ancillary Facility),

(together the “ RCF Drawings ”) calculated as at the last day of each such Relevant Period, is equal to or exceeds 40 per cent. of the Total Revolving Facility Commitments as at such date, Debt Cover in respect of that Relevant Period shall not exceed 8.00:1.

 

26.3 Financial testing

 

(a) The financial covenant set out in Clause 26.2 ( Financial condition ) shall be calculated in accordance with the Accounting Principles as applied in the preparation of the Original Financial Statements and tested by reference to each of the financial statements and/or each Compliance Certificate delivered pursuant to Clause 25 ( Information undertakings ).

 

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(b) In respect of any Relevant Period, the exchange rate used in relation to Consolidated Total Net Debt shall, at Listco’s option, be:

 

  (i) the average exchange rate used for the purposes of determining Consolidated EBITDA for that Relevant Period;

 

  (ii) where and to the extent that any part of the principal element of any such Consolidated Total Net Debt is subject to a currency hedge, the applicable hedged rate in respect of that part of Consolidated Total Net Debt; and/or

 

  (iii) the spot rate on the last day of the Relevant Period consistent with the exchange rate methodology applied in the financial statements most recently delivered pursuant to Clause 25.1 ( Financial statements).

 

(c) For the purposes of the calculation of LTM EBITDA and of the calculation of Debt Cover (but not Cashflow or Excess Cashflow) (the “ Acquisition and Disposal Adjustment ”):

 

  (i) there shall be included in determining Consolidated EBITDA for any Relevant Period (including the portion thereof occurring prior to the relevant acquisition):

 

  (A) the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA, mutatis mutandis ) for the period of any person, property, business or material fixed asset acquired and not subsequently sold, transferred or otherwise disposed of by any member of the Group during such period (each such person, property, business or asset acquired and not subsequently disposed of, an “ Acquired Entity or Business ”); and

 

  (B) if material (unless, in relation to any material adjustment which could be made as a result of net cost savings, Listco elects not to include such net cost savings in the determination of Consolidated EBITDA), an adjustment in respect of each Acquired Entity or Business acquired during such period equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period; and

 

  (ii) there shall be excluded in determining Consolidated EBITDA for any period the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA, mutatis mutandis ) of any person, property, business or material fixed asset sold, transferred or otherwise disposed of by any member of the Group during such period (including the portion thereof occurring prior to such sale, transfer, disposition or conversion) (each such person, property, business or asset so sold or disposed of, a “ Sold Entity or Business ”).

“ Pro Forma Adjustment ” shall mean, for any Relevant Period that ends on any of the first five Quarter Dates to fall after the completion date of the acquisition of or investment in an Acquired Entity or Business, with respect to the Consolidated EBITDA of that Acquired Entity or Business, the pro forma increase or decrease in such Consolidated EBITDA (calculated for the Relevant Period by including on a pro forma basis the full run-rate effect of synergies and/or cost savings and/or additional cost for that acquisition) where:

 

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  (a) such synergies and/or cost savings and/or additional cost to be taken into account are those reasonably achievable over the period (the “ Projected Period ”) commencing on (and assuming that the relevant acquisition or investment has occurred on) the most recent Quarter Date (the “ First Quarter Date ”) prior to the acquisition contract date and ending on the fifth Quarter Date following the acquisition completion date assuming for this purpose that such acquisition occurred on the First Quarter Date (as certified by Listco in a certificate signed by the Chief Financial Officer/Finance Director, issued by reference to Listco’s knowledge with regard to the information reasonably available at such time and, in addition, if the aggregate amount of the synergies and/or cost savings and/or additional cost for that acquisition exceeds 5 per cent. of Consolidated EBITDA (prior to any Pro Forma Adjustment) of the Group, verified by independent third party due diligence from a professional advisory firm of international repute or other person approved by the Agent);

 

  (b) for the avoidance of doubt, the full ‘run-rate effect’ shall be the annualised effect of such synergies and/or cost savings and/or additional cost,

provided further that any such pro forma increase or decrease to such Consolidated EBITDA shall be without duplication for the effect of any assumed increase or decrease actually realised during such period and already included in such Consolidated EBITDA.

 

(d) For the purpose of calculating Debt Cover pursuant to Clause 26.2 ( Financial condition ) (only), and subject to paragraphs (e) to (g) below, Listco may elect that all or any part of any New Equity and/or any Subordinated Debt (in each case without double counting any such amount):

 

  (i) received after the Closing Date (in each case, to the extent not spent), shall be added to Consolidated EBITDA either during the Relevant Period it is received in or during that Relevant Period (provided the corresponding Compliance Certificate states that such election has been made and sets out the adjustment to the Debt Cover calculations that result from such election);

 

  (ii) received after the end of a Relevant Period (the “ Prior Relevant Period ”) but before the date falling 20 Business Days after the Compliance Certificate has been delivered, shall be added to Consolidated EBITDA for the Prior Relevant Period and shall be taken into account as if received immediately prior to the end of the Prior Relevant Period and Debt Cover will be recalculated accordingly to the extent Listco provides, in such 20 Business Day period, a revised Compliance Certificate stating that such election has been made and setting out the calculations that result from such election; or

 

  (iii) received after the Prior Relevant Period but before the date falling 20 Business Days after the Compliance Certificate has been delivered for the Prior Relevant Period, to the extent RCF Drawings equal or exceed 40 per cent. of Total Revolving Facility Commitments as at the last day of the Prior Relevant Period, shall be applied so as to reduce RCF Drawings such that RCF Drawings would not have equalled or exceeded 40 per cent. of Total Revolving Facility Commitments as at the last day of the Prior Relevant Period if RCF Drawings were re-tested on such date pro forma for the application of such New Equity and/or any Subordinated Debt.

 

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(e) To the extent Listco exercises its rights under paragraph (d) above to add such amount to Consolidated EBITDA, the relevant New Equity and/or Subordinated Debt shall be taken into account in calculating the financial undertakings for the three Relevant Periods occurring immediately after the end of the Prior Relevant Period in the manner described in paragraph (d) above.

 

(f) To the extent Listco exercises its rights under paragraph (d) above to reduce RCF Drawings, no member of the Group may deliver a Utilisation Request in relation to any Revolving Facility Utilisation (excluding any Rollover Loan) prior to the next Quarter Date to occur after the Prior Relevant Period in respect of which a Compliance Certificate has been delivered, unless Listco confirms in each such Utilisation Request that:

 

  (i) the aggregate of RCF Drawings (x) as at the date of that Utilisation Request and (y) on the proposed Utilisation Date will not (when calculated pro forma for each Revolving Facility Utilisation contemplated in a Utilisation Request), equal or exceed 40 per cent. of Total Revolving Facility Commitments; or

 

  (ii) the requirements of Clause 26.2 ( Financial condition ) would have been satisfied for the Prior Relevant Period if re-tested as at the last day of the Prior Relevant Period but calculated pro forma for the proposed Revolving Facility Utilisation (and the application of such Utilisation) and any change in Consolidated Total Net Debt since the last day of the Prior Relevant Period (with such Utilisation Request providing reasonable details of such calculation).

 

(g) For the purposes of this Clause 26, Listco may only elect to include one injection of New Equity and/or Subordinated Debt in any Relevant Period and no more than two such injections during the life of the Facilities.

 

(h) The effect of all unrealised currency exchange gains or losses shall be excluded from the calculation of any financial covenant ratios (save as set out in paragraph (b) above).

 

26.4 Baskets

 

(a) If, in any Financial Year of Listco commencing after the Closing Date (the “ Original Financial Year ”), the aggregate amount of any fixed numeric basket originally applied, committed to be applied or to be applied or designated by the board of directors of Listco to be applied in that Financial Year is less than the fixed numeric basket originally available for that Financial Year (without any carry forward) (the numeric difference being referred to as the “ Available Amount ”), then the maximum fixed numeric basket for the immediately following Financial Year (the “ Carry Forward Year ”) shall be increased by an amount equal to the Available Amount.

 

(b) In any Carry Forward Year, the original amount of that fixed numeric basket shall be treated as having been applied before any Available Amount carried forward into such Carry Forward Year. Any amount carried forward may be carried forward for one year only.

 

27. GENERAL UNDERTAKINGS

The undertakings in this Clause 27 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

Authorisations and compliance with laws

 

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27.1 Authorisations

Subject to the Legal Reservations and the Perfection Requirements, each Obligor shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect any Authorisation required under any applicable law to:

 

  (a) enable it to perform its obligations under the Finance Documents;

 

  (b) ensure the legality, validity, enforceability or admissibility in evidence of any Finance Document; and

 

  (c) carry on its business, where failure to do so has a Material Adverse Effect.

 

27.2 Compliance with laws

Each Obligor shall (and Listco shall ensure that each member of the Group will) comply in all respects with all laws to which it may be subject, if failure so to comply would have a Material Adverse Effect.

 

27.3 Environmental compliance

Each Obligor shall (and Listco shall ensure that each member of the Group will):

 

  (a) comply with all Environmental Laws;

 

  (b) obtain, maintain and ensure compliance with all requisite Environmental Permits; and

 

  (c) implement procedures to monitor compliance with and to prevent liability under any Environmental Law,

where failure to do so would have a Material Adverse Effect.

 

27.4 Taxation

 

(a) Each Obligor shall (and Listco shall ensure that each member of the Group will) pay and discharge all Taxes imposed upon it or its assets within the time period allowed or, if later, before incurring material penalties, unless and only to the extent that:

 

  (i) such payment is being contested in good faith and in accordance with the relevant procedures;

 

  (ii) adequate reserves are being maintained in accordance with the Accounting Principles for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Agent under Clause 25 ( Information undertakings ) (if required to be disclosed under the Accounting Principles); and

 

  (iii) such payment can be withheld without incurring material penalties and failure to pay those Taxes does not have a Material Adverse Effect.

 

(b) Midco will ensure that (i) the US Co-Borrower retains its status as an entity disregarded from Luxco for US federal income tax purposes, (ii) the US Co-Borrower’s regarded owner retains its status as not being a US Tax Obligor, and (iii) the US Co-Borrower and its regarded owner do not engage in a US trade or business for US tax purposes.

 

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Restrictions on business focus

 

27.5 Merger

No Obligor shall (and Listco shall ensure that no other member of the Group will) enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction other than a Permitted Transaction.

 

27.6 Change of business

Listco shall procure that, subject to any Permitted Acquisitions undertaken by any member of the Group, no substantial change is made to the general nature of the business of the Group taken as a whole from that carried on by the Group as at the Closing Date.

 

27.7 Acquisitions

 

(a) Except as permitted under paragraph (b) below, no Obligor shall (and Listco shall ensure that no other member of the Group will) acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them).

 

(b) Paragraph (a) above does not apply to an acquisition of a company, shares, securities or a business or undertaking (or, in each case, any interest in any of them) or the incorporation of a company which is a Permitted Acquisition.

 

27.8 Joint Ventures

 

(a) Except as permitted under paragraph (b) below, no Obligor shall (and Listco shall ensure that no member of the Group will):

 

  (i) enter into, invest in or acquire (or agree to invest in or acquire, unless such agreement is subject to Majority Lender approval) any shares, stocks, securities or other interest in any Joint Venture; or

 

  (ii) transfer any assets or lend to or guarantee or give an indemnity for or give Security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture (or agree to do any of the foregoing, unless such agreement is subject to Majority Lender approval).

 

(b) Paragraph (a) above does not apply to any acquisition (or agreement to acquire) any interest in a Joint Venture or transfer of assets (or agreement to transfer assets) to a Joint Venture or loan made to or guarantee given in respect of the obligations of a Joint Venture if such transaction is a Permitted Joint Venture.

 

27.9 Holding Companies

 

(a) None of the Nomad Holdcos shall trade, carry on any business, own any assets or incur any liabilities except for a Permitted Holding Company Activity.

 

(b) Nomad Service USA Inc. shall not trade, carry on any business, own any assets or incur any liabilities, other than: (i) the employment of employees and the payment of those employees’ salaries; and (ii) other liabilities incidental to maintenance of its corporate existence.

 

(c) The US Co-Borrower shall not be permitted to utilise any Facility.

 

(d) Notwithstanding anything in this Agreement or any other Finance Document, Listco shall ensure that, at all times (i) Midco, Bondco, Luxco and the US Co-Borrower (in each case) is and remains a wholly-owned Subsidiary of Listco and (ii) (each of) Bondco, Luxco and the US Co-Borrower do not have any Subsidiaries or own any shares or equity interests in any other person or entity.

 

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27.10 Centre of main interests and establishments

No Obligor whose jurisdiction of incorporation is in a member state of the European Union shall deliberately change its “centre of main interests” (as that term is used in Article 3(1) of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “ Regulation ”)) in a manner which would materially adversely affect the interests of the Lenders as a whole.

Restrictions on dealing with assets and Security

 

27.11 Pari passu ranking

Each Obligor shall ensure that at all times any claims of a Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.

 

27.12 Negative pledge

In this Clause 27.12, “ Quasi-Security ” means a transaction described in paragraph (a)(ii) below.

 

  (a) Except as permitted under paragraph (b) below:

 

  (i) no Obligor shall (and Listco shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets; and

 

  (ii) no Obligor shall (and Listco shall ensure that no other member of the Group will):

 

  (A) sell, transfer or otherwise dispose to any person who is not a member of the Group of any of its assets on terms whereby they are or may be leased to or reacquired by an Obligor or by any other member of the Group;

 

  (B) sell, transfer or otherwise dispose of any of its receivables to any person who is not a member of the Group on recourse terms (other than as is customary for a securitisation programme);

 

  (C) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

 

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

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Borrowings or of financing the acquisition of an asset.

 

  (b) Paragraph (a) above does not apply to any Security or (as the case may be) Quasi-Security, which is Permitted Security.

 

27.13 Disposals

 

(a) Except as permitted under paragraph (b) below, no Obligor shall (and Listco shall ensure that no member of the Group will) enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of any asset.

 

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(b) Paragraph (a) above does not apply to:

 

  (i) any sale, lease, transfer or other disposal which is a Permitted Disposal; or

 

  (ii) a Permitted Transaction.

 

27.14 Arm’s length basis

 

(a) Except as permitted by paragraph (b) below, no Obligor shall (and Listco shall ensure no member of the Group will) enter into any material transaction with any Listco Affiliate or any person not being a member of the Group except on arm’s length terms or better.

 

(b) The following transactions shall not be a breach of this Clause 27.14:

 

  (i) fees, costs and expenses payable under the Transaction Documents or agreed by the Agent; and

 

  (ii) any Permitted Transactions.

Restrictions on movement of cash - cash out

 

27.15 Loans or credit

 

(a) Except as permitted under paragraph (b) below, no Obligor shall (and Listco shall ensure that no member of the Group will) be a creditor in respect of any Financial Indebtedness.

 

(b) Paragraph (a) above does not apply to:

 

  (i) a Permitted Loan;

 

  (ii) a Permitted Payment; or

 

  (iii) a Permitted Guarantee.

 

27.16 No guarantees or indemnities

 

(a) Except as permitted under paragraph (b) below, no Obligor shall (and Listco shall ensure that no member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.

 

(b) Paragraph (a) above does not apply to a guarantee which is:

 

  (i) a Permitted Guarantee; or

 

  (ii) a Permitted Transaction.

 

27.17 Dividends and share redemption

 

(a) Except as permitted under paragraph (b) below, Listco shall ensure that no member of the Group will:

 

  (i) declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);

 

  (ii) repay or distribute any dividend or share premium reserve;

 

  (iii) pay or allow any member of the Group to pay any management, advisory or other fee to or to the order of any of the shareholders of Listco; or

 

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  (iv) redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so.

 

(b) Paragraph (a) above does not apply to:

 

  (i) a Permitted Payment; or

 

  (ii) a Permitted Transaction.

 

27.18 Subordinated Debt

 

(a) Except as permitted under paragraph (b) below, no Obligor shall (and Listco shall ensure that no member of the Group will):

 

  (i) repay or prepay any principal amount (or capitalised interest) outstanding under or in respect of any Subordinated Debt or any Subordinated Liabilities;

 

  (ii) pay any interest or any other amounts payable in connection with or in respect of any Subordinated Debt or any Subordinated Liabilities; or

 

  (iii) purchase, redeem, defease, acquire, retire or discharge, exchange or enter into any sub-participation arrangements in respect of any amount outstanding under or in respect of any Subordinated Debt or any Subordinated Liabilities.

 

(b) Paragraph (a) above does not apply to a payment, repayment, prepayment, purchase, redemption, defeasance or discharge which is:

 

  (i) a Permitted Payment; or

 

  (ii) a Permitted Transaction.

Restrictions on movement of cash - cash in

 

27.19 Financial Indebtedness

 

(a) Except as permitted under paragraph (b) below, no Obligor shall (and Listco shall ensure that no member of the Group will) incur or allow to remain outstanding any Financial Indebtedness.

 

(b) Paragraph (a) above does not apply to Financial Indebtedness which is:

 

  (i) Permitted Financial Indebtedness; or

 

  (ii) a Permitted Transaction.

 

27.20 Share capital

No Obligor shall (and Listco shall ensure no member of the Group will) issue any shares except pursuant to a Permitted Share Issue or a Permitted Transaction.

Miscellaneous

 

27.21 Insurance

 

(a) Each Obligor shall (and Listco shall ensure that each member of the Group will) maintain insurances on and in relation to its business and assets against those material risks and to the extent as is usual for companies carrying on the same or substantially similar business.

 

(b) All insurances must be with reputable independent insurance companies or underwriters.

 

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27.22 Pensions

Listco shall ensure that all pension schemes operated by or maintained for the benefit of members of the Group and/or any of its employees are funded to the extent required by applicable law and regulations, where failure to do so would have a Material Adverse Effect.

 

27.23 Access

Each Obligor shall, and Listco shall ensure that each member of the Group will, while an Event of Default under Clause 28.1 ( Non-payment ) or Clause 28.5 ( Insolvency ) is continuing or (on the instructions of the Majority RCF Lenders only) while a Financial Covenant Event of Default is continuing, permit the Agent and/or the Security Agent and/or accountants or other professional advisers and contractors of the Agent or Security Agent free access during normal business hours and on reasonable notice, at the risk and cost of the Obligor or Listco and after having consulted with Listco, to the premises, assets, books, accounts and records of each member of the Group.

 

27.24 Intellectual Property

Each Obligor shall (and Listco shall procure that each Group member will):

 

  (a) preserve and maintain the subsistence and validity of the Intellectual Property necessary for the business of the relevant Group member;

 

  (b) use reasonable endeavours to prevent any infringement in any material respect of the Intellectual Property;

 

  (c) make registrations and pay all registration fees and taxes necessary to maintain the Intellectual Property in full force and effect and record its interest in that Intellectual Property;

 

  (d) not use or permit the Intellectual Property to be used in a way or take any step or omit to take any step in respect of that Intellectual Property which may materially and adversely affect the existence or value of the Intellectual Property or imperil the right of any member of the Group to use such property; and

 

  (e) not discontinue the use of the Intellectual Property,

where, in each case, failure to do so would have a Material Adverse Effect.

 

27.25 Amendments

No Obligor shall (and Listco shall ensure that no member of the Group will) amend, vary, novate, supplement, supersede, waive or terminate any provision of the constitutional documents dealing with the transfer of shares of any member of the Group whose shares are subject to Security except in writing and in a way which would not materially and adversely affect the interests of the Lenders taken as a whole.

 

27.26 Financial assistance

Each Obligor shall (and Listco shall procure each member of the Group will) comply, where applicable, in all respects with Sections 678 to 679 of the United Kingdom Companies Act 2006 (as amended) and any equivalent legislation in other jurisdictions, including in relation to the execution of the Transaction Security Documents and payment of amounts due under this Agreement.

 

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27.27 Treasury Transactions

No Obligor shall (and Listco will procure that no member of the Group will) enter into any Treasury Transaction, other than:

 

  (i) hedging transactions entered into for the purpose of hedging any interest rate exposures arising in connection with the Term Facilities, any Senior Secured Notes or any New Debt Financing, in each case up to the aggregate principal amount outstanding thereunder from time to time and documented by the Hedging Agreements;

 

  (ii) spot and forward delivery foreign exchange contracts entered into in the ordinary course of business and not for speculative purposes;

 

  (iii) currency hedging of any principal or interest in relation to any Term Facility, any Senior Secured Notes or any New Debt Financing and (in each case) not for speculative purposes; and

 

  (iv) any Treasury Transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of trading activities of a member of the Group and not for speculative purposes.

 

27.28 Cash management

 

(a) Subject to paragraph (b) below, each Obligor will use reasonable endeavours to ensure that it shall not, and none of its Subsidiaries will, at any time, hold cash in excess of EUR 10,000,000 in aggregate or its equivalent with any bank which is not an Acceptable Bank for more than 3 Months.

 

(b) No Obligor shall be obliged at any time to procure that any Subsidiary transfers any cash under paragraph (a) above:

 

  (i) at a time when to do so would cause the Obligor or the Subsidiary (despite that person using all reasonable endeavours to avoid the relevant Tax liability) to incur a material Tax liability or to otherwise incur any material cost or expense;

 

  (ii) if (despite using all reasonable efforts to avoid the breach or result) to do so would breach any applicable law or agreement or result in personal liability for the Obligor or the Subsidiary or any of such person’s directors or management; or

 

  (iii) if it involves an amount which is less than EUR 10,000,000 in aggregate or its equivalent for each such Subsidiary.

 

27.29 Guarantors

 

(a) Subject to paragraphs (c), (d) and (e) below, Listco shall ensure that any member of the Group which is a Material Company shall, subject to the Security Principles, become an Additional Guarantor in accordance with the terms hereof and deliver all of the documents and other evidence required by Clause 31.4 ( Additional Guarantors ) and as soon as reasonably practicable after Listco delivers the Annual Financial Statements which first show that member of the Group to be a Material Company.

 

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(b) Subject to paragraphs (c), (d) and (e) below, Listco shall ensure that, as at the date falling 60 days after the Closing Date and as at the end of each Financial Year:

 

  (i) the aggregate (without double counting) earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA as specified in Clause 26.1 ( Financial definitions )) of the Guarantors (taking each entity on an unconsolidated basis and excluding all intra-Group items) is no less than 80 per cent. of the Consolidated EBITDA of the Group; and

 

  (ii) the aggregate (without double counting) total assets of the Guarantors (calculated on the same basis as Total Assets and taking each entity on an unconsolidated basis and excluding intra-group items) is no less than 80 per cent. of the Total Assets,

and, for the purposes of paragraphs (i) and (ii) above (the “ Guarantor Coverage ”), as determined by reference to the Original Financial Statements and the most recent Annual Financial Statements delivered by Listco.

 

(c) Subject to paragraph (e) below, where any member of the Group is not eligible to be a Guarantor pursuant to paragraph 1(b)(ii) of Schedule 12 ( Security Principles ), its EBITDA and gross assets shall not be included in the Consolidated EBITDA and Total Assets of the Group for the calculation of Guarantor Coverage, provided that Listco shall use its reasonable endeavours to assist in overcoming any relevant restrictions to enable such member of the Group to act as a Guarantor and, if despite such efforts such member of the Group has remained unable to act as a Guarantor, Listco shall, subject to the Security Principles, use its reasonable endeavours to enable other members of the Group to accede as Guarantors in the place of such member of the Group in order to meet the Guarantor Coverage.

 

(d) Subject to paragraph (e) below, any member of the Group acquired as a result of a Permitted Acquisition shall be taken into account for the purposes of calculating the Guarantor Coverage.

 

(e) Notwithstanding the preceding paragraphs, for the purposes of this Clause 27.29, Listco shall be under no obligation to ensure that Findus Italy accedes as a Guarantor, and the references to the “Group”, “Consolidated EBITDA” and “Total Assets” in this Clause 27.29 shall be deemed to exclude Findus Italy.

 

(f) The requirement for each Material Company to accede as a Guarantor, and for each Guarantor to provide first-ranking security over its applicable assets (and/or, as applicable, for first ranking security to be granted over its shares) as determined in accordance with the Security Principles, shall apply notwithstanding paragraphs (c) and (d) of the definition of Permitted Security.

 

27.30 Further assurance

 

(a) Each Obligor shall (and Listco shall procure that each member of the Group will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):

 

  (i) subject to the Security Principles, to perfect within the timeframes set out therein the Security created or intended to be created under or evidenced by the Transaction Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law at the times provided; and/or

 

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  (ii) following the occurrence of a Declared Default or an RCF Declared Default, to facilitate the realisation of the assets which are, or are intended to be, the subject of Security under the Transaction Security Documents.

 

(b) If any Obligor which has entered into one or more Transaction Security Documents acquires an asset (including any right, account, investment or otherwise) which is either not subject to that Transaction Security Document, or in relation to which a perfection requirement or other step must be taken in relation to that asset in connection with an existing Transaction Security Document, that Obligor shall (in all cases subject to the Security Principles) ensure that a Transaction Security Document is entered into, or, as required by the applicable Transaction Security Document that a similar perfection requirement or other step is taken, in each case in connection with that asset.

 

27.31 Second Lien Debt Purchase Condition

 

(a) No Obligor shall (and Listco shall ensure that no other member of the Group will) undertake any Second Lien Debt Purchase or enter into a legally binding commitment or offer for a Second Lien Debt Purchase unless:

 

  (i) such Second Lien Debt Purchase is funded with the net cash proceeds of New Equity or Subordinated Debt received after the Closing Date and which has not been used for any other purpose;

 

  (ii) such Second Lien Debt Purchase is funded with an amount which would otherwise be available to be, and is at that time permitted to be, paid in cash to shareholders of Listco by way of a Permitted Payment; or

 

  (iii) such Second Lien Debt Purchase is made following the occurrence of a Change of Control and the Group is in compliance with the requirements of Clause 12.1 ( Exit ),

and provided that, in each case no Event of Default is continuing or would occur as a result of such Second Lien Debt Purchase.

 

(b) Listco shall ensure that any Second Lien Debt that is the subject of a Second Lien Debt Purchase is extinguished at the time of such Second Lien Debt Purchase.

 

27.32 Subordinated Liabilities

No Obligor shall (and Listco shall ensure that no other member of the Group will) create, have outstanding or permit to exist any present or future liabilities or obligations owed to a direct or indirect shareholder of Listco other than constituting or in connection with the giving of a Permitted Payment or a Permitted Share Issue or constituting Subordinated Liabilities owed to a Subordinated Creditor (each as defined in the Intercreditor Agreement).

 

27.33 Public rating

Listco will use reasonable endeavours:

 

  (a)

to obtain a public corporate rating for itself or another appropriate member of the Group as soon as reasonably possible from two out of three of Moody’s Investors Service Inc., Standard & Poor’s Financial Services LLC and Fitch Ratings Ltd., and in any event to

 

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  cause the officers of the Group with appropriate seniority and expertise to hold meetings with two out of three of such rating agencies, for the purpose of obtaining such credit ratings; and

 

  (b) to the extent such ratings continue to be available to maintain a public corporate rating for Listco or another appropriate member of the Group from two out of three of such rating agencies.

 

27.34 Conditions subsequent

As soon as reasonably practicable after the Closing Date (and in any event within the time periods specified therein), Listco shall provide or procure the provision of all the documents and other evidence set out in Parts I and II of Schedule 2 ( Conditions Precedent and Conditions Subsequent ) each in form and substance satisfactory to the Agent (acting reasonably).

 

27.35 Covenant suspension/relaxation

Notwithstanding anything to the contrary in any Finance Document, during the period which (but only for so long as) Debt Cover (calculated on a pro forma basis for any action, transaction or incurrence to be entered into by an Obligor or any member of the Group) is equal to or less than 3.75:1 (the “ Debt Cover Condition ”) and provided that no Default or Event of Default has occurred and is continuing at the time such action, transaction or incurrence is to be entered into, the terms of this Agreement shall be construed so as to take account of the following (and shall be interpreted accordingly):

 

  (i) each reference to “5” in paragraph (ii) of paragraph (b) of the definition of ‘Material Company’ shall be construed (and interpreted accordingly) as if it were instead a reference to “10”;

 

  (ii) paragraphs (b), (c) and (d) of Clause 27.29 ( Guarantors ) shall be suspended and shall cease to apply;

 

  (iii) Clauses 27.17 ( Dividends and share redemption ) and 27.18 ( Subordinated Debt ) shall be suspended and shall cease to apply;

 

  (iv)

 

  (A) in relation to any potential Additional Obligor (other than any Holding Company Guarantor (as defined below)), the condition precedent in paragraph 19 of Part III of Schedule 2 ( Conditions Precedent and Conditions Subsequent ) shall be (notwithstanding paragraph (B) below) construed (and interpreted accordingly) as if it had been replaced in its entirety and instead read “Evidence that each direct Holding Company of the Additional Obligor that is a member of the Group has become Party as an Additional Guarantor (any such Holding Company prior to its accession being a “ Holding Company Guarantor ”) and has granted Transaction Security over the entire issued share capital of the Additional Obligor held by it in accordance with the Security Principles”; and

 

  (B)

in relation to any potential Additional Obligor which is required, as a result of the condition precedent referred to (and as to be construed and interpreted as set

 

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  out in) in paragraph (A) above, to be Party as an Additional Guarantor by virtue of it being a Holding Company Guarantor, the condition precedent in paragraph 19 of Part III of Schedule 2 ( Conditions Precedent and Conditions Subsequent ) (notwithstanding paragraph (A) above) shall be construed (and interpreted accordingly) as if it had been replaced in its entirety and instead read “Evidence that the Additional Obligor has granted Transaction Security over the entire issued share capital of each Obligor held by it in accordance with the Security Principles”;

 

  (v) the reference to “EUR 100,000,000 or its equivalent” in paragraph (p) of Permitted Disposal shall instead be construed (and interpreted accordingly) as if it were instead a reference to “five per cent. of Total Assets (and with any Permitted Disposal effected in reliance on this paragraph (p) being, for the purposes of testing compliance with Clause 27.13 ( Disposal s), converted into the functional currency of the relevant Annual Financial Statements or Quarterly Financial Statements as at the date of such Permitted Disposal in a manner consistent with the Accounting Principles)”; and

 

  (vi) the fixed numerical baskets contained in the following provisions shall be construed (and interpreted accordingly) as if each were 25 per cent. higher than the applicable amount as at the 2017 Effective Date and as if the Debt Cover Condition was not satisfied on the 2017 Effective Date: paragraph (c) of the definition of ‘Permitted Disposal’, paragraphs (f), (i) and (m) of the definition of ‘Permitted Financial Indebtedness’, paragraphs (c) and (r) of the definition of ‘Permitted Guarantee’, paragraphs (d), (e), (f), (g) and (k) of the definition of ‘Permitted Loan’, paragraph (i) of the definition of ‘Permitted Payment’ and paragraphs (m) and (u) of the definition of ‘Permitted Security’,

in each case subject always to paragraph (c) of Clause 28.18 ( Operation of Clause 27 (General undertakings) ) and without prejudice to any rights of any Finance Party that may have arisen pursuant to any Finance Document (including, without limitation, Clause 4.1 ( Conditions precedent ) and/or Clause 28 ( Events of Default )) by reference to any provision, definition or term of this Agreement and the application, effect and/or meaning of such provision, definition or term immediately prior to the Debt Cover Condition being met.

 

27.36 Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions

 

(a) No Obligor shall (and Listco shall ensure that no other member of the Group will):

 

  (i) contribute or otherwise make available all or any part of the proceeds of the Facilities, directly or indirectly, to, or for the benefit of, any individual or entity (whether or not related to any member of the Group) for the purpose of financing the activities or business of, other transactions with, or investments in, any Restricted Party or for any purpose which would result in a breach of applicable Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws;

 

  (ii) directly or indirectly fund all or part of any repayment or prepayment of the Facilities out of proceeds derived from any transaction with or action involving a Restricted Party or from any activity which is in breach of any Sanctions; or

 

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  (iii) engage in any transaction, activity or conduct that would violate Sanctions applicable to it or result in a breach of any applicable Anti-Corruption Laws or Anti-Money Laundering Laws; or

 

  (iv) engage in any transaction, activity or conduct that would cause any Finance Party to be in breach of any Sanctions or that could reasonably be expected to result in it or any other member of the Group or any Finance Party being designated as a Restricted Party.

 

(b) Each Obligor will (and Listco will procure that each member of the Group will) conduct its business in compliance with, and maintain and enforce policies and procedures designed to ensure compliance with, applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws.

 

(c) Each Obligor agrees to provide each Finance Party with all information reasonably required by that Finance Party to carry out that Finance Party’s obligations under applicable Sanctions, Anti-Money Laundering Laws and Anti-Corruption Laws.

 

(d) Nothing in this Clause 27.36 shall create or establish an obligation or right for a Relevant Party to the extent that, by agreeing to it, complying with it, exercising it, having such obligation or right, or otherwise, such Relevant Party (or any directors, officers or employees, agent and affiliates thereof) would be placed in violation of any foreign trade law or anti-boycott law applicable to it (including but not limited to Section 7 German Foreign Trade Regulation ( Außenwirtschaftsverordnung ) and Council Regulation (EC) 2271/1996), and the undertakings made in this Clause 27.36 shall be so limited in relation to any such Relevant Party and to that extent shall not be made by or apply to any such Relevant Party.

 

28. EVENTS OF DEFAULT

Each of the events or circumstances set out in Clause 28.1 ( Non-payment ) to Clause 28.15 ( Tax status ) is an Event of Default.

 

28.1 Non-payment

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable, unless:

 

  (a) in the case of principal and interest, payment is made within three Business Days of its due date; and

 

  (b) in the case of any other amount, payment is made within seven Business Days of its due date.

 

28.2 Other obligations

 

(a) An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 28.1 ( Non-payment ) and Clause 26.2 ( Financial condition )).

 

(b) No Event of Default under paragraph (a) above will occur, save in the case of failure to comply with Clause 27.34 ( Conditions subsequent ), if the failure to comply is capable of remedy and is remedied within 20 Business Days of the earlier of the Agent giving written notice to Listco or Listco becoming aware of the failure to comply.

 

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28.3 Misrepresentation

 

(a) Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading when made or deemed to be made.

 

(b) No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 20 Business Days of the earlier of the Agent giving written notice to Listco or Listco becoming aware of the failure to comply.

 

28.4 Cross default

 

(a) Any Financial Indebtedness of any member of the Group is not paid when due or within any originally applicable grace period.

 

(b) Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

 

(c) Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).

 

(d) Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described) but excluding as a result of a Financial Covenant Event of Default.

 

(e) An RCF Declared Default occurs.

 

(f) No Event of Default will occur under any of paragraphs (a) to (d) above of this Clause 28.4 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than EUR 35,000,000 or its equivalent.

For the purpose of any of paragraphs (a) to (d) above of this Clause 28.4 (only) Financial Indebtedness shall not include Financial Indebtedness which constitutes any Subordinated Debt or any Financial Indebtedness supported by a Letter of Credit issued under a Revolving Facility.

 

28.5 Insolvency

 

(a) A Material Company is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to a general rescheduling of any of its indebtedness (or, in relation to a Material Company having its seat in Germany, any event occurs which constitutes a cause for the initiation of insolvency proceedings ( Er ö ffnungsgrund ) as set out in sections 17 and 19 of the German Insolvency Code ( Insolvenzordnung ) or, in relation to a Material Company incorporated in Austria, it is unable to pay its debts as they fall due ( zahlungsunf ä hig ) within the meaning of section 66 Austrian Insolvency Code ( Insolvenzordnung ) or is over-indebted ( ü berschuldet ) within the meaning of section 67 Austrian Insolvency Code ( Insolvenzordnung )).

 

(b) A Material Company incorporated in Sweden is required to prepare a special balance sheet (Sw. kontrollbalansräkning ).

 

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28.6 Insolvency proceedings

 

(a) Any corporate action, legal proceedings or other formal procedure or step is taken in relation to:

 

  (i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Material Company other than a Permitted Transaction, other than the solvent liquidation or reorganisation of any member of the Group which does not materially and adversely affect the interests of the Lenders;

 

  (ii) a composition or assignment with any creditor of any Material Company for reasons of financial difficulty of the Material Company;

 

  (iii) the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Material Company or any of its assets; or

 

  (iv) any analogous procedure or step being taken in any jurisdiction in respect of all or any part of the business or assets of a Material Company (including in Austria, the opening of a composition proceeding ( Sanierungverfahren ) under self-administration without the appointment of a receiver or the denial of the opening of insolvency proceedings due to a lack of assets ( Abweisung mangels kostendeckenden Verm ö gens )), in particular, but not limiting the events listed above, in relation to a Material Company having its seat in Germany:

 

  (A) a petition for insolvency proceedings in respect of its assets ( Antrag auf Er ö ffnung eines Insolvenzverfahrens ) being filed; or

 

  (B) actions being taken pursuant to section 21 of the German Insolvency Code ( Insolvenzordnung ) by the competent court;

 

  (v) the filing of an involuntary proceeding in a court of competent jurisdiction in the United States seeking relief under US Bankruptcy Law in respect of any Borrower or Material Company and either such proceeding shall continue undismissed for 45 days or an order or decree approving or ordering any of the foregoing shall be entered or Borrower or Material Company shall consent to the institution of, or fail to contest in a timely and appropriate manner, any such involuntary proceeding; or

 

  (vi) the filing of a voluntarily petition by any Borrower or Material Company under US Bankruptcy Law.

 

(b) For the purpose of paragraph (a)(i) above, a “reorganisation” shall include a company reorganisation (Sw. f ö retagsrekonstruktion ) pursuant to the Swedish Reorganisation Act (Sw. lag (1996:764) om f ö retagsrekonstruktion ).

 

(c) Paragraph (a) above shall not apply to any proceedings which are contested in good faith and discharged, stayed or dismissed within 20 Business Days of commencement.

 

28.7 Creditors’ process

Any expropriation, attachment, sequestration, distress or execution or any analogous process in any jurisdiction affects any asset or assets of a Material Company exceeding an aggregate value of EUR 35,000,000 or its equivalent, unless such process is either being contested in good faith and/or shown as frivolous or vexatious and is discharged within 20 Business Days after commencement.

 

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28.8 Unlawfulness and invalidity

 

(a) It is or becomes unlawful for an Obligor to perform any of its material obligations under the Finance Documents or any Transaction Security created or expressed to be created or evidenced by the Transaction Security Documents ceases to be effective and this individually or cumulatively, materially and adversely affects the interests of the Lenders taken as a whole under the Finance Documents.

 

(b) Subject to the Legal Reservations and Perfection Requirements, any material obligation or obligations of any Obligor under any Finance Document are not or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively, materially and adversely affects the interests of the Lenders taken as a whole under the Finance Documents.

 

(c) No Event of Default under paragraphs (a) and (b) above will occur if the issue is capable of being remedied and is remedied within 20 Business Days of the earlier of Listco becoming aware of the issue or being given written notice of the issue by the Agent.

 

28.9 Intercreditor Agreement

Any party (other than (i) a Finance Party or (ii) a member of the Group) fails to comply with the provisions of, or does not perform its obligations under, the Intercreditor Agreement or a representation or warranty given by that party in the Intercreditor Agreement is incorrect in any material respect, and, if the non-compliance or circumstances giving rise to the misrepresentation are capable of remedy, it is not remedied within 20 Business Days of the earlier of the Agent giving written notice to that party or that party becoming aware of the non-compliance or misrepresentation.

 

28.10 Cessation of business

The Group taken as a whole suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business.

 

28.11 Audit qualification

The Auditors of the Group qualify the audited annual consolidated financial statements of Listco in a way which has a Material Adverse Effect.

 

28.12 Repudiation and rescission of agreements

An Obligor rescinds or purports to rescind or repudiates or evidences an intention to repudiate a Finance Document or evidences an intention to rescind or repudiate a Finance Document in any way which is materially adverse to the interest of the Lenders under that Finance Document taken as a whole.

 

28.13 Material adverse change

Any event or circumstance occurs which has a Material Adverse Effect.

 

28.14 Unsatisfied judgment

Any Obligor fails to pay a final judgment against it and that failure to pay has a Material Adverse Effect.

 

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28.15 Tax status

A notice under Article 36 of the Tax Collection Act ( Invorderingswet 1990 ) has been given by any member of the Group.

 

28.16 Acceleration

 

(a) On and at any time after the occurrence of an Event of Default under paragraph (a) of that definition which is continuing, other than an Event of Default referred to in clause (c) below, the Agent may, and shall if so directed by the Majority Lenders, by notice to Listco:

 

  (i) cancel the Total Commitments and/or Ancillary Commitments, at which time they shall immediately be cancelled;

 

  (ii) declare that all or part of the Utilisations, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, at which time they shall become immediately due and payable;

 

  (iii) declare that all or part of the Utilisations be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders;

 

  (iv) declare that cash cover in respect of each Letter of Credit is immediately due and payable, at which time it shall become immediately due and payable;

 

  (v) declare that cash cover in respect of each Letter of Credit is payable on demand, at which time it shall immediately become due and payable on demand by the Agent on the instructions of the Majority Lenders;

 

  (vi) declare all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities to be immediately due and payable, at which time they shall become immediately due and payable;

 

  (vii) declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or

 

  (viii) exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers and/or discretions under the Finance Documents.

 

(b) Subject to the terms of the Intercreditor Agreement, on and at any time after the occurrence of an Event of Default under paragraph (b) of that definition which is continuing, the Agent may, and shall if so directed by the Majority RCF Lenders by notice to Listco:

 

  (i) cancel the Total Revolving Facility Commitments and/or Ancillary Commitments, at which time they shall immediately be cancelled;

 

  (ii) declare that all or part of the Revolving Facility Utilisations, together with accrued interest, and all other amounts accrued or outstanding under the Revolving Facility be immediately due and payable, at which time they shall become immediately due and payable;

 

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  (iii) declare that all or part of the Revolving Facility Utilisations be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority RCF Lenders;

 

  (iv) declare that cash cover in respect of each Letter of Credit is immediately due and payable, at which time it shall become immediately due and payable;

 

  (v) declare that cash cover in respect of each Letter of Credit is payable on demand, at which time it shall immediately become due and payable on demand by the Agent on the instructions of the Majority RCF Lenders;

 

  (vi) declare all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities to be immediately due and payable, at which time they shall become immediately due and payable;

 

  (vii) declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority RCF Lenders; and/or

 

  (viii) exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.

 

(c) If an Event of Default occurs under paragraph (a)(v) of Clause 28.6 ( Insolvency proceedings ) or paragraph (a)(vi) of Clause 28.6 ( Insolvency proceedings ):

 

  (i) the Total Commitments and Ancillary Commitments shall immediately be cancelled;

 

  (ii) all of the Utilisations, together with accrued interest and all other amounts accrued under the Finance Documents, shall be immediately due and payable;

 

  (iii) cash cover in respect of each Letter of Credit shall be immediately due and payable; and

 

  (iv) all amounts (or cash cover in relation to those amounts) outstanding under an Ancillary Facility shall be immediately due and payable,

in each case automatically and without any direction, notice, declaration or other act and (in addition) the Security Agent may exercise any or all of its rights, remedies, powers and/or discretions under the Finance Documents.

 

28.17 Clean-Up Period

Notwithstanding any other provision of this Agreement, in relation to any Permitted Acquisition under paragraphs (d) and (e) of the definition of ‘Permitted Acquisition’, any Default or Event of Default which is a Clean-Up Default will be deemed not to be a breach of representation, warranty or undertaking, or a Default or an Event of Default (as the case may be) for the duration of the relevant Clean-Up Period if:

 

  (a) it would have been (if it were not for this provision) a breach of representation, warranty or undertaking or a Default or an Event of Default only by reason of circumstances relating exclusively to a member of the Acquired Group of such Permitted Acquisition (or any obligation to procure or ensure in relation to a member of that Acquired Group);

 

  (b) it is capable of remedy and reasonable steps are being taken to remedy it;

 

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  (c) the circumstances giving rise to it have not be procured by or approved by a member of the Group;

 

  (d) it is not reasonably likely to have a Material Adverse Effect; and

 

  (e) it does not exist at the end of the Clean-Up Period,

provided that, notwithstanding the above, if the relevant circumstances are continuing on or after the end of the Clean-Up Period, there shall be an Event of Default.

 

28.18 Operation of Clause 27 ( General undertakings )

 

(a) When establishing whether any action, transaction and/or incurrence of a liability is permitted under the terms of the Finance Documents by reference to LTM EBITDA, the Group shall be entitled to rely on the fact that such action, transaction and/or incurrence was permitted by reference to LTM EBITDA at the time that action was originally taken, that transaction was originally committed to or that liability was originally incurred (as the case may be) assuming that is the case and, to the extent so permitted, no subsequent change in Consolidated EBITDA shall in and of itself cause such action, transaction and/or incurrence to constitute or be deemed to constitute or result in a breach of any representation, warranty, undertaking or other term of the Finance Documents or a Default or an Event of Default.

 

(b) Notwithstanding any term of any Finance Document to the contrary, any Financial Indebtedness incurred by reference to LTM EBITDA may be refinanced, replaced, renewed or extended, notwithstanding any subsequent change in Consolidated EBITDA, provided that the principal amount of such Financial Indebtedness is not increased (other than as represents the fees, costs and expenses for such financing, replacement, renewal or extension) and the maturity date is the same or longer as that applicable to the Financial Indebtedness being refinanced, replaced, renewed or extended.

 

(c) A certificate from Listco confirming that the Debt Cover Condition is satisfied shall be prima facie evidence thereof. If at any time after the Debt Cover Condition has been satisfied the Debt Cover Condition ceases to be satisfied, any breach of the Finance Documents that arises as a result of any of the obligations, restrictions or other terms referred to in Clause 27.35 ( Covenant suspension/relaxation ) ceasing to be construed or suspended in the manner described in that Clause shall not (provided that it did not constitute a Default or an Event of Default at the time the relevant action, transaction or incurrence was entered into) constitute or be deemed to constitute or result in a breach of any representation, warranty, undertaking or other term of the Finance Documents or a Default or an Event of Default.

 

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SECTION 9

CHANGES TO PARTIES

 

29. CHANGES TO THE LENDERS

 

29.1 Assignments and transfers by the Lenders

 

(a) Subject to this Clause 29, a Lender (the “ Existing Lender ”) may:

 

  (i) assign any of its rights; or

 

  (ii) transfer by novation any of its rights and obligations,

under any Finance Document to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the “ New Lender ”).

 

29.2 Conditions of assignment or transfer

 

(a) Listco must be consulted before an assignment or transfer by an Existing Lender, unless the assignment or transfer is:

 

  (i) to another Lender or an Affiliate of a Lender; or

 

  (ii) to a fund within the same investor group as the fund which is the Existing Lender (including, for the avoidance of doubt, to any Related Fund); or

 

  (iii) by an Original Lender in the course of syndication of Facility B1, Facility B2 and/or the Original Revolving Facility.

 

(b) Each assignment or transfer of part of any Lender’s participation shall (when aggregated with related assignments and transfers, including with its Affiliates and Related Funds) be in a minimum amount of:

 

  (i) EUR 1,000,000 or US$1,000,000 as applicable in aggregate in respect of Commitments under a Term Facility (or, if less, all of that Lender’s remaining Commitments under that Facility); or

 

  (ii) EUR 1,000,000 (or its equivalent) in aggregate in respect of Commitments under the Revolving Facility (or, if less, all of that Lender’s remaining Commitments under that Facility),

or, in relation to any Original Revolving Facility Commitment such lower amount as may be agreed by Listco in connection with the provision of an Ancillary Facility.

 

(c) The consent of any applicable Issuing Bank is required for any assignment or transfer by an Existing Lender of any of its rights and/or obligations under a Revolving Facility.

 

(d) An assignment will only be effective on:

 

  (i) receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties and the other Secured Parties as it would have been under if it was an Existing Lender;

 

  (ii) the New Lender entering into a Creditor/Agent Accession Undertaking (as defined in the Intercreditor Agreement);

 

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  (iii) the performance by the Agent of all “know your customer” or other checks relating to any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender; and

 

  (iv) receipt by Listco of the notice required by Clause 18.5 ( Lender status confirmation ).

 

(e) A transfer will only be effective if the New Lender enters into a Creditor/Agent Accession Undertaking (as defined in the Intercreditor Agreement) and if the procedure set out in Clause 29.6 ( Procedure for transfer ) is complied with.

 

(f) If (other than in the course of syndication of Facility B1 and/or Facility B2 and/or the Original Revolving Facility):

 

  (i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

 

  (ii) as a result of circumstances existing at the date the assignment a transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 18 ( Tax gross-up and indemnities ) or Clause 19.1 ( Increased Costs ),

then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.

 

(g) If the Existing Lender has consented to an amendment or waiver request which is outstanding at the time of assignment or transfer, the transfer may only be made if the New Lender has also consented to that request.

 

29.3 Assignment or transfer fee

Unless the Agent otherwise agrees and excluding an assignment or transfer to an Affiliate of a Lender or made in connection with primary syndication of the Facilities, the New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of (in the case of any Euro Denominated Facility) EUR 1,500 or (in the case of any US$ Denominated Facility) US$1,500.

 

29.4 Preservation of Security Interests

Each Party to this Agreement hereby expressly accepts and confirms, for the purpose of articles 1278 and 1281 of the Luxembourg Civil Code, that notwithstanding any assignment, transfer and/or novation permitted under, and made in accordance with the provisions of this Agreement, any and all Security and guarantees granted under or given in connection with the Finance Documents to which such Party is a party shall be preserved for the benefit of any assignee, transferee or successor.

 

29.5 Limitation of responsibility of Existing Lenders

 

(a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

 

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  (i) the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents, the Transaction Security or any other documents;

 

  (ii) the financial condition of any Obligor;

 

  (iii) the performance and observance by any Obligor or any other member of the Group of its obligations under the Transaction Documents or any other documents; or

 

  (iv) the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,

and any representations or warranties implied by law are excluded.

 

(b) Each New Lender confirms to the Existing Lender, the other Finance Parties and the Secured Parties that it:

 

  (i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document or the Transaction Security; and

 

  (ii) will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 

(c) Nothing in any Finance Document obliges an Existing Lender to:

 

  (i) accept a retransfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 29; or

 

  (ii) support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Transaction Documents or otherwise.

 

29.6 Procedure for transfer

 

(a) Subject to the conditions set out in Clause 29.2 ( Conditions of assignment or transfer ), a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate and Lender Accession Undertaking delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate and Lender Accession Undertaking appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate and Lender Accession Undertaking.

 

(b) The Agent shall only be obliged to execute a Transfer Certificate and Lender Accession Undertaking delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or similar other checks under all applicable laws and regulations in relation to the transfer to such New Lender.

 

(c) On the Transfer Date:

 

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  (i) to the extent that, in the Transfer Certificate and Lender Accession Undertaking, the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and other members of the Group party to any Finance Document or the Transaction Security and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the “ Discharged Rights and Obligations ”);

 

  (ii) each of the Obligors and other members of the Group party to any Finance Document and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor or other member of the Group and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;

 

  (iii) the Agent, the Arrangers, the Security Agent, the New Lender, the other Lenders, the Issuing Bank and any relevant Ancillary Lender shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and, to that extent, the Agent, the Arrangers, the Security Agent, the Issuing Bank and any relevant Ancillary Lender and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

 

  (iv) the New Lender shall become a Party as a “Lender”.

 

(d) At the request of the Agent or the New Lender, the New Lender and the Existing Lender shall promptly raise the duly completed Transfer Certificate and Lender Accession Undertaking to the status of Spanish Public Document in the form of “ escritura pública ”.

 

(e) For the avoidance of doubt, the Parties agree that a transfer effected in accordance with this Clause 29.6 shall constitute a novation within the meaning of articles 1271 et seq. of the French Code Civil , provided that, notwithstanding any such novation, all the rights (including in relation to Transaction Security) of the Secured Parties against the Obligors shall be maintained.

 

29.7 Copy of Transfer Certificate and Lender Accession Undertaking to Listco

The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate and Lender Accession Undertaking, send to Listco a copy of that Transfer Certificate and Lender Accession Undertaking.

 

29.8 Security Interests over Lenders’ rights

In addition to the other rights provided to Lenders under this Clause 29, each Lender may at any time create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender, including, without limitation:

 

  (a) any Security to secure obligations to a federal reserve or central bank; and

 

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  (b) in the case of any Lender which is a fund, any Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,

except that no such Security shall:

 

  (i) release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant Security for the Lender as a party to any of the Finance Documents; or

 

  (ii) require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.

 

29.9 Sub-participations

The Lenders may enter into any sub-participations or other arrangements by which a third party acquires direct or indirect commercial control over a Lender’s rights and/or obligations under this Agreement provided that Listco must be consulted where a third party is to acquire direct or indirect commercial control over a Lender’s voting rights under this Agreement.

 

29.10 Lender Accession Notice

Each Lender which executes a Lender Accession Notice confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which such person becomes Party to this Agreement and that it is bound by that decision to the same extent as it would have been had it been a Lender under this Agreement at the relevant time of such amendment or waiver being approved.

 

29.11 Replacement of Lenders

 

(a) If at any time any Lender or the Issuing Bank becomes an Affected Lender or Non-Consenting Lender, then Listco may, on 10 Business Days’ prior written notice to the Agent and that Lender or Issuing Bank (as the case may be and unless Listco and the Agent agree to a longer time period in relation to any request), replace that Lender or Issuing Bank by causing it to, and that Lender or Issuing Bank shall, by execution of a Transfer Certificate and Lender Accession Undertaking within that 10-Business Day, period transfer all of its rights and obligations under this Agreement to a Lender or other entity designated by Listco for a purchase price equal to that Lender’s or Issuing Bank’s participations in the Utilisations then outstanding, in either case with all accrued interests, fees and other amounts payable to that Lender or Issuing Bank under this Agreement or any Ancillary Document.

 

(b) For the purposes of this Clause 29.11:

“ Affected Lender ” means a Lender or Issuing Bank in respect of which a Borrower or Listco is at that time entitled to serve a notice under Clause 11.6 ( Right of cancellation and repayment in relation to a single Lender or Issuing Bank ) or whose rights and obligations under this Agreement would, but for this Clause 29.11, be cancelled pursuant to Clause 11.1 ( Illegality ) or 11.2 ( Illegality in relation to an Issuing Bank ); and

“ Non-Consenting Lender ” means any Lender which does not agree to consent to any waiver or amendment of any provision of the Finance Documents which has been requested by Listco or any other Obligor where the requested amendment or waiver has been approved by the Majority Lenders and requires the consent of more than the Majority Lenders.

 

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(c) This Clause 29.11 shall not apply to a Listco Affiliate (unless the Majority Lenders otherwise agree).

 

29.12 Lender Affiliates

 

(a) A Lender may nominate a branch or Affiliate to discharge its obligations to participate in one or more Utilisations:

 

  (i) in this Agreement;

 

  (ii) in the Transfer Certificate and Lender Accession Undertaking pursuant to which such Lender becomes a Party; or

 

  (iii) in a written notice from such Lender (in form and substance satisfactory to the Agent and Listco, each acting reasonably) delivered to the Agent and Listco not less than two Business Days prior to the Utilisation Date for that Utilisation.

 

(b) Any branch or Affiliate nominated by a Lender to participate in a Utilisation shall:

 

  (i) participate therein in compliance with the terms of this Agreement;

 

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

 

  (iii) in the case of an Affiliate, become party to the Intercreditor Agreement.

 

(c) Each Lender shall remain liable and responsible for the performance of all obligations assumed by a branch or Affiliate on its behalf and non-performance of a Lender’s obligations by its branch or Affiliate shall not relieve such Lender from its obligations under this Agreement.

 

(d) No Obligor shall be liable to pay any amount otherwise required to be paid by an Obligor under Clause 18 ( Tax gross-up and indemnities ) or Clause 19 ( Increased costs ) in excess of the amount it would have been obliged to pay if that Lender had not nominated its branch or Affiliate to participate in the relevant Facility or, to the extent that such Lender nominated such branch or Affiliate for a particular Utilisation, in excess of the amount which it would have been obliged to pay had that Lender continued to make that particular Utilisation. Each Lender shall promptly notify the Agent and Listco of the jurisdiction of tax residence from which its branch or Affiliate will participate in the relevant Facility or Utilisations and such other information regarding that branch or Affiliate as Listco may reasonably request.

 

(e) Any notice or communication to be made to a branch or an Affiliate of a Lender pursuant to Clause 37 ( Notices ):

 

  (i) may be served directly upon the branch or Affiliate, at the relevant address supplied to the Agent by the nominating Lender, where the Lender or the relevant branch or Affiliate requests this in order to mitigate any legal obligation to deduct withholding Tax from any payment to such branch or Affiliate or any payment obligation which might otherwise arise pursuant to Clause 19 ( Increased costs ); or

 

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  (ii) in any other circumstance, may be delivered to the address for the Lender provided pursuant to Clause 37 ( Notices ).

 

(f) If a Lender nominates an Affiliate, that Lender and that Affiliate:

 

  (i) will be treated as having a single Commitment under the relevant Facility (being the Commitment of that Lender) but for all other purposes (other than those referred to in paragraphs (c) and (e)(ii) above and paragraph (ii) below) will be treated as separate Lenders; and

 

  (ii) will be regarded as a single Lender for the purpose of:

 

  (A) voting in relation to any matter in connection with a Finance Document; and

 

  (B) compliance with Clause 29.1 ( Assignments and transfers by the Lenders ); and

 

  (C) Clause 18 ( Tax gross-up and indemnities ) and Clause 19 ( Increased costs ), which shall apply as if the relevant Affiliate had become a Lender on the date on which it is nominated.

 

30. DEBT PURCHASE TRANSACTIONS

 

30.1 Debt Purchase Transactions

 

(a) Listco shall not and shall ensure that no Obligor or other member of the Group shall (i) enter into any Debt Purchase Transaction other than by a Borrower of the relevant Facility to which that Debt Purchase Transaction relates in accordance with the other provisions of this Clause 30 or (ii) beneficially own all or any part of the share capital of a company that is a Lender or a party to, or itself be a Lender or a party to, a Debt Purchase Transaction of the type referred to in paragraphs (b) or (c) of the definition of ‘Debt Purchase Transaction’.

 

(b) A Borrower of the relevant Facility to which that Debt Purchase Transaction relates may purchase by way of assignment, pursuant to Clause 29 ( Changes to the Lenders ), a participation in any Term Loan in respect of which it is the Borrower and any related Commitment in accordance with paragraph (e) below or where:

 

  (i) such purchase is made for a consideration of par or less than par;

 

  (ii) such purchase is made using one of the processes set out at paragraphs (c) or (d) below;

 

  (iii) such purchase is made at a time when no Default is continuing; and

 

  (iv) the consideration for such purchase is funded from (1) Retained Cash (2) an amount which would otherwise be available to be, and is at that time permitted to be, paid in cash to shareholders of Listco or (3) New Equity or Subordinated Debt received after the Closing Date.

 

(c)

 

  (i) A Debt Purchase Transaction referred to in paragraph (b) above may be entered into pursuant to a solicitation process (a “ Solicitation Process ”) which is carried out as follows.

 

  (ii)

Prior to 11.00 am on a given Business Day (the “ Solicitation Day ”) the relevant Borrower or a financial institution acting on its behalf (the “ Purchase Agent ”) will

 

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  approach at the same time each Lender which participates in the relevant Term Facilities to enable them to offer to sell to the relevant Borrower(s) an amount of their participation in one or more Term Facilities. Any Lender wishing to make such an offer shall, by 11.00 am on the second Business Day following such Solicitation Day, communicate to the Purchase Agent details of the amount of its participations, and in which Term Facilities, it is offering to sell and the price at which it is offering to sell such participations. Any such offer shall be irrevocable until 11.00 am on the third Business Day following such Solicitation Day and shall be capable of acceptance by Listco on behalf of the relevant Borrower(s) on or before such time by communicating its acceptance in writing to the Purchase Agent or, if it is the Purchase Agent, the relevant Lenders. The Purchase Agent (if someone other than Listco) will communicate to the relevant Lenders which offers have been accepted by 12 noon on the third Business Day following such Solicitation Day. In any event by 11.00 am on the fourth Business Day following such Solicitation Day, Listco shall notify the Agent of the amounts of the participations purchased through the relevant Solicitation Process, the identity of the Term Facilities to which they relate and the average price paid for the purchase of participations in each relevant Term Facility. The Agent shall disclose such information to any Lender that requests such disclosure.

 

  (iii) Any purchase of participations in the Term Facilities pursuant to a Solicitation Process shall be completed and settled on or before the fifth Business Day after the relevant Solicitation Day.

 

  (iv) In accepting any offers made pursuant to a Solicitation Process Listco shall be free to select which offers and in which amounts it accepts but on the basis that in relation to a participation in a particular Term Facility it accepts offers in inverse order of the price offered (with the offer or offers at the lowest price being accepted first) and that if in respect of participations in a particular Term Facility it receives two or more offers at the same price it shall only accept such offers on a pro rata basis.

 

(d)

 

  (i) A Debt Purchase Transaction referred to in paragraph (b) above may also be entered into pursuant to an open order process (an “ Open Order Process ”) which is carried out as follows.

 

  (ii) Listco (on behalf of the relevant Borrower) may by itself or through another Purchase Agent place an open order (an “ Open Order ”) to purchase participations in one or more of the Term Facilities up to a set aggregate amount at a set price by notifying at the same time all the Lenders participating in the relevant Term Facilities of the same. Any Lender wishing to sell pursuant to an Open Order will, by 11.00 am on any Business Day following the date on which the Open Order is placed but no earlier than the first Business Day, and no later than the fifth Business Day, following the date on which the Open Order is placed, communicate to the Purchase Agent details of the amount of its participations, and in which Term Facilities, it is offering to sell. Any such offer to sell shall be irrevocable until 11.00 am on the Business Day following the date of such offer from the Lender and shall be capable of acceptance by Listco on behalf of the relevant Borrower(s) on or before such time by it communicating such acceptance in writing to the relevant Lender.

 

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  (iii) Any purchase of participations in the Term Facilities pursuant to an Open Order Process shall be completed and settled by Midco on or before the fourth Business Day after the date of the relevant offer by a Lender to sell under the relevant Open Order.

 

  (iv) If in respect of participations in a Term Facility the Purchase Agent receives on the same Business Day two or more offers at the set price such that the maximum amount of such Term Facility to which an Open Order relates would be exceeded, Listco shall only accept such offers on a pro rata basis.

 

  (v) Listco shall, by 11.00 am on the sixth Business Day following the date on which an Open Order is placed, notify the Agent of the amounts of the participations purchased through such Open Order Process and the identity of the Term Facilities to which they relate. The Agent shall disclose such information to any Lender that requests the same.

 

(e) For the avoidance of doubt, there is no limit on the number of occasions a Solicitation Process or an Open Order Process may be implemented.

 

(f) In relation to any Debt Purchase Transaction entered into pursuant to this Clause 30, notwithstanding any other term of this Agreement or the other Finance Documents:

 

  (i) on completion of the relevant Debt Purchase Transaction, the portions of the Loans to which it relates shall (unless Listco confirms in a certificate to the Agent dated on or prior to the date of such Debt Purchase Transaction that there would be a material adverse tax impact on the Group as a result of such cancellation) be extinguished;

 

  (ii) such Debt Purchase Transaction and the related extinguishment referred to in paragraph (i) above shall not constitute a prepayment of the Facilities;

 

  (iii) for the purposes of the calculation of Consolidated EBITDA and testing compliance with the financial covenant in Clause 26 ( Financial covenant ) any impact of a Debt Purchase Transaction on Consolidated EBITDA shall be ignored;

 

  (iv) the Borrower which is the assignee shall be deemed to be an entity which fulfils the requirements of Clause 29.1 ( Assignments and transfers by the Lenders ) to be a New Lender;

 

  (v) no member of the Group shall be deemed to be in breach of any provision of Clause 27 ( General undertakings ) solely by reason of such Debt Purchase Transaction;

 

  (vi) Clause 34 ( Sharing among the Finance Parties ) shall not be applicable to the consideration paid under such Debt Purchase Transaction;

 

  (vii) for the avoidance of doubt, any extinguishment of any part of the Term Loans shall not affect any amendment or waiver which prior to such extinguishment had been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement;

 

  (viii) no member of the Group which entered into a Debt Purchase Transaction will be entitled to receive any payment pursuant to this Agreement or any other Finance Document unless it receives such amount pro rata with all other Lenders in the relevant Facility;

 

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  (ix) any amount received by any member of the Group which has entered into a Debt Purchase Transaction (including, without limitation, the proceeds of any enforcement of security) shall be held on trust for distribution to the other Finance Parties and such member of the Group shall promptly (and in any event within 5 Business Days) pay an amount equal to that amount to the Agent for application in accordance with Clause 35.5 ( Partial payments ) (ignoring for the purposes of such application any member of the Group); and

 

  (x) no member of the Group which participates in a Debt Purchase Transaction shall be permitted to sell, transfer, assign, sub-participate or otherwise dispose of the subject matter of that Debt Purchase Transaction and Clause 30.2 ( Disenfranchisement on Debt Purchase Transactions ) shall apply.

 

30.2 Disenfranchisement on Debt Purchase Transactions

 

(a) For so long as a Listco Affiliate or a member of the Group:

 

  (i) has entered into a Debt Purchase Transaction;

 

  (ii) beneficially owns a Commitment; or

 

  (iii) has entered into a sub-participation agreement relating to a Commitment or other agreement or arrangement having a substantially similar economic effect and such agreement or arrangement has not been terminated,

in ascertaining the Majority Lenders or the Super Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments or the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents such Commitment shall be deemed to be zero and such member of the Group or Listco Affiliate or the person with whom it has entered into such sub-participation, other agreement or arrangement shall be deemed not to be a Lender (other than for the purposes of this Clause 30.2).

 

(b) Each Lender shall, unless such Debt Purchase Transaction is an assignment or transfer, promptly notify the Agent in writing if it knowingly enters into a Debt Purchase Transaction with a Listco Affiliate or a member of the Group (a “ Notifiable Debt Purchase Transaction ”), such notification to be substantially in the form set out in Part I of Schedule 15 ( Forms of Notifiable Debt Purchase Transaction Notice ).

 

(c) A Lender shall promptly notify the Agent if a Notifiable Debt Purchase Transaction to which it is a party is terminated, or ceases to be with a Listco Affiliate or a member of the Group, such notification to be substantially in the form set out in Part II of Schedule 15 ( Forms of Notifiable Debt Purchase Transaction Notice ).

 

(d) Each Listco Affiliate and each member of the Group that is a Lender agrees that:

 

  (i) in relation to any meeting or conference call to which all the Lenders are invited to attend or participate, it shall not attend or participate in the same if so requested by the Agent or, unless the Agent otherwise agrees, be entitled to receive the agenda or any minutes of the same; and

 

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  (ii) in its capacity as Lender, unless the Agent otherwise agrees, it shall not be entitled to receive any report or other document prepared at the behest of, or on the instructions of, the Agent or one or more of the Lenders.

 

31. CHANGES TO THE OBLIGORS

 

31.1 Assignment and transfers by Obligors

No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

 

31.2 Additional Borrowers

 

(a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 25.9 ( “Know your customer” checks ), Listco may request that it or any of its Subsidiaries (other than Bondco) becomes an Additional Borrower. Listco or that Subsidiary (as applicable) shall become an Additional Borrower if:

 

  (i) in relation to the Revolving Facility, it is incorporated in the United Kingdom, the British Virgin Islands, Germany, Austria, France, the Netherlands, Ireland, Denmark or the US; or

 

  (ii) all the Lenders (calculated, for this purpose, as if that definition only included Lenders under the respective Facility to which the respective Borrower wishes to accede), acting reasonably, approve the addition of that Subsidiary for the purposes of the relevant Facility,

and (in each case):

 

  (A) Listco and (as applicable) that Subsidiary deliver to the Agent a duly completed and executed Accession Letter (which shall, in the case of the first Borrower to accede in any jurisdiction in which there is not a Borrower as at the Closing Date, contain any relevant ‘Qualifying Lender’ language for that jurisdiction, in such form as is agreed between Listco and the Agent);

 

  (B) Listco (or as applicable) the Subsidiary is (or becomes) a Guarantor prior to becoming a Borrower;

 

  (C) Listco confirms that no Default is continuing or would occur as a result of it (or as applicable) that Subsidiary becoming an Additional Borrower; and

 

  (D) the Agent has received all of the documents and other evidence listed in Part III of Schedule 2 ( Conditions Precedent and Conditions Subsequent ) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent, acting reasonably.

 

(b) The Agent shall notify Listco and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part III of Schedule 2 ( Conditions Precedent and Conditions Subsequent ) in relation to such Additional Borrower.

 

31.3 Resignation of a Borrower

 

(a) In this Clause 31.3, Clause 31.5 ( Resignation of a Guarantor ) and Clause 31.7 ( Resignation and release of Security on disposal ), “ Third Party Disposal ” means the disposal of an Obligor to a person which is not a member of the Group where that disposal is permitted under Clause 27.13 ( Disposals ) (and Listco confirms in writing to the Agent and the Security Agent to that effect).

 

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(b) Listco may request that any Borrower (other than Midco or Luxco) ceases to be a Borrower by delivering to the Agent a Resignation Letter.

 

(c) The Agent shall accept a Resignation Letter and notify Listco and the other Finance Parties of its acceptance if:

 

  (i) Listco has confirmed that no Default is continuing or would result from the acceptance of the Resignation Letter;

 

  (ii) the Borrower is under no actual or contingent obligations as a Borrower under any Finance Document; and

 

  (iii) if the Borrower ceases to be a Borrower in connection with a Third Party Disposal, Listco has confirmed that it shall ensure that any relevant Disposal Proceeds will be applied in accordance with Clause 12.3 ( Application of mandatory prepayments ) to the extent required.

 

(d) Upon notification by the Agent to Listco of its acceptance of the resignation of a Borrower, that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents as a Borrower.

 

31.4 Additional Guarantors

 

(a) Subject to compliance with the provisions of paragraphs (b) and (c) of Clause 25.9 ( “Know your customer” checks ), Listco may request that any of its Subsidiaries become an Additional Guarantor.

 

(b) A member of the Group shall become an Additional Guarantor if:

 

  (i) Listco and the proposed Additional Guarantor deliver to the Agent a duly completed and executed Accession Letter;

 

  (ii) the Agent has received all of the documents and other evidence listed in Part III of Schedule 2 ( Conditions Precedent and Conditions Subsequent ) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent; and

 

  (iii) it grants Security (and Security is granted over its shares) in accordance with and if required by the Security Principles.

 

(c) The Agent shall notify Listco and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part III of Schedule 2 ( Conditions Precedent and Conditions Subsequent ) in relation to such Subsidiary.

 

31.5 Resignation of a Guarantor

 

(a) Listco may request that a Guarantor (other than a Nomad Holdco or, other than as a result of a Permitted Disposal to a non-Group company, a Material Company) ceases to be a Guarantor by delivering to the Agent a Resignation Letter if:

 

  (i)

 

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  (A) that Guarantor is being disposed of by way of a Third Party Disposal (as defined in Clause 31.3 ( Resignation of a Borrower )) and Listco has confirmed this is the case; or

 

  (B) that Guarantor is not a Material Company (for this purpose, without giving effect to paragraph (i) of Clause 27.35 ( Covenant suspension/relaxation )) and the Guarantor Coverage test set out in Clause 27.29 ( Guarantors ) is, taking into account the resignation of the relevant Guarantor, still met; or

 

  (ii) the Super Majority Lenders have consented to the resignation of that Guarantor.

 

(b) The Agent shall accept a Resignation Letter and notify Listco and the Lenders of its acceptance if:

 

  (i) Listco has confirmed that no Default is continuing or would result from the acceptance of the Resignation Letter;

 

  (ii) no payment is due from the Guarantor under Clause 23.1 ( Guarantee and indemnity );

 

  (iii) where the Guarantor is also a Borrower, it is under no actual or contingent obligations as a Borrower and has resigned and ceased to be a Borrower under Clause 31.3 ( Resignation of a Borrower );

 

  (iv) Listco has confirmed that such Guarantor has ceased to be a guarantor and has ceased to provide any other credit support in relation to any Senior Secured Notes and any New Debt Financing; and

 

  (v) if the Guarantor ceases to be a Guarantor in connection with a Third Party Disposal, Listco has confirmed that it shall ensure that the Disposal Proceeds will be applied in accordance with Clause 12.3 (Application of mandatory prepayments ) to the extent required.

 

(c) Upon notification by the Agent to Listco of its acceptance of the resignation of a Guarantor, that company shall cease to be a Guarantor and shall have no further obligations under the Finance Documents as a Guarantor.

 

31.6 Repetition of representations

Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the representations and warranties referred to in paragraph (d) of Clause 24.22 ( Times when representations made ) are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.

 

31.7 Resignation and release of Security on disposal

 

(a) If a Guarantor resigns in accordance with the terms of this Agreement, then:

 

  (i) where that Guarantor created Transaction Security over any of its assets or business in favour of the Security Agent, or Transaction Security in favour of the Security Agent was created over the shares (or equivalent) of that Guarantor, the Security Agent shall, at the cost and request of Listco, release those assets, business or shares (or equivalent) and issue, where applicable, certificates of non-crystallisation;

 

  (ii) the resignation of that Guarantor and related release of Transaction Security referred to in paragraph (i) above shall not become effective until the date of resignation; and

 

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  (iii) in the case of resignation in connection with a disposal, if the relevant disposal of that Guarantor is not made, the Resignation Letter of that Guarantor and the related release of Transaction Security referred to in paragraph (i) above shall have no effect and the obligations of the Guarantor and the Transaction Security created or intended to be created by or over that Guarantor shall continue in full force and effect.

 

(b) If an Obligor disposes of any asset as expressly permitted by and in accordance with the terms of this Agreement (and Listco confirms in writing to the Agent and the Security Agent to that effect) and such asset is the subject of Transaction Security in favour of the Security Agent, the Security Agent shall, at the cost and request of Listco, release those assets and issue certificates of non-crystallisation.

 

(c) If an Obligor wishes to enter into any netting or set-off arrangements of a kind described in paragraph (b) of the definition of ‘Permitted Security’ and is required to grant Security over the bank accounts which are the subject of that arrangement and/or its rights under any agreement governing or administering that arrangement and such assets (including any such rights) are the subject of Transaction Security in favour of the Security Agent, then the Security Agent shall, at the cost and request of Listco, release those assets and issue certificates of non-crystallisation, provided, however, that the applicable Obligor shall consult with the Security Agent as to whether any replacement Transaction Security in favour of the Security Agent may be granted over those assets without adversely affecting the commercial arrangement in relation to the desired netting or set-off arrangements (and, if the Obligor and the Security Agent agree (each acting reasonably and in good faith), such replacement Transaction Security shall be granted by the relevant Obligor in favour of the Security Agent, subject to the Security Principles).

 

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SECTION 10

THE FINANCE PARTIES

 

32. ROLE OF THE AGENT, THE ARRANGERS, THE ISSUING BANK AND OTHERS

 

32.1 Appointment of the Agent

 

(a) Each of the Arrangers, the Lenders and the Issuing Bank appoints the Agent to act as its agent under and in connection with the Finance Documents.

 

(b) Each of the Arrangers, the Lenders and the Issuing Bank authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

 

(c) In connection with the ratification and raising of any Finance Document into the status of a Spanish Public Document, the Agent shall act as the agent and representative of each Finance Party and is hereby authorised on behalf of each Finance Party to enter into, enforce the rights of each Finance Party and represent each Finance Party in respect of the granting of any Spanish Public Document.

 

(d) Notwithstanding the above, the Agent, acting at its discretion and to the extent reasonably possible, may invite the Finance Parties to enter into and/or to enforce the rights of each Finance Document (including any Security Document governed by Spanish law) jointly with the Agent. For the avoidance of doubt, the provision above does not grant any right to the Finance Parties to enter into and/or to enforce the rights under each Finance Document (including any Security Document governed by Spanish law) jointly with the Agent.

 

32.2 Duties of the Agent

 

(a) Subject to paragraph (b) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.

 

(b) Without prejudice to Clause 29.7 ( Copy of Transfer Certificate and Lender Accession Undertaking to Listco ), paragraph (a) above shall not apply to any Transfer Certificate and Lender Accession Undertaking.

 

(c) Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

 

(d) If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.

 

(e) If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent, the Arrangers or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties.

 

(f) The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

 

(g)

Neither the Agent nor the Security Agent shall have any duty or be under any obligation or responsibility to review or check the adequacy, accuracy or completeness, or otherwise monitor

 

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  the application of (including the occurrence of any default or termination event under or in respect of), any Lender Accession Notice, Additional Facility Notice, Additional Facility Document or any information provided by an Additional Facility Lender.

 

(h) The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).

 

(i) In connection with the ratification and raising of any Finance Document into a Spanish Public Document, the Agent shall act as the agent of each Finance Party and is hereby authorised on behalf of each Finance Party to enter into, enforce the rights of each Finance Party under and represent each Finance Party in respect of the granting of a Spanish Public Document.

 

32.3 Role of the Arranger s

Except as specifically provided in the Finance Documents, none of the Arrangers has any obligations of any kind to any other Party under or in connection with any Finance Document.

 

32.4 No fiduciary duties

 

(a) Nothing in this Agreement constitutes the Agent, any Arranger and/or the Issuing Bank acting as a trustee or fiduciary of any other person.

 

(b) None of the Agent, the Security Agent, any Arranger, the Issuing Bank or any Ancillary Lender shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

 

32.5 Business with the Group

The Agent, the Security Agent, any Arranger, the Issuing Bank and each Ancillary Lender may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

 

32.6 Rights and discretions

 

(a) The Agent, the Security Agent and the Issuing Bank may:

 

  (i) rely on:

 

  (A) any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; and

 

  (B) any statement made by a director, authorised signatory or employee of any person regarding any matter which may reasonably be assumed to be within his knowledge or within his power to verify;

 

  (ii) assume that:

 

  (A) any instructions received by it from the Majority Lenders, the Super Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and

 

  (B) unless it has received notice of revocation, that those instructions have not been revoked; and

 

  (iii) rely on a certificate or any statement by or from any person:

 

  (A) as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or

 

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  (B) to the effect that such person approves of any particular dealing, transaction, step, action or thing,

as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate or statement.

 

(b) The Agent and the Security Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

 

  (i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 28.1 ( Non-payment ));

 

  (ii) any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and

 

  (iii) any notice or request made by Listco (other than a Utilisation Request or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.

 

(c) The Agent and the Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.

 

(d) Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent and the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent and/or the Security Agent (and so separate from any lawyers instructed by the Lenders) if the Agent and/or the Security Agent in its reasonable opinion deems this to be desirable.

 

(e) The Agent and the Security Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.

 

(f) The Agent and the Security Agent may act in relation to the Finance Documents through its officers, employees and agents and neither the Agent nor the Security Agent shall:

 

  (i) be liable for any error of judgment made by any such person; or

 

  (ii) be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part, of any such person,

unless such error or such loss was directly caused by the Agent’s (or Security Agent’s, as the case may be) gross negligence or wilful misconduct.

 

(g) Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

 

(h) Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Security Agent, the Arrangers or the Issuing Bank is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

 

(i)

Notwithstanding any provision of any Finance Document to the contrary, neither the Agent nor the Security Agent is obliged to expend or risk its own funds or otherwise incur any financial

 

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  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.

 

32.7 Lenders’ Instructions

 

(a) The Agent shall:

 

  (i) unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:

 

  (A) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision;

 

  (B) the Super Majority Lenders if the relevant Finance Document stipulates the matter is a Super Majority Lender decision; and

 

  (C) in all other cases, the Majority Lenders; and

 

  (ii) not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.

 

(b) The Agent and the Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Agent and the Security Agent may refrain from acting unless and until it receives those instructions or that clarification.

 

(c) Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all the Finance Parties other than the Security Agent.

 

(d) Each of the Agent and the Security Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any associated VAT) which it may incur in complying with those instructions.

 

(e) In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.

 

(f) The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (f) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security Documents or enforcement of the Transaction Security or Transaction Security Documents.

 

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32.8 Responsibility for documentation

None of the Agent, the Security Agent, the Arrangers, the Issuing Bank or any Ancillary Lender is responsible or liable for:

 

  (a) the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, any Arranger, the Issuing Bank, an Ancillary Lender, an Obligor or any other person given in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

 

  (b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; or

 

  (c) any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.

 

32.9 No duty to monitor

Neither the Agent or the Security Agent shall be bound to enquire:

 

  (a) whether or not any Default (or default, event of default, or termination event, howsoever described) has occurred;

 

  (b) as to the performance, default or any breach by any Party of its obligations under any Finance Document; or

 

  (c) whether any other event specified in any Finance Document has occurred.

 

32.10 Exclusion of liability

 

(a) Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent, the Security Agent, the Issuing Bank or any Ancillary Lender), none of the Agent, the Security Agent, the Issuing Bank, nor any Ancillary Lender will be liable for:

 

  (i) any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct;

 

  (ii) any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising in relation to any Additional Facility Notice or Additional Facility Document and/or failure by any person to comply with any applicable law or regulation, unless directly caused by its gross negligence or wilful misconduct;

 

  (iii) exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Transaction Security, unless caused directly by its gross negligence or wilful misconduct; or

 

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  (iv) without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:

 

  (A) any act, event or circumstance not reasonably within its control; or

 

  (B) the general risks of investment in, or the holding of assets in, any jurisdiction,

including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of (i) nationalisation, expropriation or other governmental actions, (ii) any regulation, currency restriction, devaluation or fluctuation, (iii) market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event), (iv) breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems, (v) natural disasters or acts of God, (vi) war, terrorism, insurrection or revolution or (vii) strikes or industrial action.

 

(b) No Party (other than the Agent, the Security Agent, the Issuing Bank or an Ancillary Lender (as applicable)) may take any proceedings against any officer, employee or agent of the Agent, the Issuing Bank or any Ancillary Lender in respect of any claim it might have against the Agent, the Issuing Bank or an Ancillary Lender or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Transaction Document and any officer, employee or agent of the Agent, the Issuing Bank or any Ancillary Lender may rely on this Clause 32 subject to Clause 1.11 ( Third party rights ) and the provisions of the Third Parties Act.

 

(c) The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.

 

(d) Nothing in this Agreement shall oblige the Agent or any Arranger to carry out any “know your customer” or other checks in relation to any person or any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender, on behalf of any Lender and each Lender confirms to the Agent and each Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or any Arranger.

 

(e)

Without prejudice to any provision of any Finance Document excluding or limiting the Agent’s or the Security Agent’s liability, any liability of the Agent or the Security Agent arising under or in connection with any Finance Document or the Transaction Security shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Agent (or Security Agent, as applicable) or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent (or Security Agent, as applicable) at any time which increase the amount of that loss. In no event shall the Agent or the Security Agent be

 

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  liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent or the Security Agent has been advised of the possibility of such loss or damages.

 

32.11 Lenders’ indemnity to the Agent and the Security Agent

 

(a) Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify each of the Agent and the Security Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Agent or the Security Agent (otherwise than by reason of the Agent’s or the Security Agent’s gross negligence or wilful misconduct) in acting as Agent or as Security Agent under the Finance Documents (unless the Agent or the Security Agent has been reimbursed by an Obligor pursuant to a Finance Document).

 

(b) Upon the appointment of a successor, the retiring Security Agent shall be discharged from any further obligation in respect of the Finance Documents, including in relation to any action taken or not taken by the retiring Security Agent in connection with its retirement or resignation, but shall remain entitled to the benefit of paragraph (a) above.

 

32.12 Resignation of the Agent

 

(a) The Agent may (after consultation with Listco) resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the Lenders and Listco.

 

(b) Alternatively, the Agent may resign by giving notice to the Lenders and Listco, in which case the Majority Lenders (after consultation with Listco) may appoint a successor Agent.

 

(c) If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days of notice of resignation being given, the Agent (after consultation with Listco) may appoint a successor Agent (acting through an office in the United Kingdom.

 

(d) The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.

 

(e) The Agent’s resignation notice shall only take effect upon the appointment of a successor.

 

(f) Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 32.12. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

 

(g) After consultation with Listco, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.

 

(h) The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:

 

  (i) the Agent fails to respond to a request under Clause 18.9 ( FATCA Information ) and Listco or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

 

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  (ii) the information supplied by the Agent pursuant to Clause 18.9 ( FATCA Information ) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

 

  (iii) the Agent notifies Listco and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

and (in each case) Listco or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, Listco or that Lender, by notice to the Agent, requires it to resign.

 

(i) Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party, including the capacity to represent any Finance Party for the purposes of raising any Finance Document to the status of Spanish Public Document.

 

32.13 Confidentiality

 

(a) In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

 

(b) If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.

 

(c) Notwithstanding any other provision of any Finance Document to the contrary, neither of the Agent or any Arranger are 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 a breach of a fiduciary duty.

 

32.14 Relationship with the Lenders

 

(a) The Agent may treat each Lender as a Lender, entitled to payments under this Agreement and acting through its Facility Office unless it has received not less than five Business Days’ prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

 

(b) Each Lender shall supply the Agent with any information that the Security Agent may reasonably specify (through the Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Lender shall deal with the Security Agent exclusively through the Agent and shall not deal directly with the Security Agent.

 

(c)

Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 37.5 ( Electronic communication )) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer

 

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  by that Lender for the purposes of Clause 37.2 ( Addresses ) and paragraph (a)(iii) of Clause 37.5 ( Electronic communication ) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

 

32.15 Credit appraisal by the Lenders, Issuing Bank and Ancillary Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender, Issuing Bank and Ancillary Lender confirms to the Agent, each Arranger, the Issuing Bank and each Ancillary Lender that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document, including, but not limited to:

 

  (a) the financial condition, status and nature of each member of the Group;

 

  (b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;

 

  (c) whether that Finance 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 Finance Document, the Transaction Security or the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

 

  (d) the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

 

  (e) the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.

 

32.16 Reference Banks

The Agent may (in consultation with Listco) from time to time appoint any person who complies with the definition of ‘Reference Banks’ to be a Reference Bank for the purposes of the Finance Documents.

 

32.17 Deduction from amounts payable by the Agent

If any Party owes an amount to the Agent under the Finance Documents, the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents, that Party shall be regarded as having received any amount so deducted.

 

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32.18 Reliance and engagement letters

Each Finance Party confirms that each of the Arrangers and the Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Arrangers or the Agent (as the case may be)), the terms of any reliance letter or engagement letters relating to any reports or letters provided by accountants in connection with the Finance Documents or the transactions contemplated in the Finance Documents (including any net asset letter in connection with the financial assistance procedures) and to bind it in respect of those reports or letters and to sign such letters on its behalf and further confirms that it agrees to be bound by and accepts the terms and qualifications set out in such letters.

 

32.19 The Register

The Agent, acting for these purposes solely as an agent of the Borrowers, will maintain (and make available upon reasonable prior notice at reasonable times for inspection by the Borrowers and, in respect of its own Commitments and Loans, each Lender) a register for the recordation of, and will record, the names and addresses of the Lenders and the respective amounts of the Commitments and participations in Loans of each Lender from time to time (the “ Register ”). Absent manifest error, the entries in the Register shall be conclusive and binding for all purposes and the Borrowers, the Agent and the Lenders shall treat each person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.

 

33. CONDUCT OF BUSINESS BY THE FINANCE PARTIES

No provision of this Agreement will:

 

  (a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

 

  (b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

 

  (c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

 

34. SHARING AMONG THE FINANCE PARTIES

 

34.1 Payments to Finance Parties

If a Finance Party (a “ Recovering Finance Party ”) receives or recovers any amount from an Obligor other than in accordance with Clause 35 ( Payment mechanics ) and applies that amount to a payment due under the Finance Documents, then:

 

  (a) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent;

 

  (b) the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 35 ( Payment mechanics ), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

 

  (c) the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the “ Sharing Payment ”) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 35.5 ( Partial payments ).

 

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34.2 Redistribution of payments

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 35.5 ( Partial payments ).

 

34.3 Recovering Finance Party’s rights

 

(a) On a distribution by the Agent under Clause 34.2 ( Redistribution of payments ), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.

 

(b) If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the Finance Parties which have shared in the redistribution will turn over any proceeds received from the relevant Obligor on such rights promptly upon receipt of the same to the Recovering Finance Party.

 

34.4 Reversal of redistribution

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

 

  (a) each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 34.2 ( Redistribution of payments ) shall, upon request of the Agent, pay to the Agent for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and

 

  (b) that Recovering Finance Party’s rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed.

 

34.5 Exceptions

 

(a) This Clause 34 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause 34, have a valid and enforceable claim against the relevant Obligor.

 

(b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:

 

  (i) it notified the other Finance Party of the legal or arbitration proceedings; and

 

  (ii) the other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

 

(c)

Without prejudice to paragraph (b) above, this Clause 34 shall apply to the extent that a Recovering Finance Party shall have received an amount in excess of the amount it would have

 

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  received in accordance with Clause 30 ( Payment mechanics ) pursuant to article 91.7 of Spanish Insolvency Law, unless the Recovering Finance Party prior to commencement of insolvency proceedings against an Obligor has requested the Agent to start such proceedings jointly on behalf of the Lenders and such request has not been approved by the Majority Lenders within five Business Days of such request.

 

(d) This Clause 34 shall not apply to the extent that, in the event of insolvency of any Obligor, a Lender is declared to be a specially related person under article 93 of the Spanish Insolvency Law (the “ Related Lender ”) and, as a result thereof, the credit rights of that Lender against any of the Obligors under this Agreement are considered subordinated claims for the purposes of the insolvency proceedings. In such event all payments received by the Lenders shall be distributed in full amongst all Lenders, excluding any Related Lender, in proportion to their respective participation in the relevant Facilities.

 

34.6 Ancillary Lenders

 

(a) This Clause 34 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to service of notice under paragraph (a) or (b) of Clause 28.16 ( Acceleration ).

 

(b) Following service of notice under paragraph (a) or (b) of Clause 28.16 ( Acceleration ), this Clause 34 shall apply to all receipts or recoveries by Ancillary Lenders except to the extent that the receipt or recovery represents a reduction from the Designated Gross Amount for an Ancillary Facility to its Designated Net Amount.

 

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SECTION 11

ADMINISTRATION

 

35. PAYMENT MECHANICS

 

35.1 Payments to the Agent

 

(a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, excluding a payment under the terms of an Ancillary Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

 

(b) Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent specifies.

 

35.2 Distributions by the Agent

Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 35.3 ( Distributions to an Obligor ) and Clause 35.4 ( Clawback ), be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days’ notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London).

 

35.3 Distributions to an Obligor

The Agent may (with the consent of the Obligor or in accordance with Clause 36 ( Set -off )) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

 

35.4 Clawback

 

(a) Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

 

(b) If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.

 

35.5 Partial payments

 

(a)

If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts then due and payable by an Obligor

 

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  under those Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

 

  (i) first , in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent, the Arrangers the Issuing Bank and the Security Agent under the Finance Documents;

 

  (ii) secondly , in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under the Finance Documents;

 

  (iii) thirdly , in or towards payment pro rata of any principal due but unpaid under those Finance Documents and any amount due but unpaid under Clause 7.2 ( Claims under a Letter of Credit ) and Clause 7.3 ( Indemnities ); and

 

  (iv) fourthly , in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

 

(b) The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above.

 

(c) Paragraphs (a) and (b) above will override any appropriation made by an Obligor.

 

35.6 No set-off by Obligors

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

 

35.7 Business Days

 

(a) Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

 

(b) During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement, interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

 

35.8 Currency of account

 

(a) Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.

 

(b) A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or Unpaid Sum shall be made in the currency in which that Utilisation or Unpaid Sum is denominated on its due date.

 

(c) Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.

 

(d) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

 

(e) Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency and (unless a contrary indication appears) any fee expressed to be payable in respect of a Facility shall be made in the currency in which such Facility was denominated when such fee accrued.

 

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35.9 Change of currency

 

(a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

 

  (i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with Listco); and

 

  (ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).

 

(b) If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with Listco) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.

 

35.10 Additional Facility administration

Notwithstanding anything to the contrary in any Finance Document (unless it would require an all Lender consent), in relation to any Additional Facility, the Agent, Listco and the relevant Additional Facility Lender shall be permitted to agree alternative arrangements regarding the administration and operation of that Additional Facility (including, without limitation, in relation to the time, method and place of payments and the delivery of notices and other communications in relation to that Additional Facility).

 

36. SET-OFF

 

(a) If an Event of Default is continuing, a Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

 

(b) Any credit balances taken into account by an Ancillary Lender when operating a net limit in respect of any overdraft under an Ancillary Facility shall on enforcement of the Finance Documents be applied first in reduction of the overdraft provided under that Ancillary Facility in accordance with its terms.

 

37. NOTICES

 

37.1 Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.

 

37.2 Addresses

The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

 

  (a) in the case of any Obligor that communicated to the Agent in writing prior to the Closing Date;

 

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  (b) in the case of each Lender, the Issuing Bank, or each Ancillary Lender, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and

 

  (c) in the case of the Agent or the Security Agent:

Address: One Cabot Square, London, E14 4QJ

Email: london.loansagency@credit-suisse.com

Fax No: +44 20 7888 8398

Attention: Agency Desk,

or any substitute address, fax number or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days’ notice.

 

37.3 Delivery

 

(a) Any communication or document made or delivered by one person to another under or in connection with the Finance Documents 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 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 37.2 ( Addresses ), if addressed to that department or officer.

 

(b) Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or Security Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent’s or Security Agent’s signature below (or any substitute department or officer as the Agent or Security Agent shall specify for this purpose).

 

(c) All notices from or to an Obligor shall be sent through the Agent.

 

(d) Any communication or document made or delivered to Listco in accordance with this Clause 37.3 will be deemed to have been made or delivered to each of the Obligors.

 

37.4 Notification of address and fax number

Promptly upon receipt of notification of an address or fax number or change of address or fax number pursuant to Clause 37.2 ( Addresses ) or changing its own address or fax number, the Agent shall notify the other Parties.

 

37.5 Electronic communication

 

(a) Any communication to be made between the Agent or the Security Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means if the Agent, the Security Agent and the relevant Lender:

 

  (i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication;

 

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  (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.

 

(b) Any electronic communication made between the Agent and a Lender or the Security Agent will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Agent or the Security Agent only if it is addressed in such a manner as the Agent or Security Agent shall specify for this purpose.

 

37.6 Use of websites

 

(a) Listco may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “ Website Lenders ”) who accept this method of communication by posting this information onto a website designated by Listco and the Agent (the “ Designated Website ”) if:

 

  (i) the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

 

  (ii) both Listco and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

 

  (iii) the information is in a format previously agreed between Listco and the Agent.

If any Lender (a “ Paper Form Lender ”) does not agree to the delivery of information electronically, then the Agent shall notify Listco accordingly and Listco shall, at its own cost, supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event, Listco shall, at its own cost, supply the Agent with at least one copy in paper form of any information required to be provided by it.

 

(b) The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by Listco and the Agent.

 

(c) Listco shall, promptly upon becoming aware of its occurrence, notify the Agent if:

 

  (i) the Designated Website cannot be accessed due to technical failure;

 

  (ii) the password specifications for the Designated Website change;

 

  (iii) any new information which is required to be provided under this Agreement is posted on the Designated Website;

 

  (iv) any existing information which has been provided under this Agreement and posted on the Designated Website is amended; or

 

  (v) Listco becomes aware that the Designated Website or any information posted on the Designated Website is or has been infected by any electronic virus or similar software.

If Listco notifies the Agent under paragraph (i) or (v) above, all information to be provided by Listco under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

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(d) Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted on the Designated Website. Listco shall, at its own cost, comply with any such request within 10 Business Days.

 

(e) Listco acknowledges that the Agent will make available to Website Lenders material and/or information provided by or on behalf of Listco (or, as the case may be, any other member of the Group) (collectively, “ Group Information ”) by posting that Group Information on the Designated Website and that certain of those Website Lenders (each such Website Lender, a “ Public Lender ”) may have personnel who do not wish to receive material non-public information (within the meaning of applicable securities laws or, as the case may be, other applicable laws and/or regulations) with respect to the Group or any debt, equity or other securities of any member of the Group, and who may be engaged in investment and other market-related activities with respect to any such securities.

 

(f) Listco agrees that it will (and Listco will ensure that each other member of the Group shall) use commercially reasonable efforts to identity that portion of any Group Information that may be distributed to Public Lenders and that:

 

  (i) all such Group Information shall be clearly marked on its face as either being “Public Side Information” or (as applicable) “Private Side Information”;

 

  (ii) that by marking any Group Information as “Public Side Information”, Listco (or, as the case may be, any other member of the Group) shall be deemed to have authorised the Finance Parties to treat such Group Information as not containing any material non-public information with respect the Group or any debt, equity or other securities of any member of the Group for purposes of applicable securities laws or, as the case may be, other applicable laws and/or regulations;

 

  (iii) all Group Information marked “Public Side Information” is permitted to be made available through a section or other area of the Designated Website which is designated “Public Side Information”;

 

  (iv) all Group Information marked “Private Side Information” is permitted to be made available through a section or other area of the Designated Website which is designated “Private Side Information”; and

 

  (v) the Group Information that is not marked “Public Side Information” shall be deemed to contain material non-public information (for purposes of applicable securities laws or, as the case may be, other applicable laws and/or regulations) and shall not be suitable for posting on the section or other area of the Designated Website designated “Public Side Information”.

 

37.7 English language

 

(a) Any notice given under or in connection with any Finance Document must be in English.

 

(b) All other documents provided under or in connection with any Finance Document must be:

 

  (i) in English; or

 

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  (ii) if not in English, and if so required by the Agent, 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.

 

37.8 Communications to be made outside Austria

Notwithstanding any other provision of the Finance Documents, any communication to be made under or in connection with the Finance Documents shall be made to the address outside the Republic of Austria. The foregoing sentence applies mutatis mutandis to any communication made by fax, electronic message or in other written form.

 

37.9 USA Patriot Act

Each Lender that is subject to the requirements of the USA Patriot Act hereby notifies each Obligor that, pursuant to the requirements of the USA Patriot Act, such Lender is required to obtain, verify and record information that identifies such Obligor, which information includes the name and address of such Obligor and other information that will allow such Lender to identify such Obligor in accordance with the USA Patriot Act.

 

38. CALCULATIONS AND CERTIFICATES

 

38.1 Accounts

In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.

 

38.2 Certificates and determinations

Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

 

38.3 Day count convention

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market practice.

 

39. PARTIAL INVALIDITY

If, at any time, any provision of the Finance Documents 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 such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

40. REMEDIES AND WAIVERS

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents 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.

 

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41. AMENDMENTS AND WAIVERS

 

41.1 Required consents

 

(a) Subject to Clause 41.2 ( Exceptions ), any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and Listco and any such amendment or waiver will be binding on all Parties.

 

(b) The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 41.

 

(c) Each Obligor agrees to any such amendment or waiver permitted by this Clause 41 which is agreed to by Listco, which includes any amendment or waiver which would, but for this paragraph (c), require the consent of all of the Obligors.

 

41.2 Exceptions

 

(a) An amendment or waiver that has the effect of changing or which relates to:

 

  (i) the definition of ‘Majority Lenders’ or ‘Super Majority Lenders’ in Clause 1.1 ( Definitions );

 

  (ii) the definitions of ‘Instructing Group’ or ‘Majority Senior Secured Creditors’ in the Intercreditor Agreement;

 

  (iii) any provision which expressly requires the consent of all the Lenders;

 

  (iv) Clause 2.2 ( Finance Parties’ rights and obligations ), Clause 29 ( Changes to the Lenders ), Clause 34 ( Sharing among the Finance Parties ) (other than changes consequential on or required to implement a Structural Adjustment or an Additional Facility) or this Clause 41 (including the definition of ‘Structural Adjustment’);

 

  (v) any amendment to the order of priority of subordination under the Intercreditor Agreement or the manner in which the proceeds of enforcement of the Transaction Security are distributed (other than changes consequential on or required to implement a Structural Adjustment or an Additional Facility); or

 

  (vi) clauses 2 ( Ranking and Priority ), 10 ( Effect of Insolvency Event ), 11 ( Turnover of receipts ), 12 ( Redistribution ), 13 ( Enforcement of Transaction Security ), 15 ( Application of proceeds ), 15.10 ( Equalisation ), 26 ( Consents, amendments and override ) and 30 ( Governing law ) of the Intercreditor Agreement (other than changes consequential on or required to implement a Structural Adjustment or an Additional Facility),

shall not be made without the prior consent of all the Lenders.

 

(b) An amendment or waiver that has the effect of changing or which relates to:

 

  (i) Clause 26.2 ( Financial condition ) or any other term or provision of or definition contained in Clause 26 ( Financial covenant ) but (in each case) solely insofar as that amendment or waiver relates to the calculation, determination, testing, removal and/or remedy of the financial covenant in Clause 26.2 ( Financial condition ) for the purposes of a Default under paragraph (b) of that definition or an Event of Default under paragraph (b) of that definition (and not for any other purpose, including, without limitation, for the purposes of calculating Debt Cover as used in any basket or threshold or incurrence test (in each case) to determine whether any particular transaction is permitted or is not permitted);

 

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  (ii) a waiver of any Financial Covenant Event of Default or any Default that arises as a result of any Financial Covenant Event of Default;

 

  (iii) paragraph (b) of Clause 28.16 ( Acceleration ); and

 

  (iv) the definition of ‘Financial Covenant Event of Default’ or ‘Majority RCF Lenders’,

shall require the consent of the Majority RCF Lenders (and no consent of any other Finance Party shall be required).

 

(c) An amendment or waiver that has the effect of releasing any Transaction Security (unless (i) permitted under this Agreement or any other Finance Document, (ii) relating to a sale or disposal of an asset which is the subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document or (iii) made at any time at which the conditions referred to in Clause 27.35 ( Covenant suspension/relaxation ) are not satisfied (and not, for the avoidance of any doubt, otherwise) and the Guarantor Coverage set out in Clause 27.29 ( Guarantors ) is maintained (taking into account, for this purpose, the effect of that release)) shall not be made without the prior consent of the Super Majority Lenders.

 

(d) Any term of the Finance Documents may be amended by the Agent and the Obligors’ Agent (without the consent of any other Party) in order to correct any manifest error, resolve ambiguities or reflect changes of a minor, technical or administrative nature.

 

(e) Any amendment or waiver which relates to the rights or obligations applicable to a particular Utilisation, Loan, Facility or class of Lenders, and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Loans, Facilities or another class of Lender, may be made with only the consent of the Majority Lenders (or the relevant Lenders or Super Majority Lenders, as the case may be) as if references in this Clause 41.2 to “Lenders” (including as used in the definitions of “Majority Lenders” and “Super Majority Lenders”, as the case may be) were only to Lenders participating in that Utilisation, Loan, Facility or forming part of that affected class.

 

(f) An amendment or waiver which relates to the rights or obligations of the Agent, any Arranger, the Issuing Bank, the Security Agent or any Ancillary Lender may not be effected without the consent of the Agent, that Arranger, the Issuing Bank, the Security Agent or that Ancillary Lender.

 

(g) Any waiver of a right of prepayment under Clause 12.2 ( Disposal, insurance and Excess Cashflow ) shall require only the consent of the Majority Lenders.

 

(h) Subject to the provisions of the Intercreditor Agreement, a Structural Adjustment may be approved only with the consent of:

 

  (i) in the case of a Structural Adjustment under paragraphs (ii), (iii) (iv), (v) and (as applicable) (vi) of the definition of Structural Adjustment, each Lender that is participating in that extension, redenomination, reduction or change; or

 

  (ii) in the case of any Structural Adjustment under paragraph (i) and (as applicable) (vi) of the definition of Structural Adjustment, the Majority Lenders and each Lender that is assuming a Commitment or an increased Commitment in the relevant Loan or Facility or participating in the additional loan, commitment, tranche or facility (as the case may be),

 

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provided that (notwithstanding any term of any Finance Document to the contrary) no Majority Lender consent (nor the consent of any other Lender, other than each Lender referred to in paragraph (i) above) shall be required to introduce an additional tranche or facility into this Agreement (or any other Finance Document, as applicable) in order implement or to give effect to any Structural Adjustment under paragraph (ii), (iii), (iv) (v) or (as applicable) (vi) of the definition of Structural Adjustment.

 

(i) For the purposes of this Clause 41, “ Structural Adjustment ” means an amendment, waiver or variation of the terms of some or all of the Finance Documents that results from or is intended to result from or constitutes:

 

  (i) an increase in or addition of any Commitment, the introduction of an additional loan, commitment, tranche or facility into the Finance Documents, which does not rank senior to the Facilities;

 

  (ii) any extension of the availability of any Commitment, any redenomination of any Commitment into another currency or extension of any Availability Period;

 

  (iii) an extension to the date of payment or maturity of any principal, interest, fees, commission or other amount payable under the Finance Documents;

 

  (iv) a reduction in the Margin or a reduction in any payment of principal, interest, fees, commission or other amount payable;

 

  (v) a change in currency of payment of any principal, interest, fees, commission or other amount payable under the Finance Documents; and

 

  (vi) any amendment to the Finance Documents (including changes to, the taking of or the release coupled with the immediate retaking of Security) consequential on or required to implement anything described in paragraphs (i) to (v) above.

 

(j) If a Lender does not accept or reject an amendment or waiver request within 10 Business Days (unless Listco and the Agent agree to a longer time period in relation to any request) of it being made, it and/or (as applicable) its Commitments and/or participations shall not be included for the purpose of any unanimous Lender amendment or waiver request, any request in respect of a Structural Adjustment or for the purpose of calculating the Total Commitments or participations under the relevant Facility when ascertaining whether any such request is accepted or reject by a particular Lender or whether a certain percentage of Total Commitments and/or participations has been obtained to approve or refuse any such amendment or waiver.

 

(k) An amendment or waiver which relates to paragraphs (c) of Clause 24.21 ( Anti-Corruption Laws, Anti-Money Laundering and Sanctions ) or paragraph (d) of Clause 27.36 ( Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions ) may not be effected without the consent of each Relevant Party.

 

42. CONFIDENTIALITY

 

42.1 Confidential Information

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 42.2 ( Disclosure of information ), Clause 42.3 ( Disclosure to numbering service providers ) and Clause 42.4 ( Disclosure to administration/settlement services providers ) and to ensure that all Confidential Information is protected with security measure and a degree of care that it would apply to its own confidential information.

 

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42.2 Disclosure of information

 

(a) Any Finance Party may disclose to (x) any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a)(x) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information and (y) any other person:

 

  (i) to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under one or more Finance Documents and to any of that person’s Affiliates, Related Funds, Representatives and professional advisers;

 

  (ii) with (or through) whom that Finance Party enters into (or may potentially enter into) whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Related Funds, Representatives and professional advisers;

 

  (iii) to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation; or

 

  (iv) required in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;

 

  (v) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 29.8 ( Security Interests over Lenders’ rights ); or

 

  (vi) who is a Party,

such Confidential Information as that Lender or other Finance Party shall consider appropriate if:

 

  (A) in relation to paragraphs (a)(i) and (a)(ii) above, the person to whom the information is to be given has entered into a Confidentiality Undertaking; or

 

  (B) in relation to paragraph (a)(v) above, the person to whom the information is to be given is informed of its confidential nature and that some or all of such information may be price-sensitive information.

 

(b)

Any Finance Party may disclose to a rating agency or its professional advisers, or (with the consent of Listco) any other person (excluding, for the avoidance of doubt, any person listed or, as the case may be, described in paragraph (a) above), such information about any Obligor or

 

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  the Group which it has received from the Obligors under this Agreement and the Finance Documents as that Finance Party shall consider appropriate if that rating agency or such person is informed of its confidential nature and that some or all of such information may be price-sensitive information.

 

(c) Any Confidentiality Undertaking signed by a Finance Party pursuant to this Clause 42.2 shall supersede any prior confidentiality undertaking signed by such Finance Party for the benefit of any member of the Group. A copy of each Confidentiality Undertaking (and any amendment thereto) shall be provided to Listco by the respective Lender within 10 Business Days of Listco’s written request.

 

42.3 Disclosure to numbering service providers

 

(a) Notwithstanding any other term of any Finance Document or any other agreement between the Parties to the contrary (whether express or implied), any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:

 

  (i) names of Obligors;

 

  (ii) country of domicile of Obligors;

 

  (iii) place of incorporation of Obligors;

 

  (iv) date of this Agreement;

 

  (v) the names of the Agent and the Arrangers;

 

  (vi) date of each amendment and restatement of this Agreement;

 

  (vii) amount of Total Commitments;

 

  (viii) currencies of the Facilities;

 

  (ix) type of Facilities;

 

  (x) ranking of Facilities;

 

  (xi) Termination Date for Facilities;

 

  (xii) changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and

 

  (xiii) such other information agreed between such Finance Party and Listco,

to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

 

(b) The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.

 

(c) Each Obligor represents that none of the information set out in paragraphs (i) to (xiii) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.

 

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(d) The Agent shall notify Listco and the other Finance Parties of:

 

  (i) the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and

 

  (ii) the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Obligors by such numbering service provider.

 

42.4 Disclosure to administration/settlement service providers

Notwithstanding any other term of any Finance Document or any other agreement between the Parties to the contrary (whether express or implied), any Finance Party may disclose to any person appointed by:

 

  (i) that Finance Party;

 

  (ii) a person to (or through) whom that Finance Party assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under this Agreement; and/or

 

  (iii) a person with (or through) whom that Finance Party enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement or any Obligor,

to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this Clause 42.4 if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for use with Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between Listco and the relevant Finance Party.

 

42.5 Consent pursuant to Austrian Banking Act

For the avoidance of doubt, each Austrian Obligor herewith explicitly consents within the meaning of section 38 para 1 no 5 of the Austrian Banking Act ( Bankwesengesetz – BWG ) to a disclosure of Confidential Information pursuant to, and in accordance with the limitations of, this Clause 42 and explicitly waives any banking secrecy obligations the Finance Parties may have under section 38 of the Austrian Banking Act in this respect.

 

43. COUNTERPARTS

Each Finance Document 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 the Finance Document.

 

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SECTION 12

GOVERNING LAW AND ENFORCEMENT

 

44. GOVERNING LAW

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

45. ENFORCEMENT

 

45.1 Jurisdiction of English courts

 

(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding 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) This Clause 45.1 is for the benefit of the Finance Parties and Secured Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties and Secured Parties may take concurrent proceedings in any number of jurisdictions.

 

45.2 Service of process

 

(a) Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):

 

  (i) irrevocably appoints Midco as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document and Listco, by its execution of this Agreement, accepts that appointment; and

 

  (ii) agrees that failure by an agent for service of process to notify the relevant Obligor 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, Listco (on behalf of all the Obligors) must immediately (and in any event within 60 days of such event taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent may appoint another agent for this purpose.

 

(c) Each Obligor not incorporated in England and Wales expressly consents to the provisions of this Clause 45 and Clause 44 ( Governing law ).

 

45.3 Place of performance

The Parties agree that the exclusive place of performance ( Erfüllungsort ) for all rights and obligations under any Finance Document shall be at the seat of the Agent in London, or any other place reasonably designated by the Agent but in any case a place outside the Republic of Austria, which especially means that the payment of amounts under any Facility shall be made to a bank account respectively, and from a bank account outside of the Republic of Austria. Any communication to be made under or in connection with this Agreement or any other Finance Document shall be made to an address outside of the Republic of Austria. It is expressly agreed

 

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between the Parties hereto that any such performance within the Republic of Austria will not establish Austria as the place of performance and shall be deemed not effective with respect to any Party hereto.

 

45.4 Executive proceedings

 

(a) Upon enforcement, the sum payable by a Spanish Obligor shall be the aggregate amount of the balance of the accounts maintained by the Agent (or the relevant Lender, as the case may be) pursuant to Clause 38.1 ( Accounts ). For the purposes of Articles 571 et seq. of the Spanish Civil Procedural Law, the Parties agree that such balances shall be considered as due, liquid and payable and may be claimed pursuant to that law.

 

(b) For the purposes of the provisions of Art. 571 et seq. of the Spanish Civil Procedural Law, the Parties agree that the amount of the debt to be claimed through executive proceedings shall be determined by the Agent (or a Lender, as the case may be) in a certificate evidencing the balances shown in the relevant account(s) referred to in paragraph (a) of this Clause 45.4. For the Agent or a Lender to exercise executive action it must present:

 

  (i) an original notarial first or authentic copy with enforcement attributes ( efectos ejecutivos ) of this Agreement;

 

  (ii) a notarial certificate, if required, for the purposes described in paragraph (c) of this Clause 45.4;

 

  (iii) the notarial document (“ acta notarial ”) which:

 

  (A) incorporates the certificate of amounts due by the Spanish Obligor issued by the Agent (or the relevant Lender, as the case may be);

 

  (B) sets out an excerpt of the credits and debits, including the interest applied, which appears in the relevant account(s) referred to in paragraph (a) of this Clause 45.4; and

 

  (C) evidences that the amounts due and payable by the Spanish Obligor have been calculated in accordance with this Agreement and that such amounts match the balance of the accounts, and

 

  (iv) a notarial document (“ acta notarial ”) evidencing that the Spanish Obligor has been served notice for the amount that is due and payable.

 

(c) Paragraph (b) of this Clause 45.4 is also applicable to any Lender with regard to its Commitments or participations in Utilisations. Such Lender may issue the appropriate certification of the balances of the relevant account(s) referred to in paragraph (a) of this Clause 45.4 and the certification of the balances of such accounts may be legalised by a notary.

 

(d) The amount of the balances determined in accordance with this Clause 45.4 shall be notified to the relevant Spanish Obligor in an attestable manner at least three days in advance of exercising any executive action.

 

(e) Each Spanish Obligor hereby authorises the Agent (and each Lender, as appropriate) to request and obtain certificates and documents issued by the notary which has formalised this Agreement in order to evidence the entries in the notary’s registry-book and the relevant entry date for the purpose of number 4 of Article 517, of the Spanish Civil Procedural Law. The cost of such certificate and documents will be for the account of the relevant Spanish Obligor.

 

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(f) This Agreement shall be raised to the status of a Spanish Public Document by the Spanish Obligors for the purposes contemplated in Article 517 et seq. of the Spanish Civil Procedural Law and other related provisions.

 

45.5 Waiver of Jury Trial

EACH PARTY HERETO HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY LITIGATION IN ANY UNITED STATES FEDERAL OR STATE COURT DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER FINANCE DOCUMENTS OR ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER/GUARANTOR RELATIONSHIP. Each party hereto hereby acknowledges that this waiver is a material inducement to enter into a business relationship, it has relied on this waiver in entering into this Agreement, and it will continue to rely on this waiver in related future dealings. Each party hereto hereby further warrants and represents that it has reviewed this waiver with its legal counsel and it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE AND MAY NOT BE MODIFIED OTHER THAN BY A WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS CLAUSE 45.5 ( Waiver of Jury Trial ) AND EXECUTED BY EACH OF THE PARTIES HERETO. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.

 

46. GENERAL AUSTRIAN LIMITATION

Notwithstanding any provision to the contrary in any Finance Document, the obligations ( Verpflichtungen ) and liabilities ( Haftungen ) of an Austrian Obligor under any Finance Document shall at all times be limited so that at no time the assumption of a liability ( Haftungen ) and/or obligation ( Verpflichtung ) shall be required to the extent that such liability ( Haftung ) or obligation ( Verpflichtung ) would violate Austrian Capital Maintenance Rules ( Kapitalerhaltungsvorschriften ) pursuant to Austrian company law, in particular sections 82 et seq. of the Austrian Act on Limited Liability Companies ( Gesetz über Gesellschaften mit beschränkter Haftung ) and/or sections 52 and 65 et seq. of the Austrian Stock Corporation Act ( Aktiengeset z) (the “ Austrian Capital Maintenance Rules ”). Should any obligation ( Verpflichtung ) and/or liability ( Haftung ) of an Austrian Obligor under any Finance Document violate or contradict the Austrian Capital Maintenance Rules and therefore be held invalid or unenforceable in whole or in part or should the assumption or enforcement of such obligation ( Verpflichtung ) or liability ( Haftung ) expose any managing director or member of the supervisory board of any Austrian Obligor to personal liability or criminal responsibility, such obligation/or liability shall be deemed to be replaced by an obligation ( Verpflichtung ) and/or liability ( Haftung ) of a similar nature (i) which is in compliance with the Austrian Capital Maintenance Rules, (ii) which does not expose the managing directors or members of the supervisory board of the Austrian Obligor to any personal liability or criminal responsibility; and (iii) which provides the best possible security interest admissible in accordance with the Austrian Capital Maintenance Rules in favour of the Finance Parties.

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

 

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Exhibit 99.2

The taking of (i) any of the Debt Documents (including this document) or (ii) any certified copy thereof or (iii) any document which constitutes substitute documentation thereof including written confirmations or references (the “Stamp Duty Sensitive Documents”) into Austria may cause the imposition of Austrian stamp duty. The same, inter alia, applies to (a) the sending of Stamp Duty Sensitive Documents to an Austrian addressee by fax, (b) the sending of any e-mail communication to which an electronic scan copy (e.g., pdf or tif) of a Stamp Duty Sensitive Document is attached to an Austrian addressee and (c) the sending of any e-mail communication carrying an electronic or digital signature which refers to a Stamp Duty Sensitive Document to an Austrian addressee. Accordingly, in particular, keep any Stamp Duty Sensitive Documents outside of Austria and avoid (a) sending Stamp Duty Sensitive Documents by fax to an Austrian addressee, (b) sending any e-mail communication to which an electronic scan copy of a Stamp Duty Sensitive Document is attached to an Austrian addressee and (c) sending any e-mail communication carrying an electronic or digital signature which refers to a Stamp Duty Sensitive Document to an Austrian addressee.

INTERCREDITOR AGREEMENT

originally dated 3 July 2014 as amended and restated

from time to time including,

pursuant to the 2017 Amendment and Restatement Agreement

NOMAD FOODS LIMITED

AS LISTCO

CREDIT SUISSE AG, LONDON BRANCH

AS FACILITY AGENT

DEUTSCHE TRUSTEE COMPANY LIMITED

AS ORIGINAL SENIOR SECURED NOTES TRUSTEE

CREDIT SUISSE AG, LONDON BRANCH

AS SECURITY AGENT

AND

CERTAIN ENTITIES

(IN THE VARIOUS CAPACITIES NAMED HEREIN)

 

LOGO

Ref: L-238225

Linklaters LLP

CONTENTS

 

CLAUSE        PAGE  

1.

 

Definitions and interpretation

     1  

2.

 

Ranking and priority

     41  

3.

 

Credit Facility Lenders and Credit Facility Lender Liabilities

     42  

4.

 

Hedge Counterparties and Hedging Liabilities

     45  

5.

 

Senior Non Credit Facility Creditors and Senior Non Credit Facility Liabilities

     50  

6.

 

Second Lien Debt Creditors and Second Lien Debt Liabilities

     54  

7.

 

New Credit Facilities, Pari Passu Debt, Second Lien Debt and Hedging Agreements

     63  

8.

 

Intra-Group Lenders and Intra-Group Liabilities

     70  

9.

 

Subordinated Creditors and Subordinated Liabilities

     73  

10.

 

Effect of Insolvency Event

     75  

11.

 

Turnover of receipts

     77  

12.

 

Redistribution

     80  

13.

 

Enforcement of Transaction Security

     81  

14.

 

Proceeds of disposals

     83  

15.

 

Application of proceeds

     89  

16.

 

The Security Agent

     96  

17.

 

Change of Security Agent and delegation

     107  

18.

 

Changes to the Parties

     109  

19.

 

Costs and expenses

     117  

20.

 

Enforcement and preservation costs

     119  

21.

 

Special provisions regarding enforcement under the laws of Spain

     119  

22.

 

Indemnities

     120  

23.

 

Information

     122  

24.

 

Notices

     124  

25.

 

Preservation

     126  

26.

 

Consents, amendments and override

     128  

27.

 

Senior Secured Notes Trustee and Second Lien Debt Notes Trustee

     137  

28.

 

Guarantee and indemnity

     144  

29.

 

Counterparts

     153  

30.

 

Governing law

     153  

31.

 

Enforcement and Place of Performance

     153  
THE SCHEDULES  
SCHEDULE    PAGE  

SCHEDULE 1 The Parties

     155  

SCHEDULE 2 Form of Debtor Accession Deed

     160  

SCHEDULE 3 Form of Creditor/Agent Accession Undertaking

     163  

SCHEDULE 4 Form of Debtor Resignation Request

     166  

 

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THIS AGREEMENT is dated 3 July 2014 as amended from time to time, including on the 2017 Effective Date pursuant to the 2017 Amendment and Restatement Agreement and made between:

 

(1) NOMAD FOODS LIMITED (the “ Listco ”);

 

(2) NOMAD FOODS EUROPE MIDCO LIMITED (the “ Midco ”);

 

(3) CREDIT SUISSE AG, LONDON BRANCH as agent for the Senior Secured Facilities Lenders (the “ Facility Agent ”);

 

(4) DEUTSCHE TRUSTEE COMPANY LIMITED as trustee for each Senior Secured Noteholder under and in connection with the Original Senior Secured Notes (the “ Original Senior Secured Notes Trustee ”);

 

(5) THE FINANCIAL INSTITUTIONS listed in Part III of Schedule 1 ( The Parties ) as Original Lenders in respect of the Senior Secured Facilities (the “ Original Lenders ”);

 

(6) CREDIT SUISSE AG, LONDON BRANCH, DEUTSCHE BANK AG, LONDON BRANCH, GOLDMAN SACH BANK USA and UBS LIMITED as Arrangers (as defined in the Senior Secured Facilities Agreement) of the Senior Secured Facilities (the “ Original Arrangers ”);

 

(7) THE FINANCIAL INSTITUTIONS listed in Part IV of Schedule 1 ( The Parties ) as Hedge Counterparties;

 

(8) UPON ACCESSION, each trustee for any Second Lien Debt Noteholders (each, a “ Second Lien Debt Notes Trustee ”);

 

(9) THE COMPANIES listed in Part I of Schedule 1 ( The Parties ) as debtors (the “ Original Debtors ”);

 

(10) THE COMPANIES listed in Part II of Schedule 1 ( The Parties ) as intra-group lenders (the “ Original Intra -Group Lenders ”); and

 

(11) CREDIT SUISSE AG, LONDON BRANCH as security agent and trustee for the Secured Parties (the “ Security Agent ”).

IT IS AGREED as follows:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

In this Agreement:

“ 1992 ISDA Master Agreement ” means the Master Agreement (Multicurrency - Cross 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.

“ 2017 Amendment and Restatement Agreement ” means the amendment and restatement agreement in relation to this Agreement and the Senior Secured Facilities Agreement dated 28 April 2017 between, among others, Listco, Midco and the Security Agent.

“ 2017 Effective Date ” has the meaning given to the term “Effective Date” in the 2017 Amendment and Restatement Agreement.

 

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“ Acceleration Event ” means a Credit Facility Acceleration Event, a Senior Secured Notes Acceleration Event, a Pari Passu Debt Acceleration Event or a Second Lien Debt Acceleration Event (as the context requires).

“ Affiliate ” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

“ Agent ” means:

 

  (a) in relation to the Credit Facility Lenders, the applicable Credit Facility Agent;

 

  (b) in relation to any Senior Secured Noteholders, the applicable Senior Secured Notes Trustee;

 

  (c) in relation to any Pari Passu Debt Creditors (excluding any Pari Passu Debt Representative and the Security Agent), the applicable Pari Passu Debt Representative; and

 

  (d) in relation to any Second Lien Debt Creditors (excluding any Second Lien Debt Representative and the Security Agent), the applicable Second Lien Debt Representative.

“ Agent Liabilities ” means all present and future liabilities and obligations, whether actual or contingent and whether incurred solely or jointly of any Debtor to any Agent (in its capacity as agent or, as applicable, trustee for certain Senior Creditors) under the Debt Documents (including, in respect of any Senior Secured Notes Trustee, its Senior Secured Notes Trustee Amounts and, in respect of any Pari Passu Debt Representative, any equivalent or analogous amounts in respect of it in such capacity and, in respect of any Second Lien Debt Representative, any equivalent or analogous amounts in respect of it in such capacity (including the Second Lien Debt Notes Trustee Amounts).

“ Agreed Security Principles ” means the Security Principles (as defined in the Senior Secured Facilities Agreement).

“ Ancillary Document ” means each document relating to or evidencing an Ancillary Facility.

“ Ancillary Facility ” means:

 

  (a) any ancillary facility made available by an Ancillary Lender in accordance with clause 9 ( Ancillary Facilities ) of the Senior Secured Facilities Agreement; and

 

  (b) any ancillary facility made available by an Ancillary Lender under and in accordance with a Credit Facility Agreement.

“ Ancillary Lender ” means:

 

  (a) each Senior Secured Facilities Lender (or Affiliate of a Senior Secured Facilities Lender) which makes an Ancillary Facility available pursuant to the terms of the Senior Secured Facilities Agreement; and

 

  (b) each Credit Facility Lender (or Affiliate of a Credit Facility Lender) which makes an Ancillary Facility available pursuant to the terms of a Credit Facility Agreement.

 

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“ Arranger ”:

 

  (a) means each Original Arranger; and

 

  (b) has the meaning given to the term “Arranger” in each other relevant Credit Facility Agreement and in each Pari Passu Debt Agreement in respect of each Pari Passu Debt Loan.

“ Arranger Liabilities ” means all present and future liabilities and obligations, actual and contingent, of any Debtor to any Arranger under the Debt Documents.

“ Austrian Debtor ” means any Debtor incorporated in the Republic of Austria.

“ Available Commitment ” has the meaning given to the term “Available Commitment” in each relevant Credit Facility Agreement and, in relation to any Pari Passu Debt Loan, in each applicable Pari Passu Debt Agreement and, in relation to any Second Lien Debt Loan, in each Second Lien Debt Agreement.

“ Belgian Debtor ” means any Debtor being incorporated in Belgium.

“ Bidco ” means Nomad Foods Europe Limited, a company incorporated in England and Wales with registered number 5879466, which is a wholly-owned subsidiary of Midco.

“ Borrowing Liabilities ” means, in relation to a member of the Group, the liabilities (not being Guarantee Liabilities) it may have as a principal debtor to a Creditor (other than to an Agent or an Arranger), 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 Credit Facility Borrower, liabilities as a Senior Secured Notes Issuer and/or liabilities as a borrower or issuer under any Pari Passu Debt Documents and/or liabilities as a Second Lien Debt Notes Issuer and/or liabilities as a borrower or issuer under any Second Lien Debt Documents.

“ Business Day ” means a business day in London and a business day in any other jurisdiction specified in the definition of “Business Day” under a relevant Credit Facility Agreement.

“ Cash Equivalents ” has the meaning given to the term Cash Equivalent Investments in the Senior Secured Facilities Agreement.

“ 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; 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 referred in paragraphs (a) and (b) above.

“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“ 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 and subject to any Agreed Security Principles, given to all the Secured Parties or, as the case may be, certain of the Secured Parties to the extent consistent with the requirements of this Agreement, 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 Agent’s Spot Rate of Exchange on the Business Day prior to the relevant calculation.

“ Consent ” means any consent, instruction, approval, release or waiver or agreement to any amendment.

“ Consultation Period ” has the meaning given to that term by Clause 13.6 ( Consultation ).

“ Corresponding Debt ” has the meaning given to that term in paragraph (b) of Clause 16.3 ( Parallel Debt (covenant to pay the Security Agent) ).

“ Credit Facility ” means the Senior Secured Facilities and, subject to compliance with the requirements of Clause 7.1 ( New Debt Financing ), a New Credit Facility.

“ Credit Facility Acceleration Event ” means:

 

  (a) a Declared Default (as that term is defined in the Senior Secured Facilities Agreement);

 

  (b) an RCF Declared Default (as that term is defined in the Senior Secured Facilities Agreement);

 

  (c) the occurrence of any Event of Default relating to the Senior Secured Facilities Agreement which automatically invokes acceleration provisions under the Senior Secured Facilities Agreement, including the occurrence of any such Event of Default under paragraphs (a)(v) or (a)(vi) of clause 28.6 ( Insolvency Proceedings ) of the Senior Secured Facilities Agreement (save to the extent waived under that document); or

 

  (d)

in relation to a New Credit Facility and following the occurrence of an Event of Default (relating to such New Credit Facility) which is continuing (including, without limitation, any Event of Default expressed to be for the benefit of revolving credit facility lenders only), the Credit Facility Agent in respect of such New Credit Facility exercising any of its rights under (and in accordance with the terms of) the applicable New Credit Facility

 

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  Agreement to demand immediate repayment of such New Credit Facility (including, without limitation, demanding only immediate repayment of any revolving credit facility) or, as in the case may be, any analogous action under, and in accordance with the terms of, the applicable Credit Facility Agreement in respect of that New Credit Facility, such as demanding immediate cash cover in relation to any letter of credit, or any acceleration provisions being automatically invoked (save to the extent waived under that document), in each case, under, and in accordance with the terms of, such Credit Facility Agreement (but excluding placing amounts on demand without making such demand).

“ Credit Facility Agent ” means:

 

  (a) the Facility Agent; and

 

  (b) any agent in respect of each Credit Facility which has acceded to this Agreement pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

“ Credit Facility Agreement ” means:

 

  (a) the Senior Secured Facilities Agreement; and

 

  (b) if applicable, each facility agreement or other instrument evidencing the terms of a Credit Facility.

“ Credit Facility Borrower ” means any Debtor which is a “ Borrower ” or is otherwise designated (including, without limitation, pursuant to clause 9.8 ( Affiliates of Borrowers ) of the Senior Secured Facilities Agreement (or any analogous provision of any other Credit Facility Agreement) as a borrower or principal debtor under:

 

  (a) the Senior Secured Facilities Agreement; and

 

  (b) if applicable, each relevant Credit Facility Agreement.

“ Credit Facility Cash Cover ” has the meaning given to the term “ cash cover ” in:

 

  (a) the Senior Secured Facilities Agreement; and

 

  (b) if applicable, each relevant Credit Facility Agreement.

“ Credit Facility Commitment ” has the meaning given to the term “ Commitment ” in:

 

  (a) the Senior Secured Facilities Agreement;

 

  (b) if applicable, each relevant Credit Facility Agreement;

 

  (c) the applicable Pari Passu Debt Agreement in respect of any Pari Passu Debt Loan; or

 

  (d) for the purposes of Clause 26.6 ( Disenfranchisement of Defaulting Lenders ) and the definition of “Senior Secured Credit Participation” (only) and to the extent applicable in respect of any Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) in respect of any Pari Passu Debt Loan, the applicable Pari Passu Debt Agreement.

“ Credit Facility Discharge Date ” means the later to occur of:

 

  (a) the Senior Secured Facilities Discharge Date; and

 

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  (b) if applicable, the date on which all Credit Facility Lender Liabilities have been fully and finally discharged to the satisfaction of each relevant Credit Facility Agent, whether or not as the result of an enforcement, and the relevant Credit Facility Lenders are under no further obligation to provide financial accommodation to any of the Debtors under any of the Credit Facility Finance Documents.

“ Credit Facility Finance Document ” has the meaning given to the term “ Finance Document ” in:

 

  (a) the Senior Secured Facilities Agreement; and

 

  (b) if applicable, each relevant Credit Facility Agreement.

“ Credit Facility Finance Party ” has the meaning given to the term “ Finance Party ” in:

 

  (a) the Senior Secured Facilities Agreement; and

 

  (b) if applicable, each relevant Credit Facility Agreement.

“ Credit Facility Lender Cash Collateral ” means:

 

  (a) any cash collateral provided by a Credit Facility Lender to an Issuing Bank pursuant to the Senior Secured Facilities Agreement; and

 

  (b) if applicable, any cash collateral provided by a Credit Facility Lender to an Issuing Bank pursuant to any terms of the Credit Facility Finance Documents substantially similar to the clause referred to in paragraph (a) above.

“ Credit Facility Lender Liabilities ” means the Liabilities owed by the Debtors to the Credit Facility Finance Parties under the Credit Facility Finance Documents.

“ Credit Facility Lenders ” means:

 

  (a) each Senior Secured Facilities Lender; and

 

  (b) if applicable, each Lender (under and as defined in each relevant Credit Facility Agreement), each Issuing Bank and each Ancillary Lender.

“ Creditor/Agent Accession Undertaking ” means:

 

  (a) an undertaking substantially in the form set out in Schedule 3 ( Form of Creditor/Agent Accession Undertaking ) or any other form agreed by the Security Agent;

 

  (b) a Transfer Certificate and Lender Accession Undertaking (as defined in each relevant Credit Facility Agreement) ( provided that it contains an accession to this Agreement with substantially the same language as that contained in the form set out in Schedule 3 ( Form of Creditor/Agent Accession Undertaking ));

 

  (c) a Lender Accession Notice (as defined in each relevant Credit Facility Agreement); 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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“ Creditor Representative ” means each Agent or, in each case, any person appointed by an Agent (and notified to Listco, the Security Agent and each other Agent) to act on its behalf for the purposes of Clause 13 ( Enforcement of Transaction Security ).

“ Creditors ” means the Senior Secured Creditors, the Second Lien Debt Creditors, the Intra-Group Lenders and the Subordinated Creditors.

“ Debt Document ” means each of this Agreement, the Senior Secured Finance Documents, the Second Lien Debt 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 Agent and Listco.

“ Debtor ” means each Original Debtor and any other person which becomes a Party as a Debtor in accordance with the terms of Clause 18 ( Changes to the Parties ).

“ Debtor Accession Deed ” means:

 

  (a) a deed substantially in the form set out in Schedule 2 ( Form of Debtor Accession Deed ) or any other form agreed by the Security Agent and the Debtors’ Agent; or

 

  (b) only in the case of a member of the Group which is acceding as a borrower or guarantor under a Credit Facility Agreement, under any Pari Passu Debt Agreement for a Pari Passu Debt Loan or under any Second Lien Debt Agreement for a Second Lien Debt Loan, an Accession Letter (as defined therein, in each case) ( provided that it contains an accession to this Agreement with substantially the same language as that contained in the form set out in Schedule 2 ( Form of Debtor Accession Deed )).

“ 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 4 ( 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, the making of any determination under the relevant Debt Documents or any combination of any of the foregoing) be an Event of Default, provided that any such event or circumstance which expressly requires the satisfaction of any condition as to materiality before it may become an Event of Default shall not be a Default until that condition is satisfied.

“ Defaulting Lender ” means:

 

  (a) in relation to a Credit Facility Agreement, a Credit Facility Lender which is a Defaulting Lender under and as defined in the relevant Credit Facility Agreement;

 

  (b) in relation to any Pari Passu Debt Agreement in respect of any Pari Passu Debt Loan, a Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) thereunder which is a Defaulting Lender under and as defined in such Pari Passu Debt Agreement; and

 

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  (c) in relation to any Second Lien Debt Agreement in respect of any Second Lien Debt Loan, a Second Lien Debt Creditor (excluding any Second Lien Debt Representative, any arranger of that Second Lien Debt Loan (in its capacity as such) and the Security Agent) thereunder which is a Defaulting Lender under and as defined in such Second Lien Debt Agreement.

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

“ Designated Gross Amount ” means, in relation to a Multi-account Overdraft Facility, that Multi-account Overdraft Facility’s maximum gross amount.

“ Designated Net Amount ” means, in relation to a Multi-account Overdraft Facility, that Multi-account Overdraft Facility’s maximum net amount.

“ Discharge Date ” means the Senior Secured Discharge Date, the Credit Facility Discharge Date, the Senior Secured Facilities Discharge Date, the date on which each Hedge Counterparty confirms it is satisfied that all Hedging Liabilities in respect of it have been fully and finally discharged, the Senior Secured Notes Discharge Date, the Pari Passu Debt Discharge Date and/or the Second Lien Debt Discharge Date (as the context requires).

“ 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 (i) a member of the Group or (ii) a Non Debtor Security Provider, in each case, which are the subject of Transaction Security, 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

 

  (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.

“ Enforcement ” means any action referred to in paragraph (c) of the definition of “Enforcement Action” ( provided that the relevant Transaction Security has become enforceable in accordance with its terms), the requesting by an Instructing Group or, as the case may be, the relevant Requisite Majority of a Distressed Disposal and/or the release of claims and/or Transaction Security by the Security Agent on a Distressed Disposal under Clause 14.2 ( Distressed Disposals ), the giving of instructions by an Instructing Group or, as the case may be, the relevant Requisite Majority as to actions (where permitted to be taken) in respect of any Transaction Security following an Insolvency Event under Clause 10.7 ( Security Agent instructions ) and the taking of any other actions by the Security Agent consequential on (or necessary to effect) the enforcement of the Transaction Security or any Distressed Disposal, provided that the relevant Transaction Security has become enforceable in accordance with its terms.

 

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“ 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: (A) it becoming unlawful for a Senior Creditor to perform its obligations under, or of any voluntary or mandatory prepayment or tender offer arising under, any of the Debt Documents or (B) an acceleration of any Ancillary Facility in circumstances where, substantially contemporaneously with the acceleration, such Ancillary Facility is refinanced in full by a revolving facility or otherwise refinanced in accordance with the terms of the relevant Credit Facility Agreement);

 

  (ii) the making of any declaration that any Liabilities are payable on demand (other than, prior to an Acceleration Event, any demand made by an Intra-Group Lender in relation to any Intra-Group Liabilities in the ordinary course of trading and as permitted by this Agreement);

 

  (iii) the making of a demand in relation to a Liability that is payable on demand (other than, prior to an Acceleration Event, any demand made by an Intra-Group Lender in relation to any Intra-Group Liabilities in the ordinary course of trading and as permitted by this Agreement);

 

  (iv) the making of any demand against any member of the Group in relation to any Guarantee Liabilities of that member of the Group;

 

  (v) the exercise of any right to require any member of the Group to acquire any Liability (including exercising any put or call option against any member of the Group for the redemption or purchase of any Liability) other than in connection with (A) any Group debt purchase or buy-back transaction permitted or not prohibited (and in respect of Liabilities arising) under any Credit Facility Agreement or under any Pari Passu Debt Agreement for a Pari Passu Debt Loan or under any Second Lien Debt Agreement for a Second Lien Debt Loan or (B) an Asset Sale Offer or a Change of Control Offer (each as defined or having the meaning to any equivalent term in any Senior Secured Notes Indenture, any Pari Passu Debt Agreement for any Pari Passu Debt Note or, as applicable, in any Second Lien Debt Notes Indenture) or (C) any mandatory prepayment arising from or as a result of an illegality, a change of control, flotation (or any other initial public offering of equity), asset sale, note purchase, insurance or other claim or any excess cashflow (however described) as set out in any Credit Facility Agreement;

 

  (vi) the exercise of any right of set-off, account combination or payment netting against any member of the Group in respect of any Liabilities other than the exercise of any such right:

 

  (A) as Close-Out Netting by a Hedge Counterparty or by a Hedging Ancillary Lender;

 

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  (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;

 

  (E) which is otherwise not prohibited under the Senior Secured Finance Documents to the extent that the exercise of that right gives effect to a Permitted Payment; or

 

  (F) in respect of any Intra-Group Liabilities prior to the occurrence of an Acceleration Event; and

 

  (vii) the suing for, commencing or joining of any legal or arbitration proceedings against any member of the Group to recover any Liabilities;

 

  (b) the premature termination or close-out of any hedging transaction under any Hedging Agreement by a Hedge Counterparty in circumstances where there is an amount due from a member of the Group which is not paid within 30 days of the Hedge Counterparty making a request for payment (save to the extent permitted by this Agreement);

 

  (c) the taking of any formal steps by the Security Agent to enforce or require the enforcement of any Transaction Security (including the crystallisation of any floating charge forming part of the Transaction Security) or the giving of enforcement instructions (for reasons of actual or anticipated financial difficulty of the relevant Debtor or, as the case may be, member of the Group) to the Security Agent pursuant to Clause 13 ( Enforcement of Transaction Security );

 

  (d) the entering into of any composition, compromise, assignment or arrangement with any member of the Group, a Debtor or any Non Debtor Security Provider which owes any Liabilities or has given any Security, guarantee or indemnity or other assurance against loss in respect of the Liabilities, in either case, for reasons of actual or anticipated financial difficulty of the relevant Non Debtor Security Provider, Debtor or, as the case may be, member of the Group (other than any action permitted under Clause 18 ( Changes to the Parties ) or pursuant to any debt purchase or buy-back, tender offer, exchange offer or similar or equivalent arrangement not otherwise prohibited by the Debt Documents); or

 

  (e)

the petitioning, applying or voting for, or the taking of any formal steps (including the appointment of any liquidator, receiver, administrator or similar officer) in relation to, the winding up, dissolution, administration or reorganisation of any member of the Group, a Debtor or any Non Debtor Security Provider which owes any Liabilities, or has given any Security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities, or any of such member of the Group’s, Debtor’s or, as the case may be, Non Debtor Security Provider’s assets or any suspension of payments or moratorium of any indebtedness of any such member of the Group, Debtor or, as the case may be, Non

 

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  Debtor Security Provider or any analogous procedure or step in any jurisdiction, where any such procedure or step is:

 

  (i) neither frivolous nor vexatious in nature and, if capable of remedy or withdrawal, is not remedied or withdrawn (as the case may be) within 20 Business Days of such procedure or step being taken; or

 

  (ii) such procedure or step is taken in connection with a solvent liquidation or reorganisation which is not prohibited by the terms of the Secured Debt Documents,

except that the following shall not constitute Enforcement Action:

 

  (i) the taking of any action falling within paragraph (a)(vii) or (e) 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;

 

  (ii) a Senior Creditor 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;

 

  (iii) bringing or defending legal proceedings against any person in connection with any securities violation, securities or listing regulations or common law fraud;

 

  (iv) to the extent entitled by law and only in respect of a Distressed Disposal, the taking of any action 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 those persons under any relevant documentation (or obtaining injunctive relief to restrain any such sale); or

 

  (v) (other than as referred to in paragraphs (c), (d) and/or (e) above) any person consenting to, or the taking of any other action pursuant to or in connection with any merger, consolidation, reorganisation or any other similar or equivalent step or transaction initiated or undertaken by or in relation to a member of the Group (or any analogous procedure or step in any jurisdiction) that is not expressly prohibited by the terms of the Senior Secured Finance Documents, including any Permitted Reorganisation.

“ Enforcement Instruction Effective Date ” means the date falling 10 Business Days (or such shorter period as each Agent shall agree) after the date of receipt of Enforcement Instructions by the Security Agent and, where more than one Agent provides Enforcement Instructions, after the date on which the first Enforcement Instructions are received.

 

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“ Enforcement Instructions ” means written instructions to the Security Agent to take any action in relation to Enforcement.

“ Escrow Security ” means the Security created or evidenced or expressed to be created or evidenced by a Debtor or a member of the Group under or pursuant to the Escrow Security Documents which is released or otherwise discharged upon the proceeds of any Credit Facility, Senior Secured Notes, Pari Passu Debt Notes, Pari Passu Debt Loan, Second Lien Debt Notes and/or Second Lien Debt Loan being made freely available to a Debtor or member of the Group.

“ Escrow Security Documents ” means each document pursuant to which Security is granted by a Debtor or a member of the Group over Escrow Security Property.

“ Escrow Security Property ” means the proceeds of any Credit Facility, Senior Secured Notes, Pari Passu Debt Notes, Pari Passu Debt Loan, Second Lien Debt Notes and/or Second Lien Debt Loan held pursuant to customary escrow arrangements (and/or rights over or with respect to any escrow account into which such funds are paid and all associated rights in relation thereto) prior to such funds being made freely available to a Debtor or a member of the Group following satisfaction of all conditions to release of such funds from such escrow arrangements, in each case, as permitted by the terms of the Senior Secured Finance Documents and the Senior Second Lien Debt Documents.

“ Event of Default ” means any event or circumstance specified as such:

 

  (a) in any Credit Facility Agreement;

 

  (b) (from the first Senior Secured Notes Issue Date until the Senior Secured Notes Discharge Date) in any Senior Secured Notes Indenture;

 

  (c) (from the first incurrence of Pari Passu Debt until the Pari Passu Debt Discharge Date) in any Pari Passu Debt Agreement; or

 

  (d) (from the first incurrence of Second Lien Debt until the Second Lien Debt Discharge Date) in any Second Lien Debt Agreement.

“ Excluded Swap Obligations ” means, with respect to any Debtor, any Swap Obligation if, and to the extent that, such Swap Obligation (or such Swap Support in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Debtor’s failure for any reason to constitute an “ eligible contract participant ” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Swap Support of such Debtor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Swap Support is or becomes illegal.

“ Facility Agent ” means the Agent under and as defined in the Senior Secured Facilities Agreement, being Credit Suisse AG, London Branch as at the 2017 Effective Date.

 

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“ Fairness Opinion ” means an opinion of a Financial Adviser selected by the Security Agent that the consideration for a disposal 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 Financial Adviser may be limited to the amount of its fees in respect of such engagement).

“ Final Discharge Date ” means the latest to occur of the Senior Secured Discharge Date and the Second Lien Debt Discharge Date.

“ Financial Adviser ” means an internationally recognised independent investment bank, independent international accounting firm or other independent third party professional firm, chosen in consultation with Listco, which is regularly engaged in providing valuations of businesses or assets similar or comparable to those the subject of the relevant Distressed Disposal, provided that for these purposes “independent” refers to circumstances in which such entity is not restricted from acting by any applicable law or regulation due to a conflict of interest.

“ Financial Indebtedness ” has the meaning given to that term in the Senior Secured Facilities Agreement.

“ German Civil Code ” means the German Bürgerliches Gesetzbuch .

“ German Guarantor ” means a Debtor incorporated in the Federal Republic of Germany in the form of a GmbH or GmbH & Co. KG. .

“ Group ” means Listco and each of its Subsidiaries for the time being.

“ Guarantee Liabilities ” means, in relation to a member of the Group, the liabilities and obligations under the Debt Documents (present or future, actual or contingent and whether incurred solely or jointly) it may have to a Creditor or Debtor as or as a result of it being a guarantor or surety (including, without limitation, liabilities and obligations arising by way of guarantee, indemnity, contribution or subrogation and, in particular, any guarantee or indemnity arising under or in respect of any Senior Secured Finance Document and/or any Second Lien Debt Document).

“ Hedge Counterparty ” means:

 

  (a) any person which is named as a Hedge Counterparty in Part IV of Schedule 1 ( The Parties ) and who signs or accedes to this Agreement in such capacity; and

 

  (b) any person which becomes Party as a Hedge Counterparty pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

“ Hedge Proportion ” means, in relation to a Hedge Counterparty and that Hedge Counterparty’s aggregate Hedging Liabilities, the proportion (expressed as a percentage) borne by that Hedge Counterparty’s aggregate Hedging Liabilities to the aggregate of all Hedging Liabilities.

“ Hedging Agreement ” means any master agreement, confirmation, schedule or other agreement (including, without limitation, any cap or collar agreements) entered into between a member of a Group and a Hedge Counterparty in relation to a derivative or hedging arrangement for any purpose permitted or not prohibited by the terms of any Secured Debt Document at the time the relevant agreement, confirmation, schedule or other agreement (as applicable) is entered into, provided that such Hedging Agreement is, at the time the relevant

 

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agreement, confirmation, schedule or other agreement (as applicable) is entered into, permitted to share or not prohibited from sharing in the Transaction Security under the terms of each relevant Secured Debt Document.

“ 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 to the Hedge Counterparties 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) in the case of a Hedging Agreement which is based on an ISDA Master Agreement:

 

  (i) that date was an Early Termination Date (as defined in the relevant ISDA Master Agreement); and

 

  (ii) the relevant Debtor was the Defaulting Party (under and as defined in the relevant ISDA Master Agreement); or

 

  (b) in the case of a Hedging Agreement which is not based on an ISDA Master Agreement:

 

  (i) that date was 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; and

 

  (ii) the relevant Debtor was in a position which is similar in meaning and effect to that of a Defaulting Party (under and as defined in the same 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 ” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

“ Impaired Agent ” means:

 

  (a) a Credit Facility Agent which is an Impaired Agent under, and as defined in, any relevant Credit Facility Agreement; and

 

  (b) (if relevant) an Agent which is an Impaired Agent under, and as defined in, any Pari Passu Debt Agreement for any Pari Passu Debt Loan or, as the case may be, any Second Lien Debt Agreement for any Second Lien Debt Loan.

 

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“ Insolvency Event ” means, in relation to any member of the Group:

 

  (a) any resolution is passed or order made for the liquidation, declaration of insolvency, winding up, dissolution, administration or reorganisation of that member of the Group, a moratorium is declared in relation to any indebtedness of that member of the Group or an administrator is appointed to that member of the Group;

 

  (b) any composition, compromise, assignment or arrangement is made with any of its creditors as a result of anticipated financial difficulties;

 

  (c) the appointment of any liquidator, receiver, administrator, administrative receiver, compulsory manager, trustee in bankruptcy, or other similar officer in respect of that member of the Group or any of its assets; or

 

  (d) any analogous procedure or step to those mentioned in paragraphs (a) to (c) above is taken in any jurisdiction,

in each case to the extent constituting an Event of Default which is continuing in respect of which the relevant Creditor Representative has declared by written notice to the Security Agent and Listco that an “Insolvency Event” has occurred but excluding any solvent winding-up or dissolution or any other action or step pursuant to a Permitted Reorganisation and/or any transaction referred to in exception (d) to the definition of “Enforcement Action”.

“ Instructing Group ” means either:

 

  (a) in relation to any consent or instructions relating to Enforcement:

 

  (i) prior to the Senior Secured Discharge Date, the Majority Senior Secured Creditors and, for the purposes of and in accordance with, Clause 13.7 ( Preservation of Security ), a Senior Secured Creditor Representative in relation to any of the Senior Secured Creditor Liabilities; and

 

  (ii) on or after the Senior Secured Discharge Date but prior to the Second Lien Debt Discharge Date, the Majority Second Lien Debt Creditors; and

 

  (b) where any matter requires the consent of or instruction from (but excluding any in relation to Enforcement as set out in paragraph (a) above) an Instructing Group:

 

  (i) prior to the Senior Secured Discharge Date, the Requisite Majority of the Credit Facility Lenders, the Requisite Majority of the Senior Secured Noteholders, the Requisite Majority of the Pari Passu Debt Creditors under paragraph (c) of the definition of “Requisite Majority” and the Requisite Majority of the Pari Passu Debt Creditors under paragraph (d) of the definition of “Requisite Majority”; and

 

  (ii) on or after the Senior Secured Discharge Date, but prior to the Second Lien Debt Discharge Date, where the relevant matter requiring consent or instructions is prohibited by any Second Lien Debt Document, the Requisite Majority of such Second Lien Debt Creditors.

“ Intercreditor Amendment ” means any amendment or waiver which is subject to Clause 26 ( 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

 

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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 a 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 Credit Facility Lender Liabilities owed to that Hedging Ancillary Lender by that Debtor under a Hedging Ancillary Document.

“ Intra-Group Lenders ” means each member of the Group which has made a loan available to, granted credit to or made any other financial arrangement having similar effect (other than in respect of any Issuer Proceeds Loan Liabilities) with another member of the Group that is a Debtor and which is an Original Intra-Group Lender or which becomes a party as a Debtor or an Intra-Group Lender in accordance with the terms of Clause 18 ( Changes to the Parties ).

“ Intra-Group Liabilities ” means the Liabilities in relation to Financial Indebtedness owed by any member of the Group that is a Debtor to any of the Intra-Group Lenders (excluding any Issuer Proceeds Loan Liabilities).

“ ISDA Master Agreement ” means a 1992 ISDA Master Agreement or a 2002 ISDA Master Agreement.

“ Issuer ” means Nomad Foods Bondco plc or any other wholly-owned Subsidiary of Listco (excluding Nomad Foods Lux S.à r.l., Nomad Foods US LLC, Midco, Bidco and each of Bidco’s Subsidiaries).

“ Issuer Proceeds Loan ” means any loan made by an Issuer (or any other entity which is a member of the Group) to any other member of the Group for the purposes of lending or on-lending (directly or indirectly) the proceeds of Senior Secured Notes, Pari Passu Debt Notes or Second Lien Debt Notes (as the case may be).

“ Issuer Proceeds Loan Liabilities ” means the liabilities owed by any Debtor to the Issuer (or, as the case may be, any other member of the Group) in respect of an Issuer Proceeds Loan.

“ Issuing Bank ” has the meaning given to the term “Issuing Bank” in any relevant Credit Facility Agreement.

“ Italian Civil Code ” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.

“ Italian Secured Party ” means a Secured Party under the Italian Law Security Documents (as defined in Clause 16.1 ( Appointment by the Secured Parties )).

“ Letter of Credit ” has the meaning given to the term “Letter of Credit” in any relevant Credit Facility Agreement.

“ Liabilities ” means all present and future liabilities and obligations at any time of any member of the Group, any Debtor or any Non Debtor Security Provider to any Creditor or to any Subordinated Creditor under the Debt Documents, both actual and contingent and whether

 

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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 of a Payment on the grounds of preference or otherwise,

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 or acquires 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.

“ Listco Affiliate ” means any Affiliate of Listco (excluding any member of the Group).

“ Majority Second Lien Debt Creditors ” means, at any time, those Second Lien Debt Creditors whose Second Lien Debt Credit Participations aggregate more than 50.1 per cent. of the total Second Lien Debt Credit Participations at that time.

“ Majority Senior Non Credit Facility Creditors ” means, at any time, the Senior Non Credit Facility Creditors whose Senior Secured Credit Participations at that time aggregate more than 50.1 per cent. of their total Senior Secured Credit Participations at that time.

“ Majority Senior Secured Creditors ” means, at any time:

 

  (a) to the extent that there are no Senior Secured Notes Liabilities or Pari Passu Debt Liabilities under any Pari Passu Debt Note at such time, those Senior Secured Creditors whose Senior Secured Credit Participations at that time aggregate more than 66 2 / 3  per cent. of the total Senior Secured Credit Participations at that time; and

 

  (b) at any other time, those Senior Secured Creditors whose Senior Secured Credit Participations at that time aggregate more than 50.1 per cent. of the total Senior Secured Credit Participations at that time.

“ Multi -account Overdraft Facility ” means an Ancillary Facility which is an overdraft facility comprising more than one account.

“ New Credit Facility ” means a credit facility other than the Senior Secured Facilities.

 

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“ New Debt Financing ” means, at any time after the 2017 Effective Date, any financing or refinancing arrangement whatsoever and for any purpose not prohibited by the terms of the Debt Documents (including, without limitation (i) pursuant to (x) any Structural Adjustment and/or any Additional Facilities (as each such term as defined in the Senior Secured Facilities Agreement) (or, in each case, any equivalent term or provision under any other Credit Facility Agreement) and/or (y) any Senior Secured Notes Finance Document (other than any Hedging Agreement), a Pari Passu Debt Document and/or a Second Lien Debt Document and/or (ii) any refinancing of any Senior Secured Creditor Liabilities and/or Second Lien Debt Liabilities entered into pursuant to a Credit Facility Agreement, a Senior Secured Notes Finance Document, a Pari Passu Debt Document and/or a Second Lien Debt Document):

 

  (a) the providers, creditors or, as the case may be, holders of which (and/or any Agent on their behalf) are to receive the benefit of any Transaction Security or Common Assurance or, in the case of any Second Lien Debt, are to receive any Security granted by and/or any guarantee, indemnity or other assurance against loss from any member of the Group; or

 

  (b) to the extent paragraph (a) above does not apply, which Listco otherwise determines is to be regulated by the terms of this Agreement,

but excluding any financing or refinancing arrangement pursuant to any Hedging Agreement at any time.

“ Non Debtor Security Provider ” means any Listco Affiliate which has provided any guarantee, indemnity, Security or other assurance against financial loss in favour of any of the Secured Parties as assurance and/or (as applicable) as security for any of the Secured Obligations.

“ Original Senior Secured Notes ” means the Senior Secured Notes issued by the Senior Secured Notes Issuer on or about the 2017 Effective Date.

“ 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 any Creditor Representative, any Arranger, the Security Agent, a Subordinated Creditor, an Intra-Group Lender or a Debtor.

“ Parallel Debt ” shall have the meaning given to such term in paragraph (b) of Clause 16.3 ( Parallel Debt (covenant to pay the Security Agent )).

“ Pari Passu Debt ” means, subject to compliance with the requirements of Clause 7.1 ( New Debt Financing ), any loan, credit or debt facility, notes, indenture or securities which are permitted, under the terms of the Senior Secured Finance Documents, to rank pari passu with the Senior Secured Creditor Liabilities and/or to share in the Transaction Security pari passu with the Senior Secured Creditor Liabilities.

“ Pari Passu Debt Acceleration Event ” means, in relation to any Pari Passu Debt and following the occurrence of an Event of Default (in respect of such Pari Passu Debt) which is continuing, the Pari Passu Debt Representative or any of the other Pari Passu Debt Creditors in respect of such Pari Passu Debt exercising any acceleration rights (howsoever described) under and in accordance with the applicable Pari Passu Debt Agreement in respect of such Pari Passu Debt or any acceleration provisions being automatically invoked (save to the extent waived under that document).

 

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“ Pari Passu Debt Agreement ” means, in relation to any Pari Passu Debt, the facility agreement, indenture or other equivalent document which creates or evidences such Pari Passu Debt.

“ Pari Passu Debt Creditors ” means each holder, lender or other creditor of Pari Passu Debt Liabilities, each Pari Passu Debt Representative, each Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent.

“ Pari Passu Debt Discharge Date ” means the first date on which all Pari Passu Debt Liabilities have been fully and finally discharged to the satisfaction of the relevant Pari Passu Debt Representative, whether or not as the result of an enforcement, and the Pari Passu Debt Creditors are under no further obligation to provide financial accommodation to any of the Debtors under the Pari Passu Debt Documents.

“ Pari Passu Debt Documents ” means each document or instrument entered into between an Issuer (in the case of any Pari Passu Debt Note) or any member of the Group (in the case of any Pari Passu Debt Loan) and a Pari Passu Debt Creditor setting out the terms of any loan, credit or debt facility, notes, indenture or security which creates or evidences any Pari Passu Debt, each guarantee granted by a member of the Group in respect of any Pari Passu Debt, this Agreement, the Security Documents, and any other document entered into in connection with the aforementioned instruments creating or evidencing Pari Passu Debt and designated a Pari Passu Debt Document by the relevant Pari Passu Debt Representative.

“ Pari Passu Debt Liabilities ” means the Liabilities owed by the Debtors to the Pari Passu Debt Creditors under the Pari Passu Debt Documents.

“ Pari Passu Debt Loan ” means any Pari Passu Debt constituted by way of a loan or credit facility (and not in connection with any issuance of debt securities (or other debt capital markets issuance)).

“ Pari Passu Debt Note ” means any debt securities issuance (or other debt capital markets issuance) constituting Pari Passu Debt.

“ Pari Passu Debt Representative ” means, in relation to any Pari Passu Debt, any agent or trustee for the relevant Pari Passu Debt Creditors of that Pari Passu Debt which has acceded to this Agreement pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

“ 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, repurchase, 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

 

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  (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 Credit Facility Lender Payments ” means the Payments permitted by Clause 3.1 ( Payment of Credit Facility Lender Liabilities ).

“ 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 Payments ” means the Payments permitted by Clause 4.3 ( Permitted Payments: Hedging Liabilities ).

“ Permitted Intra -Group Payments ” means the Payments permitted by Clause 8.2 ( Permitted Payments: Intra -Group Liabilities ).

“ Permitted Non Credit Facility Payment ” means the Payments permitted by Clause 5.1 ( Permitted Payments: Senior Non Credit Facility Liabilities ).

“ Permitted Payment ” means a Permitted Credit Facility Lender Payment, a Permitted Hedge Payment, a Permitted Non Credit Facility Payment, a Permitted Second Lien Debt Payment, a Permitted Intra-Group Payment or a Permitted Subordinated Creditor Payment.

“ Permitted Reorganisation ” means a reorganisation falling within paragraphs (b), (c) or (e) of the definition of Permitted Transaction as such term is defined in the Senior Secured Facilities Agreement.

“ Permitted Second Lien Debt Payment ” means the Payments permitted by Clause 6.4 ( Permitted Second Lien Debt Payments ).

“ Permitted Subordinated Creditor Payments ” means the Payments permitted by Clause 9.2 ( Permitted Payments: Subordinated Liabilities ).

“ Public Auction ” means a public auction or other actively marketed competitive sale process that, in either case, is designed to achieve the best price reasonably obtainable in which third party bidders (which may include, at their option, a Listco Affiliate) participate, which may or may not be conducted through a court or other legal proceeding, and which is conducted with the advice of a Financial Adviser, provided that the Senior Creditors shall have a right to participate in such auction.

“ Receiver ” means a receiver or receiver and manager or administrative receiver or other similar officer 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 Credit Facility Cash Cover, the Ancillary Lender (if any) for which that Credit Facility Cash Cover is provided.

“ Relevant Holder ” means any Senior Secured Noteholder, any holder of any Pari Passu Debt Note, any Second Lien Noteholders or any Affiliate or connected person of such a holder which

 

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(in each case) is a Senior Secured Creditor and/or which is party to a Liabilities Acquisition in relation to any Senior Secured Creditor Liabilities (other than any person to the extent it is holding such Senior Secured Creditor Liabilities and/or, as the case may be, such other relevant interest in such Senior Secured Creditor Liabilities for its own account or, as the case may be, on a bona fide trading account and is not acting on behalf of a person which would otherwise, but for this exclusion, be a Relevant Holder).

“ Relevant Issuing Bank ” means, in respect of any Credit Facility Cash Cover, the Issuing Bank (if any) for which that Credit Facility Cash Cover is provided.

“ Relevant Liabilities ” means:

 

  (a) in the case of a Creditor or Subordinated Creditor:

 

  (i) the Arranger Liabilities owed to an Arranger 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);

 

  (ii) the Liabilities owed to Creditors and the 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 Agent Liabilities owed to the Agent of those Creditors; and

 

  (iii) all present and future liabilities and obligations, actual and contingent, of the Debtors to the Security Agent; and

 

  (b) in the case of a Debtor, the Liabilities owed to the Creditors and the Subordinated Creditors, together with the Agent Liabilities owed to the Agent of those Creditors, the Arranger Liabilities and all present and future liabilities and obligations, actual and contingent, of such Debtor to the Security Agent.

“ Requisite Majority ” means, subject to Clause 26 ( Consents, amendments and override ):

 

  (a) in relation to any Consent of the Credit Facility Lenders:

 

  (i) the Majority Lenders (as defined in the Senior Secured Facilities Agreement) after the application of paragraph (j) of clause 41.2 ( Exceptions ) of the Senior Secured Facilities Agreement and, if applicable, paragraph (a) of clause 30.2 ( Disenfranchisement on Debt Purchase Transactions ) of the Senior Secured Facilities Agreement;

 

  (ii) the Majority Lenders (as defined in each relevant Credit Facility Agreement) after the application of any provisions equivalent to those in paragraph (i) above in the relevant Credit Facility Agreement; or

 

  (iii) where clause 41.2 ( Exceptions ) of the Senior Secured Facilities Agreement (or any equivalent provision in any other Credit Facility Agreement) requires otherwise, the prior consent of all (or such other proportion) of the relevant Credit Facility Lenders and any other entity specified therein after the application of paragraph (j) of clause 41.2 ( Exceptions ) of the Senior Secured Facilities Agreement and, if applicable, paragraph (a) of clause 30.2 ( Disenfranchisement on Debt Purchase Transactions ) of the Senior Secured Facilities Agreement (or any provisions equivalent to those in any other Credit Facility Agreement);

 

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  (b) in relation to any Consent of the Senior Secured Noteholders:

 

  (i) Senior Secured Noteholders holding at least the principal amount of Senior Secured Notes required to vote in favour of such Consent under the terms of each applicable Senior Secured Notes Indenture; or

 

  (ii) if the required principal amount for such Consent is not specified, Senior Secured Noteholders holding at least the majority of the principal amount of the then outstanding Senior Secured Notes;

 

  (c) in relation to any Consent of the Pari Passu Debt Creditors (other than any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan or the Security Agent) in connection with any Pari Passu Debt Loan:

 

  (i) the Majority Lenders (as defined in each relevant Pari Passu Debt Agreement) after the application of any provisions equivalent to those in paragraph (a)(i) above in each relevant Pari Passu Debt Agreement; or

 

  (ii) where any equivalent provision to that in paragraph (a)(iii) above in any relevant Pari Passu Debt Agreement requires otherwise, the prior consent of all (or such other proportion) of the relevant Pari Passu Debt Creditors (other than any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan or the Security Agent) and any other entity specified therein after the application of any provisions equivalent to those in paragraphs (a)(iii) above in each relevant Pari Passu Debt Agreement;

 

  (d) in relation to any Consent of the Pari Passu Debt Creditors (other than any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan or the Security Agent) in connection with any Pari Passu Debt Note:

 

  (i) the relevant Pari Passu Debt Creditors (other than any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan or the Security Agent) holding at least the principal amount of such Pari Passu Debt required to vote in favour of such Consent under the terms of the applicable Pari Passu Debt Agreement; or

 

  (ii) if the required principal amount for such Consent is not specified in the Pari Passu Debt Agreement, the relevant Pari Passu Debt Creditors (other than any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan or the Security Agent) holding at least the majority of the principal amount of such Pari Passu Debt Liabilities;

 

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  (e) in relation to any Consent of the Second Lien Debt Creditors (other than any Second Lien Debt Representative, any arranger in respect of such Second Lien Debt Loan or the Security Agent) in connection with any Second Lien Debt Loan:

 

  (i) the Majority Lenders (as defined in the relevant Second Lien Debt Agreement in respect of a Second Lien Debt Loan) after the application of any provisions equivalent to those in paragraph (a)(i) above in each relevant Second Lien Debt Agreement; or

 

  (ii) where any equivalent provision to that in paragraph (a)(iii) above in any relevant Second Lien Debt Agreement requires otherwise, the prior consent of all (or such other proportion) of the relevant Second Lien Debt Creditors (other than any Second Lien Debt Representative, any arranger in respect of such Second Lien Debt Loan or the Security Agent) and any other entity specified therein after the application of any provisions equivalent to those in paragraphs (a)(iii) above in each relevant Second Lien Debt Agreement; and

 

  (f) in relation to any Consent of the Second Lien Debt Creditors (other than any Second Lien Debt Representative, any arranger in respect of such Second Lien Debt Loan or the Security Agent) in connection with any Second Lien Debt Note:

 

  (i) the relevant Second Lien Debt Creditors (other than any Second Lien Debt Representative, any arranger in respect of such Second Lien Debt Loan or the Security Agent) holding at least the principal amount of such Second Lien Debt Liabilities required to vote in favour of such Consent under the terms of the applicable Second Lien Debt Agreement; or

 

  (ii) if the required principal amount for such Consent is not specified in the Second Lien Debt Agreement, the relevant Second Lien Debt Creditors (other than any Second Lien Debt Representative, any arranger in respect of such Second Lien Debt Loan or the Security Agent) holding at least the majority of the principal amount of such Second Lien Debt Liabilities.

“ Retiring Security Agent ” has the meaning given to that term in paragraph (d) of Clause 17.1 ( Resignation of the Security Agent ).

“ Second Lien Debt ” means, subject to compliance with the requirements of Clause 7.1 ( New Debt Financing ), any loan, credit or debt facility, notes, indenture or securities which are permitted or not prohibited, under the terms of the Senior Secured Finance Documents to be incurred and with the ranking contemplated in this Agreement and which are permitted or not prohibited under the terms of the Second Lien Debt Documents to rank pari passu with the Second Lien Debt Liabilities and/or to share in the Transaction Security pari passu with the Second Lien Debt Liabilities (if any).

“ Second Lien Debt Acceleration Event ” means, in relation to any Second Lien Debt and following the occurrence of an Event of Default (in respect of such Second Lien Debt) which is continuing, the Second Lien Debt Representative or any of the other Second Lien Debt Creditors in respect of such Second Lien Debt exercising any acceleration rights (howsoever described) under and in accordance with the applicable Second Lien Debt Agreement in respect of such Second Lien Debt or any acceleration provisions being automatically invoked (save to the extent waived under that document).

 

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“ Second Lien Debt Acquiring Creditors ” has the meaning given to that term in paragraph (a) of Clause 6.14 ( Option to purchase: Second Lien Debt Notes ).

“ Second Lien Debt Agreement ” means, in relation to any Second Lien Debt, the facility agreement, indenture or other equivalent document which creates or evidences such Second Lien Debt.

“ Second Lien Debt Creditors ” means each holder, lender or other creditor of Second Lien Debt Liabilities, each Second Lien Debt Representative, each arranger in respect of any Second Lien Debt Loan and the Security Agent.

“ Second Lien Debt Credit Participations ” means, in relation to a Second Lien Debt Creditor (other than an Agent (in respect of its Agent Liabilities)), the aggregate of the principal amount of Second Lien Debt Notes then owing to it or, as the case may be, its Second Lien Debt Loan Commitments.

“ Second Lien Debt Discharge Date ” means the first date on which all Second Lien Debt Liabilities have been fully and finally discharged to the satisfaction of the relevant Second Lien Debt Representative, whether or not as the result of an enforcement, and the Second Lien Debt Creditors are under no further obligation to provide financial accommodation to any of the Debtors under the Second Lien Debt Documents.

“ Second Lien Debt Documents ” means each document or instrument entered into between a Second Lien Debt Creditor and (in the capacity as issuer or borrower (or equivalent) of the relevant Second Lien Debt) a Second Lien Debt Notes Issuer (in respect of Second Lien Debt Notes) or any member of the Group (other than Bidco or any of Bidco’s Subsidiaries) (in respect of a Second Lien Debt Loan) and setting out the terms of any loan, credit or debt facility, notes, indenture or debt securities which creates or evidences any Second Lien Debt, each guarantee granted by a member of the Group in respect of any Second Lien Debt, this Agreement, the Security Documents, and any other document entered into in connection with the aforementioned instruments (including any creating or evidencing Second Lien Debt) and designated a Second Lien Debt Document by the relevant Second Lien Debt Representative.

“ Second Lien Debt Enforcement Notice ” has the meaning given to it in paragraph (b) of Clause 6.10 ( Permitted Second Lien Debt Enforcement ).

“ Second Lien Debt Liabilities ” means the Liabilities owed by the Debtors to the Second Lien Debt Creditors under the Second Lien Debt Documents.

“ Second Lien Debt Loan ” means any Second Lien Debt constituted by way of a loan or credit facility (and not in connection with any issuance of debt securities (or other debt capital markets issuance)).

“ Second Lien Debt Loan Commitment ” has the meaning given to the term “Commitment” in each Second Lien Debt Agreement in relation to any Second Lien Debt Loan.

 

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“ Second Lien Debt Loan Lender ” means a Lender (under and as defined in each relevant Second Lien Debt Agreement in respect of a Second Lien Debt Loan).

“ Second Lien Debt Note ” means any notes, securities or other debt instruments issued or to be issued by a Second Lien Debt Notes Issuer constituting Second Lien Debt which are designated by Listco as “Second Lien Debt Notes” for the purposes of this Agreement on or before the date on which the Second Lien Debt Notes Trustee becomes a Party.

“ Second Lien Debt Noteholders ” means the registered holders, from time to time, of the Second Lien Debt Notes, as determined in accordance with the relevant Second Lien Debt Notes Indenture prior to the applicable Second Lien Debt Discharge Date.

“ Second Lien Debt Notes Guarantees ” means each guarantee and/or indemnity by a Second Lien Debt Notes Guarantor to the Second Lien Debt Creditors (or any of them) for the Second Lien Debt Liabilities (or any of them) and/or for the obligations (or any of them) of any Second Lien Debt Notes Issuer under any Second Lien Debt Document.

“ Second Lien Debt Notes Guarantor ” means each member of the Group that is a guarantor to the Second Lien Debt Creditors (or any of them) for the Second Lien Debt Liabilities (or any of them) and/or for the obligations (or any of them) of the Second Lien Debt Notes Issuer under any Second Lien Debt Document.

“ Second Lien Debt Notes Indenture ” means each indenture pursuant to which any Second Lien Debt Notes are issued.

“ Second Lien Debt Notes Issuer ” means an Issuer as the issuer of the Second Lien Debt Notes.

“ Second Lien Debt Notes Liabilities ” means the Liabilities owed by the Debtors to the Second Lien Debt Creditors under the Second Lien Debt Documents in connection with any Second Lien Debt Note.

“ Second Lien Debt Notes Trustee Amounts ” means, in relation to a Second Lien Debt Notes Trustee, amounts in respect of the fees, costs and expenses payable to that Second Lien Debt Notes Trustee (or any adviser, receiver, delegate, attorney, agent or appointee thereof) pursuant to the terms of the Second Lien Debt Documents, including:

 

  (a) any provisions (including indemnity provisions for costs and expenses) in favour of that Second Lien Debt Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee thereof contained in the Second Lien Debt Documents;

 

  (b) all compensation for services provided by that Second Lien Debt Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee thereof which is payable to that Second Lien Debt Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee thereof pursuant to the terms of the Second Lien Debt Documents;

 

  (c) all out-of-pocket costs and expenses properly incurred by that Second Lien Debt Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee thereof in carrying out its duties or performing any service pursuant to the terms of the Second Lien Debt Documents, including, without limitation, compensation for the costs and expenses of the collection by that Second Lien Debt Notes Trustee of any amount payable to that Second Lien Debt Notes Trustee for the benefit of the Second Lien Debt Noteholders,

 

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including any VAT where applicable, provided that “Second Lien Debt Notes Trustee Amounts” shall not include:

 

  (i) any payment in relation to any unpaid costs and expenses incurred in respect of any litigation initiated by that Second Lien Debt Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee on behalf of that Second Lien Debt Notes Trustee against any of the Second Lien Debt Creditors; or

 

  (ii) any payment made directly or indirectly on or in respect of any amounts owing under any Second Lien Debt Notes (including principal, interest, premium or any other amounts to any of the Second Lien Debt Noteholders).

“ Second Lien Debt Payment Stop Notice ” has the meaning given to it in paragraph (a)(ii) of Clause 6.5 ( Issue of Second Lien Debt Payment Stop Notice ).

“ Second Lien Debt Representative ” means, in relation to any Second Lien Debt, any agent or trustee for the relevant Second Lien Debt Creditors of that Second Lien Debt which has acceded to this Agreement pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

“ Second Lien Debt Standstill Period ” has the meaning given to it in paragraph (a) of Clause 6.11 ( Second Lien Debt Standstill Period ).

“ Second Lien Debt Standstill Start Date ” has the meaning given to it in Clause 6.11 ( Second Lien Debt Standstill Period ).

“ Secured Debt Documents ” means the Senior Secured Finance Documents and the Second Lien Debt Documents, as the context requires.

“ Secured Obligations ” means all the Liabilities and all other present and future obligations at any time due, owing or incurred by any member of the Group, by each Debtor and each Non Debtor Security Provider 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 (and including, without limitation, all Parallel Debt).

“ Secured Parties ” means the Security Agent (including, for the avoidance of doubt, in its capacity as creditor of all Parallel Debt) (and any Receiver or Delegate thereof), the Agents (other than any Second Lien Debt Notes Trustee), the Arrangers, the Senior Secured Creditors and any Second Lien Debt Creditors from time to time but, in the case of the Agents, the Arrangers, the Senior Secured Creditors and the Second Lien Debt Creditors, only if it or (in the case of the Senior Secured Noteholders, Second Lien Debt Noteholders and any Pari Passu Debt Creditors (other than any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) in respect of any Pari Passu Debt Note) its Agent is a party to this Agreement or has acceded to this Agreement, in the appropriate capacity, pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

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

“ Security Agent’s Spot Rate of Exchange ” means, in respect of the conversion of one currency (the “ First Currency ”) into another currency (the “ Second Currency ”), the Security Agent’s 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 am (London time) on a particular day, which shall be notified by the Security Agent in accordance with paragraph (d) of Clause 16.8 ( Security Agent’s obligations ).

“ 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 Non Debtor Security Provider 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 Property ” means:

 

  (a) the Transaction Security expressed to be granted in favour of the Security Agent as trustee and/or agent for the Secured Parties (and/or under any parallel debt, joint and several creditorship or equivalent structure as set out in Clause 16 ( The Security Agent ) or, as the case may be, pursuant to any other Debt Document) and all proceeds of that Transaction Security;

 

  (b) all obligations expressed to be undertaken by a Debtor or any Non Debtor Security Provider to pay amounts in respect of the Liabilities to the Security Agent as trustee and/or agent for the Secured Parties (and/or under any parallel debt, joint and several creditorship or equivalent structure as set out in Clause 16 ( The Security Agent ) or, as the case may be, pursuant to any other Debt Document) and secured by the Transaction Security together with all representations and warranties expressed to be given by a Debtor or any Non Debtor Security Provider in favour of the Security Agent as trustee and/or agent for the Secured Parties;

 

  (c) the Security Agent’s interest in any trust fund created pursuant to Clause 11 ( Turnover of receipts ); and

 

  (d) any other amounts or property, whether a right, entitlement, chose in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Debt Documents to hold as trustee and/or agent on trust for (or otherwise for the benefit of) the Secured Parties.

 

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“ Senior Creditors ” means the Senior Secured Creditors and the Second Lien Debt Creditors.

“ Senior Non Credit Facility Creditors ” means the Senior Secured Noteholders, each Senior Secured Notes Trustee and the Pari Passu Debt Creditors.

“ Senior Non Credit Facility Documents ” means the Senior Secured Notes Finance Documents and the Pari Passu Debt Documents.

“ Senior Non Credit Facility Liabilities ” means the Senior Secured Notes Liabilities and the Pari Passu Debt Liabilities.

“ Senior Secured Creditor Liabilities ” means the Credit Facility Lender Liabilities, the Senior Secured Notes Liabilities, the Pari Passu Debt Liabilities and the Hedging Liabilities.

“ Senior Secured Creditor Representative ” means each Agent in respect of Senior Secured Creditor Liabilities or, in each case, any person appointed by any such Agent (and notified to Listco, the Security Agent and each other Agent) to act on its behalf for the purposes of Clause 13 ( Enforcement of Transaction Security ).

“ Senior Secured Credit Participation ” means, in relation to a Senior Secured Creditor (other than an Agent (in respect of its Agent Liabilities) or an Arranger (in respect of its Arranger Liabilities)), the aggregate of:

 

  (a) its Credit Facility Commitments, if any;

 

  (b) the principal amount of Senior Secured Notes and Pari Passu Debt referable to Pari Passu Debt Notes (as opposed to Pari Passu Debt Loans) then owing to it, if any:

 

  (c) in respect of any hedging transaction of a Hedge Counterparty under any Hedging Agreement that has, as of the date the calculation is made, been terminated or 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 Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement); and

 

  (d) after the Credit Facility Discharge Date only, in respect of any hedging transaction of a Hedge Counterparty under any Hedging Agreement 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

 

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  was deemed to be 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 to be certified by the relevant Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement.

“ Senior Secured Creditors ” means the Credit Facility Finance Parties, the Senior Secured Noteholders, each Senior Secured Notes Trustee, the Pari Passu Debt Creditors and the Hedge Counterparties.

“ Senior Secured Discharge Date ” means the first date on which all of the following have occurred, whether or not as a result of enforcement: (i) the Credit Facility Discharge Date; (ii) each Hedge Counterparty being satisfied that the Hedging Liabilities in respect of it have been fully and finally discharged; (iii) the Senior Secured Notes Discharge Date; (iv) the Pari Passu Debt Discharge Date; and (v) the Senior Secured Creditors being under no further obligation to provide financial accommodation to any of the Debtors under any of the Senior Secured Finance Documents.

“ Senior Secured Event of Default ” means an Event of Default arising under any Senior Secured Finance Document.

“ Senior Secured Facilities ” means each Facility (as defined in the Senior Secured Facilities Agreement).

“ Senior Secured Facilities Agreement ” means the facilities agreement originally dated 3 July 2014 as amended and restated from time to time, including pursuant to the 2017 Amendment and Restatement Agreement, between, among others, Midco, the Facility Agent, the Security Agent and the Arrangers.

“ Senior Secured Facilities Discharge Date ” means the date on which all the Senior Secured Facilities Lender Liabilities have been fully and finally discharged to the satisfaction of the Facility Agent, whether or not as a result of an enforcement, and the Senior Secured Facilities Lenders are under no further obligation to provide financial accommodation to any Debtor under any of the Finance Documents (as defined in the Senior Secured Facilities Agreement).

“ Senior Secured Facilities Lender Liabilities ” means the Liabilities owed by the Debtors to the Finance Parties under the Finance Documents (in each case, as such terms are defined in the Senior Secured Facilities Agreement).

“ Senior Secured Facilities Lenders ” means:

 

  (a) each Original Lender; and

 

  (b) each other Lender, each Issuing Bank and each Ancillary Lender (in each case) under and as defined in the Senior Secured Facilities Agreement.

 

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“ Senior Secured Finance Documents ” means the Credit Facility Finance Documents, the Hedging Agreements, the Senior Secured Notes Finance Documents and the Pari Passu Debt Documents.

“ Senior Secured Noteholders ” means the registered holders, from time to time, of the applicable Senior Secured Notes, as determined in accordance with the relevant Senior Secured Notes Indenture(s) prior to the applicable Senior Secured Notes Discharge Date.

“ Senior Secured Notes ” means senior secured high yield notes, securities or other debt instruments issued (or to be issued) by a Senior Secured Notes Issuer, including, without limitation, the Original Senior Secured Notes.

“ Senior Secured Notes Acceleration Event ” means, in relation to any Senior Secured Notes and following the occurrence of an Event of Default (in respect of such Senior Secured Notes) which is continuing, the applicable Senior Secured Notes Trustee (or any of the Senior Secured Noteholders) (in each case) in respect of such Senior Secured Notes exercising any rights to accelerate amounts outstanding in respect of such Senior Secured Notes or any acceleration provisions being automatically invoked (save to the extent waived under the applicable Senior Secured Notes Indenture), in each case, pursuant to, and in accordance with the terms of, the applicable 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 the result of an enforcement, and the Senior Secured Noteholders are under no further obligation to provide financial accommodation to any of the Debtors under the Senior Secured Notes Finance Documents, or, as the context so requires, such discharge has occurred in relation to the Senior Secured Notes Liabilities under the relevant Senior Secured Notes Indentures.

“ Senior Secured Notes Finance Documents ” means the Senior Secured Notes, each Senior Secured Notes Indenture, each guarantee granted by a member of the Group in respect of the Senior Secured Notes, this Agreement, the Security Documents, and any other document entered into in connection with the Senior Secured Notes and designated a Senior Secured Notes Finance Document by the Senior Secured Notes Issuer and the applicable Senior Secured Notes Trustee.

“ Senior Secured Notes Finance Parties ” means any Senior Secured Notes Trustee (on behalf of itself and the Senior Secured Noteholders which it represents), the Senior Secured Noteholders and the Security Agent.

“ Senior Secured Notes Indenture ” means each indenture pursuant to which any Senior Secured Notes are issued.

“ Senior Secured Notes Issue Date ” means, in respect of each Senior Secured Notes Indenture, the first date on which a Senior Secured Note is issued pursuant to that Senior Secured Notes Indenture.

 

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“ Senior Secured Notes Issuer ” means an Issuer (or, with the consent of the Instructing Group and with respect to any Senior Secured Notes that are not the Original Senior Secured Notes, any other Debtor) as issuer of any Senior Secured Notes.

“ Senior Secured Notes Liabilities ” means the Liabilities owed by the Debtors to the Senior Secured Notes Finance Parties under the Senior Secured Notes Finance Documents.

“ Senior Secured Notes Trustee ” means:

 

  (a) the Original Senior Secured Notes trustee for so long as it is acting as trustee in connection with the Original Senior Secured Notes; and

 

  (b) any other entity acting as trustee in respect of any issue of Senior Secured Notes (including, without limitation, any successor in title, assignee or transferee of the Original Senior Secured Notes Trustee).

“ Senior Secured Notes Trustee Amounts ” means, in relation to a Senior Secured Notes Trustee, amounts in respect of the fees, costs and expenses payable to that Senior Secured Notes Trustee (or any adviser, receiver, delegate, attorney, agent or appointee thereof) pursuant to the terms of the Senior Secured Notes Finance Documents, including:

 

  (a) any provisions (including indemnity provisions for costs and expenses) in favour of that Senior Secured Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee thereof contained in the Senior Secured Notes Finance Documents;

 

  (b) all compensation for services provided by that Senior Secured Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee thereof which is payable to that Senior Secured Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee thereof pursuant to the terms of the Senior Secured Notes Finance Documents; and

 

  (c) all out-of-pocket costs and expenses properly incurred by that Senior Secured Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee thereof in carrying out its duties or performing any service pursuant to the terms of the Senior Secured Notes Finance Documents, including, without limitation, compensation for the costs and expenses of the collection by that Senior Secured Notes Trustee of any amount payable to that Senior Secured Notes Trustee for the benefit of the Senior Secured Noteholders,

including any VAT where applicable, provided that “Senior Secured Notes Trustee Amounts” shall not include:

 

  (i) any payment in relation to any unpaid costs and expenses incurred in respect of any litigation initiated by that Senior Secured Notes Trustee or any adviser, receiver, delegate, attorney, agent or appointee on behalf of that Senior Secured Notes Trustee against any of the Credit Facility Finance Parties or the Hedge Counterparties; or

 

  (ii) any payment made directly or indirectly on or in respect of any amounts owing under any Senior Secured Notes (including principal, interest, premium or any other amounts to any of the Senior Secured Noteholders).

 

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“ Senior Secured Payment Default ” means an Event of Default arising by reason of non-payment under any Senior Secured Finance Document.

“ Spanish Civil Procedural Law ” means Law 1/2000 of 7 January ( Ley de Enjuiciamiento Civil ), as amended from time to time.

“ Spanish Insolvency Law ” means Spanish Law 22/2003, of 9 July, on Insolvency ( Ley 22/2003, de 9 de julio, Concursal ), as amended from time to time.

“ Spanish Public Document ” means, a documento público , being either an escritura pública or a póliza or efecto intervenido por fedatario público .

“ Spanish Security Documents ” means any Transaction Security Document governed by the laws of Spain.

“ Subordinated Creditor ” means each person which becomes a Party as a Subordinated Creditor in accordance with the terms of Clause 18 ( Changes to the Parties ), in each case unless such person has ceased to be a Party in accordance with the terms of this Agreement.

“ Subordinated Liabilities ” means the Liabilities owed to any Subordinated Creditor by any member of the Group.

“ Subordinated Parties ” means each Debtor, each Intra-Group Lender and each Subordinated Creditor.

“ Subsidiary ” means, in relation to any company or corporation, a company or corporation:

 

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

 

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

 

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

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

“ Swap Obligation ” means, with respect to any Debtor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

“ Swap Support ” means (i) any guarantee given (or purported to be given) and/or (ii) all or a portion of any Transaction Security created (or purported to be created), in each case by any Debtor under any Debt Document in respect of any Swap Obligation.

“ Swedish Debtor ” means any Debtor incorporated in Sweden.

“ Taxes ” means Tax (as defined in the Senior Secured Facilities Agreement).

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

 

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“ Transaction Security Documents ” has the meaning given to the term “Transaction Security Documents” in the Senior Secured Facilities Agreement.

“ VAT ” means:

 

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

 

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

 

1.2 Construction

 

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

 

  (i) any “ Agent ”, “ Ancillary Lender ”, “ Arranger ”, “ Credit Facility Agent ”, “ Credit Facility Borrower ”, “ Credit Facility Lender ”, “ Creditor ”, “ Creditor Representative ”, “ Debtor ”, “ Facility Agent ”, “ Hedge Counterparty ” , “ Hedging Ancillary Lender ” , “ Intra-Group Lender ” , “ Issuing Bank ”, “ Listco ”, “ Midco ”, “ Pari Passu Debt Creditor ”, “ Pari Passu Debt Representative ”, “ Party ” , “ Second Lien Debt ”, “ Second Lien Debt Creditors ”, “ Second Lien Debt Loan Lender ”, “ Second Lien Debt Notes Creditor ”, “ Second Lien Debt Notes Guarantor ”, “ Second Lien Debt Notes Issuer ”, “ Second Lien Debt Notes Trustee ”, “ Second Lien Debt Representative ”, “ Security Agent ”, “ Second Lien Debt Noteholder ”, “ Senior Secured Creditor ”, “ Senior Secured Facilities Lender ”, “ Senior Secured Noteholder ”, “ Senior Secured Notes Issuer ”, “ Senior Secured 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 “ Agent ”, “ Ancillary Lender ”, “ Arranger ”, “ Credit Facility Agent ”, “ Credit Facility Borrower , “ Credit Facility Lender ”, “ Creditor ”, “ Creditor Representative ”, “ Debtor ”, “ Facility Agent ”, “ Hedge Counterparty ”, “ Hedging Ancillary Lender ”, “ Intra-Group Lender ”, “ Issuing Bank ”, “ Listco ”, “ Midco ”, “ Pari Passu Debt Creditor ”, “ Pari Passu Debt Representative ”, “ Party ”, Second Lien Debt Creditors ”, “ Second Lien Debt Loan Lender ”, “ Second Lien Debt Noteholder ”, “ Second Lien Debt Notes Creditor ”, “ Second Lien Debt Notes Guarantor ”, “ Second Lien Debt Notes Issuer ”, “ Second Lien Debt Notes Trustee ”, “ Second Lien Debt Representative ”, “ Security Agent ”, “ Senior Secured Creditor ”, “ Senior Secured Facilities Lender ”, “ Senior Secured Noteholder ”, “ Senior Secured Notes Issuer ”, “ Senior Secured Notes Trustee ”, “ 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 Agent, any person for the time being appointed as Security Agent or Security Agents 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 document, 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 document, agreement or instrument,

 

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  as amended, novated, supplemented, extended or restated (however fundamentally) and includes any increase in, addition to or extension of or other change to any facility made available under any such agreement or instrument (in each case to the extent not prohibited by this Agreement);

 

  (v) “ enforcing ” (or any derivation) the Transaction Security shall include the appointment of an administrator (or equivalent officer) of a Debtor by the Security Agent;

 

  (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 document, agreement or instrument is a reference to that Debt Document, 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, partnership or entity (whether or not having separate legal personality);

 

  (ix) a “ regulation ” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation; and

 

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

 

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

 

(c)        

 

  (i) A Default, an Event of Default or an Insolvency Event is “continuing” if it has not been remedied or waived (as applicable).

 

  (ii) An Acceleration Event is “continuing” if it has not been revoked or otherwise ceases to be continuing in accordance with the terms of the relevant Debt Document.

 

  (iii) The right or requirement of any Party to take or not take any action on or following the occurrence of an Insolvency Event shall cease to apply if the corresponding Event of Default in respect of that Insolvency Event is no longer continuing (unless an Acceleration Event has occurred and is continuing and without prejudice to any action taken or not taken in accordance with the terms of this Agreement while that Event of Default was continuing).

 

(d) A Senior Non Credit Facility Creditor or a Second Lien Debt Creditor providing “ cash cover ” for a Letter of Credit means such Senior Non Credit Facility Creditor, Second Lien Debt Creditor paying an amount in the currency of the Letter of Credit to an interest-bearing account in the name of that Senior Non Credit Facility Creditor (or any Agent on its behalf), or, as applicable, in the name of that Second Lien Debt Creditor (or any Agent on its behalf) and the following conditions being met:

 

  (i) the account is with the Issuing Bank;

 

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  (ii) until no amount is or may be outstanding under that Letter of Credit withdrawals from the account may only be made to pay an Issuing Bank amounts due and payable to it under each relevant Credit Facility Agreement in respect of that Letter of Credit; and

 

  (iii) the Senior Non Credit Facility Creditor (or as the case may be, the relevant Agent), or the relevant Second Lien Debt Creditor (or, as the case may be, the relevant Agent) has executed a security document over the account, in form and substance satisfactory to the Issuing Bank with which that account is held, creating a first ranking security interest over that account.

 

(e) A “ right to participate ” in a Public Auction shall be interpreted to mean that any offer, or indication of a potential offer, that a Senior Creditor makes shall be considered by those running the Public Auction process 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 those same criteria, the offer or indication of a potential offer made by such Senior Creditor is not considered by those running the Public Auction process to be sufficient to continue in the Public Auction process (such consideration being assessed against the same criteria as any offer, or indication of a potential offer, by any other bidder or potential bidder (and where 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 Senior Creditor under this Agreement shall be deemed to be satisfied.

 

(f) Unless a contrary indication appears, references to any Agent acting on behalf of the Senior Secured Creditors or, as the case may be, the Second Lien Debt Creditors it represents or providing any Consent under this Agreement means such Agent acting in accordance with the Debt Documents to which it is party or, if applicable, on the instructions of the Requisite Majority of such Creditors.

 

(g) A Credit Facility Agent will be entitled to seek instructions from the Credit Facility Lenders which it represents to the extent required by the applicable Credit Facility Finance Document as to any action to be taken by it under this Agreement.

 

(h) A Second Lien Debt Representative in respect of a Second Lien Debt Loan will be entitled to seek instructions from the Second Lien Debt Creditors it represents to the extent required by the applicable Second Lien Debt Document as to any action to be taken by it under this Agreement.

 

(i) A Senior Secured Notes Trustee, a Pari Passu Debt Representative in connection with any Pari Passu Debt Note or a Second Lien Debt Notes Trustee (the “ Relevant Agent Representative ”) will be entitled to seek instructions from the relevant Senior Secured Noteholders, the Pari Passu Debt Creditors or the Second Lien Debt Noteholders (as the case may be) which such Relevant Agent Representative represents to the extent required by the applicable Senior Secured Notes Indenture, the applicable Pari Passu Debt Agreement or Second Lien Debt Notes Indenture (as the case may be) as to any action to be taken by it under this Agreement.

 

(j)

Save where the context specifies otherwise, after the Senior Secured Facilities Discharge Date, any term defined in this Agreement by reference to the Senior Secured Facilities Agreement shall have the meaning given to that term in any other Credit Facility Agreement then in

 

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  existence or, if such Credit Facility Agreement(s) do not define such term or no such Credit Facility Agreement then exists, the meaning that was given to that term in the Senior Secured Facilities Agreement immediately prior to the relevant Senior Secured Facilities Discharge Date.

 

(k) In determining whether or not any Liabilities have been fully and finally discharged, the relevant Agent (and, if applicable, the Security Agent) will disregard contingent liabilities (excluding any arising under any letters of credit or other documentary credits) (such as the risk of claw back flowing from a preference) except to the extent it reasonably believes (after taking such legal advice as it considers appropriate) that there is a reasonable likelihood that those liabilities will become actual liabilities.

 

(l) Where any consent is required under this Agreement from:

 

  (i) a Credit Facility Lender or Credit Facility Finance Party where such consent is required after the Credit Facility Discharge Date applicable to it;

 

  (ii) a Senior Secured Notes Creditor where such consent is required after the Senior Secured Notes Discharge Date applicable to it;

 

  (iii) a Pari Passu Debt Creditor where such consent is required after the Pari Passu Debt Discharge Date applicable to it; or

 

  (iv) a Second Lien Debt Creditor where such consent is required after the Second Lien Debt Discharge Date applicable to it,

such consent requirement shall cease to apply.

 

(m) Any consent to be given under this Agreement shall mean such consent is to be given in writing, which for the purposes of this Agreement and in relation to any Senior Secured Notes, any Pari Passu Debt Notes or any Second Lien Debt Notes will be deemed to include any instructions, waivers or consents provided through any applicable clearance system in accordance with the terms of the relevant Debt Document.

 

(n) References in this Agreement to any matter being “ permitted ” under a Debt Document shall include reference to such matter not being prohibited under such Debt Document.

 

(o) Notwithstanding anything to the contrary, where any provision of this Agreement refers to or otherwise contemplates any consent, approval, release, waiver, agreement, notification or other step or action being required from or by any person:

 

  (i) which is not a Party at such time;

 

  (ii) in the capacity as Arranger but in circumstances where all Arranger Liabilities have been fully and finally discharged to the satisfaction of the relevant Agent and the Arrangers at such time are under no obligation (in their capacity as Arrangers) to provide financial accommodation to any of the Debtors under any Credit Facilities Finance Document or Pari Passu Debt Document;

 

  (iii) in respect of any agreement which is not at such time in existence;

 

  (iv) in respect of any indebtedness which has not been committed (excluding any commitment subject to conditions) or incurred at such time;

 

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  (v) in respect of Liabilities or Creditors (or other persons) for which the relevant Discharge Date has occurred at or prior to such time,

unless otherwise agreed or specified by Listco, that consent, approval, release, waiver, agreement, notification or other step or action shall not be required and no such provision shall, or shall be construed so as to, in any way prohibit or restrict the rights or actions of any member of the Group. Further, for the avoidance of doubt, no reference to any agreement which is not in existence shall, or shall be construed so as to, in any way prohibit or restrict the rights or actions of any member of the Group.

 

(p) References to any Credit Facility Lenders, any Senior Secured Noteholders, any holder, lender or other creditor of Pari Passu Debt, any Second Lien Debt Loan Lender or any Second Lien Debt Noteholders giving any Consent under this Agreement means (in each case) acting through the applicable Creditor Representative or, as applicable, the Security Agent.

 

(q) Notwithstanding any other provision of this Agreement, until the relevant proceeds are released from escrow, the provisions of this Agreement shall not apply to or create any restriction in respect of any escrow arrangement pursuant to which the proceeds of any Credit Facility, Senior Secured Notes, Pari Passu Debt Notes, Pari Passu Debt Loan, Second Lien Debt Notes and/or Second Lien Debt Loan are subject, and this Agreement shall not govern the rights and obligations of such Senior Secured Creditors and/or (as applicable) Second Lien Debt Creditors until such proceeds are released from such escrow arrangement in accordance with the terms thereof but excluding, for the avoidance of doubt, any such release solely to redeem (substantially contemporaneously with such release) the relevant Credit Facility, Senior Secured Notes, Pari Passu Debt Notes, Pari Passu Debt Loan, Second Lien Debt Notes and/or Second Lien Debt Loan pursuant to the terms of the relevant Senior Secured Finance Documents and/or (as applicable) Second Lien Debt Documents.

 

(r) For the avoidance of doubt, if the terms of any Secured Debt Document:

 

  (i) require the relevant Agent or Creditors to provide approval where it is not the matter of any discretion (or deem approval to have been provided) for a particular matter, step or action; or

 

  (ii) do not seek to regulate a particular matter, step or action,

for the purpose of this Agreement that matter, step or action shall not be prohibited by the terms of that Secured Debt Document.

 

(s) Notwithstanding anything to the contrary, nothing in this Agreement shall prohibit any debt exchange, non-cash rollover or other similar or equivalent transaction in relation to any Liabilities.

 

1.3 Italian terms

In this Agreement:

 

(a) a “ winding-up ”, “ administration ” or “ dissolution ” includes, without limitation, any liquidazione, scioglimento, procedura concorsuale (including fallimento, concordato preventivo, amministrazione controllata, liquidazione coatta amministrativa, amministrazione straordinaria delle grandi imprese insolventi), cessione del beni al creditori or any other similar proceedings;

 

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(b) a “ receiver ”, “ administrative receiver ”, “ administrator ” or the like includes, without limitation, a curatore, commissario giudiziale, liquidatore or any other person performing the same function of each of the foregoing;

 

(c) a step or procedure taken in connection with insolvency proceedings for any person includes, without limitation, that person formally making a proposal to assign its assets pursuant to Article 1977 of the Italian Civil Code (cessione dei beni ai creditori), implementing a piano di risanamento pursuant to clause 67 para. 3 lett (d) of the Italian Bankruptcy Law, entering into an accordo di ristrutturazione dei debiti, pursuant to clause 182 bis of the Italian Bankruptcy Law, a convenzione di moratoria pursuant to article 182-septies of the Italian Bankruptcy Law, filing a petition for a concordato preventivo or domanda di “pre-concordato” pursuant to article 161, paragraph 6 of the Italian Bankruptcy Law or entering into a similar arrangement for a substantial part of its creditors;

 

(d) an “ assignment ”, “ arrangement ” or “ composition ” with or for the benefit of its creditors or the like includes, without limitation, an arrangement pursuant to Article 1977 of the Italian Civil Code (cessione del beni ai creditor), a piano di risanamento pursuant to clause 67 para. 3 lett (d) of the Italian Bankruptcy Law, an accordo di ristrutturazione dei debiti, pursuant to clause 182 bis of the Italian Bankruptcy Law a concordato preventivo or a similar arrangement for the substantial part of creditors;

 

(e) “ security ” includes, without limitation, any pegno, ipoteca, privilegio generale, privilegio speciale (including the privilegio speciale created pursuant to Article 46 of the Italian Banking Law, as amended from time to time), fideiussione, garanzia a prima domanda, cessione del credito in garanzia and any other garanzia reale, garanzia personale, causa legittima di prelazione or other transactions having the same effect as each of the foregoing.

 

1.4 Luxembourg terms

In this Agreement:

 

  (a) Luxembourg legal concepts expressed in English terms in this Agreement may not correspond to the original French or German terms relating thereto;

 

  (b) where it relates to an Obligor incorporated in Luxembourg, a reference to:

 

  (i) an inability to pay debts or discharge liabilities as they fall due, include, any cessation de paiement for the purpose of Luxembourg law;

 

  (ii) a “ winding up ”, “ dissolution ” or “ administration ” includes a Luxembourg entity:

 

  (A) being declared bankrupt ( faillite déclarée );

 

  (B) being subject to liquidation judiciaire ; and

 

  (C) having filed for controlled management ( gestion contrôlée );

 

  (iii) a “ moratorium ” includes a reprieve from payment ( sursis de paiement ) or a concordat préventif de faillite ;

 

  (iv) a “ trustee in bankruptcy ” includes a curateur ;

 

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  (v) an “ administrator ” includes a commissaire or a juge délégué ;

 

  (vi) an “ attachment ” includes a saisie ;

 

  (vii) a “ lien ” or “ security interest ” includes any hypothèque, nantissement, gage, privilege, sûreté réelle, droit de retention , and any type of security in rem ( sûreté réelle ) or agreement or arrangement having similar effect and any transfer of title by way of security;

 

  (viii) a “ set-off ” includes, for purposes of Luxembourg law, legal set-off;

 

  (ix) “ by-laws ” or “ constitutional documents ” includes its up-to-date (restated) articles of association ( statuts ); and

 

  (x) a “ director ” includes a gérant or an administrateur .

 

1.5 Spanish terms

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

 

(a) “ insolvency ” ( concurso or any other equivalent legal proceeding) and any step or proceeding related to it has the meaning attributed to them under the Spanish Insolvency Law and “ insolvency proceeding ” includes, without limitation, a declaración de concurso , necessary or voluntary ( necesario o voluntario ) and the filling of the notice foreseen in Article 5 bis of the Spanish Insolvency Law;

 

(b) “ winding up ” , “ administration ” or “ dissolution ” includes, without limitation, disolución , liquidación , or administración concursal or any other similar proceedings;

 

(c) “ compulsory manager ”, “ receiver, administrative receiver ” , or “ administrator ” or the like includes, without limitation, administración del concurso or any other person performing the same function;

 

(d) “ composition ” , “ compromise ” , “ assignment ” or “ arrangement with any creditor ” includes, without limitation, the celebration of a convenio ;

 

(e) “ matured obligations ” includes, without limitation, any crédito líquido, vencido y exigible ;

 

(f) “ guarantee ” includes any garantía , aval or guarantee which is independent from the debt to which it relates;

 

(g) a grant, creation or transfer of a “ security ” includes any in rem or garantía real and any transfer by way of security;

 

(h) “ security interest ” includes any mortgage ( hipoteca ), pledge ( prenda ), and, in general, any right in rem ( garantia real ) governed by Spanish law, created for the purpose of granting security.

 

(i) “ trustee, fiduciary or fiduciary duty ” has in each case the meaning given to such term under any applicable law;

 

(j) “ set off rights ” includes, to the extent legally possible, the rights to compensate under Royal Decree 5/2005; and

 

(k) “ wilful misconduct ” includes dolo.

 

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1.6 Belgian terms

In this Agreement, where it relates to any Belgian entity or Security, a reference to:

 

(a) a “ liquidator ” , “ receiver ” , “ administrative receiver ” , “ administrator ” , “ compulsory manager ” or other similar officer includes any curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, gerechtelijk deskundige/expert judiciaire, mandataris ad hoc/mandataire ad hoc, ondernemingsbemiddelaar/médiateur d’entreprise , as applicable, and sekwester/séquestre ;

 

(b) a “ Security ” includes any mortgage ( hypotheek/hypothèque ), pledge ( pand/nantissement ), any mandate to grant a mortgage, a pledge or any other real security (mandaat/mandat), privilege ( voorrecht/privilège ), reservation of title arrangement ( eigendomsvoorbehoud/réserve de propriété ), any real security ( zakelijke zekerheid/sûreté réelle ) and any transfer by way of security ( overdracht ten titel van zekerheid/transfert à titre de garantie );

 

(c) a “ suspension of payments ”, “ moratorium of any indebtedness ” or “ reorganisation ” includes any gerechtelijke reorganisatie/réorganisation judiciaire , as applicable;

 

(d) a “ composition ”, “ compromise ”, “ assignment ” or “ arrangement ” includes a minnelijk akkoord met schuldeisers/accord amiable avec des créanciers , or gerechtelijke reorganisatie/réorganisation judiciaire , as applicable;

 

(e) “ winding up ”, “ administration ” or “ dissolution ” includes any vereffening/liquidation, ontbinding/dissolution, faillissement/faillite and sluiting van een onderneming/fermeture d’une enterprise ;

 

(f) an “ attachment ”, “ sequestration ”, “ distress ”, “ execution ” or analogous process includes any uitvoerend beslag/saisie exécutoire and bewarend beslag/saisie conservatoire ;

 

(g) an “ amalgamation ”, “ demerger ”, “ merger ”, “ consolidation ” or “ corporate reconstruction ” includes a overdracht van algemeenheid/transfert d’universalité, overdracht van bedrijfstak/transfert de branche d’activité , splitsing/scission and fusie/fusion and assimilated transaction in accordance with article 676 and 677 of the Belgian Companies Code ( gelijkgestelde verrichting/opération assimilée );

 

(h) “ gross negligence ” means zware fout/faute lourde ;

 

(i) “ wilful misconduct ” or “ wilful breach ” means opzet/intention ;

 

(j) “ constitutional documents ” means the deed of incorporation ( oprichtingsakte/ acte constitutive ), statuten/statuts uittreksel van de Kruispuntbank voor Ondernemingen/extrait de la Banque Carrefour des Entreprises and a non-bankruptcy certificate;

 

(k) “ guarantee ” means, only for the purpose of the guarantee granted by any Belgian Debtor under this Agreement, an independent guarantee and not a surety ( borg/cautionnement ); and

 

(l) a Debtor being “ incorporated ” in Belgium, means that such Debtor has its principal place of business ( voornaamste vestiging/établissement principal (within the meaning of the Belgian Law of 16 July 2004 on the conflicts of law code)) in Belgium.

 

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1.7 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 16.11 ( No proceedings ) may, subject to this Clause 1.4 and the Third Parties Rights Act, rely on any Clause of this Agreement which expressly confers rights on it.

 

1.8 Debtors’ Agent

 

(a) Each Debtor (other than Listco) by its execution of this Agreement or a Debtor Accession Deed irrevocably appoints Listco to act on its behalf as its agent (the “ Debtors’ Agent ”) in relation to the Debt Documents to which it is party and irrevocably authorises Listco on its behalf to make agreements, to enter into deeds and to effect any amendments, supplements and variations (in each case, however fundamental) capable of being given, made or effected by any Debtor (notwithstanding that they may increase that Debtor’s obligations or otherwise affect that Debtor) and to give confirmations as to the continuation of surety obligations, without further reference to or the consent of that Debtor, and in each case that Debtor shall be bound as though that Debtor itself had executed or made the agreements or deeds, or effected the amendments, supplements or variations.

 

(b) Every agreement or deed entered into or made by Listco under any Debt Document on behalf of another Debtor or in connection with any Debt Document (whether or not known to any other Debtor and whether occurring before or after such Debtor became a Debtor under any Debt Document) shall be binding for all purposes on that Debtor as if that Debtor had expressly made or entered into the same.

 

(c) For the purposes of acting as their agent in accordance with this Clause 1.8, each of the Debtors exempts Listco from any restrictions imposed by Section 181 of the German Civil Code (and any equivalent restriction under any other applicable law) in this respect.

 

1.9 Termination

Unless otherwise notified by Listco in writing on or prior to the Final Discharge Date, this Agreement shall terminate in full and cease to have any further effect on the Final Discharge Date.

 

2. RANKING AND PRIORITY

 

2.1 Senior Secured Creditor Liabilities and Second Lien Debt Liabilities

Each of the Parties agrees that the Senior Secured Creditor Liabilities owed by each Debtor to the Senior Secured Creditors, the Second Lien Debt Liabilities owed by each Debtor to the Second Lien Debt Creditors, the Agent Liabilities, the Arranger Liabilities and all present and future liabilities and obligations, actual and contingent, of the Debtors to the Security Agent, any

 

41

Receiver or any Delegate 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 Senior Secured Creditor Liabilities, the Agent Liabilities, the Arranger Liabilities and all present and future liabilities and obligations, actual and contingent, of the Debtors to the Security Agent, any Receiver or any Delegate shall rank in right and priority of payment pari passu and without any preference between them; and

 

  (b) second , the Second Lien Debt Liabilities (excluding any Agent Liabilities of any Second Lien Debt Representative).

 

2.2 Transaction Security

Each of the Parties agrees that the Transaction Security shall rank and secure the following Liabilities (but in each case only to the extent that such Transaction Security is expressed to secure those Liabilities) subject to Clauses 15.1 ( Order of application ) and 15.9 ( Time irrelevant )) in the following order:

 

  (a) first , the Senior Secured Creditor Liabilities, the Agent Liabilities, the Arranger Liabilities and all present and future liabilities and obligations, actual and contingent, of the Debtors to the Security Agent, any Receiver or any Delegate pari passu and without any preference between them; and

 

  (b) second , the Second Lien Debt Liabilities (excluding any Agent Liabilities of any Second Lien Debt Representative).

 

2.3 Subordinated Liabilities 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 referred to in Clause 2.1 ( Senior Secured Creditor Liabilities and Second Lien Debt Liabilities ).

 

(b) This Agreement does not purport to rank any of the Subordinated Liabilities or the Intra-Group Liabilities as between themselves.

 

3. CREDIT FACILITY LENDERS AND CREDIT FACILITY LENDER LIABILITIES

 

3.1 Payment of Credit Facility Lender Liabilities

The Debtors may make Payments of the Credit Facility Lender Liabilities at any time in accordance with the Credit Facility Finance Documents.

 

3.2 Amendments and waivers: Credit Facility Finance Parties

The Credit Facility Finance Parties and the Debtors may at any time amend or waive any of the terms of any of the Credit Facility Finance Documents in accordance with their terms (and subject to any relevant consent required in any of them, as applicable) at any time.

 

3.3 Security: Credit Facility Lenders

Other than as set out in Clause 3.4 ( Security: Ancillary Lenders and Issuing Banks ), the Credit Facility Lenders may take, accept or receive the benefit of:

 

  (a) any Security in respect of the Credit Facility Lender Liabilities from any member of the Group, Debtor or Non Debtor Security Provider in addition to the Transaction Security if (except for any Security permitted under Clause 3.4 ( Security: Ancillary Lenders and Issuing Banks )):

 

  (x) it is Escrow Security;

 

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  (y) it is customary Security in connection with any customary interim facilities (established to fund a Permitted Acquisition on a certain funds basis) and all amounts recovered by the Credit Facility Lenders with respect to any such Security shall immediately be paid to the Security Agent and applied in accordance with Clause 15 ( Application of Proceeds ); or

 

  (z) to the extent legally possible and subject to any Agreed Security Principles, at the same time it is also offered either:

 

  (i) to the Security Agent as trustee for the other Senior Secured Creditors and the Second Lien Debt Creditors in respect of their Liabilities; or

 

  (ii) in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Agent as trustee for such Senior Secured Creditors and any such Second Lien Debt Creditors:

 

  (A) to the other Senior Secured Creditors and the Second Lien Debt Creditors in respect of their Liabilities;

 

  (B) to the Security Agent as agent for the other Senior Secured Creditors and the Second Lien Debt Creditors in respect of their Liabilities; and/or

 

  (C) to the Security Agent under a parallel debt joint and several creditorship or equivalent structure for the benefit of the other Senior Secured Creditors and the Second Lien Debt Creditors,

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 Credit Facility Lender Liabilities from any member of the Group in addition to those in:

 

  (i) any Senior Secured Finance Document;

 

  (ii) this Agreement; or

 

  (iii) any Common Assurance,

if (except for any guarantee, indemnity or other assurance against loss permitted under Clause 3.4 ( Security: Ancillary Lenders and Issuing Banks )) and to the extent legally possible and subject to any Agreed Security Principles, at the same time it is also offered to the other Senior Secured Creditors and the other Second Lien Debt Creditors in respect of their Liabilities and ranks in the same order of priority as that contemplated in Clause 2 ( Ranking and priority ).

 

3.4 Security: Ancillary Lenders and Issuing Banks

No Ancillary Lender or Issuing Bank will, unless the prior consent of an Instructing Group 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;

 

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  (b) each guarantee, indemnity or other assurance against loss contained in:

 

  (i) any Senior Secured Finance Document;

 

  (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;

 

  (d) any Credit Facility Cash Cover permitted under the relevant Credit Facility Agreement relating to any Ancillary Facility or for any Letter of Credit issued by the 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.

 

3.5 Restriction on Enforcement: Ancillary Lenders and Issuing Banks

Subject to Clause 3.6 ( Permitted Enforcement: Ancillary Lenders and Issuing Banks ), so long as any of the Senior Secured Creditor 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.

 

3.6 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 Credit Facility Lender 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 Credit Facility Lender Liabilities;

 

  (ii) that action is contemplated by, and may be taken by the Ancillary Lenders or, as applicable, the Issuing Bank under, the relevant Credit Facility Agreement or Clause 3.4 ( Security: Ancillary Lenders and Issuing Banks );

 

  (iii) that Enforcement Action is taken in respect of Credit Facility Cash Cover which has been provided in accordance with the relevant Credit Facility Agreement;

 

  (iv) at the same time as, or prior to, that action, the consent of an Instructing Group to that Enforcement Action is obtained; or

 

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  (v) an Insolvency Event has occurred and is continuing 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 Group’s Credit Facility Lender Liabilities 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 Credit Facility Lender Liabilities;

 

  (C) exercise any right of set-off or take or receive any Payment in respect of any Credit Facility Lender Liabilities of that member of the Group; or

 

  (D) claim and prove in the liquidation, administration or other insolvency proceedings of that member of the Group for the Credit Facility Lender Liabilities owing to it.

 

(b) Clause 3.5 ( 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 the relevant Credit 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.

 

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.

 

(b) Paragraph (a) above shall not apply to a Hedging Ancillary Lender.

 

4.2 Restriction on Payment: Hedging Liabilities

Prior to the Senior Secured Discharge Date, 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 4.8 ( Permitted Enforcement: Hedge Counterparties ).

 

4.3 Permitted Payments: Hedging Liabilities

 

(a) Subject to paragraph (b) below, the Debtors may make Payments (whether in relation to a refinancing of any Hedging Liabilities or otherwise) 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.

 

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(b) No Payment may be made to a Hedge Counterparty under paragraph (a) above if 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. For the avoidance of doubt, no payment will be due and unpaid if a Hedge Counterparty is entitled to withhold any payment pursuant to section 2(a)(iii) of the ISDA Master Agreement.

 

(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 either of those Clauses.

 

4.5 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 or any Secured Debt Document.

 

4.6 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;

 

  (b) any guarantee, indemnity or other assurance against loss contained in:

 

  (i) a Credit Facility Agreement;

 

  (ii) this Agreement;

 

  (iii) any Common Assurance; or

 

  (iv) the relevant Hedging Agreement to no greater extent than any of those referred to in paragraphs (i) to (iii) above;

 

  (c) as otherwise contemplated by Clause 3.3 ( Security: Credit Facility Lenders ); and

 

  (d) the indemnities and rights of set-off and netting 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).

 

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4.7 Restriction on Enforcement: Hedge Counterparties

Subject to Clauses 4.8 ( Permitted Enforcement: Hedge Counterparties ) and 4.9 ( Required Enforcement: Hedge Counterparties ) and without prejudice to each Hedge Counterparty’s rights under Clauses 13.2 ( Enforcement Instructions ) and 13.3 ( Manner of enforcement ), the Hedge Counterparties shall not 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.

 

4.8 Permitted Enforcement: Hedge Counterparties

 

(a) To the extent it is able to do so under the relevant Hedging Agreement and provided it is not in default under the relevant Hedging Agreement, 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) with the consent of Listco if in relation to interest rate or currency risk in relation to any Secured Debt Document, prior to a Distress Event, that termination or close-out would not result in a breach of any Credit Facility Agreement, any Senior Secured Notes Indenture, any Pari Passu Debt Agreement or any Second Lien Debt Agreement and/or any hedging or similar letter referred to in any such agreement (as applicable);

 

  (ii) if a Distress Event has occurred;

 

  (iii) if:

 

  (A) in relation to a Hedging Agreement which is based on the 1992 ISDA Master Agreement:

 

  (I) an Illegality or Tax Event or Tax Event Upon Merger (each as defined in the 1992 ISDA Master Agreement); or

 

  (II) an event similar in meaning and effect to a Force Majeure Event (as defined in paragraph (B) below),

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;

 

  (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 paragraph (A) or (B) above has occurred under and in respect of that Hedging Agreement;

 

  (iv) following the occurrence of an Event of Default under clause 28.5 ( Insolvency ) and/or clause 28.6 ( Insolvency Proceedings ) of the Senior Secured Facilities Agreement (or, following the Senior Secured Facilities Discharge Date, any event or circumstance that would have been such an Event of Default had the Senior Secured Facilities Discharge Date not occurred) in relation to a Debtor which is party to that Hedging Agreement, in each case that is continuing;

 

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  (v) upon the refinancing (in whole or part) of the Credit Facility Lender Liabilities, the Senior Secured Notes Liabilities, the Pari Passu Debt Liabilities or the Second Lien Debt Liabilities (in each case) to the extent the relevant hedging transaction relates thereto;

 

  (vi) if an Instructing Group gives prior consent to that termination or close-out being made; or

 

  (vii) the Hedge Counterparties cease to be secured under the Transaction Security Documents without their consent other than owing to the release of Transaction Security pursuant to paragraph (a)(ii) of Clause 7.2 ( Transaction Security: New Debt Financings and Hedging Agreements ), Clause 14.1 ( Non-Distressed Disposals ) or paragraph (g) of Clause 18.16 ( Resignation of a Debtor ).

 

(b) If a Debtor has defaulted on any Payment due under a Hedging Agreement (after allowing any applicable notice or grace periods) and the default has continued unwaived or unremedied for more than 10 Business Days after notice of that default has been given to the Security Agent pursuant to paragraph (e) of Clause 23.3 ( Notification of prescribed events ), the relevant Hedge Counterparty:

 

  (i) may, to the extent it is able 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 Agent 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 that is continuing 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) close-out or terminate prematurely any Hedging Liabilities of that member of the Group;

 

  (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; or

 

  (iv) claim and prove in the liquidation, administration or other insolvency proceedings of that member of the Group for the Hedging Liabilities owing to it.

 

4.9 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 that is continuing and delivery to it of a notice from the Security Agent that that Acceleration Event has occurred that is continuing; and

 

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  (ii) delivery to it of a notice subsequent to the events referred to in paragraph (i) above from the Security Agent (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 Senior Secured Creditor with the purpose of bringing about that Acceleration Event.

 

(c) If a Hedge Counterparty is entitled to terminate or close-out any hedging transaction under paragraph (b) of Clause 4.8 ( 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 Agent (acting on the instructions of an Instructing Group).

 

4.10 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 Agent, 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 Agent in accordance with paragraph (a) above shall discharge the Hedge Counterparty’s obligation to pay that amount to that Debtor.

 

4.11 Terms of Hedging Agreements

The Hedge Counterparties (excluding in relation to paragraph (a) below and otherwise only 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 hedging arrangements are carried out under or pursuant to a Hedging Agreement;

 

  (b) each Hedging Agreement is based on an ISDA Master Agreement or 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, as a result of a Termination Event or an Event of Default, each as defined in the relevant Hedging Agreement (or an event similar in meaning and effect in the case of a Hedging Agreement which is not based on an ISDA Master Agreement), that Hedging Agreement will:

 

  (i) 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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  (ii) 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

 

  (iii) 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;

 

  (d) each Hedging Agreement will provide that 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 4.9 ( Required Enforcement: Hedge Counterparties ); and

 

  (e) each Hedging Agreement does not conflict with or is otherwise subject to the terms of this Agreement.

 

5. SENIOR NON CREDIT FACILITY CREDITORS AND SENIOR NON CREDIT FACILITY LIABILITIES

 

5.1 Permitted Payments: Senior Non Credit Facility Liabilities

 

(a) The Debtors may make payments of the Senior Non Credit Facility Liabilities at any time in accordance with the Senior Non Credit Facility Documents.

 

(b) Nothing in this Agreement shall prevent the payment by any Debtor, and receipt and retention by any Senior Secured Notes Trustee, as applicable, of any Senior Secured Notes Trustee Amounts, respectively.

 

5.2 Amendments and waivers of Senior Non Credit Facility Documents

The relevant Senior Non Credit Facility Creditors and the Debtors may amend or waive the terms of the Senior Non Credit Facility Documents in accordance with their terms (and, any relevant consent required in any of them, as applicable) at any time.

 

5.3 Security: Senior Non Credit Facility Creditors

The Senior Non Credit Facility Creditors may take, accept or receive the benefit of:

 

  (a) any Security in respect of the Senior Non Credit Facility Liabilities from any member of the Group in addition to the Transaction Security if:

 

  (x) it is Escrow Security;

 

  (y) it is customary Security in connection with any customary interim facilities (established to fund a Permitted Acquisition on a certain funds basis) and all amounts recovered by the Senior Non Credit Facility Creditors with respect to any such Security shall immediately be paid to the Security Agent and applied in accordance with Clause 15 ( Application of Proceeds ); or

 

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  (z) to the extent legally possible and subject to any Agreed Security Principles, at the same time it is also offered either:

 

  (i) to the Security Agent as trustee for the other Senior Secured Creditors and the Second Lien Debt Creditors in respect of their Liabilities; or

 

  (ii) in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Agent as trustee for such Senior Secured Creditors and the Second Lien Debt Creditors:

 

  (A) to the other Senior Secured Creditors and the Second Lien Debt Creditors in respect of their Liabilities;

 

  (B) to the Security Agent as agent for the other Senior Secured Creditors and the Second Lien Debt Creditors in respect of their Liabilities; and/or

 

  (C) to the Security Agent under a parallel debt joint and several creditorship or equivalent structure for the benefit of the other Senior Secured Creditors and the Second Lien Debt Creditors,

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 Senior Non Credit Facility Liabilities from any member of the Group in addition to those in:

 

  (i) any Senior Secured Finance Document;

 

  (ii) this Agreement; or

 

  (iii) any Common Assurance,

if and to the extent legally possible and subject to any Agreed Security Principles, at the same time it is also offered to the other Senior Secured Creditors and the other Second Lien Debt Creditors in respect of their Liabilities and ranks in the same order of priority as that contemplated in Clause 2 ( Ranking and priority ).

 

5.4 Option to purchase: Senior Non Credit Facility Creditors

 

(a) Subject to paragraph (f) below, Senior Non Credit Facility Creditors (other than the Senior Secured Notes Trustee) constituting the Majority Senior Non Credit Facility Creditors (the “ Senior Non Credit Facility Acquiring Creditors ”) may after a Distress Event by giving not less than 10 days’ notice to the Security Agent and each Credit Facility Agent require the transfer to the Senior Non Credit Facility Acquiring Creditors (or to a nominee or nominees), in accordance with Clause 18 ( Changes to the Parties ), of all, but not part, of the rights, benefits and obligations in respect of the Credit Facility Lender Liabilities if:

 

  (i) that transfer is lawful and subject to paragraph (ii) below, otherwise permitted by the terms of the relevant Credit Facility Finance Documents;

 

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  (ii) any conditions relating to such a transfer contained in the relevant Credit Facility Finance Documents 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

 

  (B) to the extent to which all those Senior Non Credit Facility Acquiring Creditors provide cash cover for any Letter of Credit, the consent of the relevant Issuing Bank relating to such transfer;

 

  (iii) each Credit Facility Agent, on behalf of the relevant Credit Facility Lenders, is paid an amount equal to the aggregate of:

 

  (A) any amounts provided as cash cover by the Senior Non Credit Facility Acquiring Creditors for any Letter of Credit (as envisaged in paragraph (ii)(B) above);

 

  (B) all of the Credit Facility Lender Liabilities at that time (whether or not due), including all amounts that would have been payable under the relevant Credit Facility Agreement if the Credit Facility were being prepaid by the relevant Debtors on the date of that payment; and

 

  (C) all costs and expenses (including legal fees) incurred by such Credit Facility Agent and/or the Credit Facility Lenders as a consequence of giving effect to that transfer;

 

  (iv) as a result of that transfer the Credit Facility Lenders have no further actual or contingent liability to any Debtor under the relevant Debt Documents;

 

  (v) an indemnity is provided from each Senior Non-Credit Facility Acquiring Creditor (other than any Senior Secured Notes Trustee or Pari Passu Debt Representative) (or from another third party acceptable to all the Credit Facility Lenders) in a form satisfactory to each Credit Facility Lender in respect of all losses which may be sustained or incurred by any Credit Facility Lender in consequence of any sum received or recovered by any Credit Facility Lender from any person being required (or it being alleged that it is required) to be paid back by or clawed back from any Credit Facility Lender for any reason; and

 

  (vi) the transfer is made without recourse to, or representation or warranty from, the Credit Facility Lenders, except that each Credit Facility Lender 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 Senior Non Credit Facility Acquiring Creditors may only require a Credit Facility Lender Liabilities transfer if, but always subject to paragraph (d) below, at the same time, they require a hedge transfer in accordance with paragraph (c) below and if, for any reason, a hedge transfer cannot be made in accordance with paragraph (c) below, no Credit Facility Lender Liabilities transfer may be required to be made.

 

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(c) The Senior Non Credit Facility Acquiring Creditors may, by giving not less than 10 days’ notice to the Security Agent, require a hedge transfer if:

 

  (i) the Senior Non Credit Facility Acquiring Creditors require, at the same time, a Credit Facility Lender Liabilities transfer under paragraph (a) above;

 

  (ii) 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;

 

  (iii) any conditions (other than the consent of, or any consultation with, any Debtor or other member of the Group which shall not be required) relating to that transfer contained in the Hedging Agreements are complied with;

 

  (iv) 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 (a) the Hedging Purchase Amount in respect of the hedging transactions under the relevant Hedging Agreement at that time and (b) all costs and expenses (including legal fees) incurred as a consequence of giving effect to that transfer;

 

  (v) as a result of that transfer, the Hedge Counterparties have no further actual or contingent liability to any Debtor under the Hedging Agreements;

 

  (vi) an indemnity is provided from each Senior Non Credit Facility Acquiring Creditor (not being a Senior Secured Notes Trustee) which is receiving (or for which a nominee is receiving) that transfer (or from another third party acceptable to that relevant Hedge Counterparty) in a form 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

 

  (vii) 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.

 

(d) All the Senior Non Credit Facility Acquiring Creditors 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 Senior Non Credit Facility Acquiring Creditors pursuant to paragraph (c) above shall not apply to those Hedging Agreement(s) or to the Hedging Liabilities under those Hedging Agreement(s).

 

(e) Each Credit Facility Agent shall, at the request of all the Senior Non Credit Facility Acquiring Creditors, notify them of:

 

  (i) the sum of the amounts described in paragraphs (a)(iii)(B) and (a)(iii)(C) above; and

 

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  (ii) the amount of each Letter of Credit for which cash cover is to be provided by all the Senior Non Credit Facility Acquiring Creditors.

 

(f) This Clause 5.4 shall only apply on and after the date Listco exercises its right under paragraph (d) of Clause 7.1 ( New Debt Financing ) and any provision relating to Hedging Liabilities in this Clause 5.4 will only apply to those Hedging Liabilities which shall rank in priority to the other Senior Secured Creditor Liabilities pursuant to paragraph (d) of Clause 7.1 ( New Debt Financing ).

 

6. SECOND LIEN DEBT CREDITORS AND SECOND LIEN DEBT LIABILITIES

 

6.1 Amendments and waivers of Second Lien Debt Documents

The relevant Second Lien Debt Creditors and the Debtors may amend or waive the terms of the Second Lien Debt Documents in accordance with their terms (and, any relevant consent required in any of them, as applicable) at any time.

 

6.2 Security: Second Lien Debt Creditors

 

(a) Except with the prior consent of an Instructing Group, the Second Lien Debt Creditors may only take, accept or receive the benefit of:

 

  (i) any Security from any member of the Group in respect of the Second Lien Debt Liabilities in addition to the Transaction Security if:

 

  (x) it is Escrow Security;

 

  (y) it is customary Security in connection with any customary interim facilities (established to fund a Permitted Acquisition on a certain funds basis) and all amounts recovered by the Second Lien Debt Creditors with respect to any such Security shall immediately be paid to the Security Agent and applied in accordance with Clause 15 ( Application of Proceeds ); or

 

  (z) to the extent legally possible and subject to any Agreed Security Principles, at the same time it is also offered either:

 

  (A) to the Security Agent as trustee for the Senior Secured Creditors and the other Second Lien Debt Creditors 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 Agent as trustee for the Secured Parties:

 

  (I) to the Senior Secured Creditors and the other Second Lien Debt Creditors in respect of their Liabilities;

 

  (II) to the Security Agent as agent for the Senior Secured Creditors and the other Second Lien Debt Creditors in respect of their Liabilities; and/or

 

  (III) to the Security Agent under a parallel debt joint and several creditorship or equivalent structure for the benefit of the Senior Secured Creditors and the other Second Lien Debt Creditors,

 

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and ranks in the same order of priority as that contemplated in Clause 2.2 ( Transaction Security ); and

 

  (ii) any guarantee, indemnity or other assurance against loss from any member of the Group in respect of the Second Lien Debt Liabilities in addition to those in:

 

  (A) any Senior Secured Finance Document;

 

  (B) this Agreement; or

 

  (C) any Common Assurance,

if and to the extent legally possible and subject to any Agreed Security Principles, at the same time it is also offered to the Senior Secured Creditors, the other Second Lien Debt Creditors in respect of their Liabilities and ranks in the same order of priority as that contemplated in Clause 2 ( Ranking and priority ).

 

(b) This Agreement does not purport to restrict any Second Lien Debt Creditor taking, accepting or receiving the benefit of any Security, guarantee, indemnity or other assurance against loss from any person which is not a member of the Group in respect of the Second Lien Debt Liabilities or any liabilities of any Second Lien Debt Issuer arising under or in connection with any Second Lien Debt Documents.

 

6.3 Restriction on Payment and dealings: Second Lien Debt Liabilities

Until the Senior Secured Discharge Date, except with the prior consent of an Instructing Group no Debtor will (and Listco shall ensure that no 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 Second Lien Debt Liabilities in cash or in kind or apply any such money or property in or towards discharge of any Second Lien Debt Liabilities except as permitted by Clause 6.4 ( Permitted Second Lien Debt Payments ), Clause 6.10 ( Permitted Second Lien Debt Enforcement ) or Clause 10.5 ( Filing of claims ); or

 

  (b) exercise any set-off against any Second Lien Debt Liabilities, except as permitted by Clause 6.4 ( Permitted Second Lien Debt Payments ), Clause 6.10 ( Permitted Second Lien Debt Enforcement ) or Clause 10.5 ( Filing of claims ).

 

6.4 Permitted Second Lien Debt Payments

The Debtors may:

 

  (a) prior to the Senior Secured Discharge Date, make Payments to the Second Lien Debt Creditors in respect of the Second Lien Debt Liabilities then due in accordance with the Second Lien Debt Documents:

 

  (i) if:

 

  (A) in respect of Second Lien Debt Liabilities by way of Second Lien Debt Notes, the Payment is of:

 

  (I) any of the principal amount (including capitalised interest) of the Second Lien Debt Liabilities which is not prohibited from being made by the Senior Secured Finance Documents; or

 

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  (II) any other amount which is not an amount of principal or capitalised interest which is not prohibited from being made by the Senior Secured Finance Documents; or

 

  (B) in respect of Second Lien Debt Liabilities by way of a Second Lien Debt Loan, the Payment is of any principal amount of such Second Lien Debt Liabilities in accordance with:

 

  (I) any equivalent term or provision in the relevant Second Lien Debt Document to clause 11.1 ( Illegality ) of the original form of the Senior Secured Facilities Agreement;

 

  (II) any equivalent term or provision in the relevant Second Lien Debt Document to clause 11.6 ( Right of cancellation and repayment in relation to a single Lender or Issuing Bank ) of the original form of the Senior Secured Facilities Agreement; or

 

  (III) any other amount of principal (including capitalised interest) of the Second Lien Debt Liabilities by way of a Second Lien Debt Loan which is not prohibited from being made by the Senior Secured Finance Documents; or

 

  (C) in respect of Second Lien Debt Liabilities by way of a Second Lien Debt Loan, the Payment is of any amount that is not principal or capitalised interest which is not prohibited from being made by the Senior Secured Finance Documents,

and (in the case of each of (A), (B) and (C) above),

 

  (X) no Second Lien Debt Payment Stop Notice is outstanding; and

 

  (Y) no Senior Secured Payment Default has occurred and is continuing;

 

  (ii) if an Instructing Group gives prior consent to that Payment being made;

 

  (iii) if the Payment is of any Agent Liabilities of any Second Lien Debt Representative;

 

  (iv) if the Payment is of costs, commissions, taxes, consent fees and expenses incurred in respect of (or reasonably incidental to) the Second Lien Debt Documents (including in relation to any reporting or listing requirements under the Second Lien Debt Documents to the extent relevant to the Second Lien Debt Notes); or

 

  (v) if the Payment is of costs, commissions, taxes, premiums and any expenses incurred in respect of (or reasonably incidental to) any Second Lien Debt (or any refinancing of any Second Lien Debt) in compliance with this Agreement and the Senior Secured Finance Documents; and

 

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  (b) on or after the Senior Secured Discharge Date, make Payments to the Second Lien Debt Creditors in respect of the Second Lien Debt Liabilities in accordance with the Second Lien Debt Documents.

 

6.5 Issue of Second Lien Debt Payment Stop Notice

 

(a) Until the Senior Secured Discharge Date, except with the prior consent of an Instructing Group, and subject to Clause 10 ( Effect of Insolvency Event ), Listco shall procure that no member of the Group shall make, and no Second Lien Debt Creditor may receive from any member of the Group, any Permitted Second Lien Debt Payment (other than any Permitted Second Lien Debt Payment pursuant to paragraphs (a)(ii) and/or (a)(iii) of Clause 6.4 ( Permitted Second Lien Debt Payments )) if:

 

  (i) a Senior Secured Payment Default has occurred and is continuing; or

 

  (ii) a Senior Secured Event of Default (other than a Senior Secured Payment Default) has occurred and is continuing, from the date on which any Credit Facility Agent, Senior Secured Notes Trustee or Pari Passu Debt Representative (as the case may be) (the “ Relevant Representative ”) delivers a notice (a “ Second Lien Debt Payment Stop Notice ”) specifying the event or circumstance in relation to that Senior Secured Event of Default to Listco, the Security Agent and the Second Lien Debt Notes Trustee until the earliest of:

 

  (A) the date falling 179 days after delivery of that Second Lien Debt Payment Stop Notice;

 

  (B) in relation to payments of Second Lien Debt Liabilities, if a Second Lien Debt Standstill Period is in effect at any time after delivery of that Second Lien Debt Payment Stop Notice, the date on which that Second Lien Debt Standstill Period expires;

 

  (C) the date on which the relevant Senior Secured Event of Default is no longer continuing and, if the relevant Senior Secured Creditor Liabilities have been accelerated, such acceleration has been rescinded, revoked or waived;

 

  (D) the date on which the applicable Relevant Representative delivers a notice to Listco, the Security Agent and the Second Lien Debt Notes Trustee cancelling the Second Lien Debt Payment Stop Notice it delivered;

 

  (E) the Senior Secured Discharge Date; and

 

  (F) the date on which any Second Lien Debt Creditor takes any Enforcement Action that it is permitted to take under Clauses 6.10 ( Permitted Second Lien Debt Enforcement ) and 6.11 ( Second Lien Debt Standstill Period ).

 

(b) Unless the Second Lien Debt Notes Trustee waives this requirement:

 

  (i) a new Second Lien Debt Payment Stop Notice may not be delivered unless and until 360 days have elapsed since the delivery of the immediately prior Second Lien Debt Payment Stop Notice; and

 

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  (ii) no Second Lien Debt Payment Stop Notice may be delivered in reliance on a Senior Secured Event of Default more than 60 days after the date on which each Credit Facility Agent, each Senior Secured Notes Trustee and each Pari Passu Debt Representative received notice of that Senior Secured Event of Default.

 

(c) A Relevant Representative may serve only one Second Lien Debt 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 a Relevant Representative to issue a Second Lien Debt Payment Stop Notice in respect of any other event or set of circumstances.

 

(d) No Second Lien Debt Payment Stop Notice may be served by a Relevant Representative in respect of a Senior Secured Event of Default which had been notified to each of them at the time at which an earlier Second Lien Debt Payment Stop Notice was issued.

 

(e) For the avoidance of doubt, this Clause 6.5:

 

  (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 any Second Lien Debt Documents (as the case may be);

 

  (iii) will not prevent the payment of any Permitted Second Lien Debt Payment pursuant to paragraphs (a)(ii) and/or (a)(iii) of Clause 6.4 ( Permitted Second Lien Debt Notes Payments ); and

 

  (iv) will not prevent the payment of audit fees, directors’ fees, taxes, securities and listing fees and other proper and incidental expenses required to maintain existence.

 

6.6 Effect of Second Lien Debt Payment Stop Notice or Senior Secured Payment Default

Any failure to make a Payment due under the Second Lien Debt Documents as a result of the issue of a Second Lien Debt 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 Second Lien Debt Documents; or

 

  (b) the issue of a Second Lien Debt Enforcement Notice on behalf of the Second Lien Debt Creditors.

 

6.7 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 Second Lien Debt Document by the operation of Clauses 6.3 ( Restriction on Payment and dealings: Second Lien Debt Liabilities ) to 6.6 ( Effect of Second Lien Debt 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 Second Lien Debt Documents (as the case may be) shall continue notwithstanding the issue of a Second Lien Debt Payment Stop Notice.

 

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6.8 Cure of Payment Stop: Second Lien Debt Creditors

If:

 

  (a) at any time following the issue of a Second Lien Debt Payment Stop Notice or the occurrence of a Senior Secured Payment Default, that Second Lien Debt 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 Second Lien Debt Creditors an amount equal to any Payments which had accrued in respect of the Second Lien Debt Liabilities then due in accordance with the Second Lien Debt Documents and which would have been Permitted Second Lien Debt Notes Payments but for that Second Lien Debt 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 Second Lien Debt 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 Second Lien Debt Creditors.

 

6.9 Restrictions on enforcement by Second Lien Debt Creditors

Subject to Clause 6.10 ( Permitted Second Lien Debt Enforcement ), until the Senior Secured Discharge Date, except with the prior consent of, or as required by, an Instructing Group, no Second Lien Debt Creditor shall be entitled to take any Enforcement Action against any Debtor, any Non Debtor Security Provider or any other member of the Group in respect of any of the Second Lien Debt Liabilities and/or in respect of any Security (including any Transaction Security) granted by any member of the Group, any Debtor or any Non Debtor Security Provider or to give instructions to the Security Agent to enforce or to refrain or cease from enforcing the Transaction Security.

 

6.10 Permitted Second Lien Debt Enforcement

 

(a) The restrictions in Clause 6.9 ( Restrictions on enforcement by Second Lien Debt Creditors ) will not apply:

 

  (i) if:

 

  (A) an Event of Default under the Second Lien Debt Documents (the “ Relevant Second Lien Debt Default ”) is continuing;

 

  (B) each Credit Facility Agent, each Senior Secured Notes Trustee and each Pari Passu Debt Representative has received a notice of the Relevant Second Lien Debt Default specifying the event or circumstance in relation to the Relevant Second Lien Debt Default from the relevant Second Lien Debt Notes Trustee;

 

  (C) a Second Lien Debt Standstill Period has elapsed; and

 

  (D) the Relevant Second Lien Debt Default is continuing at the end of the relevant Second Lien Debt Standstill Period;

 

  (ii)

in the circumstance where the Senior Secured Creditors take any Enforcement Action in relation to a particular Second Lien Debt Notes Guarantor, provided that the Second

 

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  Lien Debt Creditors may only take the same Enforcement Action in relation to such Second Lien Debt Notes Guarantor as the Enforcement Action taken by the Senior Secured Creditors against that Second Lien Debt Notes Guarantor and not against any other Debtor or any other member of the Group; or

 

  (iii) in respect of Enforcement Action in relation to a particular Second Lien Debt Notes Guarantor that is the subject of an Insolvency Event (but not, for the avoidance of doubt, against any other Debtor, Non Debtor Security Provider or any other member of the Group).

 

(b) Promptly upon becoming aware of an Event of Default under the Second Lien Debt Documents, the relevant Second Lien Debt Representative may by notice (a “ Second Lien Debt Enforcement Notice ”) in writing notify each Credit Facility Agent, each Senior Secured Notes Trustee and each Pari Passu Debt Representative of the existence of such Event of Default under the Second Lien Debt Documents.

 

6.11 Second Lien Debt Standstill Period

In relation to a Relevant Second Lien Debt Default, a Second Lien Debt Standstill Period shall mean the period beginning on the date (the “ Second Lien Debt Standstill Start Date ”) the Second Lien Debt Notes Trustee serves a Second Lien Debt Enforcement Notice on each Credit Facility Agent, each Senior Secured Notes Trustee and each Pari Passu Debt Representative in respect of such Relevant Second Lien Debt Default and ending on the earliest to occur of:

 

  (a) the date falling 179 days after the Second Lien Debt Standstill Start Date (the “ Second Lien Debt Standstill Period ”);

 

  (b) the expiry of any other Second Lien Debt Standstill Period outstanding at the date such first mentioned Second Lien Debt Standstill Period commenced (unless that expiry occurs as a result of a cure, waiver or other permitted remedy); and

 

  (c) the date an Instructing Group gives its consent.

 

6.12 Subsequent Second Lien Debt Defaults

The Second Lien Debt Creditors may take Enforcement Action under Clause 6.10 ( Permitted Second Lien Debt Enforcement ) in relation to a Relevant Second Lien Debt Default even if, at the end of any relevant Second Lien Debt Standstill Period or at any later time, a further Second Lien Debt Standstill Period has begun as a result of any other Event of Default under the Second Lien Debt Documents.

 

6.13 Enforcement on behalf of Second Lien Debt Creditors

If the Security Agent has notified the Second Lien Debt Notes Trustee that it is enforcing Security created pursuant to any Security Document over shares of a Second Lien Debt Notes Guarantor or over shares of a (direct or indirect) Holding Company of a Second Lien Debt Notes Guarantor, no Second Lien Debt Creditor may take any action referred to in Clause 6.10 ( Permitted Second Lien Debt Enforcement ) against that Second Lien Debt Notes Guarantor or that Holding Company (where such Holding Company is a member of the Group) or (in any case) any of their respective Subsidiaries while the Security Agent is taking steps to enforce that Security in accordance with the instructions of an Instructing Group where such action might be reasonably likely to adversely affect such enforcement or the amount of proceeds to be derived therefrom.

 

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6.14 Option to purchase: Second Lien Debt

 

(a) Subject to paragraph (b) below, the Majority Second Lien Debt Creditors (the “ Second Lien Debt Acquiring Creditors ”) may, after a Distress Event, by giving not less than 10 days’ notice to each Credit Facility Agent, each Senior Secured Notes Trustee and each Pari Passu Debt Representative, require the transfer to them (or to a nominee or nominees), in accordance with Clause 18 ( Changes to the Parties ), of all, but not part, of the rights and obligations in respect of the Senior Secured Creditor Liabilities (together, for the purpose of this paragraph (a) only, the “ Secured Debt ”) if:

 

  (i) the transfer is lawful and subject to paragraph (ii) below, otherwise permitted by the terms of the Senior Secured Finance Documents;

 

  (ii) any conditions relating to such a transfer contained in the Senior Secured Finance Documents are complied with, other than:

 

  (A) any requirement to obtain the consent of, or consult with, the Debtors or other member of the Group relating to such transfer, which consent or consultation shall not be required; and

 

  (B) to the extent to which all those Second Lien Debt Acquiring Creditors provide cash cover for any Letter of Credit, the consent of the relevant Issuing Bank relating to such transfer;

 

  (iii) each Credit Facility Agent, each Senior Secured Notes Trustee and each Pari Passu Debt Representative on behalf of the applicable Senior Secured Creditors is paid an amount equal to the aggregate of:

 

  (A) any amounts provided as cash cover by the Second Lien Debt Acquiring Creditors of any Letter of Credit (as envisaged in paragraph (ii)(B) above);

 

  (B) all the Liabilities to such Creditors outstanding as at the date that amount is to be paid (whether or not due), including all amounts that would have been payable under the relevant Senior Secured Finance Document if the relevant Senior Secured Creditor Liabilities were being prepaid by the relevant Debtors on the date of that payment; and

 

  (C) all costs and expenses (including legal fees) incurred by such Agents and such Creditors as a consequence of giving effect to that transfer;

 

  (iv) as a result of that transfer, the Senior Secured Creditors have no further actual or contingent liability to any Debtor under the relevant Debt Documents;

 

  (v) an indemnity is provided from each Second Lien Debt Acquiring Creditor (not being a Second Lien Debt Representative) (or from another third party acceptable to all the Senior Secured Creditors) in a form satisfactory to each Senior Secured Creditor in respect of all losses which may be sustained or incurred by each of them in consequence of any sum received or recovered by any Senior Secured Creditor from any person being required (or it being alleged that it is required) to be paid back by or clawed back from any Senior Secured Creditor for any reason; and

 

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  (vi) the transfer is made without recourse to, or representation or warranty from, the Senior Secured Creditors, except that each Senior Secured Creditor 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 Second Lien Debt Acquiring Creditors may only require a Senior Secured Creditor Liabilities transfer if but always subject to paragraph (d) below, at the same time, they require a hedge transfer in accordance with paragraph (c) below and if, for any reason, a hedge transfer cannot be made in accordance with paragraph (c) below, no Senior Secured Creditor Liabilities transfer may be required to be made.

 

(c) The Second Lien Debt Acquiring Creditors may, by giving not less than 10 days’ notice to the Security Agent, require a hedge transfer if:

 

  (i) the Second Lien Debt Acquiring Creditors require, at the same time, a Senior Secured Creditor Liabilities transfer under paragraph (a) above;

 

  (ii) 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;

 

  (iii) any conditions (other than the consent of, or any consultation with, any Debtor or other member of the Group which shall not be required) relating to that transfer contained in the Hedging Agreements are complied with;

 

  (iv) 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 (a) the Hedging Purchase Amount in respect of the hedging transactions under the relevant Hedging Agreement at that time and (b) all costs and expenses (including legal fees) incurred as a consequence of giving effect to that transfer;

 

  (v) as a result of that transfer, the Hedge Counterparties have no further actual or contingent liability to any Debtor under the Hedging Agreements;

 

  (vi) an indemnity is provided from each Second Lien Debt Acquiring Creditor (not being a Second Lien Debt Representative) which is receiving (or for which a nominee is receiving) that transfer (or from another third party acceptable to that relevant Hedge Counterparty) in a form 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

 

  (vii) 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.

 

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(d) All the Second Lien Debt Acquiring Creditors 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 Second Lien Debt Acquiring Creditors pursuant to paragraph (c) above shall not apply to those Hedging Agreement(s) or to the Hedging Liabilities and Hedge Counterparty Liabilities under those Hedging Agreement(s).

 

(e) Each Credit Facility Agent, each Senior Secured Notes Trustee and each Pari Passu Debt Representative shall, following consultation with each other as required, at the request of all Second Lien Debt Acquiring Creditors, notify them of:

 

  (i) the sum of the amounts described in paragraphs (a)(iii)(B) and (a)(iii)(C) above; and

 

  (ii) the amount of each Letter of Credit for which cash cover is to be provided by all the Second Lien Debt Acquiring Creditors.

 

(f) Each Hedge Counterparty shall, at the request of all Second Lien Debt Acquiring Creditors, notify them of the sum of the applicable amounts described in paragraph (c)(iv) above.

 

7. NEW CREDIT FACILITIES, PARI PASSU DEBT, SECOND LIEN DEBT AND HEDGING AGREEMENTS

 

7.1 New Debt Financing

 

(a) A member of the Group may only enter into a New Debt Financing if:

 

  (i) the New Debt Financing is not prohibited under the Senior Secured Finance Documents, or the Second Lien Debt Documents;

 

  (ii) where the providers of such New Debt Financing (or any Agent or the Security Agent on their behalf) are to receive the benefit of any Security from any member of the Group, each Debtor and each other member of the Group as applicable grants Transaction Security or re-grants any Transaction Security and/or agrees to any amendment of a Security Document as may be required under the terms of that New Debt Financing or as may be required under any applicable law (in each case) in order to give effect to the ranking set out in Clause 2.2 ( Transaction Security ), in each case, subject to the requirements of Clause 7.2 ( Transaction Security: New Debt Financings and Hedging Agreements );

 

  (iii) each new Agent, (in the case of any New Credit Facility or any New Debt Financing pursuant to any Structural Adjustment and/or any Additional Facility (as each such term as defined in the Senior Secured Facilities Agreement) (or, in each case, any equivalent term or provision under any other Credit Facility Agreement)) each new Credit Facility Lender, (in the case of any New Debt Financing pursuant to any Pari Passu Debt Loan or any Second Lien Debt Loan) each Pari Passu Debt Creditor or, as the case may be, each Second Lien Debt Creditor and each member of the Group, each Debtor and/or (as applicable) each Non Debtor Security Provider which is to incur Liabilities in connection with any such New Debt Financing accedes to this Agreement in accordance with Clause 18 ( Changes to the Parties ), in each case, if not already a Party in the relevant capacity;

 

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  (iv) in so far as it relates to the Group, the New Debt Financing (and any related Security Documents and other Debt Documents) is subject to the terms of this Agreement; and

 

  (v) Listco supplies the Security Agent on or prior to the date on which a member of the Group first enters into the New Debt Financing, a certificate signed by a director:

 

  (A) confirming compliance with the condition (as applicable) in paragraph (i) above; and

 

  (B) designating the Liabilities under the New Debt Financing as (w) Credit Facility Lender Liabilities, (x) Pari Passu Debt Liabilities (y) Senior Secured Notes Liabilities or (z) Second Lien Debt Liabilities (as applicable) for the purposes of this Agreement,

provided, however, that the certificate in respect of paragraphs (v)(A) and (B) above shall not apply in the case of any New Debt Financing pursuant to any Structural Adjustment and/or any Additional Facility (in each case, as such terms are defined in the Senior Secured Facilities Agreement) (and/or, in each case, any equivalent term or provision under any other Credit Facility Agreement).

 

(b) Subject to compliance with the requirements of paragraph (a) above:

 

  (i) to the extent that Listco makes a designation under paragraph (a)(v)(B)(w) above, all Liabilities under the New Credit Facility shall be deemed to be Credit Facility Lender Liabilities for the purposes of, and with the rights and benefits but subject to the limitations and obligations contained in, this Agreement and with the ranking expressed to be given to such Liabilities in Clause 2.1 ( Senior Secured Creditor Liabilities and Second Lien Debt Liabilities );

 

  (ii) to the extent that Listco makes a designation under paragraph (a)(v)(B)(y) above, all Liabilities under the new Senior Secured Notes Finance Documents shall be deemed to be Senior Secured Notes Liabilities for the purposes of, and with the rights and benefits but subject to the limitations and obligations contained in, this Agreement and with the ranking expressed to be given to such Liabilities in Clause 2.1 ( Senior Secured Creditor Liabilities and Second Lien Debt Liabilities );

 

  (iii) to the extent that Listco makes a designation under paragraph (a)(v)(B)(x) above, all Liabilities under the new Pari Passu Debt Documents shall be deemed to be Pari Passu Debt Liabilities for the purposes of, and with the rights and benefits but subject to the limitations and obligations contained in, this Agreement and with the ranking expressed to be given to such Liabilities in Clause 2.1 ( Senior Secured Creditor Liabilities and Second Lien Debt Liabilities ); and

 

  (iv) to the extent that Listco makes a designation under paragraph (a)(v)(B)(z) above, all Liabilities of members of the Group under the Second Lien Debt Documents shall be deemed to be Second Lien Debt Liabilities for the purposes of, and with the rights and benefits but subject to the limitations and obligations contained in, this Agreement and with the ranking expressed to be given to such Liabilities in Clause 2.1 ( Senior Secured Creditor Liabilities and Second Lien Debt Liabilities ).

 

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(c) Nothing in this Clause 7 or any other Debt Document shall restrict the Senior Creditors (or any of them) and the providers of a New Debt Financing agreeing the ranking of their respective senior claims among themselves in documentation separate to this Agreement and entered into solely between such parties (or on their behalf by an Agent) and the Security Agent.

 

(d) Subject to paragraph (e) below, on, or at any time following, the Senior Secured Facilities Discharge Date, Listco may by notice to the Security Agent request that this Agreement is amended and restated so as to provide that any Credit Facility Lender Liabilities arising under a revolving credit facility and Hedging Liabilities (as determined by Listco) rank, as between the Senior Secured Creditor Liabilities, in priority to the other Senior Secured Creditor Liabilities as to entitlement of any proceeds received or recovered by the Security Agent in connection with the realisation or enforcement of all or any part of the Transaction Security (or any transaction in lieu thereof) on terms customary to such “super senior” arrangements at such time (including, the exclusion of the Senior Secured Creditors from the relevant sections of Clause 10 ( Effect of Insolvency Event ) and Clause 11 ( Turnover of receipts ) and, without limitation, further consequential changes to paragraph (a)(i) of the definition of Instructing Group, Clause 10 ( Effect of Insolvency Event ), Clause 11 ( Turnover of receipts ), Clause 13 ( Enforcement of Transaction Security ) (together with the inclusion of any customary consultation requirements and provisions relating to enforcement of Transaction Security), Clause 15 ( Application of proceeds ) and, in addition, (unless already provided for in Clause 5.4 ( Option to purchase: Senior Non Credit Facility Creditors )), the inclusion of an option to purchase (substantially on the terms set out in Clause 6.14 ( Option to purchase: Second Lien Debt ) but with the necessary conforming changes) in favour of each other class of Senior Secured Creditor Liabilities and the removal of this paragraph (d) and paragraph (e) below) and, subject to the conditions in paragraph (e) below being satisfied, the Security Agent shall (notwithstanding paragraphs (a) and (b) of Clause 26.1 ( Required consents ) and paragraph (a) of Clause 26.3 ( Exceptions ) but subject to paragraph (b) of Clause 26.3 ( Exceptions )) give effect to any such amendment and restatement (and, for the avoidance of doubt, paragraphs (a) to (c) of Clause 26.2 ( Effectiveness ) shall apply to such amendment and restatement).

 

(e) No notice may be delivered by Listco pursuant to paragraph (d) above:

 

  (i) if the changes contemplated to be made to this Agreement in paragraph (d) above or if any Credit Facility Lender Liabilities arising under a revolving credit facility and Hedging Liabilities ranking, as between the Senior Secured Creditor Liabilities, in priority to the other Senior Secured Creditor Liabilities as to entitlement of any proceeds received or recovered by the Security Agent in connection with the realisation or enforcement of all or any part of the Transaction Security (or any transaction in lieu thereof) would (in either case) be prohibited by the terms of any Secured Debt Document;

 

  (ii) if the changes contemplated to be made to this Agreement would cause any Liabilities to rank pari passu with or ahead of the Liabilities or sums in relation to the Security Agent, any Receiver, any Delegate and/or any Agent contemplated in paragraph (a) of Clause 15.1 ( Order of application ); and

 

  (iii)

unless such notice attaches the proposed form of this Agreement with the proposed amendments contemplated in (and consistent with) paragraph (d) above, together with a

 

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  confirmation in favour of the Security Agent that the conditions in paragraphs (i) and (ii) above are satisfied (or would be satisfied were amendments to this Agreement made in the form attached to that notice).

 

7.2 Transaction Security: New Debt Financings and Hedging Agreements

 

(a) Where the providers, creditors or, as the case may be, holders of a New Debt Financing or any Hedge Counterparty (or, as applicable, any Agent or the Security Agent on their behalf) are to receive the benefit of any Security (including any Transaction Security) from any member of the Group and the granting of such Security is permitted or not prohibited under the Senior Secured Finance Documents, then notwithstanding any other term, condition or restriction in any other Debt Document, the Parties agree that in order to implement or otherwise facilitate that New Debt Financing or, as the case may be, Hedging Agreement, if requested by Listco the relevant member of the Group shall, and the Security Agent shall (without prejudice to Clause 7.3 ( Further assurance )) and is hereby authorised to, enter into any new Security Document, amend or waive any terms of an existing Security Document and/or release any asset from Transaction Security (without the need for any further authority or consent from the Secured Parties) subject to the following conditions:

 

  (i) any new Transaction Security shall be:

 

  (A) granted:

 

  (I) to the Security Agent as trustee for the providers, creditors or, as the case may be, holders and/or agents and/or trustees of the New Debt Financing or (as applicable) the relevant Hedge Counterparty in respect of their Liabilities; or

 

  (II) in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Agent as trustee for the providers, creditors or, as the case may be, holders and/or agents and/or trustees of the New Debt Financing or (as applicable) the relevant Hedge Counterparty:

 

  (1) to the providers, creditors or, as the case may be, holders and/or agents and/or trustees of the New Debt Financing or (as applicable) the relevant Hedge Counterparty in respect of their Liabilities;

 

  (2) to the Security Agent as agent for providers, creditors or, as the case may be, holders and/or agents and/or trustees of the New Debt Financing or (as applicable) the relevant Hedge Counterparty in respect of their Liabilities; and/or

 

  (3) to the Security Agent under a parallel debt joint and several creditorship or equivalent structure for the benefit of the providers, creditors or, as the case may be, holders and/or agents and/or trustees of the New Debt Financing or (as applicable) the relevant Hedge Counterparty,

 

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and (in addition) in such manner and for such beneficiary so as to comply with any obligations arising under Clause 3.3 ( Security: Credit Facility Lenders ), Clause 3.4 ( Security: Ancillary Lenders and Issuing Banks ), Clause 4.6 ( Security: Hedge Counterparties ), Clause 5.3 ( Security: Senior Non Credit Facility Creditors ) and/or (as the case may be) Clause 6.2 ( Security: Second Lien Debt Creditors );

 

  (B) on terms substantially the same as the terms of the existing Transaction Security over equivalent asset(s) (if any); and

 

  (C) for the purposes of this Agreement, such Security shall rank and secure the Liabilities (but, in each case, only to the extent that such Security is expressed to secure those Liabilities and subject to Clauses 15.1 ( Order of application ) and 15.9 ( Time irrelevant )) in the order set out in Clause 2.2 ( Transaction Security ); and

 

  (ii) any amendment or waiver of a Security Document or release and re-grant of Transaction Security shall only be undertaken to the extent it is not prohibited by any Debt Document and provided that :

 

  (A) in the case of any release and re-grant of Transaction Security, Listco has confirmed to the Security Agent that it has determined in good faith (taking into account any applicable legal limitations and other relevant considerations) that it is either not possible or not commercially practicable to implement such New Debt Financing or Hedging Agreement on terms satisfactory to Listco by granting new Transaction Security and/or amending the terms of the existing Transaction Security instead; and

 

  (B)

 

  (I) in the case of any amendment or waiver of a Security Document, the amendments and/or waivers are limited to the extent necessary such that the providers, creditors or, as the case may be, holders of such New Debt Financing or (as applicable) the relevant Hedge Counterparty (or, as applicable, any Agent or Security Agent on their behalf) receive the benefit of such Security and provided that any Secured Parties and the corresponding Liabilities which benefited from such Security immediately prior to such amendment or waiver continue to benefit from such Security upon such amendment or waiver becoming effective (unless such Liabilities have been or are to be discharged in full at such time); or

 

  (II) in the case of any release of Transaction Security, immediately upon giving effect to that release, replacement Transaction Security is granted:

 

  (1)

to the Security Agent as trustee for the providers and/or agents and/or trustees of the New Debt Financing, the relevant Hedge Counterparty and the Secured Parties and in respect of the

 

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  Liabilities which benefited from such Security immediately prior to such release (unless such Liabilities have been or are to be discharged in full at such time); or

 

  (2) in the case of any jurisdiction in which effective Security cannot be granted in favour of the Security Agent as trustee for the providers and/or agents and/or trustees of the New Debt Financing, the relevant Hedge Counterparty and/or the Secured Parties:

 

  a) to the providers and/or agents and/or trustees of the New Debt Financing, the relevant Hedge Counterparty and the Secured Parties and in respect of the Liabilities which benefited from such Security immediately prior to such release (unless such Liabilities have been or are to be discharged in full at such time);

 

  b) to the Security Agent as agent for the providers and/or agents and/or trustees of the New Debt Financing, the relevant Hedge Counterparty and the Secured Parties and in respect of the Liabilities which benefited from such Security immediately prior to such release (unless such Liabilities have been or are to be discharged in full at such time); and/or

 

  c) to the Security Agent under a parallel debt joint and several creditorship or equivalent structure for the benefit of the providers and/or agents and/or trustees of the New Debt Financing, the relevant Hedge Counterparty and the Secured Parties and in respect of the Liabilities which benefited from such Security,

immediately prior to such release (unless such Liabilities have been or are to be discharged in full at such time), on substantially the same terms as the Transaction Security released over the same asset(s) or (if any such assets have ceased to exist) over equivalent asset(s) (if any).

 

(b) It shall be a condition to the release of Transaction Security under paragraph (a) above, where the proceeds of a New Debt Financing are to be used to refinance any Senior Secured Creditor Liabilities or, as the case may be, any Second Lien Debt Creditor Liabilities, that any Payments due to the existing Senior Secured Creditors and the existing Second Lien Debt Creditors arising in connection with such New Debt Financing shall (where commercially practicable) be discharged substantially simultaneously with that release of Transaction Security.

 

7.3 Further assurance

 

(a)

In this Clause 7.3, a “ Relevant Document ” means any document or Debt Document reasonably required to implement or otherwise facilitate a New Debt Financing and to satisfy any of the

 

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  conditions of this Clause 7 in relation to such New Debt Financing, including, without limitation, any amendment, waiver or release agreement in respect of any Security Document, any grant of any guarantee, any grant of any Transaction Security pursuant to a new Security Document, any amendment to this Agreement and/or the entry into any additional or replacement intercreditor agreement (on substantially the same terms as this Agreement except for the incorporation of such New Debt Financing and any consequential or incidental changes relating thereto).

 

(b) Each Party agrees that it shall co-operate with the Debtors with a view to satisfying the conditions in this Clause 7 in respect of any New Debt Financing and facilitating any New Debt Financing.

 

(c) Each Agent and the Security Agent is irrevocably authorised and instructed by each Party (other than the Debtors), each Secured Party and each Senior Creditor to execute any Relevant Documents and/or take any action pursuant to Clause 7.2 ( Transaction Security: New Debt Financings and Hedging Agreements ) or this Clause 7.3 on behalf of the Parties, the Secured Parties and the Senior Creditors (and shall promptly do so on the request of and at the cost of Listco).

 

(d) Without prejudice to paragraph (c) above, each Party agrees that it shall promptly execute (including at the reasonable request of the Security Agent) all Relevant Documents and give such instructions to the Security Agent as may reasonably be required, in each case in order to implement or otherwise facilitate a New Debt Financing and to satisfy any of the conditions of this Clause 7 in relation to a New Debt Financing or Hedging Agreement.

 

(e) Upon its accession hereto, each Senior Secured Notes Trustee and each Pari Passu Debt Representative acting as trustee pursuant to a Pari Passu Debt Note confirms that it is (respectively) authorised pursuant to the terms of the relevant Senior Secured Notes Finance Documents or, as the case may be, the relevant Pari Passu Debt Documents to execute any Relevant Documents on behalf of the relevant Senior Secured Noteholders or, as the case may be, the relevant Pari Passu Debt Creditors.

 

(f) Upon its accession hereto, each Second Lien Debt Notes Trustee confirms that it is authorised pursuant to the terms of the relevant Second Lien Debt Documents to execute any Relevant Documents on behalf of the relevant Second Lien Debt Noteholders.

 

(g) Any new Transaction Security and/or any amendment or waiver of a Security Document or release and re-grant of Transaction Security pursuant to this Clause 7.3 shall be undertaken in compliance with the requirements of paragraphs (a)(i) and/or (a)(ii) (as applicable) of Clause 7.2 ( Transaction Security: New Debt Financings and Hedging Agreements ).

 

(h)

Notwithstanding the foregoing, nothing in this Clause 7 shall oblige the Security Agent, any Agent or other Senior Creditor to execute any document if it would impose personal liabilities or personal obligations (that is, excluding, for the avoidance of doubt, any obligations in its capacity as Security Agent, Agent or other Senior Creditor, as applicable) on, or adversely affect the rights, duties or immunities of the Security Agent, that Agent or Senior Creditor ( provided that , for the avoidance of doubt, the incurrence of such New Debt Financing or Hedging Agreement and/or any amendment or waiver of a Security Document or release and re-grant of Transaction Security in accordance with paragraphs (a)(i) and/or (a)(ii) (as applicable) of Clause 7.2

 

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  ( Transaction Security: New Debt Financings and Hedging Agreements ) shall not of itself adversely affect the rights, duties or immunities of any Creditor) and nothing in this Clause 7 be construed as a commitment to advance or arrange any New Debt Financing.

 

(i) Listco shall (or another Debtor so elected shall), promptly on demand, pay to each Senior Secured Creditor and the Security Agent the amount of all fees, costs and expenses (including but not limited to legal fees and disbursements) (together with any applicable VAT) properly incurred by them in connection with the satisfaction of the conditions of this Clause 7 and the consideration, negotiation, preparation, printing, execution and perfection of any Relevant Document.

 

8. INTRA-GROUP LENDERS AND INTRA-GROUP LIABILITIES

 

8.1 Restriction on Payment: Intra-Group Liabilities

Prior to the Final Discharge Date, no Debtor shall, and Listco shall procure that no other member of the Group will, make any Payments of the Intra-Group Liabilities at any time unless:

 

  (a) that Payment is permitted under Clause 8.2 ( Permitted Payments: Intra-Group Liabilities ); or

 

  (b) the taking or receipt of that Payment is permitted under paragraph (c) of Clause 8.7 ( Permitted Enforcement: Intra-Group Lenders ).

 

8.2 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.

 

(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 and is continuing, unless:

 

  (i) an Instructing Group consents to that Payment being made;

 

  (ii) that Payment is made to facilitate Payment of the Senior Secured Creditor Liabilities, or after the Senior Secured Discharge Date, Second Lien Debt Liabilities; or

 

  (iii) any director or officer of any Debtor is required by mandatory law to make or demand Payment of the relevant Intra-Group Liabilities in order to avoid personal and/or criminal liability.

 

(c) Nothing in this Clause 8 will restrict the roll-up or capitalisation of interest on Intra-Group Liabilities or the payment of interest on Intra-Group Liabilities by the issue of payment-in-kind instruments (in each case to the extent constituting Intra-Group Liabilities) provided that , in any such case, there is no payment in cash or Cash Equivalents.

 

8.3 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 8.1 ( Restriction on Payment: Intra -Group Liabilities ) and 9.2 ( Permitted Payments: Intra -Group Liabilities ) even if its obligation to make that Payment is restricted at any time by the terms of either of those Clauses.

 

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8.4 Acquisition of Intra -Group Liabilities

 

(a) Subject to paragraphs (b) and (c) 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 the Senior Secured Finance Documents; or

 

  (ii) at the time of that action, an Acceleration Event has occurred and is continuing.

 

(c) The restrictions in paragraph (b) above shall not apply if:

 

  (i) an Instructing Group consents to that action;

 

  (ii) that action is taken to facilitate Payment of the Senior Secured Creditor Liabilities, or after the Senior Secured Discharge Date, the Second Lien Debt Liabilities; or

 

  (iii) any director or officer of any Debtor is required by mandatory law to make or demand Payment of the relevant Intra-Group Liabilities in order to avoid personal and/or criminal liability.

 

8.5 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 not prohibited under the Senior Secured Finance Documents; or

 

  (b) prior to the Final Discharge Date, the prior consent of an Instructing Group is obtained.

 

8.6 Restriction on enforcement: Intra -Group Lenders

Subject to Clause 8.7 ( 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.

 

8.7 Permitted Enforcement: Intra -Group Lenders

 

(a) After the occurrence of an Insolvency Event in relation to any member of the Group, each Intra-Group Lender may (unless otherwise directed by the Security Agent or unless the Security Agent 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 )), exercise any right it may otherwise have against that member of the Group to:

 

  (i) accelerate any of that member of the Group’s Intra-Group Liabilities or declare them prematurely due and payable or payable on demand;

 

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  (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, administration or other insolvency proceedings of that member of the Group for the Intra-Group Liabilities owing to it.

 

(b) Nothing in this Clause 8.7 shall limit the ability of any Intra-Group Lender from exercising any rights in relation to any Intra-Group Liabilities owed to it if and to the extent the exercise of such rights is required to avoid any personal liability of any director or officer of that Intra-Group Lender.

 

8.8 Representations: Intra-Group Lenders

Each Intra-Group Lender which is not a Debtor represents and warrants to the Senior Secured Creditors, the Security Agent and each Agent that:

 

  (a) it is duly incorporated or, as applicable, organised and validly existing under the law of the jurisdiction under whose laws it is incorporated or, as the case may be, organised;

 

  (b) subject to the Legal Reservations and the Perfection Requirements (each term as defined in the Senior Secured Facilities Agreement and construed mutatis mutandis ) the obligations expressed to be assumed by it in this Agreement are legal, valid, binding and enforceable obligations; and

 

  (c) the entry into and performance by it of this Agreement does not:

 

  (i) conflict with any law or regulation applicable to it;

 

  (ii) conflict in any material respect with its constitutional documents; or

 

  (iii) breach any agreement or instrument binding upon it or any of its assets,

to the extent or in a manner that such conflict or breach has, or would reasonably be expected to have, a Material Adverse Effect (as defined in the Senior Secured Facilities Agreement).

 

8.9 Notice of assignment in respect of certain Intra-Group Liabilities

 

(a) Each Intra-Group Lender (a “ Charging Company ”) that has created Transaction Security over any Intra-Group Liabilities in respect of which it is a creditor hereby gives notice (including in terms as required by the applicable Security Documents) to each 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 Transaction Security over such Intra-Group Liabilities created pursuant to the Security Documents in favour of the Security Agent on behalf of the Secured Parties, and 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 (as permitted by the applicable Security Document) to the contrary from the Security Agent (in which case such Counterparty shall deal only with the Security Agent in respect of such Intra-Group Liabilities).

 

(b)

Each Counterparty agrees to the terms and acknowledges the notice under paragraph (a) above and confirms it has not received any notice that the Charging Company has previously created

 

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  any Security over any of its rights in respect of the Intra-Group Liabilities owed by such Counterparty to a third party or created any other interest (whether by way of Transaction Security or otherwise) in the Intra-Group Liabilities in favour of a third party.

 

8.10 Intra-Group Liabilities: Exceptions

Notwithstanding anything to the contrary in this Agreement or any other Debt Document and without imposing any additional obligation or restriction on any member of the Group, nothing in this Agreement (including this Clause 8 or Clause 18 ( Changes to the Parties )) or any other Debt Document shall prohibit or restrict any capitalisation, forgiveness, write-off, waiver, release, transfer from one member of the Group to another member of the Group or other discharge of any Intra-Group Liabilities (or any amounts due, payable or owing in connection therewith) or any other amount due, payable or owing by one member of the Group to another member of the Group, in the case of Intra-Group Liabilities unless an Acceleration Event has occurred and is continuing in which case such action shall only be permitted with the prior consent of an Instructing Group.

 

9. SUBORDINATED CREDITORS AND SUBORDINATED LIABILITIES

 

9.1 Restriction on Payment: Subordinated Liabilities

Prior to the Final Discharge Date, neither Listco nor any other Debtor shall, and Listco shall procure that no other member of the Group will, make any Payment of the Subordinated Liabilities at any time unless:

 

  (a) that Payment is permitted under Clause 9.2 ( Permitted Payments: Subordinated Liabilities ); or

 

  (b) the taking or receipt of that Payment is permitted under Clause 9.7 ( Permitted Enforcement: Subordinated Creditors ).

 

9.2 Permitted Payments: Subordinated Liabilities

 

(a) Any member of the Group may make Payments in respect of the Subordinated Liabilities then due if:

 

  (i) the Payment is not prohibited under the Senior Secured Finance Documents and the Second Lien Debt Documents; or

 

  (ii) an Instructing Group consents to that Payment being made.

 

(b) Nothing in this Clause 9 will restrict the roll-up or capitalisation of interest on Subordinated Liabilities or the payment of interest on Subordinated Liabilities by the issue of payment-in-kind instruments (in each case to the extent constituting Subordinated Liabilities) provided that , unless otherwise permitted under the Senior Secured Finance Documents and the Second Lien Debt Documents, in any such case, there is no payment in cash or Cash Equivalents.

 

9.3 Payment obligations continue

 

(a) Neither Listco 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 9.1 ( Restriction on Payment: Subordinated Liabilities ) and 10.2 ( 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.

 

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(b) The accrual and capitalisation of interest (if any) shall continue notwithstanding the operation of Clauses 9.1 ( Restriction on Payment: Subordinated Liabilities ) and 9.2 ( Permitted Payments: Subordinated Liabilities ).

 

9.4 No acquisition of Subordinated Liabilities

Prior to the Final Discharge Date, Listco and the Debtors shall not, and Listco 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 prior to the Final Discharge Date (x) the relevant Liabilities Acquisition relates to Subordinated Liabilities (or rights, benefits and/or obligations in relation thereto) in respect of which a Payment could be made under Clause 9.2 ( Permitted Payments: Subordinated Liabilities ) and that Liabilities Acquisition is undertaken by Listco and the relevant portion of Subordinated Liabilities acquired is extinguished on, or substantially contemporaneously with, the completion of that Liabilities Acquisition, (y) the consent of an Instructing Group is obtained or (z) that action is not prohibited by the Debt Documents.

 

9.5 Security: Subordinated Creditors

 

(a) Subject to paragraph (b) below, the Subordinated Creditors 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 any of the Subordinated Liabilities prior to the Final Discharge Date.

 

(b) The restrictions in paragraph (a) above shall not apply to a Subordinated Creditor to the extent that (x) the prior consent of an Instructing Group is obtained or (y) that Security, guarantee, indemnity or other assurance against loss is not prohibited by the Debt Documents.

 

9.6 Restriction on Enforcement: Subordinated Creditors

Subject to Clause 9.7 ( Permitted Enforcement: Subordinated Creditors ), no Subordinated Creditor shall be entitled to take any Enforcement Action in respect of any of the Subordinated Liabilities at any time prior to the Final Discharge Date without the consent of an Instructing Group.

 

9.7 Permitted Enforcement: Subordinated Creditors

After the occurrence of an Insolvency Event in relation to any member of the Group, each Subordinated Creditor may (unless otherwise directed by the Security Agent or unless the Security Agent has taken, or has given notice that it intends to take, action on behalf of that Subordinated Creditor in accordance with Clause 10.5 ( Filing of claims )) exercise any right it may otherwise have in respect of that member of the Group to:

 

  (a) accelerate any of that member of the Group’s Subordinated Liabilities or declare them prematurely due and payable or 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 Subordinated Liabilities;

 

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  (c) exercise any right of set-off or take or receive any Payment in respect of any Subordinated Liabilities of that member of the Group; or

 

  (d) claim and prove in the liquidation, administration or other insolvency proceedings of that member of the Group for the Subordinated Liabilities owing to it.

 

9.8 Representations: Subordinated Creditor

Each Subordinated Creditor represents and warrants to the Senior Secured Creditors, the Security Agent and each Agent that:

 

  (a) it is a corporation, duly incorporated or formed and validly existing under the laws of its jurisdiction of incorporation or formation; and

 

  (b) subject to the Legal Reservations and the Perfection Requirements (each term as defined in the Senior Secured Facilities Agreement and construed mutatis mutandis ), the obligations expressed to be assumed by it in this Agreement are legal, valid, binding and enforceable obligations.

 

10. EFFECT OF INSOLVENCY EVENT

 

10.1 Credit Facility Cash Cover

This Clause 10 is subject to Clause 15.3 ( Treatment of Credit Facility Cash Cover and Credit Facility Lender Cash Collateral ).

 

10.2 Payment of distributions

 

(a) After the occurrence of an Insolvency Event in relation to any member of the Group, any Senior Secured Creditor, Second Lien Debt Creditor and any Subordinated Party entitled to receive a distribution out of the assets of that member of the Group in respect of Liabilities owed to that Senior Secured Creditor or that Second Lien Debt Creditor or, as the case may be, that Subordinated Party shall, subject to receiving payment instructions and any other information from the Security Agent necessary to enable it to make that payment following a request for the same made to the Security Agent at such time and to the extent it is able to do so, including pursuant to applicable law and regulation, direct the person responsible for the distribution of the assets of that member of the Group to pay that distribution to the Security Agent until the Liabilities owing to the Secured Parties have been paid in full.

 

(b) The Security Agent 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 Group’s Liabilities are discharged by way of set-off (mandatory or otherwise) after the occurrence of an Insolvency Event in relation to that member of the Group, any Senior Secured Creditor, any Second Lien Debt Creditor and any Subordinated Party which benefited from that set-off shall, subject to receiving payment instructions and any other information from the Security Agent necessary to enable it to make that payment following a request for the same made to the Security Agent at such time, pay an amount equal to the amount of the Liabilities owed to it which are discharged by that set-off to the Security Agent for application in accordance with Clause 15 ( Application of proceeds ).

 

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10.4 Non -cash distributions

If the Security Agent 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 are actually applied towards the Liabilities.

 

10.5 Filing of claims

After the occurrence of an Insolvency Event in relation to any member of the Group, each Senior Secured Creditor, each Second Lien Debt Creditor and each Subordinated Party irrevocably authorises the Security Agent (acting in accordance with Clause 10.7 ( Security Agent instructions )), on its behalf, to:

 

  (a) take any Enforcement Action (in accordance with the terms of this Agreement) against that member of the Group;

 

  (b) demand, sue, prove and give receipt for any or all of that member of the Group’s Liabilities;

 

  (c) collect and receive all distributions on, or on account of, any or all of that member of the Group’s Liabilities; and

 

  (d) file claims, take proceedings and do all other things the Security Agent considers reasonably necessary to recover that member of the Group’s Liabilities.

 

10.6 Senior Secured Creditors’, Second Lien Debt Creditors’ and Subordinated Creditors’ actions

Each Senior Secured Creditor, each Second Lien Debt Creditor and each Subordinated Creditor will:

 

  (a) do all things that the Security Agent (acting in accordance with Clause 10.7 ( Security Agent instructions )) requests in order to give effect to this Clause 10; and

 

  (b) if the Security Agent is not entitled to take any of the actions contemplated by this Clause 10 or if the Security Agent (acting in accordance with Clause 10.7 ( Security Agent instructions )) requests that a Senior Secured Creditor, a Second Lien Debt Creditor or (as applicable) a Subordinated Creditor take that action, undertake that action itself in accordance with the instructions of the Security Agent (acting in accordance with Clause 10.7 ( Security Agent instructions )) or grant a power of attorney to the Security Agent (on such terms as the Security Agent (acting in accordance with Clause 10.7 ( Security Agent instructions )) may reasonably require) to enable the Security Agent to take such action.

 

10.7 Security Agent instructions

For the purposes of Clauses 10.5 ( Filing of claims ) and 10.6 ( Senior Secured Creditors’, Second Lien Debt Creditors’, and Subordinated Creditors’ actions ), the Security Agent shall act:

 

  (a) on the instructions of an Instructing Group; or

 

  (b) in the absence of any such instructions, as the Security Agent sees fit which may result in the Security Agent taking no action under this paragraph (b) and the Security Agent shall incur no liability for such action or inaction, as the case may be.

 

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11. TURNOVER OF RECEIPTS

 

11.1 Credit Facility Cash Cover

This Clause 11 is subject to Clause 15.3 ( Treatment of Credit Facility Cash Cover and Credit Facility Lender Cash Collateral ).

 

11.2 Turnover by the Creditors and the Subordinated Creditors

Subject to Clauses 11.3 ( Exclusions ) and 11.4 ( Permitted assurance and receipts ), if at any time prior to the Final Discharge Date, any Creditor or Subordinated Creditor receives or recovers:

 

  (a) any Payment or distribution of, or on account of or in relation to, 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 litigation or proceedings against a member of the Group, Debtor or any Non Debtor Security Provider (other than after the occurrence of an Insolvency Event in respect of that member of the Group, Debtor or, as the case may be, Non Debtor Security Provider); or

 

  (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) proceeds in connection with the realisation or enforcement (or any transaction in lieu thereof) of all or any part of the 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 or Subordinated 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 Agent and,

 

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  subject to receiving payment instructions and any other information from the Security Agent necessary to enable it to make that payment following a request for the same made to the Security Agent at such time, promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement; and

 

  (B) subject to receiving payment instructions and any other information from the Security Agent necessary to enable it to make that payment following a request for the same made to the Security Agent at such time, promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Agent 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, subject to receiving payment instructions and any other information from the Security Agent necessary to enable it to make that payment following a request for the same made to the Security Agent at such time, promptly pay an amount equal to that receipt or recovery to the Security Agent for application in accordance with the terms of this Agreement.

 

11.3 Exclusions

Clause 11.2 ( Turnover by the Creditors and the Subordinated 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;

 

  (b) by an Ancillary Lender by way of that Ancillary Lender’s 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);

 

  (c) of funds by the Security Agent or any other Agent in respect of the Liabilities or, as applicable, Agent Liabilities, owed to it for its own account;

 

  (d) in respect of any Senior Secured Notes Trustee Amounts (or any equivalent or analogous amounts in respect of any Pari Passu Debt Representative in connection with any Pari Passu Debt Note), or any Second Lien Debt Notes Trustee Amounts.

 

  (e) in the case of:

 

  (i) any Senior Secured Notes, that has been distributed by the relevant Senior Secured Notes Trustee to the Senior Secured Noteholders in accordance with the relevant Senior Secured Notes Finance Documents;

 

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  (ii) any Pari Passu Debt Note, that has been distributed by the relevant Pari Passu Debt Representative to the relevant Pari Passu Debt Creditors in accordance with the relevant Pari Passu Debt Documents; or

 

  (iii) any Second Lien Debt Notes, that has been distributed to the Second Lien Debt Noteholders in accordance with the relevant Second Lien Debt Documents,

unless the relevant Senior Secured Notes Trustee, the relevant Pari Passu Debt Representative or, as the case may be, the relevant Second Lien Debt Notes Trustee has been provided with notice that the receipt or recovery falls within Clause 11.2 ( Turnover by the Creditors and the Subordinated Creditors ) prior to distribution of the relevant amount;

 

  (f) from any refinancing subject to Clause 7 ( New Credit Facilities, Pari Passu Debt, Second Lien Debt and Hedging Agreements ); or

 

  (g) for the avoidance of doubt, in relation to any escrow arrangements referred to in paragraph (q) of Clause 1.2 ( Construction ) and any security in respect thereof.

 

11.4 Permitted assurance and receipts

Nothing in this Agreement shall restrict the ability of any Senior Creditor or Subordinated 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 18 ( Changes to the Parties ), which:

 

  (i) is permitted or not prohibited by (as applicable) the Senior Secured Finance Documents and the Second Lien Debt Documents; and

 

  (ii) is not in breach of Clause 9.4 ( No acquisition of Subordinated Liabilities ),

and that Senior Creditor or Subordinated 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 receives or recovers any sum which, under the terms of any of the Debt Documents, should have been paid to the Security Agent, that Debtor will:

 

  (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 Agent and, unless otherwise agreed by the Security Agent and subject to receiving payment instructions and any other information from the Security Agent necessary to enable it to make that payment following a request for the same made to the Security Agent at such time, promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement; and

 

  (b) unless otherwise agreed by the Security Agent and subject to receiving payment instructions and any other relevant information from the Security Agent, promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Agent for application in accordance with the terms of this Agreement.

 

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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, Subordinated Creditor or Debtor will, unless otherwise agreed by the Security Agent and subject to receiving payment instructions and any other information from the Security Agent necessary to enable it to make that payment following a request for the same made to the Security Agent at such time, promptly pay an amount equal to that receipt or recovery to the Security Agent to be held on trust by the Security Agent for application in accordance with the terms of this Agreement.

 

12. REDISTRIBUTION

 

12.1 Recovering Creditor’s rights

 

(a) Any amount paid by a Creditor or Subordinated Creditor (a “ Recovering Creditor ”) to the Security Agent 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 Agent, each Agent and the Senior Secured Creditors (each a “ Sharing Creditor ”) in accordance with the terms of this Agreement.

 

(b) On a distribution by the Security Agent under paragraph (a) above of a Payment received by a Recovering Creditor from a Debtor, as between the relevant Debtor and the Recovering Creditor an amount equal to the amount received or recovered by the Recovering Creditor and paid to the Security Agent (the “ Shared Amount ”) will be treated as not having been paid by that Debtor.

 

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 and is repaid by that Recovering Creditor to that Debtor, then:

 

  (i) each Sharing Creditor shall, upon request of the Security Agent, pay to the Security Agent 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 and each relevant Sharing Creditor, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Debtor.

 

(b) The Security Agent 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

 

(a)

No Creditor or Debtor 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

 

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  by way of subrogation 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, owing to each Creditor) have been irrevocably paid in full.

 

(b) No Subordinated Party will exercise any rights which it may have to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights under the Debt Documents of any Creditor until such time as all of the Liabilities owing to each Creditor have been irrevocably paid in full.

 

13. ENFORCEMENT OF TRANSACTION SECURITY

 

13.1 Credit Facility Cash Cover

This Clause 13.1 is subject to Clause 15.3 ( Treatment of Credit Facility Cash Cover and Credit Facility Lender Cash Collateral ).

 

13.2 Enforcement Instructions

 

(a) The Security Agent may refrain from enforcing the Transaction Security unless instructed otherwise by an Instructing Group or, if required under paragraph (c) below, the Requisite Majority of the Second Lien Debt Creditors.

 

(b) Subject to the Transaction Security having become enforceable in accordance with its terms, an Instructing Group (or, to the extent permitted under paragraph (c) below, the Requisite Majority of the Second Lien Debt Creditors) may give or refrain from giving instructions to the Security Agent to enforce or refrain from enforcing the Transaction Security as it sees fit.

 

(c) Prior to the Senior Secured Discharge Date and subject to the Transaction Security becoming enforceable in accordance with its terms:

 

  (i) if an Instructing Group has instructed the Security Agent not to enforce or to cease enforcing the Transaction Security; or

 

  (ii) in the absence of instructions from an Instructing Group (subject to any time period for the giving of instructions by an Instructing Group contained in this Agreement (including, without limitation, any Consultation Period)),

and, in each case, an Instructing Group has not required any Debtor to make a Distressed Disposal, the Security Agent shall give effect to any instructions to enforce the Transaction Security which the Requisite Majority of the Second Lien Debt Creditors who are then entitled to give to the Security Agent under Clause 6.10 ( Permitted Second Lien Debt Enforcement ).

 

(d) The Requisite Majority of the Second Lien Debt Creditors shall only be entitled to give instructions to the Security Agent to enforce or to refrain or cease from enforcing Transaction Security to the extent such Transaction Security is expressed to secure the Second Lien Debt Liabilities.

 

(e) The Security Agent is entitled to rely on and comply with instructions given in accordance with this Clause 13.2.

 

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13.3 Manner of enforcement

If the Transaction Security is being enforced pursuant to Clause 13.2 ( Enforcement Instructions ), the Security Agent shall enforce the Transaction Security in such manner (including, without limitation, the selection of any administrator of any Debtor to be appointed by the Security Agent) as an Instructing Group (or, to the extent permitted under paragraph (c) of Clause 13.2 ( Enforcement Instructions ), the Requisite Majority of the Second Lien Debt Creditors) shall instruct or, in the absence of any such instructions, as the Security Agent sees fit.

 

13.4 Exercise of voting rights

 

(a) Each Creditor and each Subordinated Creditor agrees with the Security Agent 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 Agent.

 

(b) The Security Agent shall give instructions for the purposes of paragraph (a) above as directed by an Instructing Group.

 

13.5 Waiver of rights

To the extent permitted under applicable law and subject to Clauses 13.2 ( Enforcement Instructions ), 13.3 ( Manner of enforcement ) and 15 ( Application of proceeds ), and paragraphs (c) and (d) of Clause 14.2 ( Distressed Disposals ), 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.

 

13.6 Consultation

Subject to Clause 13.7 ( Preservation of Security ), before giving any instructions to the Security Agent to enforce the Transaction Security or refrain or cease from enforcing the Transaction Security, the Agent(s) of the Creditors represented in the Instructing Group concerned shall consult with each other Agent of the other Senior Secured Creditors and the Security Agent (together, the “ Consulting Parties ”) in good faith about the instructions to be given by the Instructing Group for a period of 30 days from the date on which details of the proposed instructions are received by such Agents and the Security Agent (or such shorter period as each relevant Agent and the Security Agent shall agree (the “ Consultation Period ”) and only following expiry of a Consultation Period, the Instructing Group shall be entitled to give any instructions to the Security Agent to enforce the Transaction Security or refrain or cease from enforcing the Transaction Security. Following the expiry of the Consultation Period, there shall be no further obligation on the Consulting Parties to consult.

 

13.7 Preservation of Security

 

(a) Clause 13.6 ( Consultation ) shall not apply if an Event of Default is continuing and:

 

  (i) the Transaction Security has become enforceable as a result of an Insolvency Event; or

 

  (ii) the Instructing Group or one of the Senior Secured Creditor Representatives determines in good faith (and confirms the same to the Security Agent in writing) that delaying the enforcement of Transaction Security could reasonably be expected to affect the ability to enforce, or realise proceeds of, the Transaction Security materially and adversely,

 

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in which case the Security Agent shall, subject to paragraph (b) below, act in accordance with the Enforcement Instructions of the Instructing Group or, as the case may be, a Senior Secured Creditor Representative.

 

(b) Where this Clause 13.7 applies:

 

  (i) any Enforcement Instructions shall be limited to that necessary to protect or preserve the interests of the members of the Instructing Group or, as the case may be, Senior Secured Creditors on behalf of which the relevant Senior Secured Creditor Representative is acting;

 

  (ii) at the same time as any Enforcement Instructions are provided, the Instructing Group or, as the case may be, the relevant Senior Secured Creditor Representative shall provide a copy of such Enforcement Instructions to the other Agents and the Hedge Counterparties; and

 

  (iii) the Security Agent shall act in accordance with the Enforcement Instructions first received.

 

14. PROCEEDS OF DISPOSALS

 

14.1 Non-Distressed Disposals

 

(a) If, in respect of a disposal of an asset by a Debtor or an asset which is subject to the Transaction Security (including (in each case) in connection with any Permitted Reorganisation) or in respect of any other transaction:

 

  (i) prior to the Senior Secured Discharge Date, which is not prohibited under the Senior Secured Finance Documents;

 

  (ii) prior to the Second Lien Debt Discharge Date, which is not prohibited under the Second Lien Debt Documents;

 

  (iii) Listco has confirmed to the Security Agent in writing that such disposal or transaction is not so prohibited (and Listco has confirmed to the Security Agent (acting in good faith) that a release of Transaction Security is permitted under the relevant Secured Debt Documents); and

 

  (iv) that disposal or transaction is not a Distressed Disposal (a disposal or transaction satisfying the conditions set out in paragraph (a)(i) above and this paragraph (iv) being a “ Non-Distressed Disposal ”), the Security Agent is irrevocably instructed and authorised (at the cost of the relevant Debtor or Listco and without any consent, sanction, authority or further confirmation from any Creditor, Subordinated Creditor or Debtor) but subject to paragraph (b) below:

 

  (A) to release the Transaction Security or any other claim (relating to a Debt Document) over that asset;

 

  (B)

where that asset consists of shares in the capital of a Debtor or Non Debtor Security Provider, to release the Transaction Security or any other claim (relating

 

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  to a Debt Document) (in each case) over loans to or the shares (or other ownership interests in) in that Debtor or Non Debtor Security Provider or over that Debtor’s or Non Debtor Security Provider’s assets (including, for the avoidance of doubt, releasing any Transaction Security Document to which that Debtor or Non Debtor Security Provider is party, in so far as it relates to that Debtor or Non Debtor Security Provider) and (if any, and to the extent being disposed of) loans to or over the shares (or other ownership interests in) in the Subsidiaries of that Debtor or Non Debtor Security Provider and their respective assets (including, for the avoidance of doubt, releasing any Transaction Security Document to which such Subsidiary is party, in so far as it relates to that Subsidiary);

 

  (C) to execute and deliver or enter into any release of the Transaction Security or any claim described in paragraphs (A) and (B) 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 Agent, be considered necessary or desirable or as may be requested by Listco (acting reasonably); and

 

  (D) to grant a consent for a sale, lease, transfer or disposal of any asset subject to Transaction Security governed by Swedish law if such sale, lease, transfer or disposal requires the prior written consent of the Security Agent under the Finance Documents.

 

(b) If that Non-Distressed Disposal is not made, each release of Transaction Security or any claim described in paragraph (a) above shall have no effect and the Transaction Security or claim subject to that release shall continue in such force and effect as if that release had not been effected or, if the Security Agent reasonably believes that the Transaction Security or claim has been released and the Security Agent so requests, the relevant Debtor or Non Debtor Security Provider (and, as applicable, its respective Holding Company or, as the case may be, Holding Companies) shall promptly re-grant Transaction Security over the asset(s) in respect of which Transaction Security was so released and, to the extent possible, re-grant such claim, in each case, on the same terms mutatis mutandis as the relevant Transaction Security or claim.

 

(c) The Security Agent may rely on any certificate of Listco given pursuant to paragraph (a)(iii) above.

 

14.2 Distressed Disposals

 

(a) If a Distressed Disposal is being effected, the Security Agent is irrevocably instructed and authorised (at the cost of the relevant Debtor or Listco and without any consent, sanction, authority or further confirmation from any Creditor, Subordinated Creditor, Debtor or Non Debtor Security Provider):

 

  (i) release of Transaction Security/non -crystallisation certificates : to release the Transaction Security or any other claim over that asset and execute and deliver or enter into any release of that Transaction Security or 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 Agent, be considered necessary or desirable;

 

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  (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:

 

  (I) its Borrowing Liabilities;

 

  (II) its Guarantee Liabilities; and

 

  (III) its Other Liabilities;

 

  (B) any Transaction Security granted by that Debtor, Non Debtor Security Provider or any Subsidiary of that Debtor over any of its assets; and

 

  (C) any other claim of a Subordinated Creditor, an Intra-Group Lender, or another Debtor or Non Debtor Security Provider over that Debtor’s assets or over the assets of any Subsidiary of that Debtor,

on behalf of the relevant Creditors, Subordinated Creditors, Debtors and Non Debtor Security Providers;

 

  (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:

 

  (I) its Borrowing Liabilities;

 

  (II) its Guarantee Liabilities; and

 

  (III) its Other Liabilities;

 

  (B) any Transaction Security granted by the Holding Company of that Holding Company over shares in that Holding Company or granted by that Holding Company or any Subsidiary of that Holding Company over any of its assets; and

 

  (C) any other claim of a Subordinated Creditor, an Intra-Group Lender or another Debtor over that Holding Company’s assets and the assets of any Subsidiary of that Holding Company,

on behalf of the relevant Creditors, Subordinated Creditors, Debtors and Non Debtor Security Providers;

 

  (iv) disposal 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 and the Security Agent decides to dispose of all or any part of:

 

  (A) the Liabilities; or

 

  (B) the Debtor Liabilities,

 

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owed by that Debtor or Holding Company or any Subsidiary of that Debtor or Holding Company:

 

  (I) (if the Security Agent does not intend that any transferee of those Liabilities or Debtor Liabilities (the “ Transferee ”) will be treated as a Senior Creditor or a Secured Party for the purposes of this Agreement), to execute and deliver or enter into any agreement to dispose of all or part of those Liabilities or Debtor Liabilities provided that notwithstanding any other provision of any Debt Document the Transferee shall not be treated as a Senior Creditor or a Secured Party for the purposes of this Agreement; and

 

  (II) (if the Security Agent does intend that any Transferee will be treated as a Senior Creditor or a Secured Party for the purposes of this Agreement), to execute and deliver or enter into any agreement to dispose of:

 

  (1) all (and not part only) of the Liabilities owed to the Senior Creditors; and

 

  (2) all or part of any other Liabilities and the Debtor Liabilities,

on behalf of, in each case, the relevant Creditors, Subordinated Creditors and Debtors;

 

  (v) 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 Agent decides to transfer to another Debtor (the “ Receiving Entity ”) all or any part of the Disposed Entity’s obligations or any obligations of any Subsidiary of that Disposed Entity in respect of:

 

  (A) the Intra-Group Liabilities;

 

  (B) the Debtor Liabilities; or

 

  (C) the Subordinated Liabilities,

to execute and deliver or enter into any agreement to:

 

  (I) agree to the transfer of all or part of the obligations in respect of those Intra-Group Liabilities, Debtor Liabilities or Subordinated Liabilities on behalf of the relevant Intra-Group Lenders, Debtors or, as the case may be, the Subordinated Creditor to which those obligations are owed and on behalf of the Debtors which owe those obligations; and

 

  (II) (provided the Receiving Entity is a Holding Company of the Disposed Entity) to accept the transfer of all or part of the obligations in respect of those Intra-Group Liabilities, Debtor Liabilities or Subordinated Liabilities on behalf of the Receiving Entity or Receiving Entities to which the obligations in respect of those Intra-Group Liabilities, Debtor Liabilities or, as the case may be, Subordinated Liabilities are to be transferred.

 

  (b) The net proceeds of each Distressed Disposal (and the net proceeds of any disposal of Liabilities or Debtor Liabilities pursuant to paragraph (a)(iv) above) shall be paid to the Security Agent for application in accordance with Clause 15 ( Application of proceeds ) as if those proceeds were the proceeds of an enforcement of the Transaction Security and, to the extent that any disposal of Liabilities or Debtor Liabilities has occurred pursuant to paragraph (a)(iv)(I) above, as if that disposal of Liabilities or Debtor Liabilities had not occurred.

 

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(c) In the case of a Distressed Disposal (or a disposal of Liabilities pursuant to paragraph (a)(iv)(I) above) effected by or at the request of the Security Agent (acting in accordance with paragraph (e) below), unless the Majority Senior Secured Creditors otherwise agree or paragraph (f) below applies, it is a further condition to any release or disposal under paragraph (a) above that:

 

  (i) the proceeds of such disposal are in cash (or substantially in cash);

 

  (ii) all claims of the Senior Secured Creditors under the Senior Secured Finance Documents against any member of the Group, Debtor or Non Debtor Security Provider and any Subsidiary of that member of the Group which are sold or disposed of pursuant to such Distressed Disposal, are unconditionally released and discharged concurrently with such sale (and are not assumed by the purchaser or one of its Affiliates), and all 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, provided that in the event of a sale or disposal of any such claim (instead of a release or discharge):

 

  (A) the applicable Instructing Group determine acting reasonably and in good faith that the Senior Secured Creditors will recover more than if such claim was released or discharged; and

 

  (B) the applicable Instructing Group serve a notice on the Security Agent notifying the Security Agent of the same, in which case the Security Agent shall be entitled immediately to sell or dispose such claim to such purchaser (or an Affiliate of such purchaser); and

 

  (iii) such sale or disposal is made:

 

  (A) pursuant to a Public Auction; or

 

  (B) a Fairness Opinion in respect of such sale or disposal is obtained and delivered to the Security Agent and each Agent.

 

(d) In the case of a Distressed Disposal (or a disposal of Liabilities pursuant to paragraph (a)(iv)(I) above) effected by or at the request of the Security Agent (acting in accordance with paragraph (e) below) at a time when any Second Lien Debt Liabilities are outstanding, unless the Majority Second Lien Debt Creditors otherwise agree, it is a further condition to any release or sale or disposal under paragraph (a) above pursuant to which any Second Lien Debt Notes Guarantee and/or any Transaction Security which is expressed to secure any Second Lien Debt Liabilities and/or any shares of a Second Lien Debt Notes Guarantor and/or any assets of a Second Lien Debt Notes Guarantor and/or any assets subject to Transaction Security expressed to secure any Second Lien Debt Liabilities are to be released and/or sold or disposed of, that either:

 

  (i) the Second Lien Debt Representative has approved that release or, as the case may be, sale or disposal; or

 

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  (ii) where any shares of a Second Lien Debt Notes Guarantor and/or any assets of a Second Lien Debt Notes Guarantor and/or any assets subject to Transaction Security expressed to secure any Second Lien Debt Liabilities are to be sold or disposed of (in each case, whether directly or indirectly):

 

  (A) the proceeds of such disposal are in cash (or substantially in cash);

 

  (B) all claims of the Senior Secured Creditors under the Senior Secured Finance Documents against such Second Lien Debt Notes Guarantor and any Subsidiary of that Second Lien Debt Notes Guarantor which are sold or disposed of pursuant to such Distressed Disposal, are unconditionally released and discharged concurrently with such sale or disposal (and are not assumed by the purchaser or one of its Affiliates), and all Security under the Security Documents in respect of such assets that are sold or disposed of is simultaneously and unconditionally released and discharged concurrently with such sale or disposal, provided that in the event of a sale or disposal of any such claim (instead of a release or discharge):

 

  (I) the applicable Instructing Group determine acting reasonably and in good faith that the Senior Secured Creditors will recover more than if such claim was released or discharged; and

 

  (II) the applicable Instructing Group serve a notice on the Security Agent notifying the Security Agent of the same, in which case the Security Agent shall be entitled immediately to sell or dispose such claim to such purchaser (or an Affiliate of such purchaser); and

 

  (C) such sale or disposal is made:

 

  (I) pursuant to a Public Auction; or

 

  (II) a Fairness Opinion in respect of such sale or disposal is obtained and delivered to the Security Agent and each Agent.

 

(e) For the purposes of paragraphs (a)(ii) to (a)(v), (c) and (d) above, the Security Agent shall act:

 

  (i) if the relevant Distressed Disposal is being effected by way of enforcement of the Transaction Security, in accordance with Clause 13.3 ( Manner of enforcement ); and

 

  (ii) in any other case:

 

  (A) on the instructions of an Instructing Group; or

 

  (B) in the absence of any such instructions, as the Security Agent sees fit.

 

(f)

If a Distressed Disposal is being effected at a time when the Second Lien Debt Creditors are entitled to give, and have given, instructions under Clause 13.2 ( Enforcement Instructions ) or Clause 13.3 ( Manner of enforcement ), the Security Agent is not authorised to release any Debtor or any Subsidiary or Holding Company of a Debtor from any Borrowing Liabilities or Guarantee Liabilities or Other Liabilities owed to any Senior Secured Creditor or to any Second Lien Debt Creditor unless those Borrowing Liabilities or Guarantee Liabilities or Other Liabilities and any other Senior Secured Creditor Liabilities or, as applicable, Second Lien Debt Liabilities, will be

 

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  paid (or repaid) in full (or, in the case of any contingent Liability relating to a Letter of Credit or an Ancillary Facility, made subject to cash collateral arrangements acceptable to the relevant Senior Secured Creditor), upon that release.

 

(g) Where Borrowing Liabilities in respect of any Senior Secured Creditor Liabilities or Second Lien Debt Liabilities would otherwise be released pursuant to paragraph (a) above, the Creditor concerned may elect to have those Borrowing Liabilities transferred to any direct or indirect Holding Company of the relevant Debtor in respect of those Borrowing Liabilities in which case the Security Agent is irrevocably authorised (to the extent legally possible and at the cost of the relevant Debtor or the relevant Holding Company and without any consent, sanction, authority or further confirmation from any Creditor or Debtor) to execute such documents as are required to so transfer those Borrowing Liabilities.

 

(h) In the case of a Distressed Disposal (or a disposal of Liabilities pursuant to paragraph (a)(iv)(I) above) effected by or at the request of the Security Agent (acting in accordance with paragraph (e) above), the Security Agent shall take reasonable care to obtain a fair market price having regard to the prevailing market conditions (though the Security Agent shall have no obligation to postpone or request the postponement of any such Distressed Disposal or disposal of Liabilities in order to achieve a higher price).

 

14.3 Creditors’, Subordinated Creditors’ and Debtors’ actions

Each Creditor, Subordinated Creditor and Debtor and Non Debtor Security Provider will:

 

  (a) do all things that the Security Agent requests in order to give effect to this Clause 14 (which shall include, without limitation, the execution of any assignments, transfers, releases or other documents that the Security Agent may consider to be necessary to give effect to the releases or disposals contemplated by this Clause 14); and

 

  (b) if the Security Agent is not entitled to take any of the actions contemplated by this Clause 14 or if the Security Agent requests that any Creditor, Subordinated Creditor or Debtor take any such action, take that action itself in accordance with the instructions of the Security Agent,

provided that the proceeds of those disposals are applied in accordance with Clause 14.1 ( Non-Distressed Disposals ) or 14.2 ( Distressed Disposals ), as the case may be.

 

15. APPLICATION OF PROCEEDS

 

15.1 Order of application

Subject to Clauses 15.2 ( Prospective liabilities ) and 15.3 ( Treatment of Credit Facility Cash Cover and Credit Facility Lender Cash Collateral ), all amounts from time to time received or recovered by the Security Agent pursuant the terms of any Debt Document (including, without limitation, Clause 10 ( Effect of Insolvency Event ) or 11 ( Turnover of receipts )) or in connection with the realisation or enforcement (or any transaction in lieu thereof) of all or any part of the Transaction Security or attributable to any Distressed Disposal or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “ Recoveries ”) shall be held by the Security Agent on trust to apply them at any time as the

 

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Security Agent (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) in payment to:

 

  (i) the Security Agent, any Receiver or any Delegate for application towards the discharge of any sums owing to any of them from any Party on a pro rata and pari passu basis between them; and

 

  (ii) each Agent on its own behalf for application towards the discharge of the Agent Liabilities due to it on a pro rata and pari passu basis between them,

on a pro rata basis and ranking pari passu between paragraphs (i) and (ii) above, including any such amounts arising in connection with any realisation or enforcement of the Transaction Security or any other Distressed Disposal taken in accordance with the terms of this Agreement or any action taken at the request of the Security Agent under Clause 10.6 ( Senior Secured Creditors’, Second Lien Debt Creditors’ and Subordinated Creditors’ actions );

 

  (b) in payment to:

 

  (i) each Credit Facility Agent on behalf of the Credit Facility Lenders it represents;

 

  (ii) each Arranger;

 

  (iii) the Hedge Counterparties;

 

  (iv) each Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders it represents; and

 

  (v) each Pari Passu Debt Representative on behalf of the Pari Passu Debt Creditors it represents,

for application towards the discharge of, respectively:

 

  (A) the Credit Facility Lender Liabilities (other than (x) the Agent Liabilities of each Credit Facility Agent and (y) the Arranger Liabilities of each Arranger) (in accordance with the terms of the Credit Facility Finance Documents) on a pro rata and pari passu basis between them;

 

  (B) the Arranger Liabilities (on a pro rata basis between the Arranger Liabilities of each Arranger) on a pro rata and pari passu basis between them;

 

  (C) the Hedging Liabilities (in proportion to each Hedge Counterparty’s Hedge Proportion) on a pro rata and pari passu basis between them;

 

  (D) the Senior Secured Notes Liabilities owed to the Senior Secured Noteholders (in accordance with the terms of the Senior Secured Notes Finance Documents) on a pro rata and pari passu basis between them; and

 

  (E) the Pari Passu Debt Liabilities (other than the Agent Liabilities of each Pari Passu Debt Representative) (in accordance with the terms of the Pari Passu Debt Documents) on a pro rata and pari passu basis between them,

 

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on a pro rata basis and pari passu between paragraphs (A), (B), (C), (D) and (E) above;

 

  (c) in payment to any Second Lien Debt Representative on behalf of the Second Lien Debt Creditors it represents for application towards the discharge of the Second Lien Debt Liabilities owed to the Second Lien Debt Creditors (in accordance with the terms of the Second Lien Debt Documents) on a pro rata and pari passu basis between them;

 

  (d) if none of the Debtors is under any further actual or contingent liability under any Senior Secured Finance Document, in payment to any person to whom the Security Agent is obliged to pay in priority to any Debtor; and

 

  (e) the balance, if any, in payment to the relevant Debtor or, as the case may be, Non Debtor Security Provider.

 

15.2 Prospective liabilities

Following a Distress Event the Security Agent may, in its discretion, hold any amount of the Recoveries not in excess of the Expected Amount (as defined below) in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit or (in relation to paragraph (b) below) until otherwise directed by an Instructing Group (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 Agent, any Receiver or any Delegate; and

 

  (b) any part of the Liabilities, the Agent Liabilities or the Arranger Liabilities,

that the Security Agent reasonably considers, in each case, might become due or owing at any time in the future (the “ Expected Amount ”).

 

15.3 Treatment of Credit Facility Cash Cover and Credit Facility Lender Cash Collateral

 

(a) Nothing in this Agreement shall prevent any Issuing Bank or Ancillary Lender taking any Enforcement Action in respect of any Credit Facility Cash Cover which has been provided for it in accordance with the relevant Credit Facility Agreement.

 

(b) To the extent that any Credit Facility 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 Credit Facility Cash Cover shall be paid to the Security Agent and shall be held by the Security Agent on trust to apply them at any time as the Security Agent (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 Credit Facility Lender Liabilities for which that Credit Facility Cash Cover was provided; and

 

  (ii) the balance, if any, in accordance with Clause 15.1 ( Order of application ).

 

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(c) To the extent that any Credit Facility 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 Credit Facility Cash Cover.

 

(d) Nothing in this Agreement shall prevent any Issuing Bank receiving and retaining any amount in respect of the Credit Facility Lender Cash Collateral provided for it in accordance with the terms of the Credit Facility Finance Documents.

 

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 Agent 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 Agent with such financial institution (including itself) and for so long as the Security Agent 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 moneys in the Security Agent’s discretion in accordance with the provisions of this Clause 15.

 

15.5 Currency conversion

 

(a) For the purpose of, or pending the discharge of, any of the Secured Obligations, the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at the Security Agent’s 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 Agent 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 Taxes 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 Agent 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 Agent:

 

  (i) may be made to the relevant Agent 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 Credit Facility Cash Cover and Credit Facility Lender 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 Agent.

 

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(b) The Security Agent is under no obligation to make the payments to a Credit Facility Agent or the Hedge Counterparties under paragraph (a) above 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 person’s share of any sum payable to or by it, the Security Agent shall be entitled:

 

  (a) notionally to convert the Liabilities owed to any person into a common base currency (decided in its discretion by the Security Agent), that notional conversion to be made at the spot rate at which the Security Agent 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) to 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.

 

15.9 Time irrelevant

The order of application of Recoveries described in Clause 15.1 ( Order of application ) shall apply irrespective of any other order or priority that would otherwise apply under the terms of any Security Document or by operation of law as a result of the date on which any Liabilities arose or the date on which any Security was created or perfected.

 

15.10 Equalisation

For the purposes of this Clause 15:

“ Enforcement Date ” means the first date (if any) on which a Senior Secured Creditor takes enforcement action of the type described in paragraph (a)(i), (a)(iii), (a)(iv) or (c) of the definition of “Enforcement Action”, to the extent not prohibited by this Agreement.

“ Exposure ” means:

 

  (a)

in relation to a Credit Facility Lender or a lender of any Pari Passu Debt Loan, the aggregate amount of its participation (if any, and without double counting) in all Utilisations outstanding under the applicable Credit Facility Agreement or, as the case may be, Pari Passu Debt Document at the Enforcement Date (assuming all contingent liabilities which have become actual liabilities since the Enforcement Date to have been actual liabilities at the Enforcement Date (but not including, for these purposes only, any interest that would have accrued from the Enforcement Date to the date of actual maturity in respect of those liabilities) and assuming any transfer of claims in respect of amounts outstanding under the revolving credit facility and each Ancillary Facility to the extent required under and in accordance with the terms of the applicable Credit Facility Agreement or, as the case may be, Pari Passu Debt Document which has taken place since the Enforcement Date) together with the aggregate amount of all accrued interest, fees and commission owed to it under the applicable Credit Facility Agreement or, as the

 

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  case may be, Pari Passu Debt Document and amounts owed to it by a Debtor in respect of any Ancillary Facility but excluding:

 

  (i) any amount owed to it by a Debtor in respect of any Ancillary Facility to the extent that that amount would not be outstanding but for a breach by that Credit Facility Lender or, as the case may be, a lender of any Pari Passu Debt Loan of any provision of clause 9 ( Ancillary Facilities ) of the Senior Secured Facilities Agreement (and any equivalent clause or provision in any other applicable Credit Facility Agreement or, as the case may be, Pari Passu Debt Document);

 

  (ii) any amount owed to it by a Debtor in respect of any Ancillary Facility to the extent (and in the amount) that Credit Facility Cash Cover has been provided by a Debtor in respect of that amount and is available to that Credit Facility Lender pursuant to the relevant Credit Facility Agreement or, as the case may be, agreement governing such Credit Facility Cash Cover; and

 

  (iii) any amount outstanding in respect of a Letter of Credit to the extent (and in the amount) that Credit Facility Cash Cover has been provided by a Debtor in respect of that amount and is available to the relevant Credit Facility Finance Party pursuant to the relevant Credit Facility Agreement or, as the case may be, agreement governing such Credit Facility Cash Cover; and

 

  (b) in relation to any other Senior Secured Creditor (other than any Hedge Counterparty), the Senior Secured Creditor Liabilities owed by the Debtors to that Senior Secured Creditor; and

 

  (c) in relation to a Hedge Counterparty:

 

  (i) if that Hedge Counterparty has terminated or closed out any hedging transaction under any Hedging Agreement in accordance with the terms of this Agreement on or prior to the Enforcement Date, the amount, if any, payable to it under that Hedging Agreement in respect of that termination or close-out as of the date of termination or close-out (taking into account any interest accrued on that amount) to the extent that amount is unpaid at the Enforcement Date (that amount to be certified by the relevant Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement); and

 

  (ii) if that Hedge Counterparty has not terminated or closed out any hedging transaction under any Hedging Agreement on or prior to the Enforcement Date the amount, if any, which would be payable to it under that Hedging Agreement in respect of that hedging transaction if the Enforcement Date 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), that amount, in each case, to be certified by the relevant Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement,

where Utilisation has the meaning given to the term “Utilisation” in the applicable Credit Facility Agreement or, as the case may be, Pari Passu Debt Document.

 

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15.11 Implementation of equalisation

The provisions of this Clause 15 shall be applied at such time or times after the Enforcement Date as the Security Agent shall consider appropriate. Without prejudice to the generality of the preceding sentence, if the provisions of this Clause 15 have been applied before all the Liabilities have matured and/or been finally quantified, the Security Agent may elect to re-apply those provisions on the basis of revised Exposures and the Senior Secured Creditors shall make appropriate adjustment payments amongst themselves.

 

15.12 Equalisation

If, for any reason, any Senior Secured Creditor Liabilities remain unpaid after the Enforcement Date and the resulting losses are not borne by the Senior Secured Creditors in the proportions which their respective Exposures at the Enforcement Date bore to the aggregate Exposures of all the Senior Secured Creditors at the Enforcement Date, the Senior Secured Creditors (subject to, in the case of the Senior Secured Notes Trustee, paragraphs (a) and (b) of Clause 27.1 ( Liability )) will make such payments amongst themselves as the Security Agent shall require to put the Senior Secured Creditors in such a position that (after taking into account such payments) those losses are borne in those proportions.

 

15.13 Turnover of enforcement proceeds

If:

 

  (a) the Security Agent or the relevant Agent is not entitled, for reasons of applicable law, to pay amounts received pursuant to the making of a demand under any guarantee, indemnity or other assurance against loss or the enforcement of the Transaction Security to the Senior Secured Creditors but is entitled to distribute those amounts to Creditors (such Creditors, the “ Receiving Creditors ”) who, in accordance with the terms of this Agreement, are subordinated in right and priority of payment to the Senior Secured Creditors; and

 

  (b) the Senior Secured Discharge Date has not yet occurred (nor would occur after taking into account such payments), then the Receiving Creditors shall make such payments to the Senior Secured Creditors as the Security Agent shall require to place the Senior Secured Creditors in the position they would have been in had such amounts been available for application against the Senior Secured Creditor Liabilities.

 

15.14 Notification of Exposure

Before each occasion on which it intends to implement the provisions of this Clause 15, the Security Agent shall send notice to each Hedge Counterparty and each Agent in respect of Senior Secured Creditor Liabilities requesting that it notify the Security Agent of, respectively, its Exposure and the Exposure of each Senior Secured Creditor (if any).

 

15.15 Default in payment

If a Creditor fails to make a payment due from it under this Clause 15, the Security Agent shall be entitled (but not obliged) to take action on behalf of the Senior Secured Creditor(s) to whom such payment was to be redistributed (subject to being indemnified to its satisfaction by such Senior Secured Creditor(s) in respect of costs) but shall have no liability or obligation towards such Senior Secured Creditor(s), any other Senior Secured Creditor or Creditor as regards such default in payment and any loss suffered as a result of such default shall lie where it falls.

 

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16. THE SECURITY AGENT

 

16.1 Appointment by Secured Parties

 

(a) Each Secured Party irrevocably appoints the Security Agent in accordance with the following provisions of this Clause 16 to act as its agent, trustee or joint and several creditor (as the case may be) under this Agreement and with respect to the Security Documents and/or each other Senior Secured Finance Document and/or each other Second Lien Debt Document, in each case, and irrevocably authorises the Security Agent on its behalf to:

 

  (i) execute each Security Document expressed to be executed by the Security Agent on its behalf; and

 

  (ii) perform such duties and exercise such rights and powers under this Agreement and the Security Documents as are specifically delegated to the Security Agent by the terms thereof, together with such rights, powers and discretions as are reasonably incidental thereto.

 

(b) Each Secured Party confirms that:

 

  (i) the Security Agent has authority to accept on its behalf the terms of any reliance letter or engagement letter relating to any reports or letters provided in connection with the Senior Secured Finance Documents, and/or the Second Lien Debt Documents and/or (as applicable) or the transactions contemplated by the Senior Secured Finance Documents or the Second Lien Debt Documents, to bind it in respect of those reports or letters and to sign that reliance letter or engagement letter on its behalf and to the extent that reliance letter or engagement letter has already been entered into ratifies those actions; and

 

  (ii) it accepts the terms and qualifications set out in that reliance letter or engagement letter.

 

(c) The Security Agent shall have only those duties, obligations and responsibilities which are expressly specified in this Agreement and/or the Security Documents and/or each other Senior Secured Finance Document and/or each other Second Lien Debt Document, in each case, to which the Security Agent is a party (and no others shall be implied). The Security Agent’s duties under this Agreement and/or the Security Documents and/or each other Senior Secured Finance Document and/or each other Second Lien Debt Document, in each case, to which the Security Agent is a party, are solely of a mechanical and administrative nature.

 

(d) Notwithstanding paragraphs (a) to (c) above, the Security Agent, acting at its discretion and to the extent reasonably possible, may invite the Secured Parties to enter into and/or to enforce the rights of each Finance Document (including any Spanish Security Document) jointly with the Agent. For the avoidance of doubt, the provision above does not grant any right to the Secured Parties to enter into and/or to enforce the rights under each Credit Facility Finance Document (including any Spanish Security Document) jointly with the Security Agent.

 

(e) The Security Agent is released, to the extent legally possible, from any applicable restrictions on entering into any transaction as a representative of:

 

  (i) two or more principals contracting with each other; and

 

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  (ii) one or more principals with whom it is contracting in its own name.

Any Secured Party which is barred by its constitutional documents or by-laws from granting such release shall notify the Security Agent accordingly.

 

(f) The Security Agent shall be and is hereby authorised by each Secured Party to execute on behalf of itself and each Secured Party:

 

  (i) following the occurrence of the Final Discharge Date (but only including for this purpose the Pari Passu Debt Discharge Date and the Second Lien Debt Discharge Date to the extent that any Pari Passu Debt Liabilities and any Second Lien Debt Liabilities are in existence at that time), releases of all Transaction Security granted under the Security Documents; or

 

  (ii) to the extent permitted or required under the terms of any Debt Document (excluding any agreement evidencing the terms of the Intra-Group Liabilities or the Subordinated Liabilities) all necessary releases of Transaction Security under the Security Documents.

 

(g) To the extent that the Security Agent is appointed under this Clause 16 by an Italian Secured Party, each Italian Secured Party hereby:

 

  (i) appoints, with the express consent pursuant to article 1395 of the Italian Civil Code, the Security Agent to be its mandatario con rappresentanza and common representative ( rappresentante comune ) for the purpose of executing, in the name and on behalf of the Italian Secured Parties, any Security Document which is expressed to be or construed to be governed by Italian law (the “ Italian Law Security Documents ”);

 

  (ii) grants the Security Agent the power to negotiate and approve the terms and conditions of such Italian Security Documents (including any amendment or extension thereof), execute any other agreement or instrument, give or receive any notice or declaration, identify and specify to third parties the names of the Italian Secured Parties at any given date, and take any other action in relation to the creation, perfection, maintenance, enforcement and release of the security created thereunder in the name and on behalf of the Italian Secured Parties;

 

  (iii) authorises the Security Agent to exercise such rights, powers and discretions as are specifically delegated to the Security Agent by the terms hereof in relation to the Italian Law Security Documents together with all rights, powers and discretions as are reasonably incidental thereto or necessary to give effect to the provisions contained herein;

 

  (iv) confirms that in the event that any security created under the Italian Security Documents remains registered in the name of an Italian Secured Party after it has ceased to be an Italian Secured Party, then the Security Agent shall remain empowered to execute a release of such security in its name and on its behalf; and

 

  (v) undertakes to ratify and approve any such action taken in the name and on behalf of the Italian Secured Parties by the Security Agent acting in its appointed capacity.

 

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16.2 Trust

 

(a) Unless expressly provided to the contrary, the Security Agent declares that it shall hold the Security Property on trust for the Secured Parties on the terms contained in this Agreement.

 

(b) Subject to paragraph (c) below, paragraph (a) above shall not apply to any Security Property or Security Document which is expressed to be or is construed to be governed by German law, Austrian law, Swedish law or Dutch law or to any other law under which effective Security cannot be granted in favour of the Security Agent as trustee for the Secured Parties. In the case of any Security Property or Security Document which is expressed to be or is construed to be governed by German law, the Security Agent holds any such Security as security agent under German law ( Sicherheitentreuhänder ) for the benefit of the Secured Parties and will apply all payment and other benefits received by it under a Transaction Security in accordance with the terms contained in this Agreement. In the case of any Security Property or Security Document which is expressed to be or is construed to be governed by any other such law under which effective Security cannot be granted in favour of the Security Agent as trustee for the Secured Parties, the Security Agent holds any such Security as security in the name of and on behalf of and for the benefit of the Secured Parties and will apply all payment and other benefits received by it under a Transaction Security in accordance with the terms contained in this Agreement.

 

(c) Paragraph (b) above shall not affect or limit paragraph (c) of Clause 16.3 ( Parallel Debt (covenant to pay the Security Agent) ).

 

(d) Each of the parties to this Agreement agrees that the Security Agent shall have only those duties, obligations and responsibilities expressly specified in this Agreement or in the Security Documents to which the Security Agent is expressed to be a party (and no others shall be implied).

 

16.3 Parallel Debt (covenant to pay the Security Agent)

 

(a) Each Debtor hereby irrevocably and unconditionally undertakes to owe and pay to the Security Agent amounts equal to any amounts owing from time to time by that Debtor to any Secured Party under any Senior Secured Finance Document and under any Second Lien Debt Document, as and when those amounts are due.

 

(b) Each Debtor, the Security Agent and each Secured Party acknowledge that the obligations of each Debtor under paragraph (a) above are several and are separate and independent from, and shall not in any way limit or affect, the corresponding obligations of that Debtor to any Secured Party under any Senior Secured Finance Document and under any Second Lien Debt Document (its “ Corresponding Debt ”) nor shall the amounts for which each Debtor is liable under paragraph (a) above (for the purposes of this Clause 16, its “ Parallel Debt ”) be limited or affected in any way by its Corresponding Debt provided that :

 

  (i) the Parallel Debt of each Debtor shall be decreased to the extent that its Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged;

 

  (ii) the Corresponding Debt of each Debtor shall be decreased to the extent that its Parallel Debt has been irrevocably paid or (in the case of guarantee obligations) discharged; and

 

  (iii) the amount of the Parallel Debt of a Debtor shall at all times be equal to the amount of its Corresponding Debt.

 

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(c) For the purpose of this Clause 16.3, the Security Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The Transaction Security and the Security Property granted under the Security Documents to the Security Agent to secure the Parallel Debt is granted to the Security Agent in its capacity as creditor of the Parallel Debt and shall not be held on trust.

 

(d) All moneys received or recovered by the Security Agent pursuant to this Clause 16.3, and all amounts received or recovered by the Security Agent from or by the enforcement of any Transaction Security or Security Property granted to secure the Parallel Debt, shall be applied in accordance with Clause 15.1 ( Order of application ).

 

(e) Without limiting or affecting the Security Agent’s rights against the Debtors (whether under this Clause 16.3 or under any other provision of any Senior Secured Finance Document), each Debtor acknowledges that:

 

  (i) nothing in this Clause 16.3 shall impose any obligation on the Security Agent to advance any sum to any Debtor or otherwise under any Senior Secured Finance Document or under any Second Lien Debt Document, except, if applicable, in its capacity as a Senior Secured Creditor or (if applicable) in its capacity as a Second Lien Debt Creditor; and

 

  (ii) for the purpose of any vote taken under any Senior Secured Finance Document or under any Second Lien Debt Document, the Security Agent shall not be regarded as having any participation or commitment other than, if applicable, those which it has in its capacity as a Senior Secured Creditor or in its capacity as a Second Lien Debt Creditor.

 

16.4 No independent power

Subject to Clause 15.3 ( Treatment of Credit Facility Cash Cover and Credit Facility Lender 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 Transaction Security Documents except through the Security Agent.

 

16.5 Instructions to Security Agent and exercise of discretion

 

(a) Subject to paragraphs (d) and (e) below and to Clause 13 ( Enforcement of Transaction Security ), the Security Agent shall act in accordance with any instructions given to it by an Instructing Group or, if so instructed by an Instructing Group, shall refrain from exercising any right, power, authority or discretion vested in it as Security Agent and shall be entitled to assume that (i) any instructions received by it from an Instructing Group, an Agent, the Creditors or a group of Creditors are duly given in accordance with the terms of the Debt Documents and (ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked.

 

(b) The Security Agent shall be entitled (but is not required) to request instructions, or clarification of any direction, from an Instructing Group as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Agent may refrain from acting unless and until those instructions or clarification are received by it and shall incur no liability for such inaction.

 

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(c) Save as provided in Clause 13 ( Enforcement of Transaction Security ), any instructions given to the Security Agent 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 Agent to act in a specified manner or to take a specified action;

 

  (iii) in respect of any provision which protects the Security Agent’s own position in its personal capacity as opposed to its role of Security Agent for the Secured Parties including, without limitation, the provisions set out in Clauses 16.7 ( Security Agent’s discretions ) to 16.22 ( Disapplication );

 

  (iv) in respect of the exercise of the Security Agent’s discretion to exercise a right, power or authority under any of:

 

  (A) Clause 7 ( New Credit Facilities, Pari Passu Debt, Second Lien Debt Notes and Hedging Agreements );

 

  (B) Clause 14.1 ( Non-Distressed Disposals );

 

  (C) Clause 15.1 ( Order of application );

 

  (D) Clause 15.2 ( Prospective liabilities );

 

  (E) Clause 15.3 ( Treatment of Credit Facility Cash Cover and Credit Facility Lender Cash Collateral );

 

  (F) Clause 15.6 ( Permitted deductions ); and

 

  (G) paragraph (f) of Clause 18.16 ( Resignation of a Debtor ).

 

(e) If giving effect to instructions given by an Instructing Group or by the Requisite Majority of Second Lien Debt Creditors would (in the Security Agent’s opinion acting in good faith) have an effect equivalent to an Intercreditor Amendment, the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent) 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 this Agreement where either:

 

  (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 Agent shall do so having regard to the interests of all the Secured Parties.

 

16.6 Security Agent’s actions

Without prejudice to the provisions of Clauses 13 ( Enforcement of Transaction Security ) to 16.5 ( Instructions to Security Agent and exercise of discretion ), the Security Agent may (but shall not be obliged to), in the absence of any instructions to the contrary, take such action in the exercise of any of its powers and duties under the Debt Documents as it considers in its discretion to be appropriate.

 

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16.7 Security Agent’s discretions

The Security Agent may:

 

  (a) assume (unless it has received actual notice to the contrary from a Hedge Counterparty or from one of the Agents) that (i) no Default has occurred and no Debtor 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 or it receives any other instructions from any Instructing Group (where they are so entitled to instruct), 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 Agent or by any other Secured Party and whether or not any engagement in connection therewith is limited in liability by reference to a monetary cap or otherwise) whose advice or services may at any time seem necessary, expedient or desirable;

 

  (d) act under the Debt Documents through its personnel and agents;

 

  (e) 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 or a Debtor, upon a certificate signed by or on behalf of that person; and

 

  (f) 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 by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in so acting.

 

16.8 Security Agent’s obligations

The Security Agent shall promptly:

 

  (a) copy to (i) each Agent and (ii) each Hedge Counterparty the contents of any notice or document received by it from any Debtor under any Debt Document;

 

  (b) forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party provided that , except where a Debt Document expressly provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party;

 

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  (c) inform (i) each Agent and (ii) each Hedge Counterparty of the occurrence of any Event of Default by a Debtor in the due performance of or compliance with its obligations under any Debt Document of which the Security Agent has received notice from any other party to this Agreement; and

 

  (d) to the extent that a Party (other than the Security Agent) is required to calculate a Common Currency Amount, and upon a request by that Party, notify that Party of the relevant Security Agent’s Spot Rate of Exchange.

 

16.9 Excluded obligations

Notwithstanding anything to the contrary expressed or implied in the Debt Documents, the Security Agent shall not:

 

  (a) be bound to enquire as to (i) whether or not any Default has occurred or (ii) the performance, default or any breach by a Debtor of its obligations under any of the Debt Documents;

 

  (b) 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;

 

  (c) 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;

 

  (d) 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;

 

  (e) have or be deemed to have any relationship of trust or agency with, any Debtor or any Subordinated Creditor; or

 

  (f) be required to expend or risk its own funds or otherwise incur any financial liabilities in the performance of its duties or the exercise of any right, power, authority or discretion hereunder if it has grounds for believing the repayment of such funds or adequate indemnity against or security for such risk is not reasonably assured to it.

 

16.10 Exclusion of liability

None of the Security Agent, 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 Agent 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;

 

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  (c) any losses to any person or any liability 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 an Instructing Group, an Agent or any other Senior Creditor(s) 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; or

 

  (e) any shortfall which arises on the enforcement or realisation of the Security Property.

Notwithstanding any other provisions of this Agreement, the Security Documents, the Senior Secured Finance Documents and the Second Lien Debt Documents to which the Security Agent is a party or, in no event shall the Security Agent be liable for special, indirect, punitive or consequential loss or damages of any kind whatsoever (including, but not limited to, loss of business, goodwill, opportunity or profits), whether or not foreseeable, even if the Security Agent 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.

 

16.11 No proceedings

No Party (other than the Security Agent, that Receiver or that Delegate) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, 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 Agent, a Receiver or a Delegate may rely on this Clause 16.11 subject to Clause 1.4 ( Third party rights ) and the provisions of the Third Parties Rights Act.

 

16.12 Own responsibility

Without affecting the responsibility of any Debtor for information supplied by it or on its behalf in connection with any Debt Document, each Secured Party confirms to the Security Agent 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;

 

  (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

 

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  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 Agent or by any other person under or in connection with any Debt Document, the 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 Agent that it has not relied on and will not at any time rely on the Security Agent in respect of any of these matters.

 

16.13 No responsibility to perfect Transaction Security

The Security Agent 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 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 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.

 

16.14 Insurance by Security Agent

 

(a) The Security Agent 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 Agent 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 Agent is named on any insurance policy as an insured party and/or loss payee, the Security Agent 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 (if the Security Agent is in possession of the requisite information) an Agent shall have requested it to do so in writing and the Security Agent shall have failed to do so within 14 days after receipt of that request.

 

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16.15 Custodians and nominees

The Security Agent 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 Agent 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 Agent 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 person appointed by it under this Agreement or be bound to supervise the proceedings or acts of any person.

 

16.16 Acceptance of title

The Security Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any of the Debtors may have to any of the Charged Property and shall not be liable for or bound to require any Debtor to remedy any defect in its right or title.

 

16.17 Refrain from illegality

Notwithstanding anything to the contrary expressed or implied in the Debt Documents, the Security Agent 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 Agent may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.

 

16.18 Business with the Debtors

The Security Agent may accept deposits from, lend money to, and generally engage in any kind of banking or other business with any of the Debtors.

 

16.19 Winding up of trust

If the Security Agent, with the approval of each Agent 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 Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Security Documents; and

 

  (b) any Retiring Security Agent shall release, without recourse or warranty, all of its rights under each of the Security Documents.

 

16.20 Powers supplemental

The rights, powers and discretions conferred upon the Security Agent 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 Agent by general law or otherwise.

 

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16.21 Trustee division separate

 

(a) In acting as trustee or agent for the Secured Parties, the Security Agent 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 Agent, it may be treated as confidential to that division or department and the Security Agent shall not be deemed to have notice of it.

 

16.22 Disapplication

Section 1 of the Trustee Act 2000 (the “ Act ”) shall not apply to the duties of the Security Agent 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.

 

16.23 Intra-Group Lenders, Subordinated Creditors and Debtors: power of attorney

Each Intra-Group Lender, Subordinated Creditor and Debtor by way of security for its obligations under this Agreement irrevocably appoints the Security Agent to be its attorney to do (until the Final Discharge Date) anything which that Intra-Group Lender, Subordinated Creditor or Debtor has authorised the Security Agent 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 Agent may delegate that power on such terms as it sees fit) and each of them hereby ratifies anything done or purported to be done by the Security Agent pursuant to this Clause 16.23. For the purposes of acting as their agent in accordance with this Clause, each of the Intra-Group Lenders, Subordinated Creditors and Debtors exempts the Security Agent from any restrictions imposed by Section 181 of the German Civil Code (and any equivalent restriction under any other applicable law) in this respect.

 

16.24 Appointment of the Security Agent as agent and administrator in relation to Spanish Security Documents

 

(a) In relation to the Spanish Security Documents, the Security Agent shall:

 

  (i) accept, hold, administer and (subject to the same having become enforceable and to the terms of this Agreement) enforce and release any such Spanish Security Document granted transferred or assigned or otherwise granted under a non-accessory security right to the Secured Parties or to the Security Agent in its own name as 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) release in the name of and on behalf of the Secured Parties any Spanish Security Document 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 Agent) hereby authorises the Security Agent to accept as its representative any mortgage, pledge or other creation of any accessory security

 

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  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 mortgage, pledge or any other accessory security right.

 

(c) 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.

 

(d) The Security Agent 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.

 

(e) Each Secured Party hereby irrevocably authorises the Security Agent 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 Documents and the perfection and monitoring of the Spanish Security Documents, including but not limited to, any share pledge, mortgage, assignment or transfer of title for security purposes. The Security Agent 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 Security Document in one or more accounts opened by the Security Agent for such purpose, and the Security Agent shall thereafter distribute any such amounts due to the Secured Parties in accordance with the provisions of this Agreement.

 

(f) 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, the relationship of the Secured Parties to the Security Agent in relation to any Spanish Security Document 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 shall have full force and effect between the Parties.

 

17. CHANGE OF SECURITY AGENT AND DELEGATION

 

17.1 Resignation of the Security Agent

 

(a) The Security Agent may with the consent of Listco (not to be unreasonably withheld or delayed) resign and appoint one of its affiliates as successor by giving notice to Listco and the Senior Secured Creditors and, to the extent any Transaction Security secures any Second Lien Debt Liabilities, each Second Lien Debt Representative.

 

(b)

Alternatively, the Security Agent may, after consultation with Listco for not less than 30 days, or such shorter period as Listco and the Security Agent may agree or as may be required in order to allow the Security Agent to comply with applicable law and/or regulation, resign by giving notice to the other Parties, or be removed in accordance with paragraph (g) below without appointing a successor, in which case (prior to the Credit Facility Discharge Date), each relevant

 

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  Credit Facility Agent (in consultation with Listco) or (after the Credit Facility Discharge Date and prior to the Senior Secured Discharge Date) each Senior Secured Notes Trustee and, if applicable, each Pari Passu Debt Representative (in each case after consultation with Listco) or (after the Senior Secured Discharge Date) and each Second Lien Debt Representative (in consultation with Listco) may appoint a successor Security Agent on behalf of the Secured Parties.

 

(c) If a Credit Facility Agent or (after the Credit Facility Discharge Date and prior to the Senior Secured Discharge Date) each Senior Secured Notes Trustee and, if applicable, each Pari Passu Debt Representative or (after the Senior Secured Discharge Date and the Pari Passu Debt Discharge Date) each Second Lien Debt Representative have not appointed a successor Security Agent in accordance with paragraph (b) above within 30 days after the notice of resignation was given, the Security Agent (after consultation with Listco and the Agents) may appoint a successor Security Agent.

 

(d) The retiring Security Agent (the “ Retiring Security Agent ”) shall, at its own cost (or at the cost of the Debtors if it is removed pursuant to paragraph (g) below), make available to the successor Security Agent such documents and records and provide such assistance as the retiring Security Agent and the successor Security Agent both agree is necessary for the purposes of performing its functions as Security Agent under the Debt Documents.

 

(e) The Security Agent’s resignation notice shall only take effect upon (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 Agent shall be discharged from any further obligation in respect of the Debt Documents (other than its obligations under paragraph (b) of Clause 16.19 ( 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 Agent, remain entitled to the benefit of Clauses 16 ( The Security Agent ), 22.1 ( Debtors’ indemnity ) and 22.3 ( Senior 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) After consultation with Listco, each relevant Credit Facility Agent or (after the Credit Facility Discharge Date and prior to the Final Discharge Date) each Senior Secured Notes Trustee and, if applicable, each Pari Passu Debt Representative or (after the Senior Secured Discharge Date and the Pari Passu Debt Discharge Date) each Second Lien Debt Representative (to the extent there are any Second Lien Debt Liabilities at that time) may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above.

 

17.2 Delegation

 

(a) Each of the Security Agent, 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 Agent, that Receiver or that

 

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  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.

 

17.3 Additional Security Agents

 

(a) The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or agent, or as a co-trustee or co-agent, as the case may be, 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 Agent deems to be relevant or (iii) for obtaining or enforcing any judgment in any jurisdiction, and the Security Agent shall give prior notice to Listco and each Agent of that appointment.

 

(b) Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Agent by this Agreement) and the duties and obligations that are conferred or imposed by the instrument of appointment.

 

(c) The remuneration that the Security Agent 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 fees, costs and expenses incurred by the Security Agent.

 

(d) If any Transaction Security is held by a person other than the Security Agent, then the applicable Senior Secured Creditors or, as the case may be, the Second Lien Debt Creditors may only enforce that Transaction Security in accordance with instructions given by an Instructing Group in accordance with Clause 13 ( Enforcement of Transaction Security ) (and for this purpose references to the Security Agent shall be construed as references to such person).

 

18. CHANGES TO THE PARTIES

 

18.1 Assignments and transfers

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 18.

 

18.2 Change or resignation of Subordinated Creditor

 

(a) Subject to Clause 9.4 ( No acquisition of Subordinated Liabilities ), a Subordinated Creditor may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of the Subordinated Liabilities owed to it provided that :

 

  (a) the prior consent of an Instructing Group is obtained; or

 

  (b) any assignee or transferee has (if not already party to this Agreement as a Subordinated Creditor) acceded to this Agreement, as a Subordinated Creditor, pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

(b)

In the event that a person party to this Agreement as a Subordinated Creditor is no longer a creditor in respect of any Subordinated Liabilities, that person may resign (and will resign if required by Listco) as a Subordinated Creditor by giving notice to the Security Agent and Listco. From the date of receipt by the Security Agent and Listco of any such notice of resignation, that person shall cease to be party to this Agreement as a Subordinated Creditor and shall have no

 

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  further rights or obligations under this Agreement as a Subordinated Creditor. For the avoidance of doubt, this paragraph (b) and any resignation pursuant to it shall be without prejudice to (and any requirement to re-accede to this Agreement as a Subordinated Creditor pursuant to or as a consequence of the restriction contained in) any Debt Document.

 

18.3 New Subordinated Creditor

A person shall become a Subordinated Creditor if it accedes to this Agreement as a Subordinated Creditor pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

18.4 Change of or new Credit Facility Lender

A Credit Facility Lender may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Credit Facility Finance Documents or the Liabilities if:

 

  (a) that assignment or transfer is in accordance with the terms of the relevant Credit Facility Agreement to which it is a party; and

 

  (b) any assignee or transferee has (if not already party to this Agreement as a Credit Facility Lender) acceded to this Agreement, as a Credit Facility Lender, pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

18.5 New Credit Facility Lenders and Creditor Representatives

 

(a) In order for any loan or credit facility (other than the Senior Secured Facilities) to be a “New Credit Facility” for the purposes of this Agreement:

 

  (i) each lender or, as the case may be, other creditor in respect of that loan or credit facility shall accede to this Agreement as a Credit Facility Lender; and

 

  (ii) the facility agent in respect of that loan or credit facility shall accede to this Agreement as the Creditor Representative in relation to that loan or credit facility, in accordance with Clause 18.9 ( Change of or new Agent, Arranger or Creditor Representative ).

 

(b) A person shall become a Credit Facility Lender if it accedes to this Agreement as a Credit Facility Lender pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

18.6 Senior Secured Notes Liabilities and/or Pari Passu Debt Liabilities

 

(a) In order for indebtedness in respect of any issuance of debt securities (or other debt capital markets issuance) to constitute “Senior Secured Notes Liabilities” or “Pari Passu Debt Liabilities” for the purposes of this Agreement, (i) the trustee in respect of those debt securities shall accede to this Agreement as the Creditor Representative in relation to those Senior Secured Notes or that Pari Passu Debt pursuant to Clause 18.9 ( Change of or new Agent, Arranger or Creditor Representative ) and (ii) the instrument constituting or evidencing such Senior Secured Notes or Pari Passu Debt must state that the document and the Senior Secured Notes or Pari Passu Debt constituted or evidenced thereby is subject to the terms of this Agreement.

 

(b) In order for indebtedness under any other loan or credit facility (but not, for the avoidance of doubt, any issuance of debt securities (or debt capital markets issuance)) to constitute “Pari Passu Debt” for the purposes of this Agreement:

 

  (i) each lender or, as the case may be, creditor in respect of that loan or credit facility shall accede to this Agreement as a Pari Passu Debt Creditor; and

 

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  (ii) each arranger in respect of that loan or credit facility shall accede to this Agreement as an Arranger; and

 

  (iii) the facility agent in respect of that loan or credit facility shall accede to this Agreement as the Creditor Representative in relation to that loan or credit facility, in accordance with Clause 18.9 ( Change of or new Agent, Arranger or Creditor Representative ).

 

(c) A lender or, as the case may be, creditor in respect of any Pari Passu Debt referred to in paragraph (b) above, may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Pari Passu Debt Documents or the Liabilities if:

 

  (i) that assignment or transfer is in accordance with the terms of the relevant Pari Passu Debt Agreement to which it is party; and

 

  (ii) any assignee or transferee has (if not already Party as a Pari Passu Debt Creditor), acceded to this Agreement as a Pari Passu Debt Creditor pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

(d) A person shall become a Pari Passu Debt Creditor if it accedes to this Agreement as a Pari Passu Debt Creditor pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

(e) For the avoidance of doubt, any Senior Secured Noteholder (and any holder of Pari Passu Debt constituted by way of any Pari Passu Debt Note) may assign, transfer or novate any of its rights and obligations to any person without the need for such person to execute and deliver a duly completed Creditor/Agent Accession Undertaking.

 

18.7 Second Lien Debt Liabilities

 

(a) In order for indebtedness in respect of any issuance of debt securities (or other debt capital markets issuance) to constitute “Second Lien Debt Liabilities” for the purposes of this Agreement, (i) the trustee in respect of the applicable Second Lien Debt Notes shall accede to this Agreement as the Creditor Representative in relation to those Second Lien Debt Notes pursuant to Clause 18.9 ( Change of or new Agent, Arranger or Creditor Representative ) and (ii) the instrument constituting or evidencing any Second Lien Debt Liabilities must state that the Second Lien Debt Notes Guarantees and/or Second Lien Debt constituted or evidenced hereby is subject to the terms of this Agreement.

 

(b) In order for indebtedness under any other loan or credit facility (but not, for the avoidance of any doubt, any issuance of debt securities (or other debt capital markets issuance)) to constitute “Second Lien Debt Liabilities” in respect of a Second Lien Debt Loan for the purposes of this Agreement:

 

  (i) each lender or, as the case may be, creditor in respect of that loan or credit facility shall accede to this Agreement as a Second Lien Debt Creditor; and

 

  (ii) the facility agent in respect of that loan or credit facility shall accede to this Agreement as the Creditor Representative in relation to that loan or credit facility, in accordance with Clause 18.9 ( Change of or new Agent, Arranger or Creditor Representative ).

 

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(c) A lender or, as the case may be, creditor in respect of any Second Lien Debt Liabilities referred to in paragraph (b) above, may assign any of its rights and benefits or transfer by novation any of its rights, benefits and obligations in respect of any Second Lien Debt Documents or the Liabilities if:

 

  (i) that assignment or transfer is in accordance with the terms of the relevant Second Lien Debt Agreement to which it is party; and

 

  (ii) any assignee or transferee has (if not already Party as a Second Lien Debt Creditor) acceded to this Agreement as a Second Lien Debt Creditor pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

(d) A person shall become a Second Lien Debt Creditor if it accedes to this Agreement as a Second Lien Debt Creditor pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

(e) For the avoidance of doubt, any Second Lien Debt Creditor may assign, transfer or novate any of its rights and obligations in respect of any Second Lien Debt Notes to any person without the need for such person to execute and deliver a duly completed Creditor/Agent Accession Undertaking.

 

18.8 Change or resignation of or new Hedge Counterparty

 

(a) A Hedge Counterparty may (in accordance with the terms of the relevant Hedging Agreement and subject to any consent required under that Hedging Agreement) transfer any of its rights and benefits or obligations in respect of the Hedging Agreements to which it is a party if any transferee has (if not already party to this Agreement as a Hedge Counterparty and a Credit Facility Agreement as a Hedge Counterparty) acceded to this Agreement as a Hedge Counterparty pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ), provided that such entity is permitted to provide (or is not prohibited from providing) such hedging arrangements pursuant to the Senior Secured Finance Documents.

 

(b) A person shall become a Hedge Counterparty if it accedes to this Agreement as a Hedge Counterparty pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

(c) In the event that a person party to this Agreement as a Hedge Counterparty is no longer providing any hedging to any of the Debtors under a Hedging Agreement, that person may resign (and will resign if required by Listco) as a Hedge Counterparty by giving notice to the Security Agent and Listco. From the date of receipt by the Security Agent and Listco of any such notice of resignation, that person shall cease to be party to this Agreement as a Hedge Counterparty and shall have no further rights or obligations under this Agreement as a Hedge Counterparty.

 

18.9 Change of or new Agent, Arranger or Creditor Representative

No person shall become an Agent, an Arranger or a Creditor Representative unless (if not already a Party) at the same time, it accedes to this Agreement as an Agent, an Arranger or a Creditor Representative, as the case may be, pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

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18.10 Change of Intra-Group Lender

Subject to Clause 8.4 ( 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, either prior to or substantially contemporaneously upon the occurrence of that assignment or transfer (and subject to Clause 18.11 ( New Intra-Group Lender )) pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

18.11 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 (or is the transferee or assignee thereof in the capacity as lender or creditor thereof) or any other member of the Group, in each case, in an aggregate amount of €5,000,000 (or its equivalent) or more which is (or will be) outstanding for more than 10 Business Days and:

 

  (a) excluding any trade credit in the ordinary course of trading; and

 

  (b) excluding any Liabilities in connection with any cash pooling, provided that no Event of Default is continuing under any Debt Document and such Liabilities are not outstanding for a period of more than 90 days,

Listco 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 18.13 ( Creditor/Agent Accession Undertaking ).

 

18.12 New Ancillary Lender

If any Affiliate of a Credit Facility Lender becomes an Ancillary Lender in accordance with clause 9.7 ( Affiliates of Lenders as Ancillary Lenders ) of the Senior Secured Facilities Agreement (or the equivalent provision of any other Credit Facility Agreement), it shall not 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 Credit Facility Lender) acceded to this Agreement as a Credit Facility Lender and to the relevant Credit Facility as an Ancillary Lender pursuant to Clause 18.13 ( Creditor/Agent Accession Undertaking ).

 

18.13 Creditor/Agent Accession Undertaking

With effect from the date of acceptance by the Security Agent and, in the case of an Affiliate of a Credit Facility Lender, the relevant Credit Facility Agent, of a Creditor/Agent Accession Undertaking duly executed and delivered to the Security Agent by the relevant acceding party or, if later, the date specified in that Creditor/Agent Accession Undertaking:

 

  (a) any Party ceasing entirely to be a Creditor, Subordinated Creditor or Agent shall be discharged from further obligations towards the Security Agent 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);

 

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  (b) as from that date, the replacement or new Creditor, Subordinated Creditor or Agent 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 Credit Facility Lender) shall also become party to the applicable Credit 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 Credit Facility Agreement as an Ancillary Lender.

 

18.14 New Debtor

 

(a) If any member of the Group:

 

  (i) incurs any Liabilities (excluding any Intra-Group Liabilities); or

 

  (ii) gives any security, guarantee, indemnity or other assurance against loss in respect of any of the Liabilities (excluding any Intra-Group Liabilities),

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 guarantee, indemnity or that other assurance or, the giving of that security.

 

(b) With effect from the date of acceptance by the Security Agent of a Debtor Accession Deed duly executed and delivered to the Security Agent by the new Debtor or, if later, the date specified in the Debtor Accession Deed, the new Debtor shall assume the same obligations and become entitled to the same rights as if it had been an original Party to this Agreement as a Debtor.

 

(c) At any time whilst (but only for so long as) any provider of any Transaction Security on a “third party” or other “non-recourse” basis (which may include, without limitation, any Non Debtor Security Provider) (a “ Third Party Security Provider ”) is a Party as a Debtor but is not party to the Senior Secured Finance Documents and the Second Lien Debt Documents as an “obligor”, notwithstanding any term of this Agreement to the contrary, Clause 28 ( Guarantee and indemnity ) shall not apply to such Third Party Security Provider without the prior consent of Listco, each Third Party Security Provider and each Hedge Counterparty.

 

(d) Notwithstanding anything to the contrary, a member of the Group shall only be required to accede to this Agreement to the extent that the relevant member of the Group becoming a Debtor would not breach any applicable law or present a material risk of liability for any member of the Group and/or its officers or directors, or give rise to a material risk of breach of fiduciary or statutory duties.

 

18.15 Additional parties

 

(a) Each of the Parties appoints the Security Agent to receive on its behalf each Debtor Accession Deed and Creditor/Agent Accession Undertaking delivered to the Security Agent and the Security Agent 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 the Senior Secured Finance Documents.

 

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(b) In the case of a Creditor/Agent Accession Undertaking delivered to the Security Agent by any new Ancillary Lender (which is an Affiliate of a Credit Facility Lender):

 

  (i) the Security Agent shall, as soon as practicable after signing and accepting that Creditor/Agent Accession Undertaking in accordance with paragraph (a) above, deliver that Creditor/Agent Accession Undertaking to the applicable Credit Facility Agent; and

 

  (ii) the relevant Credit Facility Agent shall, as soon as practicable after receipt by it, sign and accept that Creditor/Agent Accession Undertaking if it appears on its face to have been completed, executed and delivered in the form contemplated by this Agreement.

 

(c) The Security Agent and/or the relevant Creditor Representative shall be obliged to sign and accept a Debtor Accession Deed or Creditor/Agent Accession Undertaking received by it promptly after receipt by it provided that it is satisfied that it has complied with all necessary “know your customer” or similar other checks under all applicable laws and regulations in relation to the accession by the prospective Party.

 

(d) Each Party shall promptly upon the request of the Security Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Security Agent (for itself) from time to time in order for the Security Agent to carry out and be satisfied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Debt Documents.

 

(e) Listco shall provide the Security Agent with copies of each Debt Document as soon as reasonably practicable upon the request of the Security Agent if the Security Agent determines (acting reasonably and in good faith) that it requires such copy in order to exercise its rights and to discharge its obligations and duties under this Agreement.

 

18.16 Resignation of a Debtor

 

(a) Listco may request that a Debtor (other than Listco) ceases to be a Debtor by delivering to the Security Agent a Debtor Resignation Request.

 

(b) The Security Agent shall accept a Debtor Resignation Request and notify Listco and each other Party of its acceptance if:

 

  (i) Listco has confirmed to the Security Agent that the resignation of the Debtor as a borrower, issuer and/or guarantor (as the case may be) under any relevant Secured Debt Documents is not prohibited by the terms of the relevant Secured Debt Documents;

 

  (ii) to the extent that the Credit Facility Discharge Date has not occurred, the relevant Credit Facility Agent notifies the Security Agent that that Debtor is not, or has ceased to be, or substantially contemporaneously will cease to be, an Obligor (as defined in the relevant Credit Facility Agreement) or, in the case of any Third Party Security Provider referred to in paragraph (c) of Clause 18.14 ( New Debtor ), the Transaction Security granted by it has been, or substantially contemporaneously will be, released by the Security Agent (other than pursuant to paragraph (f) below);

 

  (iii) each Hedge Counterparty notifies the Security Agent that that Debtor is under no actual or outstanding obligations to that Hedge Counterparty in respect of the Hedging Liabilities (or it has consented to such resignation);

 

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  (iv) to the extent that the Senior Secured Notes Discharge Date has not occurred, each Senior Secured Notes Trustee notifies the Security Agent that the Debtor is not, or has ceased to be, or substantially contemporaneously will cease to be, the Senior Secured Notes Issuer or a guarantor of the Senior Secured Notes Liabilities;

 

  (v) to the extent that the Pari Passu Debt Discharge Date has not occurred, each Pari Passu Debt Representative notifies the Security Agent that the Debtor is not, or has ceased to be, or substantially contemporaneously will cease to be, a borrower, issuer and/or guarantor of the Pari Passu Debt Liabilities;

 

  (vi) to the extent that the Second Lien Debt Discharge Date has not occurred, each Second Lien Debt Representative notifies the Security Agent that the Debtor is not, or has ceased to be, or substantially contemporaneously will cease to be, a Second Lien Debt Notes Guarantor; and

 

  (vii) Listco confirms that that Debtor is under no actual or contingent obligations in respect of the Intra-Group Liabilities or the Subordinated Liabilities.

 

(c) No Agent may unreasonably withhold or delay any such notification. If an Agent does not provide a confirmation to the Security Agent of a kind contemplated in paragraph (b) above (or notify the Security Agent that the required confirmation cannot be given due to the fact that the relevant conditions set out in paragraph (a) above are not satisfied) within five Business Days of request by Listco, such notification shall be deemed given to the Security Agent.

 

(d) Upon notification by the Security Agent to Listco of its acceptance of the resignation of a Debtor, that member of the Group shall cease to be a Debtor and shall be deemed to be released from all obligations and shall have no further rights or obligations under this Agreement as a Debtor (including, for the avoidance of doubt, in each case, any under Clause 28 ( Guarantee and indemnity ).

 

(e) The Security Agent shall, promptly upon receipt of a Debtor Resignation Request, request the notifications required in paragraph (b) above and each Party required to give a notification under paragraph (b) above shall, promptly following receipt of the request (and provided the relevant conditions in paragraph (b) above have been met) give such notification.

 

(f) Each Party acknowledges and agrees that upon a resignation of a Debtor pursuant to this Clause 18.16, the obligations of each other Debtor under the Secured Debt Documents and the Transaction Security will be preserved for the benefit of the Secured Parties.

 

(g) Upon a resignation of a Debtor pursuant to this Clause 18.16, the Security Agent shall, on behalf of the Secured Parties and without the need for any further sanction, confirmation, authority or consent from the Secured Parties, any Creditor, Subordinated Creditor or Debtor and at the cost and request of Listco, release from the Transaction Security and the Transaction Security Documents (and issue certificates of non-crystallisation as required) any shares or other ownership interests in, any loans to, and any assets of, the Debtor which has so resigned including (for the avoidance of doubt) releasing any Transaction Security Document to which that Debtor is a party so far as it relates to that Debtor.

 

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19. COSTS AND EXPENSES

 

19.1 Transaction expenses

Listco shall, within three Business Days of demand, pay or cause to be paid to the Security Agent the amount of all fees, costs and expenses (including but not limited to legal fees, notarisation costs and disbursements) properly incurred by it (and by any Receiver or Delegate) in connection with the negotiation, preparation, printing, execution and perfection of:

 

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

 

  (b) any other Debt Documents executed after the 2017 Effective Date,

in each case subject to any limits that may be agreed from time to time in writing between the Security Agent and Listco.

 

19.2 Stamp taxes

Listco shall (or shall procure that a Debtor shall) pay and, within 10 Business Days of demand, indemnify the Security Agent and any Receiver or Delegate against any cost, loss or liability that the Security Agent or, as the case may be, any Delegate or Receiver reasonably incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Debt Document, other than any such Taxes which arise as a result of or in relation to an assignment or transfer of a party’s rights under the Debt Documents and provided that Listco and the Debtors shall not be liable for any Tax which becomes payable upon a voluntary registration made by any Secured Party if such registration is not necessary to maintain or enforce the rights of such Secured Party under the relevant Debt Document.

 

19.3 Austrian stamp taxes

 

(a) Subject to paragraph (b) below, the Parties hereto agree that no Party shall:

 

  (i) bring, send to or otherwise produce in Austria an original copy, notarised copy, certified copy or a substitute documentation ( Ersatzbeurkundung und/oder rechtsbezeugende Beurkundung ) of any Debt Document or other document which refers to any Debt Document;

 

  (ii) bring, send to or otherwise produce in Austria a copy of any Debt Document or other document which refers to any Debt Document signed or endorsed by one or more Parties (the “ Stamp Duty Sensitive Documents ”);

 

  (iii) send Stamp Duty Sensitive Documents to an Austrian addressee by fax;

 

  (iv) send any e-mail communication to which an electronic scan copy (e.g., pdf or tif) of a stamp duty sensitive document is attached to an Austrian addressee; or

 

  (v) send any e-mail communication carrying an electronic or digital signature which refers to a stamp duty sensitive document to an Austrian addressee.

 

(b) Paragraph (a) above will not apply in the event that:

 

  (i) any action referred to in paragraph (a) above does not create a liability on behalf of any Party to pay stamp duty or other Taxes in Austria;

 

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  (ii) a Party wishes to enforce any of its rights under or in connection with such Debt Document in Austria and is only able to do so (including, without limitation, for reason of any objection or defence raised by a Debtor in any form of proceedings in Austria) by bringing, sending to or otherwise producing in Austria (x) an original copy, notarised copy or certified copy of the relevant Debt Document or other document which refers to any Debt Document; or (y) a copy of any Debt Document or other document which refers to any Debt Document signed or endorsed by one or more Party and it would not be sufficient for that Party to bring, send to or otherwise produce in Austria a simple copy (a copy which is not an original copy, notarised copy or certified copy) of the relevant Debt Document or other document which refers to any Debt Document for the purposes of such enforcement. In furtherance of the foregoing, a Party shall not object to the introduction into evidence of an uncertified copy of any Debt Document or other document which refers to any Debt Document or raise a defence to any action or to the exercise of any remedy on the basis of an original or certified copy of any Debt Document or other document which refers to any Debt Document not having been introduced into evidence, unless such uncertified copy actually introduced into evidence does not accurately reflect the content of the original document, and if such Party is a party to the proceedings before such Austrian court or authority, that Party shall confirm the accuracy ( Echtheit ) of an uncertified copy of any such Debt Document or other document which refers to any Debt Document, unless such uncertified copy actually introduced into evidence does not accurately reflect the content of the original document; or

 

  (iii) a Party is required by law, governmental body, court, authority or agency pursuant to any law or legal requirement, to bring an original or certified copy of any Debt Document or other document which refers to any Debt Document into Austria.

 

(c) If and to the extent that a breach by any Party of any obligation under paragraph (a) above results in any cost, loss or liability being incurred by any of the other Parties in relation to any Austrian stamp duty payable in respect to any Debt Document, the Party responsible for such breach shall pay and indemnify such other Parties against any such cost, loss or liability which such other Parties incur as a consequence of such breach, provided that a Secured Party shall only be liable where such cost, loss or liability is incurred as a result of its gross negligence or wilful misconduct.

 

19.4 Transfer costs and expenses

Notwithstanding any other term of this Agreement, if a Secured Party assigns or transfers any of its rights, benefits or obligations under any Secured Debt Document no member of the Group shall (unless that Secured Debt Document provides to the contrary or Listco otherwise agrees) be required to pay any fees, costs, expenses or other amounts relating to or arising in connection with that assignment or transfer (including, without limitation, any Taxes and any amounts relating to the perfection or amendment of the Transaction Security).

 

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19.5 Cost details

Notwithstanding any other term of this Agreement, no member of the Group shall be required to pay any costs or expenses unless:

 

  (a) it has first been provided with reasonable details of the circumstances giving rise to such costs and expenses and of the calculation of the relevant amount (including, where applicable, details of hours worked, rates and individuals involved); and

 

  (b) it has received evidence satisfactory to it (acting reasonably) that such costs and expenses have been properly incurred (including that all security costs relate only to Security Documents entered into, or related actions taken, in accordance with the Secured Debt Documents and approved in advance by Listco).

 

20. ENFORCEMENT AND PRESERVATION COSTS

Listco shall, within 10 Business Days of demand, pay or cause to be paid to the Security Agent (and any Receiver or Delegate) the amount of all costs and expenses (including but not limited to legal fees, notarisation costs and disbursements):

 

  (a) incurred by it in connection with the enforcement of any rights; or

 

  (b) reasonably incurred by it in connection with the preservation of any rights,

under any Debt Document and/or the Transaction Security and any proceedings instituted by or against the Security Agent or, as the case may be, any Receiver or Delegate as a consequence of taking or holding the Transaction Security or enforcing these rights (excluding any costs and expenses arising as a result of the Security Agent’s gross negligence, wilful misconduct or wilful default).

 

21. SPECIAL PROVISIONS REGARDING ENFORCEMENT UNDER THE LAWS OF SPAIN

 

21.1 Security Agent accounting

For the purposes of the Debt Documents the Security Agent, 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 Agent 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 Agent 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.

 

21.2 Individual account of each Creditor Party

In addition to the special unified account referred to in Clause 21.1 above, 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.

 

21.3 Determination of balance due in the event of enforcement before the Spanish courts

In the event of enforcement of a Debt Document before the Spanish courts, the Security Agent shall settle the credit accounts referred to above in Clauses 21.1 above ( Security Agent accounting ) and 21.2 ( 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 21.1 ( Security Agent accounting ) and

 

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21.2 ( Individual account of each Creditor Party ) resulting from the certificate issued for such purpose by the Security Agent 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 Agent shall previously notify the Debtor in an attestable manner at least three (3) days in advance of exercising any executive action of the amount due as a result of the settlement.

 

21.4 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 Spanish Civil Procedural Law, the Parties expressly agree for purposes of Article 571, et seq., of such Spanish Civil Procedural Law that the settlement to determine the summarily enforceable debt be made by the Security Agent. 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 Agent, 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.

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 in accordance with clause 22.3 ( Enforcement and preservation costs ) of the Senior Secured Facilities Agreement.

 

21.5 Public deed

This Agreement shall be raised to public by means of a Spanish public document for the purposes contemplated in Article 517 et seq., of the Spanish Civil Procedural Law and other related provisions.”

 

22. INDEMNITIES

 

22.1 Debtors’ indemnity

Subject to any limitations applicable to any guarantee and/or indemnity obligations of any Debtor under any Debt Document to which the Security Agent is a party each Debtor shall, within 10 Business Days of demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability (together with any applicable VAT) reasonably incurred by any of them (but excluding any cost, loss or liability (and any applicable VAT) arising as a result of

 

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the Security Agent’s or such Receiver or Delegate’s gross negligence, wilful misconduct or wilful default):

 

  (a) in relation to or as a result of:

 

  (i) any failure by Listco to comply with obligations under Clause 19 ( Costs and expenses );

 

  (ii) the taking, holding, protection or enforcement of the Transaction Security in accordance with the terms of each of the Secured Debt Documents;

 

  (iii) the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent, each Receiver and each Delegate by the Debt Documents or by law; or

 

  (iv) any default by any Debtor in the performance of any of the obligations expressed to be assumed by it in the Debt Documents; or

 

  (b) which otherwise relates from the Security Agent holding Security over any of the Security Property or the performance by the Security Agent of the terms of this Agreement (otherwise than as a result of its gross negligence, wilful misconduct or wilful default).

 

22.2 Priority of indemnity

The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself (except in the case of its own gross negligence or wilful misconduct) out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in Clause 22.1 ( 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.

 

22.3 Senior Creditors’ indemnity

 

(a) Each Senior Creditor (except for (i) any Senior Secured Notes Trustee or Senior Secured Noteholder, save to the extent of any amounts payable to such Senior Secured Noteholder (or to the relevant Senior Secured Notes Trustee on its behalf by the Security Agent) or (ii) any Second Lien Debt Creditor, save to the extent of any amounts payable to such Second Lien Debt Creditor (or to the relevant Second Lien Debt Representative on its behalf by the Security Agent) or (iii) any Credit Facility Agent) shall (in the proportion that the Liabilities due to it bears to the aggregate of the Liabilities due to all the Senior Creditors for the time being (or, if the Liabilities due to each of those Senior Creditors is zero, immediately prior to their being reduced to zero)), indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Debt Documents (unless the relevant Security Agent, Receiver or Delegate has been reimbursed by a Debtor pursuant to a Debt Document) and the Debtors shall jointly and severally indemnify each Senior Creditor against any payment made by it under this Clause 22.

 

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(b) For the purposes only of paragraph (a) above:

 

  (i) references to Senior Secured Notes Trustee shall be deemed to include any Pari Passu Debt Representative who is trustee for any Pari Passu Debt Note and references to Senior Secured Noteholder shall be deemed to include any Pari Passu Debt Creditor which is a holder of any Pari Passu Debt Note;

 

  (ii) 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:

 

  (A) 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);

 

  (B) 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 on 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),

or that amount, in each case, to be certified by the relevant Hedge Counterparty and as calculated in accordance with the relevant Hedging Agreement.

 

23. INFORMATION

 

23.1 Information and dealing

 

(a) The Creditors (if applicable through their respective Agents) and the Subordinated Creditor shall provide to the Security Agent from time to time any information that the Security Agent may reasonably specify as being necessary or desirable to enable the Security Agent to perform its functions as trustee.

 

(b) Each Credit Facility Lender, each Senior Secured Noteholder, each Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) and each Second Lien Debt Creditor (other than any Second Lien Debt Representative, any arranger in respect of such Second Lien Debt Loan or the Security Agent) shall deal with the Security Agent exclusively through its Agent and the Hedge Counterparties shall deal directly with the Security Agent and shall not deal through any Agent.

 

(c) No Agent 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.

 

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23.2 Disclosure

Subject to any confidentiality obligations set out in any of the Senior Secured Finance Documents or any Second Lien Debt Documents (and applicable to it) but notwithstanding any agreement to the contrary, each of the Debtors and the Subordinated Creditors explicitly consents and explicitly waives any applicable banking secrecy rules, until the Final Discharge Date, to the disclosure by any of the Senior Creditors, the Agents, the Security Agent, each Receiver and/or Delegate to each other (whether or not through any Agent or the Security Agent) of such information concerning the Debtors and the Subordinated Creditors as any Senior Creditor, any Agents, the Security Agent, any Receiver or any Delegate shall see fit (acting reasonably), provided such disclosure is made on a confidential “need to know” basis and (i) does not breach any applicable law or regulation and (ii) prior to the taking of any Enforcement Action, would not result in a Senior Secured Noteholder, any holder of any Pari Passu Debt Note or any Second Lien Debt Noteholder (or any other Creditor which has notified its applicable Agent and the Security Agent that it does not wish to receive material non-public information) receiving any material non-public information.

 

23.3 Notification of prescribed events

 

(a) If an Event of Default under any Senior Secured Finance Document or under any Second Lien Debt Document either occurs or ceases to be continuing, the relevant Agent shall, upon becoming aware of that occurrence or cessation, notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Agent and each Hedge Counterparty.

 

(b) If an Acceleration Event occurs, the relevant Agent shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each other Party.

 

(c) If the Security Agent enforces, or takes formal steps to enforce, any of the Transaction Security, it shall notify each Party of that action.

 

(d) If any Senior 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 Agent and the Security Agent shall, upon receiving that notification, notify each Party of that action.

 

(e) 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 Agent and the Security Agent shall, upon receiving that notification, notify each Agent and each other Hedge Counterparty.

 

(f) If a Hedge Counterparty terminates or closes out, in whole or in part, any hedging transaction under any Hedging Agreement under Clause 4.8 ( Permitted Enforcement: Hedge Counterparties ), it shall notify the Security Agent and the Security Agent shall, upon receiving that notification, notify each Agent and each other Hedge Counterparty.

 

(g) If the Security Agent receives a notice under paragraph (a) of Clause 5.4 ( Option to purchase: Senior Non Credit Facility Creditors ) or under paragraph (a) of Clause 6.14 ( Option to purchase: Second Lien Debt ) it shall upon receiving that notice, notify, and send a copy of that notice to, the applicable Agents and Hedge Counterparties.

 

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(h) Promptly upon the reasonable request of any Agent, the Facility Agent shall, prior to the Senior Secured Facilities Discharge Date, notify such Agent of the meaning of a term used in this Agreement which is expressed to be defined in the Senior Secured Facilities Agreement and each Party consents to the Agent making any such disclosure notwithstanding any term of Debt Document to the contrary.

 

24. NOTICES

 

24.1 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.

 

24.2 Security Agent’s communications with Senior Creditors

The Security Agent shall be entitled to carry out all dealings:

 

  (a) with the Credit Facility Lenders, the Senior Secured Noteholders, the Pari Passu Debt Creditors (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) and the Second Lien Debt Creditors (other than any Second Lien Debt Representative and any arranger in respect of such Second Lien Debt Loan or the Security Agent) through their respective Agents and may give to the Agents, as applicable, any notice or other communication required to be given by the Security Agent to a Credit Facility Lender, a Senior Secured Noteholder, a Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) or a Second Lien Debt Creditor (other than any Second Lien Debt Representative, any arranger in respect of such Second Lien Debt Loan or the Security Agent);

 

  (b) with each Hedge Counterparty directly with that Hedge Counterparty; and

 

  (c) with each Arranger directly with that Arranger.

 

24.3 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 Listco and each Debtor that communicated to the Security Agent in writing prior to the 2017 Effective Date;

 

  (b) in the case of the Agent and the Security Agent:

Address: One Cabot Square, London, E14 4QJ

Email: London.loansagency@credit-suisse.com

Fax No: +44 20 7888 8398

Attention: Agency Desk;

 

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  (c) in the case of each other Party, that notified in writing to the Security Agent 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 Agent (or the Security Agent may notify to the other Parties, if a change is made by the Security Agent) by not less than five Business Days’ notice.

 

24.4 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 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 in accordance with Clause 24.3 ( Addresses ), if addressed to that department or officer.

 

(b) Any communication or document to be made or delivered to the Security Agent will be effective only when actually received by the Security Agent and then only if it is expressly marked for the attention of the department or officer identified with the Security Agent’s signature below (or any substitute department or officer as the Security Agent shall specify for this purpose).

 

(c) Any communication or document made or delivered to Listco in accordance with this Clause 24.4 will be deemed to have been made or delivered to each of the Debtors.

 

24.5 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 24.3 ( Addresses ) or changing its own address or fax number, the Security Agent shall notify the other Parties.

 

24.6 Electronic communication

 

(a) Any communication to be made between the Security Agent and an Agent or a Senior Creditor, under or in connection with this Agreement may be made by electronic mail or other electronic means, if the Security Agent and the relevant Agent or Senior Creditor:

 

  (i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication (with such agreement to be deemed given by each person which is a Party at the 2017 Effective Date);

 

  (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.

 

(b) Any electronic communication made between the Security Agent and an Agent or a Senior Creditor will be effective only when actually received in readable form and, in the case of any electronic communication made by an Agent or a Senior Creditor to the Security Agent, only if it is addressed in such a manner as the Security Agent may specify for this purpose.

 

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(c) If the relevant Parties agree to communicate by electronic mail or other electronic means, those Parties shall be deemed to accept that such methods of communication are not secure, and the Security Agent shall incur no liability for receiving instructions or directions via any such non-secure method.

 

24.7 Communications to be made outside Austria

Notwithstanding any other provision of the Debt Documents, any communication to be made under or in connection with the Debt Documents in relation to or addressed to an Austrian Debtor shall be made to the address and the attention of a non-Austrian group company or to any other person specified in advance by such Austrian Debtor in writing provided that the address in any case is an address located outside Austria. The foregoing sentence applies mutatis mutandis to any communication made by fax, electronic message or otherwise.

 

24.8 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 reasonably required by the Security Agent, 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.

 

25. PRESERVATION

 

25.1 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.

 

25.2 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.

 

25.3 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.

 

25.4 Waiver of defences

The provisions of this Agreement will not be affected by an act, omission, matter or thing which, but for this Clause 25.4, would reduce, release or prejudice the subordination and priorities

 

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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 or other person;

 

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

 

  (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any 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 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 Senior Creditors in whole or in part; or

 

  (h) any insolvency or similar proceedings.

 

25.5 Priorities not affected

Except as otherwise provided in this Agreement, the Transaction Security and 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 Senior 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) to the extent that such Transaction Security is expressed to secure those Liabilities, secure the Liabilities owing to the Senior 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.

 

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26. CONSENTS, AMENDMENTS AND OVERRIDE

 

26.1 Required consents

 

(a) Subject to paragraphs (b) to (d) below and Clause 26.3 ( Exceptions ), this Agreement and/or any Transaction Security Document may be amended or waived only with the written consent of:

 

  (i) if the relevant amendment or waiver (the “ Proposed Amendment ”) is prohibited by the terms of any Credit Facility Finance Document, the applicable Credit Facility Agent;

 

  (ii) if the Proposed Amendment is prohibited by the terms of any relevant Pari Passu Debt Documents, the applicable Pari Passu Debt Representative;

 

  (iii) if the Proposed Amendment is prohibited by the terms of any relevant Senior Secured Notes Indenture, the applicable Senior Secured Notes Trustee;

 

  (iv) if the Proposed Amendment is prohibited by the terms of any relevant Second Lien Debt Document, the applicable Second Lien Debt Representative;

 

  (v) if a Hedge Counterparty is providing hedging to a Debtor under a Hedging Agreement, that Hedge Counterparty (in each case only to the extent that the relevant amendment or waiver is reasonably expected to materially and adversely affect the continuing rights and/or obligations of that Hedge Counterparty in a manner different to the Creditors for the Liabilities to which that hedging relates and is an amendment or waiver which is expressed to require the consent of that Hedge Counterparty under the applicable Hedging Agreement, as notified by Listco to the Security Agent at the time of the relevant amendment or waiver);

 

  (vi) the Security Agent;

 

  (vii) the Subordinated Creditor(s); and

 

  (viii) Listco.

 

(b) For the purposes of, and to the extent required in connection with, paragraph (a) above, each Agent shall, to the extent consented to by the Requisite Majority of Credit Facility Lenders, the Requisite Majority of Senior Secured Noteholders, the Requisite Majority of Pari Passu Debt Creditors (other than any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan or the Security Agent) and/or (as applicable) the Requisite Majority of Second Lien Debt Creditors (other than any Second Lien Debt Representative and/or any arranger in respect of such Second Lien Debt Loan or the Security Agent), in each case, that such Agent represents, or to the extent otherwise authorised by the Debt Documents to which it is party, act on such instructions or authorisations in accordance therewith save to the extent any amendments so consented to or authorised relate to any provision adversely affecting the rights and/or obligations of that Agent in its capacity as such.

 

(c) Any term of this Agreement or a Security Document may be amended or waived by the Security Agent and Listco without the consent of any other Party if that amendment or waiver is:

 

  (i) to cure defects or omissions, resolve ambiguities or inconsistencies or to reflect changes of a minor technical or administrative nature;

 

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  (ii) otherwise for the benefit of all Senior Creditors;

 

  (iii) otherwise for the benefit of one class of Senior Creditor and such amendment, waiver or consent could not be reasonably expected to materially or adversely (A) effect or (B) prejudice the interests of the other classes of Senior Creditors; or

 

  (iv) pursuant to paragraph (d) (and in the circumstances permitted by paragraph (e)) of Clause 7.1 ( New Debt Financing ).

 

(d) Notwithstanding anything in any Debt Document to the contrary, a Creditor may unilaterally waive, relinquish or otherwise irrevocably give up all or any of its rights under any Debt Document with its express written consent and the consent of Listco.

 

26.2 Effectiveness

 

(a) Any amendment, waiver or consent given in accordance with this Clause 26 will be binding on all Parties.

 

(b) The Security Agent may effect, on behalf of any Creditor (other than any Intra-Group Lender and any Subordinated Creditor), any amendment, waiver or consent permitted by this Clause 26 and any other amendment, waiver or consent expressly authorised in this Agreement and each Creditor (other than any Intra-Group Lender and any Subordinated Creditor) irrevocably and unconditionally authorises and instructs the Security Agent to give effect to any such amendment waiver or consent.

 

(c) Listco may effect, on behalf of each Debtor, each Intra-Group Lender and each Subordinated Creditor, any amendment, waiver or consent permitted by this Clause 26 and any other amendment, waiver or consent expressly authorised in this Agreement and each Debtor, each Intra-Group Lender and each Subordinated Creditor irrevocably and unconditionally authorises and instructs Listco to give effect to any such amendment, waiver or consent.

 

26.3 Exceptions

 

(a) Subject to paragraphs (b) and (c) below, if the amendment, waiver or consent may impose new or additional obligations on or withdraw or reduce the rights of any Senior Creditor (other than in a way which affects or would affect Senior Creditors of that Party’s class generally) the consent of that Party is required.

 

(b) Subject to paragraphs (c) and (d) below and to paragraph (d) of Clause 26.1 ( Required consents ), an amendment, waiver or consent which adversely relates to the express rights or obligations of any Agent, an Arranger or the Security Agent (including, without limitation, any ability of the Security Agent to act in its discretion under this Agreement) may not be effected without the consent of that Agent or, as the case may be, that Arranger or the Security Agent.

 

(c) Paragraphs (a) and (b) above shall apply to an Arranger only to the extent that Arranger Liabilities are then owed to that Arranger.

 

(d) Neither paragraph (a) above, nor paragraph (a) or (b) of Clause 26.1 ( Required consents ) shall apply:

 

  (i) to any release of Transaction Security, claim or Liabilities; or

 

  (ii) to any consent, amendment or waiver,

 

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which, in each case, the Security Agent gives in accordance with Clauses 7 ( New Credit Facilities, Pari Passu Debt, Second Lien Debt and Hedging Agreements ), 14 ( Proceeds of disposals ), or paragraph (f) of Clause 18.16 ( Resignation of a Debtor ) or which occur as a consequence of the operation of Clause 18.16 ( Resignation of a Debtor ).

 

(e) Any amendment or waiver of paragraph (c) or (d) of Clause 18.14 ( New Debtor ) shall require only the consent of Listco and the Requisite Majority of Senior Secured Facilities Lenders.

 

(f) Notwithstanding any term of any Debt Document to the contrary, no consent of any Second Lien Debt Creditors shall be required to amend or waive the terms of any Transaction Security Document which is not expressed to secure any Second Lien Debt Liabilities.

 

26.4 Disenfranchisement of Listco Affiliates and Relevant Holders

 

(a) Notwithstanding any other term of this Agreement, for so long as a Listco Affiliate and/or a Relevant Holder (i) beneficially owns a Credit Facility Commitment or (ii) has entered into a sub-participation agreement relating to a Credit Facility Commitment or other agreement or arrangement having a substantially similar economic effect and such agreement or arrangement has not been terminated, in ascertaining:

 

  (i) whether the Majority Senior Secured Creditors;

 

  (ii) whether any other percentage (including, for the avoidance of doubt, unanimity) of Senior Secured Credit Participations; or

 

  (iii) whether the agreement of any other specified group of Senior Secured Creditors,

has been obtained in order to give any instruction or to approve any request for a Consent or to carry any other vote or approve any action under this Agreement, each such Credit Facility Commitment shall be deemed to be zero and that Listco Affiliate and/or Relevant Holder (as applicable) (or the person with whom it has entered into that sub-participation, other agreement or arrangement (a “ Counterparty ”)) shall be deemed not to be a Credit Facility Lender, except to the extent that (A) a Counterparty is a Credit Facility Lender by virtue otherwise than by beneficially owning the Credit Facility Commitment or (B) a Listco Affiliate or Credit Facility Lender with which a Listco Affiliate has entered into a sub-participation only, as the case may be, shall be included as a Credit Facility Lender (and its Credit Facility Commitment shall be included) and entitled to exercise any voting rights to the extent that the giving of any instruction, approval of any request for Consent or to carry any other vote or approve any action under this Agreement results or is likely to result in any participation or Credit Facility Commitment in which such Listco Affiliate or such Credit Facility Lender has an interest (as the case may be) being treated differently from the treatment of any participation or Credit Facility Commitment of any other Credit Facility Lender in the same Credit Facility.

 

(b)

Notwithstanding any other term of this Agreement, in relation to any Pari Passu Debt Agreement in respect of any Pari Passu Debt Loan which contains a provision equivalent to clause 30.2 ( Disenfranchisement on Debt Purchase Transactions ) of the Senior Secured Facilities Agreement (or any equivalent provision in relation to any member of the Group), for so long as a Listco Affiliate (as such, or equivalent, term is defined in the relevant Pari Passu Debt Agreement) and/or a Relevant Holder (as such, or equivalent, term is defined in the relevant Pari Passu Debt Agreement) (as applicable) (i) beneficially owns a Credit Facility Commitment in

 

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  respect of any such Pari Passu Debt Loan or (ii) has entered into a sub-participation agreement relating to a Credit Facility Commitment in respect of any such Pari Passu Debt Loan or other agreement or arrangement having a substantially similar economic effect and such agreement or arrangement has not been terminated, in ascertaining:

 

  (i) whether the Majority Senior Secured Creditors;

 

  (ii) whether any other percentage (including, for the avoidance of doubt, unanimity) of Senior Secured Credit Participations; or

 

  (iii) whether the agreement of any other specified group of Senior Secured Creditors,

has been obtained in order to give any instruction or to approve any request for a Consent or to carry any other vote or approve any action under this Agreement, each such Credit Facility Commitment shall be deemed to be zero and that Listco Affiliate and/or Relevant Holder (as applicable) (or the Counterparty) shall be deemed not to be a Pari Passu Debt Creditor, except to the extent that (A) a Counterparty is a Pari Passu Debt Creditor by virtue otherwise than by beneficially owning the relevant Credit Facility Commitment or (B) a Listco Affiliate or lender in respect of a Pari Passu Debt Loan (a “ Pari Passu Debt Loan Lender ”) with which a Listco Affiliate has entered into a sub-participation only, as the case may be, shall be included as a Pari Passu Debt Loan Lender (and its Credit Facility Commitment shall be included) and entitled to exercise any voting rights to the extent that the giving of any instruction, approval of any request for Consent or to carry any other vote or approve any action under this Agreement results or is likely to result in any participation or Credit Facility Commitment in which such Listco Affiliate or Pari Passu Debt Loan Lender has an interest being treated differently from the treatment of any participation or Credit Facility Commitment of any other Pari Passu Debt Loan Lender in the same facility (however described) under the relevant Pari Passu Debt Agreement.

 

(c) Notwithstanding any other term of this Agreement, in relation to any Second Lien Debt Agreement in respect of any Second Lien Debt Loan which contains a provision equivalent to clause 30.2 ( Disenfranchisement on Debt Purchase Transactions ) of the Senior Secured Facilities Agreement (or any equivalent provision in relation to any member of the Group), for so long as a Listco Affiliate (as such, or equivalent, term is defined in the relevant Second Lien Debt Agreement) and/or a Relevant Holder (as such, or equivalent, term is defined in the relevant Second Lien Debt Agreement) (as applicable) (i) beneficially owns a Second Lien Debt Loan Commitment in respect of any such Second Lien Debt Loan or (ii) has entered into a sub-participation agreement relating to a Second Lien Debt Loan Commitment in respect of any such Second Lien Debt Loan or other agreement or arrangement having a substantially similar economic effect and such agreement or arrangement has not been terminated, in ascertaining:

 

  (i) whether the Consent of the Majority Second Lien Debt Creditors;

 

  (ii) whether any other percentage (including, for the avoidance of doubt, unanimity) of Second Lien Debt Credit Participations; or

 

  (iii) whether the agreement of any other specified group of Second Lien Debt Creditors,

has been obtained in order to give any instruction or to approve any request for a Consent or to carry any other vote or approve any action under this Agreement, each such Second Lien Debt

 

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Loan Commitment shall be deemed to be zero and that Listco Affiliate and/or Relevant Holder (as applicable) (or the Counterparty) shall be deemed not to be a Second Lien Debt Creditor, except to the extent that (A) a Counterparty is a Second Lien Debt Creditor by virtue otherwise than by beneficially owning the relevant Second Lien Debt Loan Commitment or (B) a Listco Affiliate or a Second Lien Debt Loan Lender with which a Listco Affiliate has entered into a sub-participation only, as the case may be, shall be included as a Second Lien Debt Loan Lender (and its Second Lien Debt Loan Commitment shall be included) and entitled to exercise any voting rights to the extent that the giving of any instruction, approval of any request for Consent or to carry any other vote or approve any action under this Agreement results or is likely to result in any participation or Second Lien Debt Loan Commitment in which such Listco Affiliate or Second Lien Debt Loan Lender has an interest being treated differently from the treatment of any participation or Second Lien Debt Loan Commitment of any other Second Lien Debt Loan Lender in the same facility (however described) under the relevant Second Lien Debt Agreement.

 

(d) For so long as any Senior Secured Notes Issuer, any Guarantor (as defined in the relevant Senior Secured Notes Indenture) or any person that directly or indirectly controls, is controlled by or is under direct or indirect common control of such entities owns any Original Senior Secured Notes (or any additional Senior Secured Notes issued pursuant to the same Senior Secured Notes Indenture as that applicable to the Original Senior Secured Notes (the “ Original Senior Secured Notes Indenture ”)) and/or (to the extent that the applicable indenture includes a provision equivalent to section 12.04 of the Original Senior Secured Notes Indenture) any other Senior Secured Notes, any Pari Passu Debt Note or any Second Lien Debt Notes, in ascertaining:

 

  (i) whether the Consent of the Majority Senior Secured Creditors;

 

  (ii) whether the Consent of the Majority Second Lien Debt Creditors;

 

  (iii) whether any other percentage (including, for the avoidance of doubt, unanimity) of Senior Secured Credit Participations or, as applicable, Second Lien Debt Credit Participations; or

 

  (iv) whether the agreement of any other specified group of Senior Secured Creditors or, as applicable, Second Lien Debt Creditors in respect of any Second Lien Debt Notes,

has been obtained in order to approve any request for a Consent or to carry any other vote or approve any action under this Agreement, the holding of Senior Secured Notes, Pari Passu Debt Notes or, as applicable, Second Lien Debt Notes of that entity shall be deemed to be zero and that entity shall be deemed not to be a Senior Secured Noteholder, a Pari Passu Debt Creditor nor, as applicable, a Second Lien Debt Creditor in respect of any Second Lien Debt Notes.

 

26.5 Snooze/Lose

 

(a) Subject to paragraph (b) below, if in relation to:

 

  (i) a request for a Consent in relation to this Agreement;

 

  (ii) a request to participate in any other vote under the terms of this Agreement;

 

  (iii) a request to approve any other action under this Agreement; or

 

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  (iv) a request to provide any confirmation or notification under this Agreement,

any Credit Facility Lender, any lender in respect of any Pari Passu Debt Loan or any Second Lien Debt Loan Lender (a “ Secured Lender ”):

 

  (A) fails to respond to that request within 10 Business Days of that request being made; or

 

  (B) fails to provide details of its Senior Secured Credit Participations or its Second Lien Debt Credit Participation to the Security Agent within the timescale specified by the Security Agent:

 

  (I) in the case of paragraphs (i) to (iii) above, the relevant Senior Secured Credit Participation or Second Lien Debt Credit Participation (as the case may be) of that Secured Lender shall be deemed to be zero for the purpose of calculating the relevant total Senior Secured Credit Participation or the relevant total Second Lien Debt Credit Participation (as the case may be) (or any class, portion or sub-set of the Senior Secured Credit Participation or Second Lien Debt Credit Participation (as the case may be)) when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of the relevant total Senior Secured Credit Participation or the relevant total Second Lien Debt Credit Participation (as the case may be) (or any, class, portion or sub-set of the Senior Secured Credit Participation or Second Lien Debt Credit Participation (as the case may be)) has been obtained to give that Consent, carry that vote or approve that action;

 

  (II) in the case of paragraphs (i) to (iii) above, that Secured Lender’s status in its relevant capacity shall be disregarded for the purposes of ascertaining whether the agreement of any specified group of Secured Lenders has been obtained to give that Consent, carry that vote or approve that action; and

 

  (III) in the case of paragraph (iv) above, that confirmation or notification shall be deemed to have been given.

 

(b) Paragraph (a)(A) above shall not apply to an amendment or waiver to:

 

  (i) the order of priority or subordination under this Agreement;

 

  (ii) Clauses 10 ( Effect of Insolvency Event ), 11 ( Turnover of receipts ), 12 ( Redistribution ), 13 ( Enforcement of Transaction Security ), 15 ( Application of proceeds ), 15.10 ( Equalisation ) and 26 ( Consents, amendments and override ); and

 

  (iii) paragraphs (d)(iii), (e) and (f) of Clause 16.5 ( Instructions to Security Agent and exercise of discretion ).

 

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26.6 Disenfranchisement of Defaulting Lenders

 

(a) Notwithstanding any other term of this Agreement, for so long as a Defaulting Lender has any Available Commitment:

 

  (i) in ascertaining:

 

  (A) (in respect of a Defaulting Lender that is a Credit Facility Lender) the Majority Senior Secured Creditors or (in respect of a Defaulting Lender that is a Second Lien Debt Loan Lender) the Majority Second Lien Debt Creditors; or

 

  (B) whether:

 

  (I) any relevant percentage (including, for the avoidance of doubt, unanimity) of Senior Secured Credit Participations or Second Lien Debt Credit Participations; or

 

  (II) the agreement of any specified group of Senior Secured Creditors or Second Lien Debt Creditors (including for the avoidance of doubt unanimity),

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 Lender’s Credit Facility Commitment or Second Lien Debt Loan Commitment (as the case may be) shall be reduced by the amount of its Available Commitments and, to the extent that that reduction results in that Defaulting Lender’s Credit Facility Commitments or Second Lien Debt Loan Commitments (as the case may be) being zero, that Defaulting Lender shall be deemed not to be a Credit Facility Lender or, as the case may be, Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) or Second Lien Debt Loan Lender.

 

(b) For the purposes of this Clause 26.6, the Security Agent may assume that the following Creditors are Defaulting Lenders:

 

  (i) any Credit Facility Lender or Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) or Second Lien Debt Loan Lender, as applicable, which has notified the Security Agent that it has become a Defaulting Lender;

 

  (ii) any Credit Facility Lender or Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) or Second Lien Debt Loan Lender, as applicable, to the extent that the relevant Agent, as applicable, has notified the Security Agent that that Credit Facility Lender or Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) or Second Lien Debt Loan Lender is a Defaulting Lender;

 

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  (iii) any Credit Facility Lender or Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) or Second Lien Debt Loan Lender in respect of any Pari Passu Debt Loan and the Security Agent) or Second Lien Debt Loan Lender, as applicable, in relation to which it is aware that any of the events or circumstances referred to in paragraph (a) or (b) of the definition of “Defaulting Lender” in each relevant Credit Facility Agreement has occurred (or, in the case of any Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) or Second Lien Debt Loan Lender, any equivalent provisions in the applicable Pari Passu Debt Agreement or Second Lien Debt Agreement in respect of a Second Lien Debt Loan),

unless it has received notice to the contrary from the Credit Facility Lender, the Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan and the Security Agent) or a Second Lien Debt Loan Lender concerned (together with any supporting evidence reasonably requested by the Security Agent) or the Security Agent is otherwise aware that the Credit Facility Lender or Pari Passu Debt Creditor (excluding any Pari Passu Debt Representative, any Arranger (referred to in paragraph (b) of that definition) in respect of any Pari Passu Debt Loan or a Second Lien Debt Loan Lender and the Security Agent), as applicable, has ceased to be a Defaulting Lender.

 

26.7 Calculation of Senior Secured Credit Participations and/or Second Lien Debt Credit Participations

 

(a) For the purpose of ascertaining whether any relevant percentage of Senior Secured Credit Participations has been obtained under this Agreement, the Security Agent may notionally convert the Senior Secured Credit Participation of each Senior Secured Creditor into their Common Currency Amounts.

 

(b) For the purpose of ascertaining whether any relevant percentage of Second Lien Debt Credit Participations has been obtained under this Agreement, the Security Agent may notionally convert the Second Lien Debt Credit Participation of each Second Lien Debt Creditor into their Common Currency Amounts.

 

(c) The relevant Credit Facility Agent will, upon the request of the Security Agent, promptly provide the Security Agent with details of the Senior Secured Credit Participation of the Credit Facility Lenders whom it represents and (if applicable) details of the extent to which such Senior Secured Credit Participations have been voted for or against any request.

 

(d) Each Hedge Counterparty will, upon the request of the Security Agent or any other Agent, promptly provide the details of its Senior Secured Credit Participations (which shall be calculated as at the time stipulated by the Security Agent or the relevant Agent (as applicable) in such request) and (if applicable) details of the extent to which such Senior Secured Credit Participations have been voted for or against any request.

 

(e)

Each Senior Secured Notes Trustee and each Pari Passu Debt Representative will, upon the request of the Security Agent, promptly provide the Security Agent with details of the Senior

 

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  Secured Credit Participations of the Senior Secured Creditors whom they each represent and (if applicable) details of the extent to which such Senior Secured Credit Participations have been voted for or against any request.

 

(f) Each Second Lien Debt Representative will, upon the request of the Security Agent, promptly provide the Security Agent with details of the Second Lien Debt Credit Participations of the Second Lien Debt Creditors whom they each represent and (if applicable) details of the extent to which such Second Lien Debt Credit Participations have been voted for or against any request.

 

26.8 Deemed consent

 

(a) Prior to the Senior Secured Discharge Date, if an Agent gives a Consent requested by Listco in respect of the Senior Secured Finance Documents then, if that action was permitted by the terms of this Agreement, the Intra-Group Lenders and the Subordinated Creditors will (or will be deemed to):

 

  (i) give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and

 

  (ii) do anything (including executing any document) that the relevant Agent may reasonably require to give effect to this paragraph (a).

 

(b) On or after the Senior Secured Discharge Date but prior to the Second Lien Debt Discharge Date, if an Agent gives a Consent requested by Listco in respect of the Second Lien Debt Documents then, if that action was permitted by the terms of this Agreement, the Intra-Group Lenders and the Subordinated Creditors will (or will be deemed to):

 

  (i) give a corresponding Consent in equivalent terms in relation to each of the Debt Documents to which they are a party; and

 

  (ii) do anything (including executing any document) that the relevant Agent may reasonably require to give effect to this paragraph (b).

 

26.9 Second Lien Debt Creditors administrative consents

If any Senior Secured Creditor Representative at any time in respect of the Senior Secured Finance Documents gives any Consent of a minor technical or administrative nature which does not adversely affect the interests of the Second Lien Debt Creditors or change the commercial terms contained in the Second Lien Debt Documents then, if that action was permitted by the terms of this Agreement, the Second Lien Debt Creditors 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

 

  (b) do anything (including executing any document) that such Senior Secured Creditor Representative may reasonably require to give effect to this Clause 26.9.

 

26.10 Excluded consents

Clause 26.8 ( 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); or

 

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  (c) changing the terms of this Agreement or of any Security Document.

 

26.11 No liability

No Senior Creditor will be liable to any other Creditor, Subordinated Creditor, Agent or Debtor for any Consent given or deemed to be given under this Clause 26.

 

26.12 Agreement to override

Unless expressly stated otherwise in this Agreement, in the event of a conflict between the terms of a Debt Document and this Agreement, the terms of this Agreement shall prevail.

 

27. SENIOR SECURED NOTES TRUSTEE AND SECOND LIEN DEBT NOTES TRUSTEE

In addition to applying to any Senior Secured Notes Trustee and/or any Second Lien Debt Notes Trustee, this Clause 27 shall apply mutatis mutandis to any Pari Passu Debt Representative who is trustee for any Pari Passu Debt Note and each Party expressly acknowledges and agrees that this is the case.

 

27.1 Liability

 

(a) It is expressly understood and agreed by each Party that this Agreement is executed and delivered by each Senior Secured Notes Trustee or each Second Lien Debt 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 relevant Senior Secured Notes Finance Documents for and on behalf of the Senior Secured Noteholders for whom it acts as trustee or under the relevant Second Lien Debt Documents for and on behalf of the Second Lien Debt Noteholders for whom it acts as trustee, 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, each Senior Secured Notes Trustee or each Second Lien Debt Notes Trustee may request and rely and, will not be liable for relying, upon an opinion of counsel or opinion of another qualified expert, at the expense of (as applicable) the Senior Secured Notes Issuer, Second Lien Debt Notes Issuer, or another Debtor; provided, however, that any such opinions shall be at the expense of the relevant Senior Secured Noteholders or Second Lien Debt Noteholders if the actions are on the instructions of such Senior Secured Noteholders or Second Lien Debt Noteholders (as applicable).

 

(b) Notwithstanding any other provision of this Agreement, each Senior Secured Notes Trustee’s and each Second Lien Debt Notes Trustee’s 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 received written notice that such obligation has arisen and (ii) it has received and, on the date on which it acquires such written notice, has not distributed to the Senior Secured Noteholders for whom it acts as trustee in accordance with the relevant Senior Secured Notes Indenture (in relation to which it is trustee) or Second Lien Debt Noteholders for whom it acts as trustee in accordance with the relevant Second Lien Debt Notes Indenture (in relation to which it is trustee), any such amount.

 

(c)

It is further understood and agreed by each Party that in no case shall any Senior Secured Notes Trustee or any Second Lien Debt Notes Trustee be (i) personally responsible or

 

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  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 that Senior Secured Notes Trustee or, that Second Lien Debt Notes Trustee in good faith in accordance with this Agreement or any of the Senior Secured Notes Finance Documents or that Second Lien Debt Document in a manner such Senior Secured Notes Trustee or such Second Lien Debt Notes Trustee believed to be within the scope of the authority conferred on it by this Agreement or any of the Senior Secured Notes Finance Documents or any of the Second Lien 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 Party; provided however that , each Senior Secured Notes Trustee (or any successor Senior Secured Notes Trustee) and each Second Lien Debt Notes Trustee (or any successor Second Lien Debt Notes Trustee) shall be liable under this Agreement for its own gross negligence or wilful misconduct. Notwithstanding any other provisions of this Agreement or any other Senior Secured Finance Document to which any Senior Secured Notes Trustee is a party or any Second Lien Debt Document to which any Second Lien Debt Notes Trustee is a party, in no event shall such Senior Secured Notes Trustee or any Second Lien Debt Notes Trustee be liable for special, indirect, punitive or consequential loss or damages of any kind whatsoever (including, but not limited to, loss of business, goodwill, opportunity or profits), whether or not foreseeable, even if such Senior Secured Notes Trustee or any Second Lien Debt 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 and agreed that no Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee shall have any responsibility for the actions of any individual Creditor or Senior Secured Noteholder or Second Lien Debt Noteholder save in respect of its own actions.

 

(e) It is acknowledged and agreed that each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee shall not be charged with knowledge of the existence of facts that would impose an obligation on it hereunder to make any payment or repayment or prohibit it from making any payment unless, not less than two Business Days prior to the date of such payment, written notice is delivered by the Security Agent or another Agent to a Responsible Officer of the Senior Secured Notes Trustee or of the Second Lien Debt Notes Trustee that such payments are required or prohibited by this Agreement. For the purpose of this paragraph (e), delivery of the notice will be effective only when actually received by a Responsible Officer and then only if it is expressly marked for the attention of a Responsible Officer and refers to this Agreement and the relevant Debt Documents as applicable. Nothing in this paragraph (e) imposes any obligation on the Security Agent or any other Agent to deliver any notice of the type referred to herein to any Senior Secured Notes Trustee or to any Second Lien Debt Notes Trustee.

 

(f) “ Responsible Officer ”, when used in this Agreement, means any person who (i) is an officer within the “agency and trust” department of any Senior Secured Notes Trustee or to any Second Lien Debt Notes Trustee, including any director, managing director, vice president, assistant vice president, trust officer or any other officer of such Senior Secured Notes Trustee or of such Second Lien Debt Notes Trustee who customarily performs functions similar to those performed by these officers or (ii) is notified by such Senior Secured Notes Trustee or by such Second Lien Debt Notes Trustee as identified herein in accordance with Clause 24.3 ( Addresses ).

 

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27.2 No fiduciary duty

No Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee shall be deemed to owe any fiduciary duty to any Creditor or Listco (each a “ Third Party ” and collectively, the “ Third Parties ”) (save in respect of such persons for whom it acts as trustee pursuant to the applicable Senior Secured Notes Indenture or the applicable Second Lien Debt Notes Indenture) and shall not be 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 gross negligence or wilful misconduct. With respect to any Third Party, each Senior Secured Notes Trustee and each such Second Lien Debt 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 such Senior Secured Notes Trustee or the applicable Second Lien Debt Notes Trustee.

 

27.3 No action

Notwithstanding any other provision of this Agreement, no Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee shall have any obligation to take any action under this Agreement or instruct or direct the Security Agent to take any Enforcement Action unless it is indemnified and/or secured to its satisfaction (whether by way of payment in advance or otherwise) in accordance with the terms of the applicable Senior Secured Notes Indenture or the applicable Second Lien Debt Notes Indenture provided that this shall not affect any obligation arising under this Agreement to turnover moneys received by it. No Senior Secured Notes Trustee or Second Lien Debt Notes Trustee shall have any obligation to indemnify any other person, whether or not a Party, in respect of any of the transactions contemplated by this Agreement. In no event shall the permissive rights of a Senior Secured Notes Trustee or a Second Lien Debt Notes Trustee to take actions under this Agreement be construed as an obligation to do so.

 

27.4 Other parties not affected

This Clause 27 is intended to afford protection to each Senior Secured Notes Trustee and to each Second Lien Debt Notes Trustee only. No provision of this Clause 27 shall alter or change the rights and obligations as between the other parties to this Agreement in respect of each other.

 

27.5 Notices

 

(a) Each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee shall at all times be entitled to and may rely on any notice, consent or certificate given or granted by any other Party without being under any obligation to enquire or otherwise determine whether any such notice, consent or certificate has been given or granted by such Party properly acting in accordance with the provisions of this Agreement.

 

(b)

In acting pursuant to this Agreement, each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee shall act in accordance with the Senior Secured Notes Indenture or Second

 

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  Lien Debt Notes Indenture, as applicable, and is entitled to seek instructions from the relevant Senior Secured Noteholders or the relevant Second Lien Debt Noteholders, at any time, and where it so acts on the instructions of the requisite percentage of such Senior Secured Noteholders or the instructions of the requisite percentage of such Second Lien Debt Noteholders, such Senior Secured Notes Trustee or such Second Lien Debt Notes Trustee shall not incur any liability to any person for so acting, other than in accordance with the applicable Senior Secured Notes Indenture or the applicable Second Lien Debt Notes Indenture.

 

27.6 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 Listco or any Debtor to make payments in respect of the Agent Liabilities owed to any Senior Secured Notes Trustee or owed to any Second Lien Debt Notes Trustee as and when the same are due and payable and receipt and retention by such Senior Secured Notes Trustee or by such Second Lien Debt Notes Trustee of the same or taking of any step or action by such Senior Secured Notes Trustee or by such Second Lien Debt Notes Trustee in respect of its rights under the Senior Secured Notes Finance Documents or under the Second Lien Debt Documents.

 

27.7 Provisions survive termination

The provisions of this Clause 27 shall survive the termination of this Agreement.

 

27.8 Resignation

Each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee may resign or be removed in accordance with the terms of the applicable Senior Secured Notes Indenture or the Second Lien Debt Notes Indenture provided that a replacement Senior Secured Notes Trustee or the Second Lien Debt Notes Trustee agrees with the Parties to become the replacement Senior Secured Notes Trustee or the Second Lien Debt Notes Trustee under this Agreement in accordance with Clause 18.9 ( Change of or new Agent, Arranger or Creditor Representative ).

 

27.9 Reliance and information

 

(a) Each Senior Secured Notes Trustee and each Second Lien Debt 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 Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee may rely without enquiry on certificates of the Security Agent as to the matters certified therein. Each Creditor and each Debtor confirms that it has not relied exclusively on any information provided to it by any Senior Secured Notes Trustee or any Second Lien Debt Notes Trustee. No Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee is obliged to check the adequacy, accuracy or completeness of any document it forwards to another Party.

 

(b) In addition, each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee is entitled to assume that:

 

  (i) any payment or other distribution made in respect of the Liabilities or Senior Secured Notes Liabilities or Second Lien Debt Liabilities, respectively, has been made in accordance with the provisions of this Agreement;

 

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  (ii) no default, Event of Default or termination event (however described) has occurred;

 

  (iii) any security, collateral, guarantee or indemnity or other assurance granted to it has been done so in compliance with Clause 5.3 ( Security: Senior Non Credit Facility Creditors ); and/or

 

  (iv) the Senior Secured Discharge Date and/or Final Discharge Date has not occurred,

unless it has received written notice to the contrary. No Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee is obliged to monitor or enquire whether any default, Event of Default or termination event (however described) has occurred.

 

27.10 Agents

Each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by it hereunder.

 

27.11 No requirement for bond or surety

No Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee shall be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Agreement.

 

27.12 Illegality

Each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee may refrain from taking any action in any jurisdiction if the taking of such action in that jurisdiction would, in its opinion be contrary to any law, directive or regulation of that jurisdiction or, to the extent applicable, of England and Wales. Furthermore, each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee may also refrain from taking such action if it would otherwise render it liable to any person in that jurisdiction or England and Wales or if, in its opinion, it would not have the power to do the relevant thing in that jurisdiction by virtue of any applicable law, directive or regulation in that jurisdiction or in England and Wales or if it is determined by any court or other competent authority in that jurisdiction or in England and Wales that it does not have such power. Each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee may refrain from taking any action that would constitute a breach of the applicable Senior Secured Notes Finance Documents or the Second Lien Debt Documents.

 

27.13 Communications

Notwithstanding anything to the contrary in this Agreement any and all communications (both text and attachments) by or from any Senior Secured Notes Trustee or any Second Lien Debt Notes Trustee that such Senior Secured Notes Trustee or such Second Lien Debt Notes Trustee in its sole discretion deems to contain confidential, proprietary, and/or sensitive information and sent by electronic mail will be encrypted. The recipient of the email communication will be required to complete a one-time registration process. Information and assistance on registering and using the email encryption technology can be found at such Senior Secured Notes Trustee’s or such Second Lien Debt Notes Trustee’s secure website at any time.

 

27.14 Creditors and the Senior Secured Notes Trustee and the Second Lien Debt Notes Trustee

In acting pursuant to this Agreement and the applicable Senior Secured Notes Indenture or the applicable Second Lien Debt Notes Indenture, no Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee is required to have any regard to the interests of the Creditors (other than the Senior Secured Noteholders or the Second Lien Debt Noteholders).

 

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27.15 Departmentalisation

In acting as Senior Secured Notes Trustee or as Second Lien Debt Notes Trustee, each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee shall be treated as acting through its agency division which shall be treated as a separate entity from its other divisions and departments. Any information received or acquired by such Senior Secured Notes Trustee such Second Lien Debt Notes Trustee which is received or acquired by some other division or department or otherwise than in its capacity as Senior Secured Notes Trustee or any Second Lien Debt Notes Trustee may be treated as confidential by such Senior Secured Notes Trustee or any Second Lien Debt Notes Trustee and will not be treated as information possessed by such Senior Secured Notes Trustee or any Second Lien Debt Notes Trustee (in each case) in its capacity as such.

 

27.16 Security Agent and the Senior Secured Notes Trustee and Second Lien Debt Notes Trustee

 

(a) No Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee shall be responsible for appointing or monitoring the performance of the Security Agent.

 

(b) The Security Agent agrees and acknowledges that it shall have no claim against any Senior Secured Notes Trustee or against any Second Lien Debt Notes Trustee in respect of any fees, costs, expenses and liabilities due and payable to, or incurred by, the Security Agent.

 

(c) No Senior Secured Notes Trustee and no Second Lien Debt Notes Trustee shall be under any obligation to instruct the Security Agent to take any enforcement action unless it shall be instructed to do so by the relevant Senior Secured Noteholders or the relevant Second Lien Debt Noteholders, as applicable.

 

27.17 Disclosure of information

Listco and each Debtor irrevocably authorises each Senior Secured Notes Trustee and each Second Lien Debt Notes Trustee to disclose to the Security Agent and other Agents any information that is received by such Senior Secured Notes Trustee in its capacity as a Senior Secured Notes Trustee or such Second Lien Debt Notes Trustee in its capacity as a Second Lien Debt Notes Trustee.

 

27.18 Senior Secured Notes Trustee assumptions

 

(a) Each Senior Secured Notes Trustee is entitled to assume that:

 

  (i) the proceeds of enforcement of any Security conferred by the Security Documents have been applied in the order set out in Clause 15 ( Application of proceeds );

 

  (ii) any Security, collateral, guarantee or indemnity or other assurance granted to it has been done so in compliance with Clause 5.3 ( Security: Senior Non Credit Facility Creditors ); and

 

  (iii) any Senior Secured Notes issued comply with the provisions of this Agreement.

 

(b) Each Senior Secured Notes Trustee is entitled to assume that any payment or distribution made in respect of the Senior Secured Notes Liabilities is not prohibited by this Agreement, unless it has been informed in writing to the contrary, provided, however, that the Senior Secured Notes Trustee shall be liable under this Agreement for its own gross negligence or wilful misconduct.

 

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(c) Each Senior Secured Notes Trustee shall not be obliged to monitor performance by the Debtors, the Security Agent or any other Party to this Agreement or the Senior Secured Noteholders of their respective obligations under, or compliance by them with, the terms of this Agreement.

 

27.19 Second Lien Debt Notes Trustee assumptions

 

(a) Each Second Lien Debt Notes Trustee is entitled to assume that:

 

  (i) the proceeds of enforcement of any Security conferred by the Security Documents have been applied in the order set out in Clause 15 ( Application of proceeds );

 

  (ii) any Security, collateral, guarantee or indemnity or other assurance granted to it has been done so in compliance with Clause 6.2 ( Security: Second Lien Debt Creditors ); and

 

  (iii) any Second Lien Debt Notes issued comply with the provisions of this Agreement.

 

(b) The Second Lien Debt Notes Trustee is entitled to assume that any payment or distribution made in respect of the Second Lien Debt Notes Liabilities is not prohibited by this Agreement, unless it has actual knowledge to the contrary provided, however, that the Second Lien Debt Notes Trustee shall be liable under this Agreement for its own gross negligence or wilful misconduct.

 

(c) The Second Lien Debt Notes Trustee shall not be obliged to monitor performance by the Debtors, the Security Agent or any other Party to this Agreement or the Second Lien Debt Noteholders of their respective obligations under, or compliance by them with, the terms of this Agreement.

 

27.20 Responsibility of Senior Secured Notes Trustee and/or Second Lien Debt Notes Trustee

 

(a) No Senior Secured Notes Trustee nor Second Lien Debt Notes Trustee shall be responsible to any other Secured Party for the legality, validity, effectiveness, enforceability, adequacy, accuracy, completeness, perfection or performance of:

 

  (i) any Secured Debt Document or any other document;

 

  (ii) any statement or information (whether written or oral) made in or supplied in connection with any Secured Debt Document or any other document; or

 

  (iii) any observance by any Debtor of its obligations under any Secured Debt Document or any other document.

 

(b) Each Senior Secured Notes Trustee and/or Second Lien Debt Notes Trustee may rely and shall be fully protected in acting or refraining from acting upon any notice, certificate 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.

 

27.21 Confirmation

Without affecting the responsibility of any Debtor or Listco for information supplied by it or on its behalf in connection with any Debt Document, each Secured Party (other than any Senior Secured Notes Trustee or Second Lien Debt Notes Trustee (in their personal capacity) and the Security Agent) confirms that it:

 

  (a) has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Secured Debt Documents (including the financial condition and affairs of each Debtor or their related entities and the nature and extent of any recourse against any Party or its assets); and

 

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  (b) has not relied on any information provided to it by any of the Senior Secured Notes Trustee or Second Lien Debt Notes Trustee (as applicable) in connection with any Secured Debt Documents.

 

28. GUARANTEE AND INDEMNITY

 

28.1 Guarantee and indemnity

Subject to Clause 28.12 ( Excluded obligations ), each Debtor that is also a guarantor of other Senior Secured Creditor Liabilities (unless the relevant Debtor waives this requirement in the applicable Debtor Accession Deed to which it is a party) irrevocably and unconditionally jointly and severally:

 

  (a) guarantees to each Hedge Counterparty punctual performance by each other Debtor of all that Debtor’s obligations under each Hedging Agreement;

 

  (b) undertakes with each Hedge Counterparty that whenever another Debtor does not pay any amount when due under or in connection with a 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 any Debtor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Hedge Counterparty 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 28 if the amount claimed had been recoverable on the basis of a guarantee.

 

28.2 Continuing guarantee

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

 

28.3 Reinstatement

If any discharge, release or arrangement (whether in respect of the obligations of any Debtor 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 or otherwise, without limitation, then the liability of each Debtor under this Clause 28 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

28.4 Waiver of defences

The obligations of each Debtor under this Clause 28 will not be affected by an act, omission, matter or thing which, but for this Clause 28, would reduce, release or prejudice any of its

 

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obligations under this Clause 28 (without limitation and whether or not known to it or any Hedge Counterparty) including:

 

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

 

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

 

  (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any 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 a Debtor or any other person;

 

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

 

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

 

  (g) any insolvency or similar proceedings.

 

28.5 Guarantor intent

 

(a) Without prejudice to the generality of Clause 28.4 ( 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 Hedging Agreement and/or any facility or amount made available under any Hedging Agreement for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

(b) Notwithstanding anything to the contrary herein and in relation to any guarantor incorporated in Austria, this guarantee and indemnity is meant to be and shall be interpreted as an abstract guarantee ( abstrakter Garantievertrag ) and the obligations of such guarantor hereunder shall be obligations of such guarantor as principal debtor and not as surety ( Bürgschaft ) and not as a joint obligation as a borrower ( Mitschuldner ) and such guarantor undertakes to pay the amounts so demanded under or pursuant to this guarantee unconditionally, irrevocably, upon first demand and without raising any defences or objections, set-off or counterclaim and without verification of legal grounds ( unbedingt, unwiderruflich, auf erste Aufforderung und unter Verzicht auf alle Einwendungen oder Einreden, ohne Aufrechnung oder die Geltendmachung von Gegenforderungen und ohne Prüfung des Rechtsgrunds ).

 

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28.6 Immediate recourse

Each Debtor waives any right it may have of first requiring a 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 28. This waiver applies irrespective of any law or any provision of a Hedge Counterparty to the contrary.

 

28.7 Appropriations

Until all amounts which may be or become payable by the Debtors under or in connection with a Hedging Agreement 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 Debtor’s liability under this Clause 28.

 

28.8 Deferral of Guarantors’ rights

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 and unless the relevant Hedge Counterparty otherwise directs or as permitted by this Agreement, no Debtor will exercise any rights which it may have by reason of performance by it of its obligations under a Hedging Agreement or by reason of any amount being payable, or liability arising, under this Clause 28:

 

  (a) to be indemnified by a Debtor;

 

  (b) to claim any contribution from any other guarantor of any Debtor’s obligations under a Hedging Agreement;

 

  (c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of a Hedge Counterparty under a Hedging Agreement or of any other guarantee or security taken pursuant to, or in connection with, a Hedging Agreement 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 28.1 ( Guarantee and indemnity );

 

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

 

  (f) to claim or prove as a creditor of any Debtor in competition with any Hedge Counterparty.

If a Debtor 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 a Hedge Counterparty by the Debtors under or in connection with a Hedging Agreement to be repaid in full on trust for that Hedge Counterparty.

 

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28.9 Release of Debtors’ right of contribution

If any Debtor (a “ Retiring Debtor ”) ceases to be a Debtor in accordance with the terms of this Agreement 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 any Hedging Agreement; and

 

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

 

28.10 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.

 

28.11 Guarantee limitations

This guarantee does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006 or any equivalent and applicable provisions (including any capital maintenance rules) under the laws of the jurisdiction of incorporation of the relevant Debtor (but construed mutatis mutandis with respect to the relevant Debtor for the purposes of this Clause 28).

 

  (a) Specific limitations for German Guarantors

In relation to each German Guarantor, the following limitations shall apply:

 

  (i)

The Hedge Counterparties agree, other than in accordance with the procedure set out in the following paragraphs of this Clause 27.11 not to enforce any guarantee created hereunder granted by a German Guarantor if and to the extent that such guarantee is an up-stream or cross-stream guarantee and the enforcement would otherwise lead to the situation that it would create or aggravate an existing under-balance ( Unterbilanz ) of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner) and that such German Guarantor did not have sufficient net assets (i.e. assets minus liabilities and liability reserves ( Reinverm ö gen )) to maintain its (or, in the case of a GmbH & Co. KG, its general partner’s) stated share capital ( Stammkapital ) whereby the net assets shall be determined in accordance with applicable law at the time of the determination, provided that for the purposes of the calculation of the

 

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  amount to be enforced (if any) the following balance sheet items shall be adjusted as follows:

 

  (A) the amount of any increase of stated share capital of such German Guarantor (or, in the case of a GmbH & Co. KG, the stated share capital of its general partner) after the 2017 Effective Date which is not permitted under the Debt Documents shall be deducted from the stated share capital;

 

  (B) loans and other contractual liabilities incurred by such German Guarantor, and/or, in the case of a GmbH & Co. KG, its general partner, in violation of the provisions of any of the Debt Documents shall be disregarded to the extent that such violation results from grossly negligent or wilful misbehaviour;

 

  (C) to the extent payment under the guarantee would deprive a German Guarantor, or (in the case of a GmbH & Co. KG) the general partner of such German Guarantor, of the liquidity necessary to fulfil its financial liabilities to its creditors, then, for the determination of the net asset value, the assets of such German Guarantor or, in the case of a GmbH & Co. KG, the assets of its general partner shall be calculated at the lesser of their book value ( Buchwert ) and their realisation value assuming a negative prognosis for the business continuance ( Liquidationswert bei negativer Fortführungsprognose ).

 

  (ii)

The limitations set out in the preceding paragraph shall only apply if and to the extent that (i) within 15 Business Days following the making of a demand against a German Guarantor under the guarantee created hereunder the relevant German Guarantor has confirmed in writing to the Security Agent (x) the extent to which such guarantee is an up-stream or cross-stream guarantee as described in paragraph (i) above and (y) the amount of such cross-stream and/or up-stream guarantee that cannot be enforced as it would cause the net assets of such German Guarantor or, in the case of a GmbH & Co. KG, its general partner to fall below its stated share capital or create or aggravate an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner) (taking into account the adjustments set out in paragraph (i) above) (the “ Management Determination ”); and (ii) if the Security Agent (acting on the instructions of the Hedge Counterparties) contests the Management Determination (arguing that no or a lesser amount would be necessary to maintain the stated share capital or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner)), within 40 Business Days of the date the Security Agent has notified the respective German Guarantor that the Hedge Counterparties have contested the Management Determination, the Security Agent receives a determination by auditors of international standing and reputation (the “ Auditor’s Determination ”) appointed by the German Guarantor

 

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  of the amount that would have been necessary on the date the demand under the guarantee was made to maintain its or its general partner’s stated share capital or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner).

 

  (iii) If the Security Agent acting on the instructions of the Hedge Counterparties disagrees with the Auditor’s Determination, it shall notify the respective German Guarantor accordingly. The Hedge Counterparties shall only be entitled to enforce the guarantee up to the amount which is undisputed between themselves and the respective German Guarantor in accordance with the provisions of paragraph (ii)(iii) above. In relation to the amount which is disputed by the Hedge Counterparties, the Hedge Counterparties shall be entitled to further pursue their claims under this guarantee (if any) in court but shall bear the burden of proof that the Auditor’s Determination is incorrect; it being understood, for the avoidance of doubt, that the respective German Guarantor shall not be obliged to pay such further amount claimed by the Hedge Counterparties on demand.

 

  (iv) If the guarantee was enforced without limitation because the Management Determination and/or the Auditor’s Determination (as the case may be) was not delivered within the relevant timeframe, the Hedge Counterparties shall repay to the respective German Guarantor any amount which is necessary to maintain its stated share capital or, in the case of a GmbH & Co. KG, that of its general partner or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner), calculated as of the date the demand under the guarantee was made and in accordance with paragraph (i) above.

 

  (v) In the case that any German Guarantor claims in accordance with the provisions of paragraphs (ii)(iii) and (iv)(v) above that the guarantee granted hereunder can only be enforced in a limited amount (as set out above), the relevant German Guarantor (or, in the case of a GmbH & Co. KG, its general partner) shall realise 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 to the extent legally permitted and commercially justifiable.

 

  (vi) The limitations set out in this Clause 28.11 shall apply mutatis mutandis to all payment obligations of a German Guarantor incurred under or in connection with the Hedging Agreements in respect of the obligations of any of its Holding Companies or Affiliates (other than any of its Subsidiaries) under or in connection with the Finance Documents (by way of indemnification or otherwise).

 

  (vii)

The limitations set out in this Clause 28.11 do not apply if and to the extent that the German Guarantor is a party to a domination and/or profit and loss pooling agreement ( Beherrschungs- und/oder Gewinnabführungsvertrag ) as dominated

 

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  entity, provided that the enforcement of the guarantee and/or other payment obligations does not lead to a violation of the capital maintenance requirement as set out in Section 30 para 1 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ).

 

  (b) Specific limitations for Dutch Debtors

Notwithstanding any contrary indication in this Agreement, in relation to a Dutch Debtor and any of its Subsidiaries and in relation to Debtors that are Subsidiaries of a Dutch company in which shares have been or will be acquired, this guarantee shall be limited to the extent required to comply with restrictions on financial assistance in Section 2:98c of the Dutch Civil Code ( Burgerlijk Wetboek ) or any other applicable law.

 

  (c) Specific limitations for Austrian Debtors

To the extent that the guarantee in this Clause 28 is given by an Austrian Debtor any and all obligations ( Verpflichtungen ) and liabilities ( Haftungen ) of an Austrian Debtor under such guarantee shall at all times be limited so that at no time the assumption of a liability ( Haftungen ) and/or obligation ( Verpflichtung ) shall be required to the extent that such liability ( Haftung ) or obligation ( Verpflichtung ) would violate Austrian capital maintenance rules ( Kapitalerhaltungsvorschriften ) pursuant to Austrian company law, in particular sections 82 et seq. of the Austrian Act on Limited Liability Companies ( Gesetz über Gesellschaften mit beschränkter Haftung ) and/or sections 52 and 65 et seq. of the Austrian Stock Corporation Act ( Aktiengesetz ) (the “ Austrian Capital Maintenance Rules ”). Should any obligation ( Verpflichtung ) and/or liability ( Haftung ) of an Austrian Debtor under the guarantee in this Clause 28 violate or contradict the Austrian Capital Maintenance Rules and therefore be held invalid or unenforceable in whole or in part or should the assumption or enforcement of such obligation ( Verpflichtung ) or liability ( Haftung ) expose any managing director or member of the supervisory board of any Austrian Debtor to personal liability or criminal responsibility, such obligation/or liability shall be deemed to be replaced by an obligation ( Verpflichtung ) and/or liability ( Haftung ) of a similar nature (i) which is in compliance with the Austrian Capital Maintenance Rules, (ii) which does not expose the managing directors or members of the supervisory board of the Austrian Debtor to any personal liability or criminal responsibility and (iii) which provides the best possible security interest admissible in accordance with the Austrian Capital Maintenance Rules in favour of the Hedge Counterparties. If the guarantee pursuant to this Clause 28 contradicts the Austrian Capital Maintenance Rules in relation to any amount of the obligations secured by such guarantee, the obligations secured by the guarantee pursuant to this Clause 28 as provided by any Austrian Debtor shall be reduced to such maximum amount which is permitted pursuant to the Austrian Capital Maintenance Rules (including zero).

 

  (d) Specific limitations for Belgian Debtors

To the extent that the guarantee in this Clause 28 is given by a Belgian Debtor, the Hedge Counterparties agree that the liability of any Belgian Debtor under this Clause 28 shall in all circumstances be limited to an amount equal to 85 per cent. of the net assets

 

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(as determined in accordance with the Belgian Companies Code and accounting principles generally accepted in Belgium) of that Belgian Debtor calculated on the basis of the most recent audited annual accounts available at the date on which the relevant demand is made. In addition, any guarantee granted by a Belgian Debtor shall not include any liability which would constitute unlawful financial assistance, as determined under article 329 or 629 (or equivalent) of the Belgian Companies Code, or unlawful dividend distribution, as determined under article 320 or 617 (or equivalent) of the Belgian Companies Code.

 

  (e) Specific limitations for Finnish Debtors

To the extent that the guarantee in this Clause 28 is given by any Debtor incorporated in Finland (each a “ Finnish Debtor ”), the guaranteed obligations and liabilities of each Finnish Debtor shall be limited if (and only if), and only to the extent they would constitute (i) unlawful financial assistance within the meaning of Chapter 13 Section 10 of the Finnish Companies Act (1.9.2006/624, as amended, the “ Finnish Companies Act ”) or (ii) unlawful distribution of assets within the meaning of Chapter 13 Section 1 of the Finnish Companies Act, and it is agreed that the liability of each Finnish Debtor under the guarantee hereunder only applies to the extent permitted by the above mentioned provisions of the Finnish Companies Act.

 

  (f) Limitations on obligations of Luxembourg Debtors

 

  (i) Notwithstanding the foregoing and any other provision of any Finance Document to the contrary, the obligations and liabilities of any Luxembourg Debtor under any Finance Document for the obligations of any other Debtor (other than that Luxembourg Debtor) which is not a Subsidiary of that Luxembourg Debtor shall be limited at any time (with no double counting), to an aggregate amount not exceeding 90-95 per cent. of the greater of:

 

  (A) the sum of (i) the Luxembourg Debtor’s own funds ( capitaux propres ) (as referred to in Annex I to the Grand-Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the Luxembourg law of 19 December 2002 on the commercial companies’ register and the accounting and annual accounts of undertakings, as amended (the “ Own Funds ”)) and (ii) any intragroup debt owed by such Luxembourg Debtor to any of its direct or indirect shareholders and to any member of the Group which is subordinated in accordance with the Debt Documents (as determined by Annex 1 of the Grand-Ducal Regulation of 18 December 2015 in relation to, inter alia, article 34 of the Luxembourg law of 19 December 2002 on the Register of Commerce and Companies, on accounting and on annual accounts of the companies) (the debts referred to in (ii) is referred to as the “ Subordinated Affiliate Debt ”), in each case as determined on the basis of the then latest available annual accounts of the Luxembourg Debtor duly established in accordance with applicable accounting rules, as at the date this Agreement was entered into; or

 

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  (B) the sum of (i) the Own Funds and (ii) the Subordinated Affiliate Debt, in each case as determined on the basis of the then latest available annual accounts of the Luxembourg Debtor duly established in accordance with applicable accounting rules), as at the date on which the guarantee or security is called or enforced.

 

  (ii) Where, for the purpose of the above determination, (i) no duly established annual accounts are available for the relevant reference period (which will include a situation where, in respect of the determinations to be made above, no final annual accounts have been established in due time in respect of the then most recently ended financial year) or (ii) the relevant annual accounts do not adequately reflect the status of the Subordinated Affiliate Debt or Own Funds as envisaged above, in the sole opinion of the security agent, acting reasonably or (iii) the Luxembourg Debtor has taken corporate or contractual actions having resulted in the increase or decrease of its Own Funds or its Subordinated Affiliate Debt since the close of its last financial year, the Own Funds and the Subordinated Affiliate Debt will be valued either (i) at the fair market value or (ii) if no such market value has been determined, in accordance with the generally accepted accounting principles in Luxembourg and the relevant provisions of the Luxembourg law of 19 December 2002 on the commercial companies’ register and the accounting and annual accounts of undertakings, as amended.

 

  (iii) For the purpose of calculating the amounts available from a Luxembourg Debtor under the guarantee granted under this Clause 28, any amount called from such Luxembourg Debtor pursuant to this Clause 28, clause 23 ( Guarantee and Indemnity ) of the Senior Secured Facilities Agreement and/or under any Second Lien Debt Notes Guarantees (as defined in the Intercreditor Agreement) shall be taken into account, without double counting.

 

  (g) Specific limitations for Swedish Debtors

Notwithstanding any contrary indication in this Agreement, in relation to a Swedish Debtor the guarantee and indemnity set forth in this Clause shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act (Sw. Aktiebolagslag (2005:551) ) regulating:

 

  (i) unlawful distribution of assets and transfer of value (Sw. värdeöverföring) pursuant to Chapter 17, Sections 1 to 4 of the Swedish Companies Act; and

 

  (ii) prohibited loans, security and guarantees pursuant to Chapter 21, Section 1 to 3 of the Swedish Companies Act.

 

28.12 Excluded obligations

Notwithstanding anything to the contrary contained herein or in any other Debt Document, neither the Secured Obligations of, nor the guarantee or indemnity given by nor the obligations guaranteed by, any Debtor pursuant to this Clause 28 or in any other Swap Support of Transaction Security shall include (or shall be deemed or construed to include) any Excluded Swap Obligations.

 

152

28.13 Additional limitations

 

(a) In the case of any person which becomes a Debtor after the 2017 Effective Date, the guarantee of that Debtor shall in addition be subject to any limitations relating to that Debtor set out in any relevant Debtor Accession Deed.

 

(b) Notwithstanding any provision to the contrary in any Debt Document, the obligations ( Verpflichtungen ) and liabilities ( Haftungen ) of an Austrian Debtor under any Debt Document shall at all times be limited so that at no time the assumption of a liability ( Haftungen ) and/or obligation ( Verpflichtung ) shall be required to the extent that such liability ( Haftung ) or obligation ( Verpflichtung ) would violate Austrian Capital Maintenance Rules. Should any obligation ( Verpflichtung ) and/or liability ( Haftung ) of an Austrian Debtor under any Debt Document violate or contradict the Austrian Capital Maintenance Rules and therefore be held invalid or unenforceable in whole or in part or should the assumption or enforcement of such obligation ( Verpflichtung ) or liability ( Haftung ) expose any managing director or member of the supervisory board of any Austrian Debtor to personal liability or criminal responsibility, such obligation/or liability shall be deemed to be replaced by an obligation ( Verpflichtung ) and/or liability ( Haftung ) of a similar nature (i) which is in compliance with the Austrian Capital Maintenance Rules, (ii) which does not expose the managing directors or members of the supervisory board of the Austrian Debtor to any personal liability or criminal responsibility; and (iii) which provides the best possible security interest admissible in accordance with the Austrian Capital Maintenance Rules in favor of the Secured Parties.

 

29. 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.

 

30. GOVERNING LAW

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

 

31. ENFORCEMENT AND PLACE OF PERFORMANCE

 

31.1 Jurisdiction

 

(a) 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) This Clause 31.1 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.

 

153

31.2 Service of process

 

(a) Without prejudice to any other mode of service allowed under any relevant law each Debtor (unless incorporated in England and Wales):

 

  (i) irrevocably appoints Midco as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement; and

 

  (ii) agrees that failure by a process agent to notify the relevant Debtor, as applicable, of the process will not invalidate the proceedings concerned.

 

(b) Midco irrevocably accepts and agrees to its appointment as agent for service of process pursuant to paragraph (a) above.

 

(c) If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, Midco (in the case of an agent for service of process for a Debtor) must immediately (and in any event within five days of such event taking place) appoint another agent on terms acceptable to the Agents. Failing this, the Agents may appoint another agent for this purpose.

 

(d) Each Party appointing an agent for service of process above expressly agrees and consents to the provisions of this Clause 31 and Clause 30 ( Governing law ).

 

(e) For the avoidance of doubt and insofar as Belgian law would apply, the designation by each Belgian Debtor of an agent for service of process pursuant to this Clause 31.2 constitutes an election of domicile with the meaning of Article 111 of the Belgian Civil Code.

 

31.3 Place of performance

The exclusive place of performance ( Erfuellungsort ) for all rights and obligations under this Agreement shall be at the seat of the Security Agent in London or any other place reasonably designated by the Security Agent but in any case a place outside the Republic of Austria, which, in particular, but without limitation, means that the payment of moneys under the Debt Documents must be made from and to a bank account outside of the Republic of Austria. It is expressly agreed between the Parties hereto that any such performance within the Republic of Austria will not establish Austria as the place of performance and shall be deemed not effective with respect to any Party hereto.

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, the Subordinated Creditors and the Debtors and is intended to be and is delivered by them as a deed on the date specified above.

 

154

Exhibit 99.3

EXECUTION VERSION

 

 

NOMAD FOODS BONDCO PLC, as Issuer

€400,000,000 3.250% SENIOR SECURED NOTES DUE 2024

 

 

INDENTURE

Dated as of May 3, 2017

 

 

NOMAD FOODS LIMITED,

as Parent Guarantor

IGLO AUSTRIA HOLDING GMBH; IGLO AUSTRIA GMBH; IGLO BELGIUM SA; NOMAD FOODS EUROPE HOLDINGS LTD; NOMAD FOODS EUROPE HOLDCO LTD; NOMAD FOODS EUROPE FINCO LTD; NOMAD FOODS EUROPE MIDCO LTD; NOMAD FOODS EUROPE LTD; BIRDS EYE LTD; NOMAD FOODS EUROPE IPCO LTD; NOMAD FOODS EUROPE FINANCE LTD; FINDUS FINLAND OY; IGLO HOLDING GMBH; IGLO GMBH; FROZEN FISH INTERNATIONAL GMBH; LIBERATOR GERMAN NEWCO GMBH; NOMAD FOODS LUX S.À R.L.; IGLO NEDERLAND B.V.; LION/GEM NORWAY 1 AS; FINDUS NORGE HOLDING AS; FINDUS NORGE AS; FINDUS ESPAÑA S.L.U.; FINDUS SVERIGE HOLDINGS AB; FINDUS SVERIGE AB; FRIONOR SVERIGE AB; FOODVEST INTERNATIONAL AB; AND NOMAD FOODS US LLC,

as Subsidiary Guarantors

DEUTSCHE TRUSTEE COMPANY LIMITED,

as Trustee

DEUTSCHE BANK AG, LONDON BRANCH,

as Paying Agent

DEUTSCHE BANK LUXEMBOURG S.A.,

as Luxembourg Registrar and Transfer Agent

CREDIT SUISSE AG, LONDON BRANCH,

as Security Agent

 

 

The taking of (a) any of the Notes Documents (defined herein) or (b) any certified copy thereof or (c) any document which constitutes substitute documentation thereof including written confirmations or references (the “ Stamp Duty Sensitive Documents ”) into Austria may cause the imposition of Austrian stamp duty. The same, inter alia, applies to (i) the sending of Stamp Duty Sensitive Documents to an Austrian addressee by fax, (ii) the sending of any e-mail communication to which an electronic scan copy (e.g., pdf or tif) of a Stamp Duty Sensitive Document is attached to an Austrian addressee and (iii) the sending of any e-mail communication carrying an electronic or digital signature which refers to a Stamp Duty Sensitive Document to an Austrian addressee. Accordingly, in particular, keep any Stamp Duty Sensitive Documents outside of Austria and avoid (A) sending Stamp Duty Sensitive Documents by fax to an Austrian addressee, (B) sending any e-mail communication to which an electronic scan copy of a Stamp Duty Sensitive Document is attached to an Austrian addressee and (C) sending any e-mail communication carrying an electronic or digital signature which refers to a Stamp Duty Sensitive Document to an Austrian addressee.

TABLE OF CONTENTS

 

                Page  

Article 1 Definitions

          1  
  Section 1.01      Definitions      1  
  Section 1.02      Other Definitions      38  
  Section 1.03      Rules of Construction      39  

Article 2 The Notes

     40  
  Section 2.01      Additional Notes      40  
  Section 2.02      Form and Dating      41  
  Section 2.03      Execution and Authentication      41  
  Section 2.04      Registrar and Paying Agent      41  
  Section 2.05      Money Held by Paying Agent      42  
  Section 2.06      Holder Lists      43  
  Section 2.07      Transfer and Exchange      43  
  Section 2.08      Replacement Notes      44  
  Section 2.09      Outstanding Notes      44  
  Section 2.10      Temporary Notes      45  
  Section 2.11      Cancellation      45  
  Section 2.12      Common Codes and ISINs      45  
  Section 2.13      Defaulted Interest      45  
  Section 2.14      Currency      46  

Article 3 Redemption

     46  
  Section 3.01      Notices to Trustee and Paying Agents      46  
  Section 3.02      Selection of Notes To Be Redeemed or Repurchased      47  
  Section 3.03      Notice of Redemption      47  
  Section 3.04      Effect of Notice of Redemption      48  
  Section 3.05      Deposit of Redemption Price      49  
  Section 3.06      Notes Redeemed in Part      49  

Article 4 Covenants

     49  
  Section 4.01      Limitation on Indebtedness      49  
  Section 4.02      Limitation on Restricted Payments      55  
  Section 4.03      Limitation on Liens      62  
  Section 4.04      Limitation on Restrictions on Distributions from Restricted Subsidiaries      62  
  Section 4.05      Limitation on Sales of Assets and Subsidiary Stock      65  
  Section 4.06      Limitation on Affiliate Transactions      68  
  Section 4.07      Impairment of Security Interest      70  
  Section 4.08      Additional Subsidiary Guarantees      71  
  Section 4.09      Reports      72  
  Section 4.10      Suspension of Covenants on Achievement of Investment Grade Status      73  
  Section 4.11      Additional Intercreditor Agreements      74  
  Section 4.12      Payment of Notes      75  
  Section 4.13      Withholding Taxes      75  
  Section 4.14      Change of Control      78  

 

- 2 -

  Section 4.15      Compliance Certificate      80  
  Section 4.16      Limitation on Issuer Activities      80  
  Section 4.17      Payments for Consent      81  
  Section 4.19      Listing      81  

Article 5 Successor COMPANY

     81  
  Section 5.01      Merger and Consolidation      81  

Article 6 Defaults and Remedies

     84  
  Section 6.01      Events of Default      84  
  Section 6.02      Remedies Upon Event of Default      87  
  Section 6.03      Acceleration      87  
  Section 6.04      Other Remedies      87  
  Section 6.05      Waiver of Past Defaults      88  
  Section 6.06      Control by Majority      88  
  Section 6.07      Limitation on Suits      88  
  Section 6.08      Rights of Holders to Receive Payment      89  
  Section 6.09      Collection Suit by Trustee      89  
  Section 6.10      Trustee May File Proofs of Claim      89  
  Section 6.11      Priorities      89  
  Section 6.12      Undertaking for Costs      90  
  Section 6.13      Waiver of Stay or Extension Laws      90  
  Section 6.14      Restoration of Rights and Remedies      90  
  Section 6.15      Rights and Remedies Cumulative      90  
  Section 6.16      Delay or Omission Not Waiver      91  
  Section 6.17      Indemnification of Trustee      91  

Article 7 Trustee

     91  
  Section 7.01      Duties of Trustee      91  
  Section 7.02      Rights of Trustee      93  
  Section 7.03      Individual Rights of Trustee      96  
  Section 7.04      Trustee’s Disclaimer      96  
  Section 7.05      Notice of Defaults      96  
  Section 7.06      Compensation and Indemnity      96  
  Section 7.07      Replacement of Trustee      98  
  Section 7.08      Successor Trustee by Merger      98  
  Section 7.09      Certain Provisions      99  
  Section 7.10      Agents; General Provisions      99  

Article 8 Satisfaction and Discharge of Indenture; Defeasance

     99  
  Section 8.01      Satisfaction and Discharge of Liability on Notes; Defeasance      99  
  Section 8.02      Conditions to Defeasance      101  
  Section 8.03      Application of Money      101  
  Section 8.04      Repayment to Issuer      101  
  Section 8.05      Indemnity for European Government Obligations      102  
  Section 8.06      Reinstatement      102  

 

- 3 -

Article 9 Amendments and Waivers

     102  
  Section 9.01      Without Consent of Holders      102  
  Section 9.02      With Consent of Holders      103  
  Section 9.03      Revocation and Effect of Consents and Waivers      105  
  Section 9.04      Notation on or Exchange of Notes      105  
  Section 9.05      Trustee and Security Agent to Sign Amendments      105  

Article 10 Note Guarantees

     106  
  Section 10.01      Note Guarantees      106  
  Section 10.02      Successors and Assigns      107  
  Section 10.03      No Waiver      108  
  Section 10.04      Modification      108  
  Section 10.05      Execution of Supplemental Indenture for Guarantors      108  
  Section 10.06      Release of the Note Guarantees      108  
  Section 10.07      Limitations on Obligations of Guarantors      109  
  Section 10.08      Non-Impairment      115  

Article 11 Collateral, Security Documents and the Security Agent

     115  
  Section 11.01      Collateral and Security Documents      115  
  Section 11.02      Suits To Protect the Collateral      117  
  Section 11.03      Resignation and Replacement of Security Agent      117  
  Section 11.04      Amendments      117  
  Section 11.05      Release of Liens      117  
  Section 11.06      Compensation and Indemnity      118  
  Section 11.07      Conflicts      119  

Article 12 Miscellaneous

     120  
  Section 12.01      Notices      120  
  Section 12.02      Certificate and Opinion as to Conditions Precedent      121  
  Section 12.03      Statements Required in Certificate or Opinion      122  
  Section 12.04      When Notes Disregarded      122  
  Section 12.05      Rules by Trustee, Paying Agent and Registrar      122  
  Section 12.06      Legal Holidays      122  
  Section 12.07      Governing Law      122  
  Section 12.08      Consent to Jurisdiction and Service      122  
  Section 12.09      No Recourse Against Others      123  
  Section 12.10      Successors      123  
  Section 12.11      Counterparts      123  
  Section 12.12      Table of Contents; Headings      123  
  Section 12.13      Prescription      123  
  Section 12.14      Place of Performance      123  
  Section 12.15      Additional Limitations      124  

 

- 4 -

Exhibits

 

Exhibit A-1    Provisions Relating to the Notes
Exhibit A-2    Form of the Note
Exhibit B    Form of Supplemental Indenture

 

Schedules

 

Schedule 1    Issue Date Security Documents
Schedule 2    Post-Closing Date Security Documents

INDENTURE dated as of May 3, 2017 among Nomad Foods BondCo Plc, a public limited company incorporated under the laws of the England and Wales, with its registered office at 5 New Square, Bedfont Lakes Business Park, Feltham, Middlesex, TW14 8HA, United Kingdom, as the issuer (the “ Issuer ”), Nomad Foods Limited (the “ Parent Guarantor ”), Iglo Austria Holding GmbH, Iglo Austria GmbH, Iglo Belgium SA, Nomad Foods Europe Holdings Ltd, Nomad Foods Europe Holdco Ltd, Nomad Foods Europe Finco Ltd, Nomad Foods Europe Midco Ltd, Nomad Foods Europe Ltd, Birds Eye Ltd, Nomad Foods Europe IPco Ltd, Nomad Foods Europe Finance Ltd, Findus Finland Oy, iglo Holding GmbH, iglo GmbH, Frozen Fish International GmbH, Liberator German Newco GmbH, Nomad Foods Lux S.à r.l., Iglo Nederland B.V., Lion/Gem Norway 1 AS, Findus Norge Holding AS, Findus Norge AS, Findus España S.L.U., Findus Sverige Holdings AB, Findus Sverige AB, Frionor Sverige AB, Foodvest International AB, and Nomad Foods US LLC (together, the “ Subsidiary Guarantors ” and, together with the Parent Guarantor, the “ Guarantors ”), Deutsche Trustee Company Limited, as trustee (the “ Trustee ”), Deutsche Bank AG, London Branch, as paying agent, Deutsche Bank Luxembourg S.A., as Luxembourg registrar and transfer agent, and Credit Suisse AG, London Branch, as security agent (the “ Security Agent ”).

Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined below) of the Issuer’s €400,000,000 3.250% Senior Secured Notes due 2024 (the “ Initial Notes ”) and any Additional Notes (as defined below). Unless the context otherwise requires, in this Indenture references to the “Notes” include any Additional Notes that are actually issued.

ARTICLE 1

DEFINITIONS

Section 1.01 Definitions.

“ Acquired Indebtedness ” means Indebtedness (1) of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary, or (2) assumed in connection with the acquisition of assets from such Person, in each case whether or not Incurred by such Person in connection with such Person becoming a Restricted Subsidiary or such acquisition or (3) of a Person at the time such Person merges with or into or consolidates or otherwise combines with the Parent Guarantor or any Restricted Subsidiary. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of assets and, with respect to clause (3) of the preceding sentence, on the date of the relevant merger, consolidation or other combination.

“ Additional Assets ” means:

(1) any property or assets (other than Indebtedness and Capital Stock) used or to be used by the Parent Guarantor, a Restricted Subsidiary or otherwise useful in a Similar Business (it being understood that capital expenditures on property or assets already used in Similar Business or to replace any property or assets that are the subject of such Asset Disposition shall be deemed an investment in Additional Assets);

(2) the Capital Stock of a Person that is engaged in a Similar Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Parent Guarantor or a Restricted Subsidiary; or

(3) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary.

 

1

“ Additional Notes ” means additional Senior Secured Notes due 2024 (other than the Initial Notes) that may be issued under this Indenture in accordance with Section 2.01, as part of the same series as the Initial Notes.

“ Advisory Services Agreement ” means the advisory services agreement entered into on June 1, 2015 between the Parent Guarantor and the Founder Entities or any Affiliates thereof and any amendments thereto.

“ Affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct 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.

“ Agent ” means any Registrar, Transfer Agent, Authenticating Agent or Paying Agent, collectively, the “Agents”.

“ Agreed Security Principles ” means the agreed security principles as set out in Schedule 12 to the Senior Credit Facilities Agreement as in effect on the Issue Date, as applied mutatis mutandis with respect to the Notes in good faith by the Issuer.

“ Annual Dividend Amount ” means an amount equal to 20% of the increase (if any) in the value of an Ordinary Share calculated in accordance with Articles 4 and 5 of the Memorandum and Articles of Association.

“ Asset Disposition ” means any direct or indirect sale, lease (other than an operating lease entered into in the ordinary course of business), transfer, issuance or other disposition, or a series of related sales, leases (other than operating leases entered into in the ordinary course of business), transfers, issuances or dispositions that are part of a common plan, of shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying shares), property or other assets (each referred to for the purposes of this definition as a “disposition”) by the Parent Guarantor or any of its Restricted Subsidiaries, including any disposition by means of a merger, consolidation or similar transaction. Notwithstanding the preceding provisions of this definition, the following items shall not be deemed to be Asset Dispositions:

(1) a disposition by a Restricted Subsidiary to the Parent Guarantor or by the Parent Guarantor or a Restricted Subsidiary to a Restricted Subsidiary;

(2) a disposition of cash, Cash Equivalents, Temporary Cash Investments or Investment Grade Securities;

(3) a disposition of inventory, trading stock, security equipment or other equipment or assets in the ordinary course of business;

(4) a disposition of obsolete, damaged, retired, surplus or worn out equipment or assets or equipment, facilities or other assets that are no longer useful in the conduct of the business of the Parent Guarantor and its Restricted Subsidiaries and any transfer, termination, unwinding or other disposition of hedging instruments or arrangements not for speculative purposes;

(5) transactions permitted under Section 5.01 or a transaction that constitutes a Change of Control;

 

2

(6) an issuance or transfer of Capital Stock by a Restricted Subsidiary to the Parent Guarantor or to another Restricted Subsidiary or as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors or the issuance of directors’ qualifying shares and shares issued to individuals as required by applicable law;

(7) any dispositions of Capital Stock, properties or assets in a single transaction or series of related transactions with a fair market value (as determined in good faith by the Parent Guarantor) of less than €25.0 million or, if greater, 0.55% of Total Assets;

(8) any Restricted Payment that is permitted to be made, and is made, under Section 4.02 and the making of any Permitted Payment or Permitted Investment or, solely for purposes of Section 4.05(a)(iii), asset sales, the proceeds of which are used to make such Restricted Payments or Permitted Investments;

(9) the granting of Liens not prohibited by Section 4.03;

(10) dispositions 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 or any sale of assets received by the Parent Guarantor or a Restricted Subsidiary upon the foreclosure of a Lien granted in favor of the Parent Guarantor or any Restricted Subsidiary;

(11) the licensing, sub-licensing, lease or assignment of intellectual property or other general intangibles and licenses, sub-licenses, leases or subleases of other property, in each case, in the ordinary course of business;

(12) foreclosure, condemnation, taking by eminent domain or any similar action with respect to any property or other assets;

(13) the sale or discount (with or without recourse, and on customary or commercially reasonable terms) of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable;

(14) any issuance, sale or disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary;

(15) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Parent Guarantor or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;

(16) any surrender or waiver of contract rights or the settlement, release, recovery or surrender of contract, tort or other claims of any kind;

(17) any disposition of assets to a Person who is providing services related to such assets, the provision of which have been or are to be outsourced by the Parent Guarantor or any Restricted Subsidiary to such Person; provided, however , that the Board of Directors shall certify that in the opinion of the Board of Directors, the outsourcing transaction will be economically beneficial to the Parent Guarantor and its Restricted Subsidiaries (considered as a whole); provided, further, that the fair market value of the assets disposed of, when taken together with all other dispositions made pursuant to this clause (17), does not exceed €30.0 million or, if greater, 0.65% of Total Assets;

 

3

(18) any disposition with respect to property built, owned or otherwise acquired by the Parent Guarantor or any Restricted Subsidiary pursuant to customary sale and lease-back transactions, asset securitizations and other similar financings permitted by this Indenture;

(19) an issuance of Capital Stock by a Restricted Subsidiary to the Parent Guarantor or to another Restricted Subsidiary, an issuance or sale by a Restricted Subsidiary of Preferred Stock or Disqualified Stock that is permitted by Section 4.01 or an issuance of Capital Stock by the Parent Guarantor pursuant to an equity incentive or compensation plan approved by the Board of Directors;

(20) sales, transfers or other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding agreements; provided that any cash or Cash Equivalents received in such sale, transfer or disposition is applied in accordance with Section 4.05;

(21) sales or dispositions of receivables in connection with any Qualified Receivables Financing or any factoring transaction or in the ordinary course of business or arising as a result of the entry into of service and supply agreements with third party service providers in relation to the collection and settlement of outstanding customer invoices; and

(22) any sale, lease, license, transfer or other disposal of the German Property; provided that the Parent Guarantor or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined on the date of agreeing to such disposition), as determined in good faith by the Board of Directors of the Parent Guarantor, of the shares and assets.

“ Associate ” means (i) any Person engaged in a Similar Business of which the Parent Guarantor or its Restricted Subsidiaries are the legal and beneficial owners of between 20% and 50% of all outstanding Voting Stock and (ii) any joint venture entered into by the Parent Guarantor or any Restricted Subsidiary.

“ Bank Products ” means any facilities or services related to, treasury, depository, overdraft, credit or debit card, purchase card, automated clearinghouse, returned check concentration, electronic funds transfer, account reconciliation and reporting or other cash management and cash pooling arrangements, in each case entered into in the ordinary course of business.

“ Bankruptcy Law ” means (a) Title 11 of the U.S. Code (as may be amended from time to time) or (b) any other law of the United States (or any political subdivision thereof), Austria, Belgium, Finland, Germany, Luxembourg, the Netherlands, Norway, Spain, Sweden or the United Kingdom (or any political subdivision of any of the foregoing), or the laws of any other relevant jurisdiction or any political subdivision thereof relating to bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or relief of debtors.

“ Board of Directors ” means (1) with respect to the Parent Guarantor or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) with respect to any partnership, the board of directors or other governing body of the general partner of the partnership or any duly authorized committee thereof; and (3) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision of this Indenture requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors (excluding employee representatives, if any) on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval).

 

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“ Business Day ” means each day that is not a Saturday, Sunday or other day on which banking institutions in London, United Kingdom are authorized or required by law to close.

“ Capital Stock ” of any Person means any and all shares of, rights to purchase, warrants or options for, or other equivalents of or partnership or other interests in (however designated), equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.

“ Capitalized Lease Obligations ” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes and reflected as a liability on a balance sheet (other than in the footnotes thereto), in each case on the basis of IFRS. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined on the basis of 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, any lease, concession or license of property (or guarantee thereof) which would be considered an operating lease under IFRS as in effect on the Issue Date will not be Capitalized Lease Obligations.

“ Cash Equivalents ” means:

(1) securities issued or directly and fully Guaranteed or insured by the United States or Canadian governments, a member state of the European Union, Japan, Switzerland or Norway or, in each case, any agency or instrumentality thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), having maturities of not more than two years from the date of acquisition;

(2) certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than one year from the date of acquisition thereof issued by any lender party or by any bank or trust company (a) whose commercial paper is rated at least “A-1” or the equivalent thereof by S&P or at least “P-1” or the equivalent thereof by Moody’s (or if at the time neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (b) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in excess of €250.0 million;

(3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (1) and (2) entered into with any bank meeting the qualifications specified in clause (2) above;

(4) commercial paper rated at the time of acquisition thereof at least “A-2” or the equivalent thereof by S&P or “P-2” or the equivalent thereof by Moody’s or carrying an equivalent rating by a Nationally Recognized Statistical Rating Organization, if both of the two named rating agencies cease publishing ratings of investments or, if no rating is available in respect of the commercial paper, the issuer of which has an equivalent rating in respect of its long-term debt, and in any case maturing within one year after the date of acquisition thereof;

(5) readily marketable direct obligations issued by any state of the United States of America, any province of Canada, any member state of the European Union, Japan, Switzerland or Norway or any political subdivision thereof, in each case, having one of the two highest rating categories obtainable from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of not more than two years from the date of acquisition;

 

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(6) Indebtedness or preferred stock issued by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of 12 months or less from the date of acquisition;

(7) bills of exchange issued in the United States, Canada, a member state of the European Union, Switzerland, Norway or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);

(8) interests in any investment company, money market or enhanced high yield fund which invests 95% or more of its assets in instruments of the type specified in clauses (1) through (7) above; and

(9) for purposes of clause (2) of the definition of “ Asset Disposition ,” the marketable securities portfolio owned by the Parent Guarantor and its Subsidiaries on the Issue Date.

“ Change of Control ” means:

(1) the Parent Guarantor 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) becomes 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 Parent Guarantor, provided that for the purposes of this clause no Change of Control shall be deemed to occur by reason of the Parent Guarantor becoming a Subsidiary of a Successor Parent; or

(2) the sale, lease, transfer, conveyance or other disposition (other than by way of merger, consolidation or other business combination transaction), in one or a series of related transactions, of all or substantially all of the assets of the Parent Guarantor and its Restricted Subsidiaries taken as a whole to a Person, other than a Restricted Subsidiary.

“ Clearstream ” means Clearstream Banking, société anonyme, as currently in effect or any successor securities clearing agency.

“ Code ” means the United States Internal Revenue Code of 1986, as amended.

“ Collateral ” means any and all assets from time to time in which a security interest has been or will be granted on the Issue Date or thereafter pursuant to any Security Document to secure the obligations under this Indenture, the Notes and/or any Note Guarantee.

“ Commodity Hedging Agreements ” means, in respect of a Person, any commodity purchase contract, commodity futures or forward contract, commodities option contract or other similar contract (including commodities derivative agreements or arrangements), to which such Person is a party or a beneficiary.

“ Common Depositary ” means, with respect to the Notes issued in whole or in part in global form, a depositary common to Euroclear and Clearstream, being initially Deutsche Bank AG, London Branch, until a successor Common Depositary, if any, shall have become such pursuant to this Indenture, and thereafter “Common Depositary” shall mean or include each Person who is then a Common Depositary hereunder.

 

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“ Consolidated EBITDA ” for any period means, without duplication, the Consolidated Net Income for such period, plus the following to the extent deducted in calculating such Consolidated Net Income:

(1) Consolidated Interest Expense and Receivables Fees;

(2) Consolidated Income Taxes;

(3) consolidated depreciation expense;

(4) consolidated amortization or impairment expense;

(5) any expenses, charges or other costs related to any issuance of Capital Stock, listing of Capital Stock, Investment, acquisition (including amounts paid in connection with the acquisition or retention of one or more individuals comprising part of a management team retained to manage the acquired business and any expenses, charges or other costs related to deferred or contingent payments), disposition, recapitalization or the Incurrence of any Indebtedness permitted by this Indenture (whether or not successful) (including any such fees, expenses or charges related to the Transactions (including any expenses in connection with related due diligence activities)), in each case, as determined in good faith by the Board of Directors or an Officer of the Parent Guarantor;

(6) any minority interest expense (whether paid or not) consisting of income attributable to minority equity interests of third parties in such period and any prior period or any net earnings, income or share of profit of any Associates except to the extent of dividends declared or paid on, or other cash payments in respect of, equity interests held by third parties;

(7) the amount of management, monitoring, consulting and advisory fees and related expenses paid in such period to the extent permitted by Section 4.06;

(8) other non-cash charges, write-downs or items reducing Consolidated Net Income (excluding any such non-cash charge, write-down or item to the extent it represents an accrual of or reserve for cash charges in any future period) or other items classified by the Parent Guarantor as special, extraordinary, exceptional, unusual or nonrecurring items less other non-cash items of income increasing Consolidated Net Income (other than non-cash items increasing Consolidated Net Income pursuant to clauses (1) to (15) of the definition of Consolidated Net Income and excluding any such non-cash item of income to the extent it represents a receipt of cash in any future period);

(9) the proceeds of any business interruption insurance received or that become receivable during such period to the extent the associated losses arising out of the event that resulted in the payment of such business interruption insurance proceeds were included in computing Consolidated Net Income;

(10) payments received or that become receivable with respect to expenses that are covered by the indemnification provisions in any agreement entered into by such Person in connection with an acquisition to the extent such expenses were included in computing Consolidated Net Income;

(11) any Receivables Fees and discounts on the sale of accounts receivables in connection with any Qualified Receivables Financing representing, in the Parent Guarantor’s reasonable determination, the implied interest component of such discount for such period; and

(12) reasonably identifiable and factually supportable expected cost savings, operating expense reductions, restructuring charges and expenses and cost saving synergies related to

 

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acquisitions, divestitures, restructuring, cost savings initiatives and other similar initiatives relating to transactions consummated or initiatives implemented after the Issue Date and projected by the Parent Guarantor in good faith to result from actions with respect to which substantial steps have been, will be, or are expected to be, taken (in the good faith determination of the Parent Guarantor and evidenced by a certificate of a responsible accounting or financial officer of the Parent Guarantor) within eighteen months after such transaction or initiative is consummated, provided that the addback in this clause (12) shall be subject to a cap during any four fiscal quarter period of not more than 30% of Consolidated EBITDA.

Notwithstanding the foregoing, the provision for taxes and the depreciation, amortization, non-cash items, charges and write downs of a Restricted Subsidiary shall be added to Consolidated Net Income to compute Consolidated EBITDA only to the extent (and in the same proportion, including by reason of minority interests) that the net income (loss) of such Restricted Subsidiary was included in calculating Consolidated Net Income for the purposes of this definition.

“ Consolidated Income Taxes ” means taxes or other payments, including deferred Taxes, based on income, profits or capital (including without limitation withholding taxes) and franchise taxes of any of the Parent Guarantor and its Restricted Subsidiaries whether or not paid, estimated, accrued or required to be remitted to any Governmental Authority.

“ Consolidated Interest Expense ” means, for any period (in each case, determined on the basis of IFRS), the consolidated net interest income/expense of the Parent Guarantor and its Restricted Subsidiaries, whether paid or accrued, including any pension liability interest cost, plus or including (without duplication) any interest, costs and charges consisting of:

(1) interest expense attributable to Capitalized Lease Obligations;

(2) amortization of debt discount and premium (but not debt issuance costs, commissions, fees and expenses);

(3) non cash interest expense (excluding any non cash interest expense attributable under IFRS to foreign exchange translations or movement in the mark to market valuation of Hedging Obligations or other derivative instruments and any deemed finance charge under IFRS in respect of any pension liabilities and other provisions);

(4) the product of (a) all dividends or other distributions in respect of all Disqualified Stock of the Parent Guarantor and all Preferred Stock of any Restricted Subsidiary (other than dividends and other distributions payable solely in Capital Stock of the Parent Guarantor (other than Disqualified Stock)), to the extent held by Persons other than the Parent Guarantor or a Restricted Subsidiary multiplied by (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined national, state and local statutory tax rate of such Person, expressed as a decimal, as estimated in good faith by a responsible accounting or financial officer of the Parent Guarantor;

(5) the consolidated interest expense that was capitalized during such period; and

(6) interest actually paid by the Parent Guarantor or any Restricted Subsidiary under any Guarantee of Indebtedness or other obligation of any other Person.

“ Consolidated Leverage ” means the sum of the aggregate outstanding Indebtedness of the Parent Guarantor and its Restricted Subsidiaries (excluding Hedging Obligations), less cash and Cash Equivalents, as of the relevant date of calculation on a consolidated basis on the basis of IFRS.

 

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“ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (x) Consolidated Leverage at such date to (y) the aggregate amount of Consolidated EBITDA for the period of the four most recent fiscal quarters ending prior to the date of such determination for which internal consolidated financial statements of the Parent Guarantor are available. In the event that the Parent Guarantor or any of its Restricted Subsidiaries Incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness subsequent to the commencement of the period for which the Consolidated Leverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Consolidated Leverage Ratio is made (the “ Calculation Date ”), then the Consolidated Leverage Ratio will be calculated giving pro forma effect (as determined in good faith by a responsible accounting or financial officer of the Parent Guarantor), including in respect of anticipated expense and cost reduction synergies, to such Incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable reference period; provided , however , that the pro forma calculation may give effect to anticipated acquisitions which have not yet occurred but which have become subject to a definitive purchase agreement or contract, where the Indebtedness to be Incurred is to finance such acquisitions in whole or in part and such Indebtedness, if Incurred prior to the completion of any such acquisition, is funded into escrow and released to the Parent Guarantor or any Restricted Subsidiary only in connection with the completion of such acquisition; and provided further, however, that no cash or Cash Equivalents shall be included in the calculation of Consolidated Leverage Ratio that are, or are derived from, the proceeds of Indebtedness in respect of which the pro forma calculation is to be made, except, for the avoidance of doubt, to the extent cash or Cash Equivalents will be expended in a transaction to which pro forma effect is given.

In addition, for purposes of calculating the Consolidated Leverage Ratio:

(1) acquisitions and Investments that have been made by the Parent Guarantor or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Subsidiaries which are Restricted Subsidiaries acquired by the Parent Guarantor or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Subsidiaries which are Restricted Subsidiaries, during the reference period or subsequent to such reference period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, will be given pro forma effect (as determined in good faith by a responsible accounting or financial officer of the Parent Guarantor and may include anticipated expense and cost reduction synergies) as if they had occurred on the first day of the reference period;

(2) the Consolidated EBITDA (whether positive or negative) attributable to discontinued operations, as determined in accordance with IFRS, and operations, businesses or group of assets constituting a business or operating unit (and ownership interests therein) disposed of on or prior to the Calculation Date, will be excluded on a pro forma basis as if such disposition occurred on the first day of such period (taking into account anticipated expense and cost reduction synergies resulting from any such disposal, as determined in good faith by a responsible accounting or financial officer of the Parent Guarantor);

(3) the Consolidated Interest Expense attributable to discontinued operations, as determined in accordance with IFRS, and operations, businesses or group of assets constituting a business or operating unit (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded on a pro forma basis as if such disposition occurred on the first day of such period, but only to the extent that the obligations giving rise to such Consolidated Interest Expense will not be obligations of the Parent Guarantor or any of its Restricted Subsidiaries following the Calculation Date;

(4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such reference period;

 

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(5) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such reference period; and

(6) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness), and if any Indebtedness is not denominated in the Parent Guarantor’s functional currency, that Indebtedness for purposes of the calculation of Consolidated Leverage shall be treated in accordance with IFRS.

“ Consolidated Net Income ” means, for any period, the net income (loss) of the Parent Guarantor and its Restricted Subsidiaries determined on a consolidated basis on the basis of IFRS; provided , however , that there will not be included in such Consolidated Net Income:

(1) subject to the limitations contained in clause (2) below, any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except that the Parent Guarantor’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed by such Person during such period to the Parent Guarantor or a Restricted Subsidiary as a dividend or other distribution or return on investment or could have been distributed, as reasonably determined by an Officer of the Parent Guarantor (subject, in the case of a dividend or other distribution or return on investment to a Restricted Subsidiary, to the limitations contained in clause (2) below);

(2) solely for the purpose of determining the amount available for Restricted Payments under Section 4.02(a)(C)(1), any net income (loss) of any Restricted Subsidiary (other than Subsidiary Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Issuer or a Guarantor by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its shareholders (other than (a) restrictions that have been waived or otherwise released, (b) restrictions pursuant to the Notes or this Indenture, (c) contractual restrictions in effect on the Issue Date with respect to such Restricted Subsidiary (including pursuant to the Senior Credit Facilities Agreement or the Intercreditor Agreement), 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 (d) restrictions permitted under 4.04(b), except that the Parent Guarantor’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such Restricted Subsidiary during such period to the Parent Guarantor or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause);

(3) any net gain (or loss) realized upon the sale or other disposition of any asset or disposed operations of the Parent Guarantor or any Restricted Subsidiaries (including pursuant to any 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 Parent Guarantor);

(4) any extraordinary, one-off, exceptional, unusual or nonrecurring gain, loss, expense or charge (including for the avoidance of doubt, (i) any rebranding of the business (or any part thereof); and (ii) any tax referable to any payments, dividends or other distributions made or declared intra-group) or any charges or reserves in respect of any restructuring, redundancy,

 

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relocation, refinancing, integration or severance or other post-employment arrangements, signing, retention or completion bonuses, transaction costs (including costs related to the Transactions or any investments), acquisition costs, business optimization, system establishment, software or information technology implementation or development, costs related to governmental investigations and curtailments or modifications to pension or post- retirement benefits schemes, litigation or any asset impairment charges or the financial impacts of natural disasters (including fire, flood and storm and related events), in each case, as determined in good faith by the Parent Guarantor;

(5) the cumulative effect of a change in accounting principles;

(6) 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, any non-cash net after tax gains or losses attributable to the termination or modification of any employee pension benefit plan and any charge or expense relating to any payment made to holders of equity based securities or rights in respect of any dividend sharing provisions of such securities or rights to the extent such payment was made pursuant to Section 4.02;

(7) all deferred financing costs written off and premiums paid or other expenses Incurred directly in connection with any early extinguishment of Indebtedness or Hedging Obligations and any net gain (loss) from any write- off or forgiveness of Indebtedness;

(8) any unrealized gains or losses in respect of Hedging Obligations or other financial instruments or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of Hedging Obligations;

(9) any unrealized foreign currency transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person and any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated in foreign currencies;

(10) any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of the Parent Guarantor or any Restricted Subsidiary owing to the Parent Guarantor or any Restricted Subsidiary;

(11) any purchase accounting effects including, but not limited to, adjustments to inventory, property and equipment, software and other intangible assets and deferred revenues in component amounts required or permitted by IFRS and related authoritative pronouncements (including the effects of such adjustments pushed down to the Parent Guarantor and the Restricted Subsidiaries), as a result of any consummated acquisition or the amortization or write-off of any amounts thereof (including any write-off of in process research and development);

(12) any goodwill or other intangible asset impairment charge, amortization or write-off;

(13) Consolidated Income Taxes to the extent in excess of cash payments made in respect of such Consolidated Income Taxes; and

(14) any one-time non-cash charges or any amortization or depreciation, in each case to the extent related to the Transactions or any acquisition of another Person or business or resulting from any reorganization or restructuring involving the Parent Guarantor or its Subsidiaries.

 

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“ Consolidated Senior Secured Leverage ” means the sum of the aggregate outstanding Senior Secured Indebtedness of the Parent Guarantor and its Restricted Subsidiaries (excluding Hedging Obligations entered into for bona fide hedging purposes and not for speculative purposes (as determined in good faith by an Officer or the Board of Directors of the Parent Guarantor)), less cash and Cash Equivalents, as of the relevant date of calculation on a consolidated basis on the basis of IFRS.

“ Consolidated Senior Secured Leverage Ratio ” means, as of any date of determination, the ratio of (x) the Consolidated Senior Secured Leverage at such date to (y) the aggregate amount of Consolidated EBITDA for the period of the four most recent fiscal quarters ending prior to the date of such determination for which internal consolidated financial statements of the Issuer are available, in each case calculated with such pro forma and other adjustments as are consistent with the pro forma provisions set forth in the definition of Consolidated Leverage Ratio. In addition, the pro forma calculation shall not give effect to (i) any Indebtedness Incurred on the Calculation Date pursuant to Section 4.01(b) (other than for purposes of the calculation of the Fixed Charge Coverage Ratio under clause 4.01(b)(v)) or (ii) the discharge on the Calculation Date of any Indebtedness to the extent that such discharge results from the proceeds Incurred pursuant to Section 4.01(b).

“ Contingent Obligations ” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or other obligation that does not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”), including any obligation of such Person, whether or not contingent:

(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor;

(2) to advance or supply funds: (a) for the purchase or payment of any such primary obligation; or (b) to maintain the working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or

(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

“ Credit Facility ” means, with respect to the Parent Guarantor or any of its Subsidiaries, one or more debt facilities, indentures or other arrangements (including the Senior Credit Facilities Agreement or commercial paper facilities and overdraft facilities) with banks, other financial institutions or investors providing for revolving credit loans, term loans, notes, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the original administrative agent and lenders or another administrative agent or agents or other banks or institutions and whether provided under the original Senior Credit Facilities Agreement or one or more other credit or other agreements, indentures, financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “ Credit Facility ” shall include any agreement or instrument (1) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (2) adding Subsidiaries of the Parent Guarantor as additional borrowers or guarantors thereunder, (3) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof.

 

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“ Currency Agreement ” means, in respect of a Person, any foreign exchange contract, currency swap agreement, currency futures contract, currency option contract, currency derivative or other similar agreement to which such Person is a party or beneficiary.

“ Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“ Designated Non-Cash Consideration ” means the fair market value (as determined in good faith by the Parent Guarantor) of non-cash consideration received by the Parent Guarantor or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash, Cash Equivalents or Temporary Cash Investments received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 4.05.

“ Designated Preference Shares ” means, with respect to the Parent Guarantor, Preferred Stock (other than Disqualified Stock) (a) that is issued for cash (other than to the Parent Guarantor or a Subsidiary of the Parent Guarantor or an employee stock ownership plan or trust established by the Parent Guarantor or any such Subsidiary for the benefit of their employees to the extent funded by the Parent Guarantor or such Subsidiary) and (b) that is designated as “Designated Preference Shares” pursuant to an Officer’s Certificate of the Parent Guarantor at or prior to the issuance thereof, the Net Cash Proceeds of which are excluded from the calculation set forth in Section 4.02(a)(C)(2).

“ Disinterested Director ” means, with respect to any Affiliate Transaction, a member of the Board of Directors of the Parent Guarantor having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of the Board of Directors of the Parent Guarantor shall be deemed not to have such a financial interest by reason of such member’s holding Capital Stock of the Parent Guarantor or any options, warrants or other rights in respect of such Capital Stock.

“ Disqualified Stock ” means, with respect to any Person, any Capital Stock of such Person which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the earlier of (a) the Stated Maturity of the Notes or (b) the date on which there are no Notes outstanding; provided , however , that (i) only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock and (ii) any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Issuer to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (howsoever defined or referred to) shall not constitute Disqualified Stock if any such redemption or repurchase obligation is subject to compliance by the relevant Person with Section 4.02. For purposes hereof, the amount of Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall 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 Disqualified Stock, such fair market value to be determined as set forth herein.

“ Equity Offering ” means (x) a sale of Capital Stock of the Parent Guarantor (other than Disqualified Stock) other than offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions, or (y) the sale of Capital Stock or other securities, the proceeds of

 

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which are contributed to the equity (other than through the issuance of Disqualified Stock or Designated Preference Shares or through an Excluded Contribution) of the Parent Guarantor or any of its Restricted Subsidiaries.

“ Escrowed Proceeds ” means the proceeds from the offering of any debt securities or other Indebtedness paid into an escrow account with an independent escrow agent on the date of the applicable offering or Incurrence pursuant to escrow arrangements that permit the release of amounts on deposit in such escrow account upon satisfaction of certain conditions or the occurrence of certain events. The term “Escrowed Proceeds” shall include any interest earned on the amounts held in escrow.

“ Euro Equivalent ” means, with respect to any monetary amount in a currency other than euro, at any time of determination thereof by the Issuer or the Trustee, the amount of euro obtained by converting such currency other than euro involved in such computation into euro at the spot rate for the purchase of euro with the applicable currency other than euro as published in The Financial Times in the “Currency Rates” section (or, if The Financial Times is no longer published, or if such information is no longer available in The Financial Times, such source as may be selected in good faith by the Issuer) on the date of such determination.

“ euro ” or “ € ” means the currency introduced at the start of the third stage of the European economic and monetary union pursuant to the Treaty establishing the European Community, as amended by the Treaty on European Union.

“ Euroclear ” means Euroclear Bank SA/NV or any successor securities clearing agency.

“ European Government Obligations ” means any security that is (1) a direct obligation of any country that is a member of the European Monetary Union and whose long-term debt is rated “A-1” or higher by Moody’s or “A+” or higher by S&P or the equivalent rating category of another internationally recognized rating agency on the date of this Indenture, for the payment of which the full faith and credit of such country is pledged or (2) an obligation of a person controlled or supervised by and acting as an agency or instrumentality of any such country the payment of which is unconditionally Guaranteed as a full faith and credit obligation by such country, which, in either case under the preceding clause (1) or (2), is not callable or redeemable at the option of the issuer thereof.

“ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.

“ Excluded Contribution ” means Net Cash Proceeds or property or assets received by the Parent Guarantor as capital contributions to the equity (other than through the issuance of Disqualified Stock or Designated Preference Shares or an Excluded Amount) of the Parent Guarantor after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Parent Guarantor or any Subsidiary of the Parent Guarantor for the benefit of its employees to the extent funded by the Parent Guarantor or any Restricted Subsidiary) of Capital Stock (other than Disqualified Stock or Designated Preference Shares) of the Parent Guarantor, in each case, to the extent designated as an Excluded Contribution pursuant to an Officer’s Certificate of the Parent Guarantor.

“ Existing Notes ” means the €500 million in aggregate principal amount of floating rate notes due 2020 issued by the Issuer on July 17, 2014.

“ fair market value ” wherever such term is used in this Indenture, may be conclusively established by means of an Officer’s Certificate or a resolution of the Board of Directors of the Parent Guarantor setting out such fair market value as determined by such Officer or such Board of Directors in good faith.

 

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“ Fixed Charge Coverage Ratio ” means, with respect to any Person as of any date of determination, the ratio of (x) the aggregate amount of Consolidated EBITDA of such Person for the period of the four most recent fiscal quarters prior to the date of such determination for which internal consolidated financial statements are available to (y) the Consolidated Interest Expense of such Person for such four fiscal quarters.

In the event that the specified Person or any of its Subsidiaries which are Restricted Subsidiaries Incurs, repays, repurchases, redeems, defeases or otherwise acquires, retires, extinguishes or discharges any Indebtedness (other than Indebtedness Incurred under any revolving facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues, repurchases or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and prior to or, except as provided in the proviso below, on the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect (as determined in good faith by a responsible accounting or financial officer of the Parent Guarantor (including in respect of anticipated expense and cost reduction synergies)) to such Incurrence, repayment, repurchase, redemption, defeasance or other acquisition, retirement, extinguishment or discharge of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or Preferred Stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period; provided , however , that the pro forma calculation of the Fixed Charge Coverage Ratio shall not give effect to (i) any Indebtedness Incurred on the Calculation Date pursuant to Section 4.01(b) (other than for the purposes of the calculation of the Fixed Charge Coverage Ratio under Section 4.01(b)(v)) or (ii) the discharge on the Calculation Date of any Indebtedness to the extent that such discharge results from the proceeds Incurred pursuant to Section 4.01(b).

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

(1) if since the beginning of such period the Parent Guarantor or any Restricted Subsidiary has disposed of any company, any business, or any group of assets constituting an operating unit of a business (any such disposition, a “ Sale ”) or if the transaction giving rise to the need to calculate the Fixed Charge Coverage Ratio is such a Sale, Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets which are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period (in each case taking into account anticipated expense and cost reduction synergies resulting from such Sale); provided that if any such Sale constitutes “ discontinued operations ” in accordance with IFRS, Consolidated Net Income shall be reduced by an amount equal to the Consolidated Net Income (if positive) attributable to such operations for such period or increased by an amount equal to the Consolidated Net Income (if negative) attributable thereto for such period;

(2) if since the beginning of such period, the Parent Guarantor or any Restricted Subsidiary (by merger or otherwise) has made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise has acquired any company, any business, or any group of assets constituting an operating unit of a business (any such Investment or acquisition, a “ Purchase ”), including any such Purchase occurring in connection with a transaction causing a calculation to be made hereunder, Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period (including in respect of anticipated expense and cost reduction synergies as determined in good faith by a responsible accounting or financial officer of the Parent Guarantor);

(3) if since the beginning of such period, any Person (that became a Restricted Subsidiary or was merged or otherwise combined with or into the Parent Guarantor or any Restricted Subsidiary since the beginning of such period) will have made any Sale or any Purchase

 

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that would have required an adjustment pursuant to clause (1) or (2) above if made by the Parent Guarantor or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;

(4) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months, or, if shorter, at least equal to the remaining term of such Indebtedness);

(5) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;

(6) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period;

(7) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible accounting or financial officer of the Parent Guarantor to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with IFRS; and

(8) in making such computation, the Consolidated Interest Expense of such Person attributable to interest or any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based on the average daily balance of such Indebtedness during the applicable period.

“ Founder Entities ” means TOMS Acquisition I, LLC and Mariposa Acquisition II, LLC.

“ Founder Preferred Shares ” means the 1,500,000 preferred shares held by the Founder Entities which are convertible into Ordinary Shares on a one for one basis at any time at the option of the holder and automatically on the earlier of (i) the last day of the seventh full financial year following the Iglo Acquisition (or if such day is not a trading day, the next trading day) or (ii) in the event of a change of control (unless the independent directors of Parent Guarantor determine otherwise).

“ Founder Preferred Shares Annual Dividend Amount ” means any annual dividend amount payable pursuant to the terms of the Founder Preferred Shares based upon the volume weighted average share price of the Ordinary Shares for the last ten trading days of the financial year and the resulting appreciated average price of Ordinary Shares compared to the highest price previously used in calculating the Annual Dividend Amount.

“ German Property ” means the automated cold storage warehouse in which UBG Vermietungs GmbH & Co. OHG has a freehold interest at Aeckern 4, 48734 Reken, Germany.

“ Governmental Authority ” means any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory, self regulatory or administrative functions of or pertaining to government, including a central bank or stock exchange.

“ Guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person:

 

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(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or

(2) entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);

provided , however , that the term “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

“ Guarantor ” means any of the Parent Guarantor and the Subsidiary Guarantors.

“ Hedging Obligations ” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity Hedging Agreement (each, a “ Hedging Agreement ”).

“ Holdco ” means Nomad Foods Europe Holdco Ltd.

“ Holder ” means each Person in whose name the Notes are registered on the Registrar’s books, which shall initially be the respective nominee of Clearstream and Euroclear.

“ IFRS ” means (1) International Financial Reporting Standards as issued by the International Accounting Standards Board and in conformity with International Financial Reporting Standards as adopted by the European Union or any variation thereof with which the Parent Guarantor or its Restricted Subsidiaries are, or may be, required to comply; provided that at any date after the Issue Date the Parent Guarantor may make an irrevocable election to establish that “IFRS” shall mean, except as otherwise specified herein, IFRS as in effect on a date that is on or prior to the date of such election (notwithstanding the foregoing, the impact of IFRS 16 Leases and any successor standard thereto shall be disregarded with respect to all ratios, calculations, baskets and determinations based upon IFRS, as applicable, to be calculated or made, as the case may be, pursuant to this Indenture and (without limitation) any lease, concession or license of property that would be considered an operating lease under IFRS, as applicable, as of the Issue Date and any guarantee given by the Parent Guarantor or any Restricted Subsidiary in the ordinary course of business solely in connection with, and in respect of, the obligations of the Parent Guarantor or any Restricted Subsidiary under any such operating lease shall be accounted for in accordance with IFRS, as applicable, as in the effect on the Issue Date) and (2) if elected by the Parent Guarantor (the “ GAAP Election ”) by written notice to the Trustee in connection with the delivery of financial statements and information, the accounting standards and interpretations adopted by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (“ GAAP ”), as in effect on the first date of the period for which the Parent Guarantor is making such election; provided, that (a) any such election, once made, shall be irrevocable and (b) from and after the date of the GAAP Election, (i) all financial statements and reports required to be provided after such election pursuant to this Indenture shall be prepared on the basis of GAAP, (ii) all ratios, financial definitions, computations and other determinations based on IFRS contained in this Indenture shall be computed in conformity with GAAP, (iii) all references in this Indenture to IFRS shall be deemed to be references to GAAP, (iv) all references in this Indenture to the International Accounting Standards Board or any successor thereto shall be deemed to be references to the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or any successor thereto and (v) accounting terms not defined in this Indenture shall have the respective meanings given to them under GAAP; provided that any such term phrased in a manner customary under IFRS shall be interpreted to refer to the equivalent accounting or financial concept under GAAP and, if there is no such equivalent accounting or financial concept, shall be interpreted in a manner that best approximates the effect that such term would have if it were construed in accordance with IFRS as in effect on the Issue Date. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness.

 

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“ Incur ” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for; provided , however , that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder.

“ Indebtedness ” means, with respect to any Person on any date of determination (without duplication):

(1) the principal of indebtedness of such Person for borrowed money;

(2) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

(3) all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate amount of drawings thereunder that have been reimbursed) (except to the extent such reimbursement obligations relate to trade payables or other obligations not constituting Indebtedness and such obligations are satisfied within 30 days of Incurrence), in each case only to the extent that the underlying obligation in respect of which the instrument was issued would be treated as Indebtedness;

(4) the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (except trade payables), where the deferred payment is arranged primarily as a means of raising finance, which purchase price is due more than one year after the date of placing such property in service or taking final delivery and title thereto;

(5) Capitalized Lease Obligations of such Person;

(6) the principal component of all obligations, or liquidation preference, of such Person with respect to any Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends);

(7) the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of determination (as determined in good faith by the Parent Guarantor) and (b) the amount of such Indebtedness of such other Persons;

(8) Guarantees by such Person of the principal component of Indebtedness of other Persons to the extent Guaranteed by such Person; and

(9) to the extent not otherwise included in this definition, net obligations of such Person under Currency Agreements, Interest Rate Agreements and Commodity Hedging Agreements (the amount of any such obligations 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).

 

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The term “ Indebtedness ” shall not include any lease, concession or license of property (or Guarantee thereof) which would be considered an operating lease under IFRS as in effect on the Issue Date, any asset retirement obligations, any prepayments of deposits received from clients or customers in the ordinary course of business, or obligations under any license, permit or other approval (or Guarantees given in respect of such obligations) Incurred prior to the Issue Date or in the ordinary course of business. For the avoidance of doubt and notwithstanding the above, the term “Indebtedness” excludes any accrued expenses and trade payables.

The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amounts of funds borrowed and then outstanding. The amount of Indebtedness of any Person at any date shall be determined as set forth above or otherwise provided in this Indenture, and (other than with respect to letters of credit or Guarantees or Indebtedness specified in clause (7) or (8) above) shall equal the amount thereof that would appear on a balance sheet of such Person (excluding any notes thereto) prepared on the basis of IFRS. Indebtedness represented by loans, notes or other debt instruments shall not be included to the extent funded with the proceeds of Indebtedness which the Parent Guarantor or any Restricted Subsidiary has guaranteed or for which any of them is otherwise liable and which is otherwise included.

Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:

(1) Contingent Obligations Incurred in the ordinary course of business, obligations under or in respect of Qualified Receivables Financings and accrued liabilities Incurred in the ordinary course of business that are not more than 90 days past due;

(2) in connection with the purchase by the Parent Guarantor or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided , however , that if, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter; or

(3) for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes or under any Tax Sharing Agreement.

“ Independent Financial Advisor ” means an investment banking or accounting firm of international standing or any third party appraiser of international standing; provided , however , that such firm or appraiser is not an Affiliate of the Parent Guarantor.

“ Intercreditor Agreement ” means the intercreditor agreement entered into on July 3, 2014 among, inter alios , the Guarantors and the Security Agent and to which the Trustee and the Issuer acceded on the Issue Date, as the same may be amended, supplemented or otherwise modified from time to time (including through an amendment and restatement agreement dated on or around the Issue Date).

“ Interest Rate Agreement ” means, with respect to any Person, any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement to which such Person is party or a beneficiary.

 

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“ Investment ” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any direct or indirect advance, loan or other extensions of credit (other than advances or extensions of credit to customers, suppliers, directors, officers or employees of any Person in the ordinary course of business, and excluding any debt or extension of credit represented by a bank deposit other than a time deposit) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such other Persons and all other items that are or would be classified as investments on a balance sheet prepared on the basis of IFRS; provided , however , that endorsements of negotiable instruments and documents in the ordinary course of business will not be deemed to be an Investment. If the Parent Guarantor or any Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Parent Guarantor or any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed to be a new Investment at such time.

For purposes of Section 4.02:

(1) “ Investment ” will include the portion (proportionate to the Parent Guarantor’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Parent Guarantor will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Parent Guarantor’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Parent Guarantor’s equity interest in such Subsidiary) of the fair market value of the net assets (as conclusively determined by the Board of Directors of the Parent Guarantor in good faith) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary; and

(2) any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors of the Parent Guarantor.

The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Parent Guarantor’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment.

“ Investment Grade ” means (i) “BBB–” or higher by S&P, (ii) “Baa3” or higher by Moody’s, or (iii) the equivalent of such ratings by S&P or Moody’s, or of another Nationally Recognized Statistical Ratings Organization.

“ Investment Grade Securities ” means:

(1) securities issued or directly and fully Guaranteed or insured by the United States or Canadian government or any agency or instrumentality thereof (other than Cash Equivalents);

(2) securities issued or directly and fully guaranteed or insured by a member state of the European Union, Norway or Switzerland or any agency or instrumentality thereof (other than Cash Equivalents);

(3) debt securities or debt instruments with a rating of “BBB—” or higher from S&P or “Baa3” or higher by Moody’s or the equivalent of such rating by such rating organization or, if no

 

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rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization, but excluding any debt securities or instruments constituting loans or advances among the Parent Guarantor and its Subsidiaries;

(4) investments in any fund that invests exclusively in investments of the type described in clauses (1), (2) and (3) above which fund may also hold cash and Cash Equivalents pending investment or distribution; and

(5) any investment in repurchase obligations with respect to any securities of the type described in clauses (1), (2) and (3) above which are collateralized at par or over.

“ Investment Grade Status ” shall occur when the Notes receive both of the following:

(1) a rating of “BBB—” or higher from S&P; and

(2) a rating of “Baa3” or higher from Moody’s;

or the equivalent of such rating by either such rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization.

“ Issue Date ” means May 3, 2017.

“ Lien ” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

“ 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 Parent Guarantor or any Restricted Subsidiary:

(1) (a) in respect of travel, entertainment or moving related expenses Incurred in the ordinary course of business or (b) for purposes of funding any such person’s purchase of Capital Stock (or similar obligations) of the Parent Guarantor or its Subsidiaries with (in the case of this sub-clause (b)) the approval of the Board of Directors;

(2) in respect of moving related expenses Incurred in connection with any closing or consolidation of any facility or office; or

(3) not exceeding €6.25 million in the aggregate outstanding at any time.

“ Management Investors ” means the officers, directors, employees and other members of the management of or consultants to the Parent Guarantor or any of its Subsidiaries, or spouses, family members or relatives thereof, or any trust, partnership or other entity for the benefit of or the beneficial owner of which (directly or indirectly) is any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the Parent Guarantor or any Restricted Subsidiary, or such entity as may hold shares transferred by departing members of the management team of the Parent Guarantor or any Restricted Subsidiary for future redistribution to such management team.

“ Market Capitalization ” means an amount equal to (i) the total number of issued and outstanding shares of common stock or common equity interests of the Parent Guarantor on the date of the declaration of the relevant dividend multiplied by (ii) the arithmetic mean of the closing prices per share of such common stock or common equity interests for the 30 consecutive trading days immediately preceding the date of declaration of such dividend.

 

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“ Memorandum and Articles of Association ” means the memorandum of association and articles of association of Nomad Foods Limited incorporated on April 1, 2014 as amended and restated on June 8, 2015 and January 12, 2016.

“ Moody’s ” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.

“ Nationally Recognized Statistical Rating Organization ” means a nationally recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act.

“ Net Available Cash ” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and net proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:

(1) all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses Incurred, and all Taxes paid or required to be paid or accrued as a liability under IFRS (after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset Disposition;

(2) all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or which by its terms or by applicable law are required to be repaid out of the proceeds from such Asset Disposition;

(3) all distributions and other payments required to be made to minority interest holders (other than any Parent Guarantor or any of its Subsidiaries) in Subsidiaries or joint ventures as a result of such Asset Disposition; and

(4) the deduction of appropriate amounts required to be provided by the seller as a reserve, on the basis of IFRS, against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Parent Guarantor or any Restricted Subsidiary after such Asset Disposition, including pension and other post-employment benefits liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such transaction.

“ Net Cash Proceeds ,” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements).

“ Notes ” means the Initial Notes and any Additional Notes.

“ Notes Documents ” means the Notes (including Additional Notes), this Indenture, the Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreements.

 

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“ Note Guarantee ” means the guarantee by each Guarantor of the Issuer’s obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.

“ Offering Memorandum ” means the offering memorandum dated April 21, 2017 in relation to the Notes.

“ Officer ” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, any Managing Director or the Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such entity, or (2) any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors of such Person.

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

“ Opinion of Counsel ” means a written opinion from legal counsel reasonably satisfactory to the Trustee. The counsel may be an employee of, or counsel to, the Parent Guarantor or its Subsidiaries.

“ Ordinary Shares ” means the ordinary shares of the Parent Guarantor, no par value.

“ Pari Passu Indebtedness ” means Indebtedness of the Issuer or any Guarantor if such Indebtedness ranks equally in right of payment to the Notes, the Parent Guarantee or the Subsidiary Guarantees of such Guarantor, as the case may be.

“ Paying Agent ” means any Person authorized by the Issuer to pay the principal of (and premium, if any) or interest on any Note on behalf of the Issuer.

“ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents or Temporary Cash Investments between the Parent Guarantor or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 4.05.

“ Permitted Collateral Liens ” means Liens on the Collateral:

(1) that are described in one or more of clauses (2), (3), (4), (5), (6), (8), (9), (11), (12), (14), (18), (22) and (23) of the definition of “Permitted Liens” and, in each case, arising by law or that would not materially interfere with the ability of the Security Agent to enforce the security interests in the Collateral and that are described in clauses (40) and (41) of the definition of Permitted Liens;

(2) to secure:

(i) the Notes (other than any Additional Notes) and any related Note Guarantees;

(ii) Indebtedness permitted to be Incurred under Section 4.01(a);

(iii) Indebtedness described under Section 4.01(b)(i), which Indebtedness may, to the extent permitted by the Intercreditor Agreement as in effect on the Issue Date, have super senior priority status in respect of the proceeds from the enforcement of the Collateral;

 

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(iv) Indebtedness described under Section 4.01(b)(ii) to the extent Incurred by the Issuer or a Guarantor and to the extent such guarantee is in respect of Indebtedness otherwise permitted to be secured and specified in this definition of Permitted Collateral Liens;

(v) Indebtedness described under Section 4.01(b)(v) that is incurred by the Issuer or a Guarantor; provided that, at the time of the acquisition or other transaction pursuant to which such Indebtedness was incurred and after giving effect to the incurrence of such Indebtedness on a pro forma basis, (a) the Parent Guarantor would have been able to incur €1.00 of additional Senior Secured Indebtedness pursuant to Section 4.01(a)(2) or (b) the Consolidated Senior Secured Leverage Ratio would not be greater than it was immediately prior to giving pro forma effect to such acquisition or other transaction and to the Incurrence of such Indebtedness;

(vi) Indebtedness described under Section 4.01(b)(vi); provided that to the extent permitted by the Intercreditor Agreement as in effect on the Issue Date, Hedging Obligations Incurred in compliance with Section 4.01 that are not subordinated in right of payment to the Notes may have super senior priority status in respect of the proceeds from the enforcement of the Collateral;

(vii) Indebtedness described under Section 4.01(b)(vii) (other than with respect to Capitalized Lease Obligations), Section 4.01(b)(xi) or Section 4.01(b)(xii);

(viii) any Refinancing Indebtedness in respect of Indebtedness referred to in the foregoing clauses (i) to (vii);

provided , that each of the secured parties to any such Indebtedness (acting directly or through its respective creditor representative) will have entered into the Intercreditor Agreement or an Additional Intercreditor Agreement; provided , further that subject to the Agreed Security Principles, all property and assets (including, without limitation, the Collateral) securing such Indebtedness (including any Guarantees thereof) or Refinancing Indebtedness secure the Notes and this Indenture on a senior or pari passu basis (including by application of payment order, turnover or equalization provisions substantially consistent with the corresponding provisions set forth in the Intercreditor Agreement or any Additional Intercreditor Agreement), except to the extent provided in clauses (iii) and (vi) above.

“ Permitted Investment ” means (in each case, by the Parent Guarantor or any of its Restricted Subsidiaries):

(1) Investments in (a) a Restricted Subsidiary (including the Capital Stock of a Restricted Subsidiary) or the Parent Guarantor or (b) a Person (including the Capital Stock of any such Person) and such Person will, upon the making of such Investment, become a Restricted Subsidiary;

(2) Investments in another Person and as a result of such Investment such other Person is merged, consolidated or otherwise combined with or into, or transfers or conveys all or substantially all its assets to, the Parent Guarantor or a Restricted Subsidiary;

(3) Investments in cash, Cash Equivalents, Temporary Cash Investments or Investment Grade Securities;

 

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(4) Investments in receivables owing to the Parent Guarantor or any Restricted Subsidiary created or acquired in the ordinary course of business and Investments in connection with any Qualified Receivables Financing;

(5) Investments in payroll, travel, relocation, entertainment and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;

(6) Management Advances;

(7) Investments in Capital Stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Parent Guarantor or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor;

(8) Investments made as a result of the receipt of non-cash consideration from a sale or other disposition of property or assets, including an Asset Disposition, in each case, that was made in compliance with Section 4.05;

(9) Investments in existence on, or made pursuant to legally binding commitments in existence on, the Issue Date, and any extension, modification or renewal of any such Investment; provided that the amount of the Investment may be increased (i) as required by the terms of the Investment as in existence on the Issue Date or (ii) as otherwise permitted under this Indenture;

(10) Currency Agreements, Interest Rate Agreements, Commodity Hedging Agreements and related Hedging Obligations, which transactions or obligations are Incurred in compliance with Section 4.01;

(11) Investments, taken together with all other Investments made pursuant to this clause (11) and at any time outstanding, in an aggregate amount at the time of such Investment (net of any distributions, dividends, payments or other returns in respect of such Investments) not to exceed €75.0 million or, if greater, 25% of Consolidated EBITDA of the Parent Guarantor for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of calculation; provided that, if an Investment is made pursuant to this clause in a Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 4.02, such Investment shall thereafter be deemed to have been made pursuant to clause (1) or (2) of the definition of “Permitted Investments” and not this clause;

(12) Investments in Associates in an aggregate amount when taken together with all other Investments made pursuant to this clause (12) that are at the time outstanding not to exceed €50 million; provided, that, if an Investment is made pursuant to this clause in a Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to this Indenture, such Investment shall thereafter be deemed to have been made pursuant to clause (1) or (2) of the definition of “Permitted Investments” and not this clause (12);

(13) Investments in any joint venture of a Similar Business provided that at the time of such Investment the Consolidated Leverage Ratio does not exceed 5.25 to 1.0 on a pro forma basis after giving effect thereto;

 

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(14) 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 4.03;

(15) any Investment to the extent made using Capital Stock of the Parent Guarantor (other than Disqualified Stock as consideration;

(16) any transaction to the extent constituting an Investment that is permitted and made in accordance with Section 4.06(b) (except for those described in Section 4.06(b)(i), Section 4.06(b)(iii), Section 4.06(b)(vi), Section 4.06(b)(viii) and Section 4.06(b)(ix));

(17) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or licenses or leases of intellectual property, in any case, in the ordinary course of business and in accordance with this Indenture;

(18) guarantees, keepwells and similar arrangements not prohibited under Section 4.01;

(19) Investments in the Notes or other Indebtedness of the Parent Guarantor and any Restricted Subsidiary;

(20) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or licenses or leases of intellectual property, in any case, in the ordinary course of business and in accordance with this Indenture;

(21) Investments acquired after the Issue Date as a result of the acquisition by the Parent Guarantor or any of its Restricted Subsidiaries of another Person, including by way of a merger, amalgamation or consolidation with or into the Parent Guarantor or any of its Restricted Subsidiaries in a transaction that is not prohibited by Section 5.01 to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;

(22) Investments of cash held on behalf of merchants or other business counterparties in the ordinary course of business in bank deposits, time deposit accounts, certificates of deposit, bankers’ acceptances, money market deposits, money market deposit accounts, bills of exchange, commercial paper, governmental obligations, investment funds, money market funds or other securities;

(23) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility, workers’ compensation, performance and other similar deposits, in each case, in the ordinary course of business; and

(24) Investments in or constituting Bank Products.

“ Permitted Liens ” means, with respect to any Person:

(1) Liens on assets or property of a Restricted Subsidiary that is not a Guarantor securing any Indebtedness of such Restricted Subsidiary permitted under Section 4.01;

(2) pledges, deposits or Liens under workmen’s compensation laws, unemployment insurance laws, social security laws or similar legislation, or insurance related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements), or in connection with bids, tenders, completion guarantees, contracts (other than for

 

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borrowed money) or leases, or to secure utilities, licenses, public or statutory obligations, trade obligations or to secure surety, indemnity, judgment, appeal or performance bonds, guarantees of government contracts (or other similar bonds, instruments or obligations), or as security for contested taxes or import or customs duties or for the payment of rent, or other obligations of like nature, in each case Incurred in the ordinary course of business (including, in each case, to secure letters of credit or similar instruments to assure payment of such obligation);

(3) Liens imposed by law, including carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s and repairmen’s or other like Liens, in each case for sums not yet overdue for a period of more than 60 days or that are bonded or being contested in good faith by appropriate proceedings;

(4) Liens for taxes, assessments or other governmental charges not yet delinquent or which are being contested in good faith by appropriate proceedings; provided that appropriate reserves required pursuant to IFRS have been made in respect thereof;

(5) Liens in favor of the issuer of surety, performance or other bonds, guarantees or letters of credit or bankers’ acceptances (not issued to support Indebtedness for borrowed money) issued pursuant to the request of and for the account of the Parent Guarantor or any Restricted Subsidiary in the ordinary course of its business;

(6) encumbrances, ground leases, easements (including reciprocal easement agreements), survey exceptions, or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of the Parent Guarantor and its Restricted Subsidiaries or to the ownership of its properties which do not materially impair their use in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries;

(7) Liens on assets or property of the Parent Guarantor or any Restricted Subsidiary (other than the Collateral) securing Hedging Obligations permitted under this Indenture;

(8) licenses, subleases and sublicenses of assets (including real property and intellectual property rights), in each case entered into in the ordinary course of business;

(9) Liens arising out of judgments, decrees, orders or awards not giving rise to an Event of Default so long as any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree, order or award have not been finally terminated or the period within which such proceedings may be initiated has not expired;

(10) Liens on assets or property of the Parent Guarantor or any Restricted Subsidiary for the purpose of securing Capitalized Lease Obligations or Purchase Money Obligations, or securing the payment of all or a part of the purchase price of, or securing other Indebtedness Incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that (a) the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be Incurred under this Indenture and (b) any such Lien may not extend to any assets or property of the Parent Guarantor or any Restricted Subsidiary other than assets or property acquired, improved, constructed or leased with the proceeds of such Indebtedness and any improvements or accessions to such assets and property;

 

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(11) Liens arising by virtue of any statutory or common law provisions or standard terms and conditions of business relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depositary or financial institution;

(12) Liens arising from Uniform Commercial Code financing statement filings (or similar filings in other applicable jurisdictions) regarding operating leases entered into by the Parent Guarantor and its Restricted Subsidiaries in the ordinary course of business;

(13) Liens existing on, or provided for or required to be granted under written agreements existing on, the Issue Date;

(14) Liens on property, other assets or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary (or at the time the Parent Guarantor or a Restricted Subsidiary acquires such property, other assets or shares of stock, including any acquisition by means of a merger, consolidation or other business combination transaction with or into the Parent Guarantor or any Restricted Subsidiary); provided , however that such Liens are limited to all or part of the same property, other assets or stock (plus improvements, accession, proceeds or dividends or distributions in connection with the original property, other assets or stock) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate;

(15) Liens on assets or property of the Parent Guarantor or any Restricted Subsidiary securing Indebtedness or other obligations of the Parent Guarantor or such Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary, or Liens in favor of the Parent Guarantor or any Restricted Subsidiary;

(16) Liens (other than Permitted Collateral Liens) securing Refinancing Indebtedness Incurred to refinance Indebtedness that was previously so secured, and permitted to be secured under this Indenture; provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced or is in respect of property that is or could be the security for or subject to a Permitted Lien hereunder;

(17) any interest or title of a lessor under any Capitalized Lease Obligation or operating lease;

(18) (a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property over which the Parent Guarantor or any Restricted Subsidiary has easement rights or on any leased property and subordination or similar arrangements relating thereto and (b) any condemnation or eminent domain proceedings affecting any real property;

(19) any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

(20) Liens on cash accounts securing Indebtedness incurred under Section 4.01(b)(x) with local financial institutions;

 

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(21) Liens on Escrowed Proceeds for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters or arrangers thereof) or on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose;

(22) Liens securing or arising in respect of Bank Products or by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities, or liens over cash accounts securing cash management services (including overdrafts), to implement cash pooling arrangements or to cash collateralize letters of credit;

(23) Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;

(24) Liens provided that the maximum amount of Indebtedness secured in the aggregate at any one time pursuant to this clause (24) does not exceed (measured at the time of incurrence) the greater of €65.0 million and 20% of Consolidated EBITDA of the Parent Guarantor for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of calculation;

(25) Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Indebtedness of such Unrestricted Subsidiary;

(26) any security granted over the marketable securities portfolio described in clause (9) of the definition of “Cash Equivalents” in connection with the disposal thereof to a third party;

(27) Liens on Receivables Assets Incurred in connection with a Qualified Receivables Financing;

(28) Liens on Indebtedness permitted to be Incurred pursuant to Section 4.01(b)(xv);

(29) Liens on assets or property of any Restricted Subsidiary that is not a Subsidiary Guarantor securing any Indebtedness of any such Subsidiary;

(30) Liens on any proceeds loan made by the Parent Guarantor or any Restricted Subsidiary in connection with any future incurrence of Indebtedness permitted under this Indenture and securing that Indebtedness;

(31) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;

(32) Liens over cash paid into an escrow account pursuant to any purchase price retention arrangement as part of any permitted disposal by the Parent Guarantor or a Restricted Subsidiary on condition that the cash paid into such escrow account in relation to a disposal does not represent more than 25% of the net proceeds of such disposal;

(33) Liens created on any asset of the Parent Guarantor or a Restricted Subsidiary established to hold assets of any stock option plan or any other management or employee benefit or incentive plan or unit trust of the Parent Guarantor or a Restricted Subsidiary securing any loan to finance the acquisition of such assets;

 

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(34) Liens over treasury stock of the Parent Guarantor or a Restricted Subsidiary purchased or otherwise acquired for value by the Parent Guarantor or such Restricted Subsidiary pursuant to a stock buy back scheme or other similar plan or arrangement;

(35) Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets;

(36) limited recourse Liens in respect of the ownership interests in, or assets owned by, any joint ventures which are not Restricted Subsidiaries securing obligations of such joint ventures;

(37) (a) Liens created for the benefit of or to secure, directly or indirectly, the Notes, (b) Liens pursuant to the Intercreditor Agreement and the security documents entered into pursuant to this Indenture, (c) Liens in respect of property and assets securing Indebtedness if the recovery in respect of such Liens is subject to loss-sharing as among the Holders of the Notes and the creditors of such Indebtedness pursuant to the Intercreditor Agreement or an Additional Intercreditor Agreement and (d) Liens securing Indebtedness incurred under Section 4.01(b)(i) to the extent the Agreed Security Principles would permit such Lien to be granted to such Indebtedness and not to the Notes;

(38) Liens on receivables securing Indebtedness described under Section 4.01(b)(xiii);

(39) Liens securing Indebtedness described under Section 4.01(b)(xv);

(40) Liens on assets of any Restricted Subsidiary incorporated in Sweden created solely in connection with obtaining credit insurance from PRI Pensionsgaranti; and

(41) Liens securing the Existing Notes until they are repaid pursuant to the Transactions;

(42) any extension, renewal, refinancing or replacement, in whole or in part, of any Lien described in the foregoing clauses (1) through (41) (but excluding clauses (20) and (41)); provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced.

“ Permitted Reorganization ” means any amalgamation, demerger, merger, voluntary liquidation, consolidation, reorganization, winding up or corporate reconstruction involving the Parent Guarantor or any of its Restricted Subsidiaries and the assignment, transfer or assumption of intercompany receivables and payables among the Parent Guarantor and its Restricted Subsidiaries in connection therewith (a “Reorganization”) that is made on a solvent basis; provided that: (a) all of the business and assets of the Parent Guarantor or such Restricted Subsidiaries remain owned by the Parent Guarantor or its Restricted Subsidiaries, (b) any payments or assets distributed in connection with such Reorganization remain within the Parent Guarantor and its Restricted Subsidiaries, (c) if any shares or other assets form part of the Collateral, substantially equivalent Liens must be granted over such shares or assets of the recipient such that they form part of the Collateral and (d) prior to any such Reorganization, the Issuer will provide to the Trustee and the Security Agent an Officer’s Certificate confirming that no Default is continuing or would arise as a result of such Reorganization, upon which the Trustee and Security Agent may conclusively rely.

 

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“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.

“ Preferred Stock ,” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

“ Public Debt ” means any Indebtedness consisting of bonds, debentures, notes or other similar debt securities issued in (1) a public offering registered under the Securities Act or (2) a private placement to institutional investors that is underwritten for resale in accordance with Rule 144A or Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders of such debt securities to registration thereof with the SEC for public resale.

“ Public Offering ” means any offering of shares of common stock or other common equity interests that are listed on an exchange or publicly offered (which shall include an offering pursuant to Rule 144A and/or Regulation S under the Securities Act to professional market investors or similar persons).

“ Purchase Money Obligations ” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.

“ Qualified Receivables Financing ” means any Receivables Financing that meets the following conditions: (1) the Board of Directors of the Parent Guarantor shall have determined in good faith that such Qualified Receivables Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Parent Guarantor and the Receivables Subsidiary, (2) all sales of accounts receivable and related assets to the Receivables Subsidiary are made at fair market value (as determined in good faith by the Parent Guarantor), and (3) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Parent Guarantor) and may include Standard Securitization Undertakings.

The grant of a security interest in any accounts receivable of the Parent Guarantor or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) to secure Indebtedness under a Credit Facility or Indebtedness in respect of the Notes shall not be deemed a Qualified Receivables Financing.

“ Receivables Assets ” means any assets that are or will be the subject of a Qualified Receivables Financing.

“ Receivables Fees ” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Financing.

“ Receivables Financing ” means any transaction or series of transactions that may be entered into by the Parent Guarantor or any of its Subsidiaries pursuant to which the Parent Guarantor or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Receivables Subsidiary (in the case of a transfer by the Parent Guarantor or any of its Subsidiaries), or (b) any other Person (in the case of a transfer by a Receivables Subsidiary), or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of the Parent Guarantor or any of its Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets

 

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which are customarily transferred or in respect of which security interest are customarily granted in connection with asset securitization transactions involving accounts receivable and any Hedging Obligations entered into by the Parent Guarantor or any such Subsidiary in connection with such accounts receivable.

“ Receivables Repurchase Obligation ” means any obligation of a seller of receivables in a Qualified Receivables Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.

“ Receivables Subsidiary ” means a Wholly Owned Subsidiary of the Parent Guarantor (or another Person formed for the purposes of engaging in a Qualified Receivables Financing with the Parent Guarantor in which the Parent Guarantor or any Subsidiary of the Parent Guarantor makes an Investment and to which the Parent Guarantor or any Subsidiary of the Parent Guarantor transfers accounts receivable and related assets) which engages in no activities other than in connection with the financing of accounts receivable of the Parent Guarantor and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Parent Guarantor (as provided below) as a Receivables Subsidiary and:

(1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Parent Guarantor or any other Restricted Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is subject to terms that are substantially equivalent in effect to a guarantee of any losses on securitized or sold receivables by the Parent Guarantor or any other Restricted Subsidiary, (iii) is recourse to or obligates the Parent Guarantor or any other Restricted Subsidiary in any way other than pursuant to Standard Securitization Undertakings, or (iv) subjects any property or asset of the Parent Guarantor or any other Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;

(2) with which neither the Parent Guarantor nor any other Restricted Subsidiary has any contract, agreement, arrangement or understanding other than on terms which the Parent Guarantor reasonably believes to be no less favorable to the Parent Guarantor or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Parent Guarantor; and

(3) to which neither the Parent Guarantor nor any other Restricted Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

Any such designation by the Board of Directors of the Parent Guarantor shall be evidenced to the Trustee by filing with the Trustee a copy of the resolution of the Board of Directors of the Parent Guarantor giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing conditions.

“ refinance ” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell, extend or increase (including pursuant to any defeasance or discharge mechanism) and the terms “ refinances ,” “ refinanced ” and “ refinancing ” as used for any purpose in this Indenture shall have a correlative meaning.

 

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“ Refinancing Indebtedness ” means Indebtedness that is Incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness existing on the date of this Indenture or Incurred in compliance with this Indenture (including Indebtedness of the Parent Guarantor that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of the Parent Guarantor or another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness; provided , however , that:

(1) if the Indebtedness being refinanced constitutes Subordinated Indebtedness, the Refinancing Indebtedness has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is the same as or later than the final Stated Maturity of the Indebtedness being refinanced or, if shorter, the Notes;

(2) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, any additional Indebtedness Incurred to pay interest or premiums required by the instruments governing such existing Indebtedness and costs, expenses and fees Incurred in connection therewith); and

(3) if the Indebtedness being refinanced is expressly subordinated to the Notes or the Guarantees, such Refinancing Indebtedness is subordinated to the Notes or the Guarantees on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced,

provided , however , that Refinancing Indebtedness shall not include Indebtedness of the Parent Guarantor or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary.

Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred from time to time after the termination, discharge or repayment of any such Credit Facility or other Indebtedness.

“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the applicable corporate trust services department of the Trustee, including any director, associate director, assistant secretary or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

“ Restricted Investment ” means any Investment other than a Permitted Investment.

“ Restricted Subsidiary ” means any Subsidiary of the Parent Guarantor other than an Unrestricted Subsidiary.

“ S&P ” means Standard & Poor’s Investors Ratings Services or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.

“ SEC ” means the U.S. Securities and Exchange Commission or any successor thereto.

“ Securities Act ” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.

 

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“ Security Documents ” means each collateral pledge agreement, security interest agreement, security assignment agreement or other document under which collateral is pledged to secure the Notes.

“ Senior Credit Facilities Agreement ” means the senior facilities agreement dated July 3, 2014, among Nomad Foods Midco Limited (formerly Iglo Foods Midco Limited), certain of its Subsidiaries, as borrowers and guarantors, the original lenders (as named therein), and Credit Suisse AG, London Branch, as agent and security agent, as amended and restated on May 6, 2015 and October 23, 2015 and as further amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time, including on or about the Issue Date.

“ Senior Finance Documents ” means the Senior Credit Facilities Agreement and such other documents identified as “Finance Documents” pursuant to the Senior Credit Facilities Agreement.

“ Senior Indebtedness ” means, whether outstanding on the Issue Date or thereafter Incurred, all amounts payable by, under or in respect of all other Indebtedness of the Issuer or any Guarantor, including premiums and accrued and unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Issuer or such Guarantor at the rate specified in the documentation with respect thereto whether or not a claim for post filing interest is allowed in such proceeding) and fees relating thereto; provided, however, that Senior Indebtedness will not include:

(1) any obligation of any Guarantor to the Parent Guarantor or any Restricted Subsidiary;

(2) any liability for taxes owed or owing by the Parent Guarantor or any Restricted Subsidiary;

(3) any Indebtedness, guarantee or obligation of any Guarantor that is expressly subordinate or junior in right of payment to any other Indebtedness, guarantee or obligation of such Guarantor; or

(4) any Capital Stock.

“ Senior Management ” means the officers, directors, and other members of senior management of the Parent Guarantor or any of its Subsidiaries.

“ Senior Secured Indebtedness ” means, with respect to any Person as of any date of determination, any Indebtedness for borrowed money that is secured by a first priority Lien on the Collateral and that is Incurred under Section 4.01(a) or clauses (i), (iv), (v), (vii), (xi), (xiii) or (xiv) of Section 4.01(b) and any Refinancing Indebtedness in respect thereof that is secured by a first priority Lien on the Collateral.

“ Significant Subsidiary ” means any Restricted Subsidiary that meets any of the following conditions:

(1) the Parent Guarantor’s and its Restricted Subsidiaries’ investments in and advances to the Restricted Subsidiary exceed 10% of the total assets of the Parent Guarantor and its Restricted Subsidiaries on a consolidated basis as of the end of the most recently completed fiscal year;

(2) the Parent Guarantor’s and its Restricted Subsidiaries’ proportionate share of the total assets (after intercompany eliminations) of the Restricted Subsidiary exceeds 10% of the total assets of the Parent Guarantor and its Restricted Subsidiaries on a consolidated basis as of the end of the most recently completed fiscal year; or

 

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(3) the Parent Guarantor’s and its Restricted Subsidiaries’ equity in the income from continuing operations before income taxes, extraordinary items and cumulative effect of a change in accounting principle of the Restricted Subsidiary exceeds 10% of such income of the Parent Guarantor and its Restricted Subsidiaries on a consolidated basis for the most recently completed fiscal year.

“ Similar Business ” means (a) any businesses, services or activities engaged in by the Parent Guarantor or any of its Subsidiaries or any Associates on the Issue Date, (b) the frozen food business and (c) any businesses, services and activities engaged in by the Parent Guarantor or any of its Subsidiaries or any Associates that are related, complementary, incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof.

“ Standard Securitization Undertakings ” means representations, warranties, covenants, indemnities and guarantees of performance entered into by the Parent Guarantor or any Subsidiary of the Parent Guarantor which the Issuer has determined in good faith to be customary in a Receivables Financing, including those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.

“ Stated Maturity ” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.

“ Subordinated Indebtedness ” means, with respect to any Person, any Indebtedness (whether outstanding on the Issue Date or thereafter Incurred) which is expressly subordinated in right of payment to the Notes or the Note Guarantees pursuant to a written agreement.

“ Subsidiary ” means, with respect to any Person:

(1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; or

(2) any partnership, joint venture, limited liability company or similar entity of which: (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership interests or otherwise; and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

“ Subsidiary Guarantee ” means a Guarantee of the obligations of the Issuer pursuant to the Notes, including any payment obligation resulting from a Change of Control, provided on a senior basis by a Subsidiary Guarantor.

“ Subsidiary Guarantor ” means any Restricted Subsidiary of the Parent Guarantor that Guarantees the Notes.

 

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“ 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 own” 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).

“ Taxes ” means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings and any charges of a similar nature (including interest, penalties and other liabilities with respect thereto) that are imposed by any government or other taxing authority.

“ Tax Sharing Agreement ” means any tax sharing or profit and loss pooling or similar agreement with customary or arm’s-length terms entered into with any Unrestricted Subsidiary, as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Indenture.

“ Temporary Cash Investments ” means any of the following:

(1) any investment in: (a) direct obligations of, or obligations Guaranteed by, (i) the United States of America or Canada, (ii) any member state of the European Union, (iii) Japan, Switzerland or Norway, (iv) any country in whose currency funds are being held specifically pending application in the making of an investment or capital expenditure by the Parent Guarantor or a Restricted Subsidiary in that country with such funds or (v) any agency or instrumentality of any such country or member state; or (b) direct obligations of any country recognized by the United States of America rated at least “A” by S&P or “A2” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any Nationally Recognized Statistical Rating Organization);

(2) overnight bank deposits, and investments in time deposit accounts, certificates of deposit, bankers’ acceptances and money market deposits (or, with respect to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by: (a) any lender under the Senior Credit Facilities Agreement; (b) any institution authorized to operate as a bank in any of the countries or member states referred to in sub-clause (1)(a) above; or (c) any bank or trust company organized under the laws of any such country or member state or any political subdivision thereof, in each case, having capital and surplus aggregating in excess of €250.0 million (or the foreign currency equivalent thereof) and whose long-term debt is rated at least “A-” by S&P or “A2” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any Nationally Recognized Statistical Rating Organization) at the time such Investment is made;

(3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (1) or (2) above entered into with a Person meeting the qualifications described in clause (2) above;

(4) Investments in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than the Parent Guarantor or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any Nationally Recognized Statistical Rating Organization);

 

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(5) Investments in securities maturing not more than one year after the date of acquisition issued or fully Guaranteed by any state, commonwealth or territory of the United States of America, Canada, any member state of the European Union, Japan, Switzerland or Norway or by any political subdivision or taxing authority of any such state, commonwealth, territory, country or member state, and rated at least “BBB—” by S&P or “Baa3” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any Nationally Recognized Statistical Rating Organization);

(6) bills of exchange issued in the United States, Canada, a member state of the European Union, Switzerland, Norway or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);

(7) any money market deposit accounts issued or offered by a commercial bank organized under the laws of a country that is a member of the Organization for Economic Co-operation and Development, in each case, having capital and surplus in excess of €250.0 million (or the foreign currency equivalent thereof) or whose long term debt is rated at least “A” by S&P or “A2” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any Nationally Recognized Statistical Rating Organization) at the time such Investment is made;

(8) investment funds investing 95% of their assets in securities of the type described in clauses (1) through (7) above (which funds may also hold reasonable amounts of cash pending investment and/or distribution); and

(9) investments in money market funds complying with the risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under the U.S. Investment Company Act of 1940, as amended.

“ Topco ” means Nomad Foods Europe Ltd.

“ Total Assets ” means the consolidated total assets of the Parent Guarantor and its Restricted Subsidiaries in accordance with IFRS as shown on the most recent balance sheet of such Person. For purposes of determining Total Assets, pro forma effect shall be given to the calculation of Total Assets on the same basis as the pro forma and other adjustments for calculating Fixed Charge Coverage Ratio (as determined in good faith by the Parent Guarantor’s chief executive officer, chief financial officer or any person performing a similarly senior accounting role).

“ Transactions ” means the amendment and restatement of the Senior Credit Facilities Agreement, the issuance and sale of the Notes and the application of the proceeds from the amended and restated Senior Credit Facilities Agreement and the Notes to (i) refinance the Senior Credit Facilities Agreement and the closing out, replacement or entry into new Hedging Obligations pursuant thereto, (ii) repay the Existing Notes and (iii) the payment or incurrence of any fees, expense, taxes or charges associated therewith and any transactions related or incidental thereto.

“ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended.

“ Uniform Commercial Code ” means the New York Uniform Commercial Code.

 

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“ Unrestricted Subsidiary ” means:

(1) any Subsidiary of the Parent Guarantor (other than the Issuer) that at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Parent Guarantor in the manner provided below); and

(2) any Subsidiary of an Unrestricted Subsidiary.

The Board of Directors of the Parent Guarantor may designate any Subsidiary of the Parent Guarantor (including any newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger, consolidation or other business combination transaction, or Investment therein, but not including the Issuer) to be an Unrestricted Subsidiary only if:

(1) such Subsidiary or any of its Subsidiaries does not own any Capital Stock or Indebtedness of, or own or hold any Lien on any property of, the Parent Guarantor or any other Subsidiary of the Parent Guarantor which is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary; and

(2) such designation and the Investment of the Parent Guarantor in such Subsidiary complies with Section 4.02.

Any such designation by the Board of Directors of the Parent Guarantor shall be evidenced to the Trustee and the Security Agent by filing with the Trustee and the Security Agent a resolution of the Board of Directors of the Parent Guarantor giving effect to such designation and an Officer’s Certificate certifying that such designation complies with the foregoing conditions.

The Board of Directors of the Parent Guarantor may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation (1) no Default or Event of Default would result therefrom and (2)(x) the Parent Guarantor could Incur at least €1.00 of additional Indebtedness under Section 4.01(a) or (y) the Fixed Charge Coverage Ratio for the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving effect to such designation, in each case, on a pro forma basis taking into account such designation. Any such designation by the Board of Directors shall be evidenced to the Trustee and the Security Agent by promptly filing with the Trustee and the Security Agent a copy of the resolution of the Board of Directors giving effect to such designation or an Officer’s Certificate certifying that such designation complied with the foregoing provisions.

“ Voting Stock ” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors.

“ Wholly Owned Subsidiary ” means a Restricted Subsidiary, all of the Voting Stock of which (other than directors’ qualifying shares or shares required by any applicable law or regulation to be held by a Person other than the Parent Guarantor or another Wholly Owned Subsidiary) is owned by the Parent Guarantor or another Wholly Owned Subsidiary.

Section 1.02 Other Definitions.

 

Term

   Defined in Section

“Additional Amounts”

   4.13(a)

“Additional Intercreditor Agreement”

   4.11(a)

“Affiliate Transaction”

   4.06(a)

“Agent Members”

   Exhibit A-1

“Applicable Procedures”

   Exhibit A-1

 

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“Asset Disposition Offer”

   4.05(b)

“Asset Disposition Offer Amount”

   4.05(e)

“Asset Disposition Offer Period”

   4.05(e)

“Asset Disposition Purchase Date”

   4.05(e)

“Authenticating Agent”

   2.03

“Authentication Order”

   2.03

“Authorized Agent”

   12.08

“Change of Control Offer”

   4.14(b)

“Change of Control Payment”

   4.14(b)(i)

“Change of Control Payment Date”

   4.14(b)(ii)

“covenant defeasance option”

   8.01(b)

“cross acceleration provision”

   6.01(d)(ii)

“Definitive Registered Note”

   Exhibit A-1

“Directive”

   2.04(a)

“Event of Default”

   6.01

“Excess Proceeds”

   4.05(b)

“Global Note”

   Exhibit A-1

“Global Notes Legend”

   Exhibit A-1

“Initial Agreement”

   4.04(b)(xiii)

“Initial Default”

   6.02

“Initial Lien”

   4.03

“Initial Notes”

   Recitals

“legal defeasance option”

   8.01(b)

“payment default”

   6.01(d)(i)

“Payor”

   4.13(a)

“Permitted Payments”

   4.02(b)

“protected purchaser”

   2.08

“QIB”

   Exhibit A-1

“Registrar”

   2.04(a)

“Regulation S”

   Exhibit A-1

“Regulation S Notes”

   Exhibit A-1

“Relevant Taxing Jurisdiction”

   4.13(a)(iii)

“Restricted Notes Legend”

   Exhibit A-1

“Restricted Payment”

   4.02(a)

“Restricted Period”

   Exhibit A-1

“Reversion Date”

   4.10

“Rule 144A”

   Exhibit A-1

“Rule 144A Notes”

   Exhibit A-1

“Security Agent”

   Preamble

“Successor Company”

   5.01(a)(i)

“Suspension Event”

   4.10

“Transfer Agent”

   2.04(a)

“Transfer Restricted Notes”

   Exhibit A-1

“Trustee”

   Preamble

Section 1.03 Rules of Construction .

Unless the context otherwise requires:

(a) a term has the meaning assigned to it;

(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS as of the Issue Date;

(c) “or” is not exclusive;

 

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(d) “including” means including without limitation;

(e) words in the singular include the plural and words in the plural include the singular; and

(f) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness.

ARTICLE 2

THE NOTES

Section 2.01 Additional Notes.

(a) Any Additional Notes issued after the Issue Date (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 2.10, Section 2.11, Section 2.12, Section 2.13 or Section 3.06 or Exhibit A-1), there shall be (a) established in or pursuant to a resolution of the Board of Directors of the Issuer and (b) (i) set forth or determined in the manner provided in an Officer’s Certificate of the Issuer or (ii) established in one or more indentures supplemental hereto, prior to the issuance of such Additional Notes:

(i) the aggregate principal amount of such Additional Notes which may be authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 2.10, Section 2.11, Section 2.12, Section 2.13 or Section 3.06 or Exhibit A-1 and except for Notes which, pursuant to Section 2.06, are deemed never to have been authenticated and delivered hereunder);

(ii) the issue price and issuance date of such Additional Notes, including the date from which interest on such Additional Notes shall accrue; and

(iii) if applicable, that such Additional Notes shall be issuable in whole or in part in the form of one or more Global Notes and, in such case, the respective depositaries for such Global Notes, the form of any legend or legends which shall be borne by such Global Notes in addition to or in lieu of those set forth in Exhibit A-1 hereto and any circumstances in addition to or in lieu of those set forth in Section 2.3 of Exhibit A-1 in which any such Global Note may be exchanged in whole or in part for Additional Notes registered, or any transfer of such Global Note in whole or in part may be registered, in the name or names of Persons other than the depositary for such Global Note or a nominee thereof.

(b) If any of the terms of any Additional Notes are established by action taken pursuant to a resolution of the Board of Directors, a copy of an appropriate record of such action shall be certified by an Officer’s Certificate and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate of the Issuer or the supplemental indenture setting forth the terms of the Additional Notes.

(c) This Indenture is unlimited in aggregate principal amount. The Issuer may, subject to applicable law and this Indenture, issue an unlimited principal amount of Additional Notes.

 

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(d) The Notes and, if issued, any related Additional Notes will be treated as a single class for all purposes under this Indenture, including, without limitation, with respect to waivers, amendments, redemptions and offers to purchase, except as otherwise provided for herein.

Section 2.02 Form and Dating .

Provisions relating to the Notes are set forth in Exhibit A-1, which is hereby incorporated in and expressly made a part of this Indenture. The Notes, and the Trustee’s or Authenticating Agent’s certificate of authentication for each, will be substantially in the form of Exhibit A-2 hereto. The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the parties hereto expressly agree to such terms and provisions and to be bound thereby. 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 may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Issuer is subject, if any, or usage, provided that any such notation, legend or endorsement is in a form acceptable to the Issuer, the Paying Agent and the Trustee. Each Note shall be dated the date of its authentication. The Notes shall be issuable only in registered form without interest coupons and only in minimum denominations of €100,000 and whole multiples of €1,000 in excess thereof.

Section 2.03 Execution and Authentication .

At least one Officer of the Issuer shall sign the Notes for the Issuer by manual or facsimile signature.

If an Officer whose signature is on a Note no longer holds that office at the time the Trustee, or its Authenticating Agent, authenticates the Note, the Note shall be valid nevertheless.

A Note shall not be valid until an authorized signatory of the Trustee or an Authenticating Agent (as the case may be) signs manually or by facsimile signature the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

The Trustee or an Authenticating Agent (as the case may be) shall authenticate and make available for delivery Notes as set forth in Exhibit A-1 following receipt of an authentication order signed by an Officer of the Issuer directing the Trustee or an Authenticating Agent to authenticate such Notes, including any Additional Notes (the “ Authentication Order ”).

The Trustee may appoint one or more authenticating agents (each, an “ Authenticating Agent ”) to authenticate the Notes. Such an agent may authenticate Notes whenever the Trustee may do so. The term “ Authenticating Agent ” includes Deutsche Bank Luxembourg S.A., and any successor or additional Authenticating Agent appointed hereunder. The Trustee initially appoints Deutsche Bank Luxembourg S.A., who accepts such appointment, as Authenticating Agent. Unless limited by the terms of such appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An Authenticating Agent has the same rights as any Registrar, Paying Agent or any other Agent for service of notices and demands.

Section 2.04 Registrar and Paying Agent .

(a) The Issuer will maintain one or more Paying Agents for the Notes in the City of London (each, a “ Paying Agent ”). In addition, the Issuer undertakes to maintain a Paying Agent in a

 

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European Union member state that will not be obligated to withhold or deduct tax pursuant to the European Union Directive 2003/48/EC (as amended) or any other directive implementing the conclusions of the ECOFIN meeting of 26 and 27 November 2000 regarding the taxation of savings income (the “ Directive ”), or any law implementing or complying with or introduced in order to conform to, such Directive. The initial Paying Agent will be Deutsche Bank AG, London Branch. Deutsche Bank AG, London Branch hereby accepts such appointment.

The Issuer will maintain a registrar (the “ Registrar ”). The initial Registrar will be Deutsche Bank Luxembourg S.A.. Deutsche Bank Luxembourg S.A. hereby accepts such appointment. The Issuer will also maintain a transfer agent (the “ Transfer Agent ”). The initial Transfer Agent will be Deutsche Bank Luxembourg S.A. Deutsche Bank Luxembourg S.A. hereby accepts such appointment. The terms “Registrar” and “Transfer Agent” include any co-registrars and additional transfer agents, as applicable. The Registrar will maintain a register reflecting ownership of the Notes outstanding from time to time, if any, and together with the Transfer Agent, will facilitate transfers of the Notes on behalf of the Issuer. A register of the Notes shall be maintained at the registered office of the Issuer. In case of inconsistency between the register of the Notes kept by the Registrar and the one kept by the Issuer at its registered office, the register kept by the Issuer shall prevail.

(b) The Issuer shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. Such agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of any such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee may act, or may arrange for appropriate parties to act, as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.06. The Parent Guarantor or any of its Restricted Subsidiaries may act as Paying Agent or Registrar in respect of the Notes.

(c) The Issuer may change any Registrar, Paying Agent or Transfer Agent upon written notice to such Registrar, Paying Agent or Transfer Agent and to the Trustee, without prior notice to the Holders; provided , however , that no such removal shall become effective until (i) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar, Paying Agent, or Transfer Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall, to the extent that the Trustee determines that it is able and agrees to, serve as Registrar or Paying Agent or Transfer Agent until the appointment of a successor in accordance with Section 2.04(a); provided further that in no event may the Issuer appoint a Paying Agent in any member state of the European Union where the Paying Agent would be obliged to withhold or deduct tax in connection with any payment made by it in relation to the Notes unless the Paying Agent would be so obliged if it were located in all other member states. The Registrar, any Paying Agent or the Transfer Agent may resign by providing 30 days’ written notice to the Issuer and the Trustee. In addition, for so long as Notes are listed on the Official List of the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the Issuer will publish notice of any change of Paying Agent, Registrar or Transfer Agent in a newspaper having a general circulation in Luxembourg 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 2.05 Money Held by Paying Agent .

No later than 10:00 a.m. London time on each due date of the principal of, interest and premium (if any) on any Note, the Issuer shall deposit with the appropriate Paying Agent (or if the Issuer or a Restricted Subsidiary of the Issuer is acting as Paying Agent, segregate and hold in trust for the benefit of the Persons entitled thereto) a sum sufficient to pay such principal, interest and

 

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premium (if any) when so becoming due and, subject to receipt of such monies, the Paying Agent shall make payment on the Notes in accordance with this Indenture. If the Issuer or a Restricted Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee or such entity designated by the Trustee for this purpose and to account for any funds disbursed by the Paying Agent. Upon complying with this Section 2.05, the Paying Agent shall have no further liability for the money delivered to the Trustee. For the avoidance of doubt, the Paying Agent and the Trustee shall be held harmless and have no liability with respect to payments or disbursements to be made by the Paying Agent and Trustee (i) for which payment instructions are not made or that are not otherwise deposited by the respective times set forth in this Section 2.05, and (ii) shall not be obligated to make any payments until they have confirmed or are able to identify receipt of funds sufficient to make the relevant payment.

Section 2.06 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. Following the exchange of beneficial interests in Global Notes for Definitive Registered Notes, the Issuer shall furnish, or cause the Registrar to furnish, to the Trustee, the Transfer Agent and the Paying Agent in writing at least five Business Days before each interest payment date, and at such other times as the Trustee may reasonably require, the names and addresses of Holders of such Definitive Registered Notes.

Section 2.07 Transfer and Exchange .

The Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and in compliance with Exhibit A-1. When a Note is presented to the Registrar or Transfer Agent, as the case may be, with a request to register a transfer, the Registrar or the Transfer Agent, as the case may be, shall register the transfer as requested if its requirements therefor are met. When Notes are presented to the Registrar or the Transfer Agent, as the case may be, with a request to exchange them for an equal principal amount of Notes of other denominations, the Registrar shall make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Issuer shall execute and the Trustee or an Authenticating Agent, upon receipt of an authentication order, shall authenticate Notes at the request of the Registrar or the Transfer Agent, as the case may be. The Issuer may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges in connection with any transfer or exchange pursuant to this Section 2.07. The Registrar and the Transfer Agent are not required to register the transfer or exchange of any Notes (i) for a period of 15 days prior to any date fixed for the redemption of the applicable Notes, (ii) for a period of 15 days immediately prior to the date fixed for selection of the applicable Notes to be redeemed in part, (iii) for a period of 15 days prior to the record date with respect to any interest payment date, or (iv) which the Holder has tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer or an Asset Disposition Offer.

Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, each Agent, the Paying Agent, the Transfer Agent and the Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and (subject to Section 2 of the Notes) interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent, the Transfer Agent or the Registrar shall be affected by notice to the contrary.

 

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Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interest in such Global Note may be effected only through a book-entry system maintained by (a) the Holder of such Global Note (or its agent) or (b) any Holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book-entry.

All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.

Section 2.08 Replacement Notes .

If any mutilated Note is surrendered to the Registrar, the Trustee or the Issuer and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer will issue and the Trustee, upon receipt of an Authentication Order, shall authenticate or cause the Authenticating Agent to authenticate a replacement Note if the Holder satisfies any reasonable requirements of the Trustee. If required by the Trustee, each Agent or the Issuer, such Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, an Authenticating Agent, Paying Agent and the Registrar 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 including reasonable fees and expenses of counsel. In the event any such mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuer in its discretion may pay such Note instead of issuing a new Note in replacement thereof upon satisfaction of the condition set forth in this Section 2.08.

Every replacement Note is an additional obligation of the Issuer and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

The provisions of this Section 2.08 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.

Section 2.09 Outstanding Notes .

Notes outstanding at any time are all Notes authenticated by the Trustee or an Authenticating Agent except for those canceled by either of them, those delivered to either of them for cancellation and those described in this Section 2.09 as not outstanding. Subject to Section 12.04, 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 2.08, it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a protected purchaser.

If the Paying Agent receives (or if the Issuer or a Restricted Subsidiary of the Issuer is acting as Paying Agent and such Paying Agent segregates and holds in trust) in accordance with this Indenture, by 10:00 a.m. London time on each redemption date or maturity date money sufficient to pay all principal and interest and premium, if any, payable on that date with respect to any Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not, as advised to it in writing by the Issuer or, as the case may be, the Registrar, prohibited as advised to it in writing by the Issuer from paying such amount to the relevant Holders on that date pursuant to the terms of this Indenture or the Intercreditor Agreement, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

 

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Section 2.10 Temporary Notes .

In the event that Definitive Registered Notes are to be issued under the terms of this Indenture, until such Definitive Registered Notes are ready for delivery, the Issuer may prepare and the Trustee or an Authenticating Agent, upon receipt of an authentication order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of Definitive Registered Notes but may have variations that the Issuer considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee or an Authenticating Agent, upon receipt of an authentication order, shall authenticate Definitive Registered Notes and deliver them in exchange for temporary Notes upon surrender of such temporary Notes at the office or agency of the Issuer, without charge to the Holder.

Section 2.11 Cancellation .

The Issuer at any time may deliver Notes to the Registrar for cancellation. The Paying Agent, Transfer Agent and the Trustee shall forward to the Registrar any Notes surrendered to them for registration of transfer, exchange or payment. The Registrar or the Paying Agent (or an agent authorized by the Registrar) and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and shall dispose of canceled Notes in accordance with its customary procedures (subject to record retention requirements under applicable law) or deliver canceled Notes to the Issuer pursuant to written direction by an Officer of the Issuer. Certification of the destruction of all canceled Notes shall be delivered to the Issuer upon the Issuer’s request. The Issuer may not issue new Notes to replace Notes it has redeemed or delivered to the Registrar for cancellation. If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes, unless and until the same are surrendered to the Registrar for cancellation pursuant to this Section 2.11. Neither the Trustee nor any Authenticating Agent shall authenticate Notes in place of canceled Notes other than pursuant to the terms of this Indenture.

Section 2.12 Common Codes and ISINs .

The Issuer in issuing the Notes may use Common Codes and ISINs (if then generally in use) and, if so, the Trustee and Agents shall use Common Codes and ISINs 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 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 will promptly notify the Trustee and the Paying Agent of any change in the Common Code or ISINs.

Section 2.13 Defaulted Interest .

If the Issuer defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.12 hereof. The Issuer will notify the Trustee as soon as practicable in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date

 

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for such defaulted interest. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) will mail or cause to be mailed to the Holders in accordance with Section 12.01 a notice that states the special record date, the related payment date and the amount of such interest to be paid. The Issuer undertakes to promptly inform the Luxembourg Stock Exchange (for so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted to trading on the Euro MTF market thereof) of any such special record date.

Section 2.14 Currency .

The euro is the sole currency of account and payment for all sums payable by the Issuer and the Guarantors, under or in connection with the Notes and the Note Guarantees, including damages. Any amount received or recovered in a currency other than euro, whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or a Guarantor will only constitute a discharge to the Issuer or such Guarantor, as applicable, to the extent of the euro amount, which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so).

If that euro amount is less than the euro amount expressed to be due to the recipient or the Trustee under any Note, the Issuer and the Guarantors will indemnify them against any loss sustained by such recipient or the Trustee as a result. In any event, the Issuer and the Guarantors will indemnify the recipient or the Trustee on a joint or several basis against the cost of making any such purchase. For the purposes of this Section 2.14, it will be prima facie evidence of the matter stated therein for the Holder of a Note or the Trustee to certify in a manner reasonably satisfactory to the Issuer (indicating the sources of information used) the loss it Incurred in making any such purchase. These indemnities constitute a separate and independent obligation from the Issuer’s and the Guarantors’ other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any waiver granted by any Holder of a Note or the Trustee (other than a waiver of the indemnities set out herein) and 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, any Note Guarantee, or to the Trustee.

Except as otherwise specifically set forth herein, for purposes of determining compliance with any euro-denominated restriction herein, the Euro Equivalent amount for purposes hereof that is denominated in a non-euro currency shall be calculated based on the relevant currency exchange rate in effect on the date such non-euro amount is Incurred or made, as the case may be.

ARTICLE 3

REDEMPTION

Section 3.01 Notices to Trustee and Paying Agents .

If the Issuer elects to redeem the Notes pursuant to Section 5 or Section 6 of the Notes, it shall notify, at least five Business Days prior to the publication of the notice of such redemption, the Trustee and the Paying Agent of the redemption date and the principal amount of the Notes to be redeemed and the section of the Note pursuant to which the redemption will occur.

 

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The Issuer shall give each notice to the Registrar and the Paying Agent provided for in this Article 3 at least 10 days, but not more than 60 days, before the redemption date unless the Registrar or the Paying Agent (as the case may be) consents to a shorter period in its sole discretion. In the case of a redemption pursuant to Section 5 of the Notes, such notice shall be accompanied by an Officer’s Certificate from the Issuer to the effect that such redemption will comply with the conditions herein.

In the case of a redemption provided for by Section 6 of the Notes, prior to the publication or mailing of any notice of redemption of Notes pursuant to the foregoing, the Issuer will deliver to the Registrar, Trustee and the Paying Agent (a) an Officer’s Certificate from the Issuer stating that it is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to its right so to redeem have been satisfied and (b) an opinion of an independent tax counsel of recognized standing to the effect that there has been such amendment or change as described in Section 6 of the Notes that would entitle the Issuer to redeem the Notes thereunder. The Registrar, Trustee and the Paying Agent will accept such Officer’s Certificate and opinion as sufficient existence of the satisfaction of the conditions precedent described above, in which event it will be conclusive and binding on the Holders. Any such notice by the Issuer may be canceled by the Issuer at any time prior to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect.

Section 3.02 Selection of Notes To Be Redeemed or Repurchased .

If less than all of the Notes are to be redeemed at any time, the Paying Agent or the Registrar will select Notes for redemption on a pro rata basis or in accordance with the procedures of Clearstream or Euroclear (as applicable), unless otherwise required by law or applicable stock exchange or depository requirements; provided , however , that no Note of €100,000 in aggregate principal amount or less shall be redeemed in part and only Notes in integral multiples of €1,000 will be redeemed. Neither the Paying Agent nor the Registrar will be liable for any selections made by it in accordance with this Section 3.02.

If the Notes are to be redeemed in part only, the notice of redemption shall state the portion of the principal amount to be redeemed. In the case of a Definitive Registered Note, a new Definitive Registered Note in principal amount equal to the unredeemed portion of any Definitive Registered Note redeemed in part will be issued in the name of the Holder thereof upon cancellation of the original Definitive Registered Note. In the case of a Global Note, an appropriate notation will be made on such Global Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. Subject to the terms of the applicable redemption notice (including any conditions contained therein), Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.

Section 3.03 Notice of Redemption .

Subject to Section 3.03(ii) below, not less than 10 days but not more than 60 days before a date for redemption of Notes, the Issuer shall transmit to each Holder of Notes (with a copy to the Trustee and Registrar) a notice of redemption in accordance with Section 12.01; provided , however , that any notice of a redemption provided for by Section 6 of the Notes shall not be given earlier than 90 days prior to the earliest date on which the Payor would be obligated to make a payment of Additional Amounts. In addition, for so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted to trading on the Euro MTF and the rules of the Luxembourg Stock Exchange so require, the Issuer shall publish notice of redemption in accordance with the prevailing rules of the Luxembourg Stock Exchange.

 

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(a) The notice shall identify the Notes to be redeemed and shall state:

(i) the redemption date and the record date;

(ii) the redemption price and, if applicable, the appropriate calculation of such redemption price and the amount of accrued interest to the redemption date;

(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;

(v) if fewer than all the outstanding Notes are to be redeemed, the certificate numbers and principal amounts of the particular Notes to be redeemed;

(vi) that, unless the Issuer defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Notes (or portion thereof) called for redemption ceases to accrue on and after the redemption date;

(vii) the Common Codes or ISINs, as applicable, if any, printed on the Notes being redeemed; and

(viii) the paragraph of the Notes or section of this Indenture pursuant to which the Notes are being redeemed; and

(ix) that no representation is made as to the correctness or accuracy of the Common Codes or ISINs, as applicable, if any, listed in such notice or printed on the Notes.

(b) At the Issuer’s request, the Registrar or the Paying Agent shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense. In such event, the Issuer shall deliver to the Registrar and the Paying Agent, with a copy to the Trustee, on the date on which notice of redemption is to be delivered to the Holders, an Officer’s Certificate requesting that the Registrar or the Paying Agent give such notice and the information required and within the time periods specified by this Section 3.03.

Section 3.04 Effect of Notice of Redemption .

Once notice of redemption is delivered, Notes called for redemption cease to accrue interest, and become due and payable, on the redemption date and at the redemption price stated in the notice; provided , however , that any redemption notice given in respect of the redemption referred to in Section 5 of the Notes may, at the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent (including, in the case of a redemption related to an Equity Offering, the consummation of such Equity Offering). In addition, if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice may state that, at the Issuer’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date so delayed; provided that in no case shall the notice have been delivered less than 10 days or more than 60 days prior to the date on which such redemption (if any) occurs. Upon surrender to the Paying Agent, the Notes shall be paid at the redemption price stated in the notice, plus accrued interest, if any, to, but not including, the redemption date; provided , however , that if the redemption date is after a regular record date and on or prior to the interest payment date, the accrued interest shall be payable to the Holder of the redeemed Notes registered on the relevant record date. Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder.

 

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Section 3.05 Deposit of Redemption Price .

No later than 10:00 a.m. London time on each redemption date, the Issuer shall deposit with the Paying Agent (or, if the Issuer or a Restricted Subsidiary of the Issuer is the Paying Agent, shall segregate and hold in trust) money in immediately available funds sufficient to pay the redemption or purchase price of and accrued interest on all Notes or portions thereof to be redeemed on that date other than Notes or portions of Notes called for redemption that have been delivered by the Issuer to the Registrar for cancellation. On and after the redemption date, interest shall cease to accrue on Notes or portions thereof called for redemption so long as the Issuer has deposited with the Paying Agent funds sufficient to pay the redemption or purchase price of, plus accrued and unpaid interest and Additional Amounts, if any, on, the Notes to be redeemed, unless the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture. For the avoidance of doubt, the Paying Agent and the Trustee shall be held harmless and have no liability with respect to payments or disbursements to be made by the Paying Agent and Trustee (i) for which payment instructions are not made or that are not otherwise deposited by the respective times set forth in this Section 3.05, and (ii) shall not be obligated to make payment until they have confirmed receipt of funds sufficient to make the relevant payment.

Section 3.06 Notes Redeemed in Part .

Subject to the terms hereof, upon surrender of a Note that is redeemed in part, the Issuer shall execute and the Trustee or an Authenticating Agent shall authenticate for the Holder (at the Issuer’s expense) a new Note equal in principal amount to the unredeemed portion of the Note surrendered.

ARTICLE 4

COVENANTS

Section 4.01 Limitation on Indebtedness .

(a) The Parent Guarantor will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness); provided , however , that the Parent Guarantor and any of the Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness) if on the date of such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), (1) the Fixed Charge Coverage Ratio for the Parent Guarantor and its Restricted Subsidiaries is at least 2.0 to 1.0; and (2) to the extent that Indebtedness is Senior Secured Indebtedness, the Consolidated Senior Secured Leverage Ratio would have been no greater than 5.25 to 1.0.

(b) Section 4.01(a) will not prohibit the Incurrence of the following Indebtedness (“ Permitted Debt ”):

(i) Indebtedness Incurred by the Parent Guarantor or any Restricted Subsidiary pursuant to any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and any Refinancing Indebtedness in respect thereof and Guarantees in respect of such Indebtedness in a maximum aggregate principal amount at any time outstanding not exceeding (i) €1,250.0 million, plus (ii) in the case of any refinancing of any Indebtedness permitted under this Section 4.01(b)(i) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;

 

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(ii) (A) Guarantees by the Parent Guarantor or any Restricted Subsidiary of Indebtedness of the Parent Guarantor or any Restricted Subsidiary, so long as the Incurrence of such Indebtedness is permitted to be Incurred under this Section 4.01; provided that, if the Indebtedness being guaranteed is subordinated to the Notes or a Note Guarantee, then the guarantee must be subordinated to the Notes or such Note Guarantee to the same extent as the Indebtedness being guaranteed; or

(B) without limiting Section 4.03, Indebtedness arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Parent Guarantor or any Restricted Subsidiary so long as the Incurrence of such Indebtedness is permitted under the terms of this Indenture;

(iii) Indebtedness of the Parent Guarantor owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Parent Guarantor or any Restricted Subsidiary; provided , however , that:

(A) if the Issuer or a Guarantor is the obligor on any such Indebtedness and the obligee is a Restricted Subsidiary that is not a Guarantor, such Indebtedness is unsecured and, ((i) except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Parent Guarantor and its Restricted Subsidiaries and (ii) to the extent legally permitted (the Parent Guarantor and the Restricted Subsidiaries having completed all procedures required in the reasonable judgment of directors or officers of the obligee or obligor to protect such Persons from any penalty or civil or criminal liability in connection with the subordination of such Indebtedness)) expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes, in the case of the Issuer, or the applicable Note Guarantee, in the case of a Guarantor; and

(B) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being beneficially held by a Person other than the Parent Guarantor or a Restricted Subsidiary and any sale or other transfer of any such Indebtedness to a Person other than the Parent Guarantor or a Restricted Subsidiary, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this Section 4.01(b)(iii) by the Parent Guarantor or such Restricted Subsidiary, as the case may be;

(iv) Indebtedness represented by (a) the Notes (other than any Additional Notes), (b) any Indebtedness (other than Indebtedness described in clauses (i) and (iii) of this Section 4.01(b)) outstanding on the Issue Date after giving pro forma effect to the Transactions and (c) Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iv) or clause (v) of this Section 4.01(b) or Incurred pursuant to Section 4.01(a) and (d) Management Advances;

(v) Indebtedness (i) outstanding on the date on which a Person becomes a Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (ii) Incurred to provide all or a portion of the funds utilized to consummate the transaction or series of related transactions pursuant to

 

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which a Person became a Restricted Subsidiary or was otherwise acquired by (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or a Restricted Subsidiary; provided, however, that, in each of clauses (i) and (ii) of this Section 4.01(b)(v), at the time of such acquisition or other transaction (x) the Parent Guarantor would have been able to Incur €1.00 of additional Indebtedness pursuant to Section 4.01(a) after giving effect to the Incurrence of such Indebtedness pursuant to this Section 4.01(b)(v) or (y) the Fixed Charge Coverage Ratio for the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving effect to such acquisition or other transaction;

(vi) Indebtedness under Currency Agreements, Interest Rate Agreements and Commodity Hedging Agreements entered into not for speculative purposes (as determined in good faith by the Board of Directors or Senior Management of the Parent Guarantor);

(vii) Indebtedness represented by (A) Capitalized Lease Obligations or Purchase Money Obligations or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental or cost of design, construction, installation or improvement of property (real or personal) or equipment that is used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Indebtedness which refinances, replaces or refunds such Indebtedness, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this Section 4.01(b)(vii) and then outstanding, will not exceed at any time outstanding the greater of (x) €65.0 million and (y) 20% of Consolidated EBITDA of the Parent Guarantor for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of calculation;

(viii) Indebtedness in respect of (a) workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added tax (“VAT”) or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Parent Guarantor or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business or in respect of any governmental requirement, (b) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or in respect of any governmental requirement; provided, however, that upon the drawing of such letters of credit or similar instruments, the obligations are reimbursed within 30 days following such drawing, (c) the financing of insurance premiums in the ordinary course of business and (d) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;

(ix) Indebtedness arising from agreements providing for customary guarantees, indemnification, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that, in the case of a disposition, the maximum liability of the Parent Guarantor and its Restricted Subsidiaries in respect of all such Indebtedness shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Parent Guarantor and its Restricted Subsidiaries in connection with such disposition;

 

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(x) (A) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within 30 Business Days of Incurrence;

(B) customer deposits and advance payments received in the ordinary course of business from customers for goods or services purchased in the ordinary course of business;

(C) Indebtedness owed on a short-term basis of no longer than 30 days to banks and other financial institutions Incurred in the ordinary course of business of the Parent Guarantor and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Parent Guarantor and its Restricted Subsidiaries;

(D) Indebtedness Incurred by a Restricted Subsidiary in connection with bankers acceptances, discounted bills of exchange or the discounting or factoring of receivables for credit management of bad debt purposes, in each case Incurred or undertaken in the ordinary course of business; and

(E) Indebtedness arising from Bank Products;

(xi) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the aggregate principal amount of all other Indebtedness Incurred pursuant to this
Section 4.01(b)(xi) and then outstanding, will not exceed the greater of €125.0 million and 2.75% of Total Assets;

(xii) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this Section 4.01(b)(xii) and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Parent Guarantor from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preference Shares or an Excluded Contribution) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preference Shares or an Excluded Contribution) of the Parent Guarantor, in each case, subsequent to the Issue Date; provided , however , that (i) any such Net Cash Proceeds that are so received or contributed shall be excluded for purposes of making Restricted Payments under Section 4.02(a) and Sections 4.02(b)(i), 4.02(b)(vi) and 4.02(b)(x) to the extent the Parent Guarantor and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this Section 4.01(b)(xii) to the extent the Parent Guarantor or any of its Restricted Subsidiaries makes a Restricted Payment under Section 4.02(a) and Sections 4.02(b)(i) and
4.02(b)(vi)(3) in reliance thereon;

(xiii) Indebtedness Incurred in a Qualified Receivables Financing or arising as a result of the entry into of service and supply agreements with third party service providers in relation to the collection and settlement of outstanding invoices;

 

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(xiv) Indebtedness under daylight borrowing facilities incurred in connection with the Transactions or any refinancing of Indebtedness (including by way of set-off or exchange) so long as any such Indebtedness is repaid within three days of the date on which such Indebtedness is Incurred;

(xv) Indebtedness consisting of local lines of credit or working capital facilities not exceeding €50 million outstanding at one time; and

(xvi) Indebtedness in respect of the leaseback of the German Property.

(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.01:

(i) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 4.01(a) and Section 4.01(b), the Parent Guarantor, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of the clauses under Section 4.01(a) or Section 4.01(b);

(ii) all Indebtedness outstanding on the Issue Date under the Senior Credit Facilities Agreement shall be deemed initially Incurred on the Issue Date under Section 4.01(b)(i) and not Section 4.01(a) or Section 4.01(b)(iv)(b) and may not be reclassified pursuant to Section 4.01(c)(i);

(iii) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;

(iv) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to Section 4.01(a) or Section 4.01(b)(i), Section 4.01(b)(vii), Section 4.01(b)(xi), Section 4.01(b)(xii) or Section 4.01(b)(xv) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;

(v) the principal amount of any Disqualified Stock of the Parent Guarantor or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;

(vi) Indebtedness permitted by this Section 4.01 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.01 permitting such Indebtedness; and

(vii) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of IFRS.

 

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(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in IFRS will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 4.01. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount, or liquidation preference thereof, in the case of any other Indebtedness.

(e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date.

(f) For purposes of determining compliance with any euro-denominated restriction on the Incurrence of Indebtedness and for purposes of any financial calculation pursuant to this Indenture, the exchange rate used shall, at the election of the Parent Guarantor, be:

(i) the average for the same period as the exchange rate used for Consolidated EBITDA;

(ii) where and to the extent that part of the principal element of such Indebtedness is subject to a currency hedge, the applicable hedged rate; or

(iii) the spot rate on the last day of any such calculation consistent with the exchange rate methodology applied in the financial statements most recently delivered pursuant to Section 4.09 in accordance with IFRS;

provided that (a) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a currency other than euro, and such refinancing would cause the applicable euro-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such euro-denominated restriction shall be deemed not to have been exceeded so long as the aggregate principal amount of such Refinancing Indebtedness does not exceed the aggregate principal amount of such Indebtedness being refinanced and (b) the Euro Equivalent of the aggregate principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date.

(g) Notwithstanding any other provision of this Section 4.01, the maximum amount of Indebtedness that the Parent Guarantor or a Restricted Subsidiary may Incur pursuant to this Section 4.01 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies.

(h) Neither the Issuer nor any Guarantor will Incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Issuer or any Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee, if any, on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Issuer or any Guarantor solely by virtue of being unsecured or by virtue of being secured with different collateral or by virtue of being secured on a junior priority basis or by virtue of the application of waterfall or other payment ordering provisions affecting different tranches of Indebtedness.

 

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Section 4.02 Limitation on Restricted Payments .

(a) The Parent Guarantor will not, and will not permit any of its Restricted Subsidiaries, directly or indirectly, to:

(i) declare or pay any dividend or make any other payment or distribution on or in respect of the Parent Guarantor’s or any Restricted Subsidiary’s Capital Stock (including any payment in connection with any merger or consolidation involving the Parent Guarantor or any of its Restricted Subsidiaries) except:

(A) dividends or distributions payable in Capital Stock of the Parent Guarantor (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Parent Guarantor; and

(B) dividends or distributions payable to the Parent Guarantor or a Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the Parent Guarantor or another Restricted Subsidiary on no more than a pro rata basis, measured by value);

(ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Parent Guarantor held by Persons other than the Parent Guarantor or a Restricted Subsidiary (other than in exchange for Capital Stock of the Parent Guarantor (other than Disqualified Stock));

(iii) make any principal payment on, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (other than (a) any such payment, purchase, repurchase, redemption, defeasance or other acquisition or retirement or in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement and (b) any Indebtedness Incurred pursuant to Section 4.01(b)(iii); or

(iv) make any Restricted Investment in any Person,

(any such dividend, distribution, payment, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Restricted Investment referred to in clauses (i) through (iv) of this Section 4.02(a) are referred to herein as a “ Restricted Payment ”), if at the time the Parent Guarantor or such Restricted Subsidiary makes such Restricted Payment:

(A) a Default shall have occurred and be continuing (or would result immediately thereafter therefrom);

(B) the Parent Guarantor is not able to Incur an additional €1.00 of Indebtedness pursuant to Section 4.01(a) after giving effect, on a pro forma basis, to such Restricted Payment; or

 

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(C) the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to the Issue Date (and not returned or rescinded) (including Permitted Payments permitted below by clauses (v), (x), (xi), (xv), (xviii), (xxii) and (xxiii) of Section 4.02(b), but excluding all other Restricted Payments permitted by Section 4.02(b)) would exceed the sum of (without duplication):

(1) 50% of Consolidated Net Income for the period (treated as one accounting period) from January 1, 2017 to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which internal consolidated financial statements of the Parent Guarantor are available (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit);

(2) 100% of the aggregate Net Cash Proceeds, and the fair market value (as determined in accordance with the next succeeding paragraph) of property or assets or marketable securities, received by the Parent Guarantor from the issue or sale of its Capital Stock (other than Disqualified Stock or Designated Preference Shares) subsequent to the Issue Date or otherwise contributed to the equity (other than (x) through the issuance of Disqualified Stock or Designated Preference Shares) of the Parent Guarantor subsequent to the Issue Date (other than Net Cash Proceeds or property or assets or marketable securities received from an issuance or sale of such Capital Stock to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Parent Guarantor or any Subsidiary of the Parent Guarantor for the benefit of its employees to the extent funded by the Parent Guarantor or any Restricted Subsidiary, (y) Net Cash Proceeds or property or assets or marketable securities to the extent that any Restricted Payment has been made from such proceeds in reliance on Section 4.02(b)(vi) and (z) Excluded Contributions);

(3) 100% of the aggregate Net Cash Proceeds, and the fair market value (as determined in accordance with the next succeeding paragraph) of property or assets or marketable securities, received by the Parent Guarantor or any Restricted Subsidiary from the issuance or sale (other than to the Parent Guarantor or a Restricted Subsidiary or an employee stock ownership plan or trust established by the Parent Guarantor or any Subsidiary of the Parent Guarantor for the benefit of its employees to the extent funded by the Parent Guarantor or any Restricted Subsidiary) by the Parent Guarantor or any Restricted Subsidiary subsequent to the Issue Date of any Indebtedness that has been converted into or exchanged for Capital Stock of the Parent Guarantor (other than Disqualified Stock or Designated Preference Shares) (plus the amount of any cash, and the fair market value (as determined in accordance with the next succeeding paragraph) of property or assets or marketable securities, received by the Parent Guarantor or any Restricted Subsidiary upon such conversion or exchange);

 

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(4) an amount equal to:

 

  (a) 100% of the aggregate Net Cash Proceeds, and the fair market value (as determined in accordance with the next succeeding paragraph) of property or assets or marketable securities, received by the Parent Guarantor or any Restricted Subsidiary in connection with any repurchases, redemptions or other acquisitions or retirements of any such Restricted Investment, proceeds realized upon the sale or other disposition to a Person other than the Parent Guarantor or a Restricted Subsidiary of any such Restricted Investment, repayments of loans or advances or other transfers of assets (including by way of dividend, distribution, interest payments or returns of capital) to the Parent Guarantor or any Restricted Subsidiary;

 

  (b) 100% of the fair market value (as determined in accordance with the next succeeding paragraph) of the Investment in an Unrestricted Subsidiary as of the date such entity becomes a Restricted Subsidiary (valued as provided in the definition of “ Investment ”) upon the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or its merger, consolidation, amalgamation with or into, or liquidation into, the Parent Guarantor or a Restricted Subsidiary; and

 

  (c) 100% of the fair market value (as determined in accordance with the next succeeding paragraph) of property or assets received by the Parent Guarantor or any Restricted Subsidiary upon the transfer or conveyance of substantially all the assets of an Unrestricted Subsidiary to the Parent Guarantor or a Restricted Subsidiary;

provided , however , that no amount will be included in Consolidated Net Income for purposes of the preceding clause (i) to the extent that it is (at the Parent Guarantor’s option) included under this clause (iv); and

 

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(5) 100% of the aggregate Net Cash Proceeds, and the fair market value (as determined in accordance with the next succeeding paragraph) of property or assets or of marketable securities received by the Parent Guarantor or any of its Restricted Subsidiaries in connection with:

 

  (a) the sale or other disposition (other than to the Parent Guarantor or a Restricted Subsidiary or an employee stock ownership plan or trust established by the Parent Guarantor or any Subsidiary of the Parent Guarantor for the benefit of its employees to the extent funded by the Parent Guarantor or any Restricted Subsidiary) of Capital Stock of an Unrestricted Subsidiary; and

 

  (b) any dividend or distribution made by an Unrestricted Subsidiary or Affiliate to the Parent Guarantor or a Restricted Subsidiary;

provided , however , that no amount will be included in Consolidated Net Income for purposes of the preceding Section 4.02(a)(C)(1) to the extent that it is (at the Parent Guarantor’s option) included under this clause (5).

The fair market value of property or assets other than cash covered by the preceding sentence shall be the fair market value thereof as determined in good faith by an Officer of the Parent Guarantor, or, if such fair market value exceeds €25.0 million, by the Board of Directors.

(b) The foregoing provisions will not prohibit any of the following (collectively, “ Permitted Payments ”):

(i) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock, Disqualified Stock, Designated Preference Shares or Subordinated Indebtedness made by exchange (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) for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Parent Guarantor (other than Disqualified Stock, Designated Preference Shares) or a substantially concurrent contribution to the equity (other than through the issuance of Disqualified Stock or Designated Preference Shares or through an Excluded Contribution) of the Parent Guarantor; provided , however , that to the extent so applied, the Net Cash Proceeds, or fair market value (as determined in accordance with the preceding sentence) of property or assets or of marketable securities, from such sale of Capital Stock or such contribution will be excluded from Section 4.02(a)(C)(2);

(ii) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially concurrent sale of, Indebtedness permitted to be Incurred pursuant to Section 4.01;

(iii) any purchase, repurchase, redemption, defeasance or other acquisition, cancellation or retirement of Preferred Stock of the Parent Guarantor or a Restricted Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Preferred Stock of the Parent Guarantor or a Restricted Subsidiary, as the case may be, that, in each case, is permitted to be Incurred pursuant to Section 4.01, and that in each case, constitutes Refinancing Indebtedness;

 

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(iv) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness:

(A) (i) from Net Available Cash to the extent permitted pursuant to Section 4.05, but only if the Issuer shall have first complied with the terms described under Section 4.05 and purchased all Notes tendered pursuant to any offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness and (ii) at a purchase price not greater than 100% of the principal amount of such Subordinated Indebtedness plus accrued and unpaid interest;

(B) to the extent required by the agreement governing such Subordinated Indebtedness, following the occurrence of a Change of Control (or other similar event described therein as a “change of control”), but only (i) if the Issuer shall have first complied with the terms described under Section 4.14 and purchased all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness and (ii) at a purchase price not greater than 101% of the principal amount of such Subordinated Indebtedness plus accrued and unpaid interest; or

(C) (i) consisting of Acquired Indebtedness (other than Indebtedness Incurred (A) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary or (B) otherwise in connection with or contemplation of such acquisition) and (ii) at a purchase price not greater than 100% of the principal amount of such Subordinated Indebtedness plus accrued and unpaid interest and any premium required by the terms of any Acquired Indebtedness;

(v) any dividends paid within, or redemption or repurchase consummated within, 60 days after the date of declaration or the giving of the redemption or repayment notice if at such date of declaration or notice such dividend or redemption or repayment, as the case may be, would have complied with this Section 4.02;

(vi) the purchase, repurchase, redemption, defeasance or other acquisition, cancellation or retirement for value of Capital Stock of the Parent Guarantor, any Restricted Subsidiary (including any options, warrants or other rights in respect thereof) or payments to purchase, repurchase, redeem, defease or otherwise acquire, cancel or retire for value Capital Stock of the Parent Guarantor or any Restricted Subsidiary (including any options, warrants or other rights in respect thereof), in each case from Management Investors; provided that such payments, loans, advances, dividends or distributions do not exceed an amount (net of repayments of any such loans or advances) equal to (1) €10.0 million, plus (2) €5.0 million multiplied by the number of calendar years that have commenced since the Issue Date, plus (3) the Net Cash Proceeds received by the Parent Guarantor or its Restricted Subsidiaries since the Issue Date from, or as a contribution to the equity (in each case under this Section 4.02(b)(vi), other than through the issuance of Disqualified Stock or Designated Preference Shares) of the Parent Guarantor from, the issuance or sale to Management Investors of Capital Stock (including any options, warrants or other rights in respect thereof) plus (d) the Net Cash Proceeds from key man life insurance policies, to the extent such Net Cash Proceeds in clauses (2) and (3) of this Section 4.02(b)(vi) are not included in any calculation under Section 4.02(a)(C)(2) and are not Excluded Contributions;

 

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(vii) the declaration and payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Section 4.01;

(viii) (a) purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Capital Stock deemed to occur upon the exercise of stock options, warrants or other rights in respect thereof if such Capital Stock represents a portion of the exercise price thereof or (b) for purposes of satisfying any required tax withholding obligation upon the exercise or vesting of a grant or award that was granted or awarded to a Management Investor;

(ix) (a) payments by the Parent Guarantor or any Restricted Subsidiary in amounts (without duplication) constituting or to be used for purposes of making payments (i) of fees and expenses Incurred in connection with the Transactions or disclosed in the Offering Memorandum or (ii) to the extent specified in clauses (ii), (iii), (v), (vii) and (xi) of Section 4.06(b);

(x) so long as no Default or Event of Default has occurred and is continuing (or would result from), the declaration and payment by the Parent Guarantor of dividends on the common stock or common equity interests of the Parent Guarantor following a Public Offering of such common stock or common equity interests, in an amount not to exceed in any fiscal year 5% of the Market Capitalization; provided that after giving pro forma effect to such loans, advances, dividends or distributions, the Consolidated Leverage Ratio does not exceed 4.00 to 1.00;

(xi) so long as no Default or Event of Default has occurred and is continuing (or would result from), Restricted Payments (including loans or advances) in an aggregate amount outstanding at any time not to exceed €100.0 million or, if greater, 2.25% of Total Assets;

(xii) payments by the Parent Guarantor to holders of Capital Stock of the Parent Guarantor in lieu of the issuance of fractional shares of such Capital Stock; provided , however , that any such payment, loan, advance, dividend or distribution shall not be for the purpose of evading any limitation of this Section 4.02 or otherwise to facilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in good faith by the Board of Directors or an Officer of the Parent Guarantor);

(xiii) the making of any payments and any reimbursements as contemplated in the section entitled “Use of Proceeds” in the Offering Memorandum;

(xiv) Restricted Payments in an aggregate amount outstanding at any time not to exceed the aggregate cash amount of Excluded Contributions, or consisting of non-cash Excluded Contributions, or Investments to the extent made in exchange for or using as consideration Investments previously made under this Section 4.02(b)(xiv);

(xv) (A) the declaration and payment of dividends to holders of any class or series of Designated Preference Shares of the Parent Guarantor issued after the Issue Date; provided , however , that the amount of all dividends declared or paid pursuant to this Section 4.02(b)(xv) shall not exceed the Net Cash Proceeds received by the Parent Guarantor or the aggregate amount contributed in cash to the equity (other than through the issuance of Disqualified Stock or an Excluded Contribution or an Excluded Amount) of the Parent Guarantor from the issuance or sale of such Designated Preference Shares;

 

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(xvi) dividends or other distributions of Capital Stock, Indebtedness or other securities of Unrestricted Subsidiaries;

(xvii) payment of any Receivables Fees and purchases of Receivables Assets pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables Financing and payments arising as a result of the entry into of service and supply agreements with third party service providers in relation to the collection and settlement of outstanding customer invoices;

(xviii) so long as no Default or Event of Default has occurred and is continuing (or would result therefrom), any Restricted Payment; provided that, on the date of any such Restricted Payment, the Consolidated Leverage Ratio does not exceed 4.25 to 1.0 on a pro forma basis after giving effect thereto;

(xix) advances or loans to (a) any future, present or former officer, director, employee or consultant of the Parent Guarantor or a Restricted Subsidiary to pay for the purchase or other acquisition for value of Capital Stock of the Issuer or the Parent Guarantor (other than Disqualified Stock or Designated Preference Shares), or any obligation under a forward sale agreement, deferred purchase agreement or deferred payment arrangement pursuant to any management equity plan or stock option plan or any other management or employee benefit or incentive plan or other agreement or arrangement or (b) any management equity plan or stock option plan or any other management or employee benefit or incentive plan or unit trust or the trustees of any such plan or trust to pay for the purchase or other acquisition for value of Capital Stock of the Parent Guarantor (other than Disqualified Stock or Designated Preference Shares); provided however , that the total aggregate amount of Restricted Payments made under this Section 4.02(b)(xix) does not exceed €10.0 million in any calendar year (with unused amounts in any calendar year being carried over in the next two succeeding calendar years);

(xx) without duplication, any dividends, distributions or other payments to any Unrestricted Subsidiary to the extent that such dividends, distributions or payments are made in order to carry out group contributions under the tax laws or regulations of an applicable jurisdiction;

(xxi) the distribution, as a dividend, of shares of Ordinary Shares in an amount not to exceed the Founder Preferred Shares Annual Dividend Amount in any calendar year;

(xxii) so long as no Default or Event of Default has occurred and is continuing (or would result from), any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock or Disqualified Stock in an aggregate amount not to exceed €150 million; provided that, on the date of any such Restricted Payment, the Consolidated Leverage Ratio does not exceed 4.50 to 1.0 on a pro forma basis after giving effect thereto; and

(xxiii) so long as no Default or Event of Default has occurred and is continuing (or would result from), Restricted Payments (including loans or advances) in an aggregate amount in any calendar year not to exceed €12.5 million or, if greater, 4% of Consolidated EBITDA of the Parent Guarantor for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of calculation.

 

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(c) The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Parent Guarantor or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount, and the fair market value of any non-cash Restricted Payment shall be determined in good faith by an Officer of the Parent Guarantor, or if such fair market value exceeds €10 million, shall be determined conclusively by the Board of Directors of the Parent Guarantor acting in good faith.

(d) Unless otherwise provided herein, in the event that a Restricted Payment meets the criteria of more than one of the types of Permitted Payments, the Parent Guarantor, in its sole discretion, will classify, and may from time to time, reclassify, such Restricted Payment and only be required to include the amount and type of such Restricted Payment in one category of Permitted Payments; provided that, once made, a Restricted Payment may not be reclassified to clause (xviii) of this paragraph, and a Restricted Payment made under clause (xxii) may not be reclassified.

Section 4.03 Limitation on Liens .

The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, Incur or suffer to exist any Lien upon any of its property or assets (including Capital Stock of a Restricted Subsidiary), whether owned on the Issue Date or acquired after that date, or any interest therein or any income or profits therefrom, which Lien is securing any Indebtedness (such Lien, the “ Initial Lien ”), except (a) in the case of any property or asset that does not constitute Collateral, (1) Permitted Liens or (2) Liens on property or assets that are not Permitted Liens if the Notes and this Indenture (or a Note Guarantee in the case of Liens of a Guarantor) are directly secured equally and ratably with, or prior to, in the case of Liens with respect to Subordinated Indebtedness, the Indebtedness secured by such Initial Lien for so long as such Indebtedness is so secured, and (b) in the case of any property or asset that constitutes Collateral, Permitted Collateral Liens.

Any such Lien created in favor of the Notes pursuant to Section 4.03(a)(2) will be automatically and unconditionally released and discharged upon (i) the release and discharge of the Initial Lien to which it relates, and (ii) otherwise as set forth under Section 11.05.

Section 4.04 Limitation on Restrictions on Distributions from Restricted Subsidiaries .

(a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:

(i) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Parent Guarantor or any Restricted Subsidiary;

(ii) make any loans or advances to the Parent Guarantor or any Restricted Subsidiary; or

(iii) sell, lease or transfer any of its property or assets to the Parent Guarantor or any Restricted Subsidiary,

provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the

 

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subordination of (including the application of any standstill requirements to) loans or advances made to the Parent Guarantor or any Restricted Subsidiary to other Indebtedness Incurred by the Parent Guarantor or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.

(b) The provisions of Section 4.04(a) will not prohibit:

(i) any encumbrance or restriction pursuant to (a) any Credit Facility (including the Senior Finance Documents) or (b) any other agreement or instrument, in each case, in effect at or entered into on the Issue Date;

(ii) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Parent Guarantor or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Parent Guarantor or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Parent Guarantor or was merged, consolidated or otherwise combined with or into the Parent Guarantor or any Restricted Subsidiary entered into or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this Section 4.04(b)(ii), if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Parent Guarantor or any Restricted Subsidiary when such Person becomes the Successor Company;

(iii) any encumbrance or restriction:

(A) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other contract;

(B) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Parent Guarantor or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer of the property or assets subject to such mortgages, pledges, charges or other security agreements; or

(C) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent Guarantor or any Restricted Subsidiary;

(iv) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;

(v) any encumbrance or restriction with respect to a Restricted Subsidiary (or any of its property or assets) imposed pursuant to an agreement entered into for the direct or

 

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indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;

(vi) customary provisions in leases, licenses, joint venture agreements and other similar agreements and instruments entered into in the ordinary course of business;

(vii) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority or any governmental licenses, concessions, franchises or permits, including restrictions or encumbrances on cash or deposits (including assets in escrow accounts) paid on property;

(viii) any encumbrance or restriction on cash or other deposits or net worth imposed by customers or suppliers, or as required by insurance, surety or bonding companies or indemnities, in each case, under agreements entered into in the ordinary course of business;

(ix) any encumbrance or restriction pursuant to Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements;

(x) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 4.01 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Senior Credit Facilities Agreement, together with the security documents associated therewith, and the Intercreditor Agreement, in each case, as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Parent Guarantor or the Issuer) or where the Parent Guarantor or the Issuer determines when such Indebtedness is Incurred that such encumbrances or restrictions will not adversely affect, in any material respect, the Parent Guarantor’s or the Issuer’s ability to make principal or interest payments on the Notes;

(xi) any encumbrance or restriction existing by reason of any lien permitted under Section 4.03.

(xii) restrictions effected in connection with a Qualified Receivables Financing that, in the good faith determination of the Board of Directors or an Officer of the Parent Guarantor, are necessary or advisable to effect such Qualified Receivables Financing; or

(xiii) any agreement, encumbrance or restriction that extends, renews, refinances or replaces any of the encumbrance or restriction referred to in clauses (i) through (xii) of this Section 4.04(b) or this clause (xiii) (an “ Initial Agreement ”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (i) through (xii) of this Section 4.04(b) or this clause (xiii); provided , however , that such encumbrances and restrictions contained in any such agreement, encumbrance or restriction are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions so extended, refinanced, replaced, amended, supplemented or modified (as determined in good faith by the Parent Guarantor or the Issuer).

 

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Section 4.05 Limitation on Sales of Assets and Subsidiary Stock .

(a) The Parent Guarantor will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:

(i) the Parent Guarantor or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Board of Directors of the Parent Guarantor, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);

(ii) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, other than Indebtedness) received by the Parent Guarantor or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Temporary Cash Investments; and

(iii) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Parent Guarantor or such Restricted Subsidiary, as the case may be:

(A) to the extent the Parent Guarantor or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness of a Restricted Subsidiary), (i) to prepay, repay or purchase any Senior Indebtedness of the Issuer or any Guarantor or any Indebtedness of a non-Guarantor Restricted Subsidiary or any Indebtedness that is secured by Liens on assets which do not constitute Collateral (in each case, other than Indebtedness owed to the Parent Guarantor or any Restricted Subsidiary) (or any Refinancing Indebtedness in respect thereof) within 365 days from the later of (1) the date of such Asset Disposition and (2) the receipt of such Net Available Cash; provided , however , that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness; or (ii) to prepay, repay or purchase Notes and/or Pari Passu Indebtedness at a price of no more than 100% of the principal amount of such Pari Passu Indebtedness, and with respect to the Notes, at a price of no less than 100% of the principal amount of such Notes plus accrued and unpaid interest and Additional Amounts, if any, to the date of such prepayment, repayment or purchase; provided that the Issuer shall redeem, repay or repurchase Pari Passu Indebtedness that is Public Debt pursuant to this clause (ii) only if the Issuer makes (at such time or subsequently in compliance with this Section 4.05) an offer to the Holders of the Notes to purchase their Notes in accordance with the provisions set forth below for an Asset Disposition Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such Pari Passu Indebtedness; or

(B) to the extent the Parent Guarantor or such Restricted Subsidiary elects, to make a capital expenditure or invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted

 

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Subsidiary with Net Available Cash received by the Parent Guarantor or another Restricted Subsidiary) within 365 days from the later of (1) the date of such Asset Disposition and (2) the receipt of such Net Available Cash; provided , however , that any such reinvestment in Additional Assets made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Parent Guarantor that is executed or approved within such time will satisfy this requirement, so long as such investment is consummated within 180 days of such 365th day,

(or any combination on the foregoing); provided that, pending the final application of any such Net Available Cash in accordance with clause (A) or clause (B) of this Section 4.05(a)(iii), the Parent Guarantor and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.

(b) Any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds” under this Indenture. On the 366th day after an Asset Disposition, or at such earlier date that the Issuer or the Parent Guarantor elects, if the aggregate amount of Excess Proceeds under this Indenture exceeds €50.0 million, the Issuer will be required within 10 Business Days to make an offer (“ Asset Disposition Offer ”) to all Holders of Notes issued under this Indenture and, to the extent the Issuer or the Parent Guarantor elects, to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum aggregate principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to (and, in the case of any such Pari Passu Indebtedness, an offer price of no more than) 100% of the principal amount of the Notes and 100% of the principal amount of such Pari Passu Indebtedness, as applicable (or, if issued with original issue discount, the accreted value of the Notes or such Pari Passu Indebtedness, as applicable), plus, in each case, accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing such Pari Passu Indebtedness, as applicable, in minimum denominations of €100,000 and in integral multiples of €1,000 in excess thereof.

(c) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Parent Guarantor may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the aggregate principal amount of any such Indebtedness not denominated in euro such Indebtedness shall be calculated by converting any such aggregate principal amounts into their Euro Equivalent determined as of a date selected by the Issuer or the Parent Guarantor that is within the Asset Disposition Offer Period. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.

(d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than the currency in which the relevant Notes are denominated, the amount thereof payable in respect of such Notes shall not exceed the net amount of funds in the currency in which such Notes are denominated that is actually received by the Parent Guarantor upon converting such portion into such currency.

 

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(e) The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a period of not less than 20 Business Days following its commencement (the “ Asset Disposition Offer Period ”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “ Asset Disposition Purchase Date ”), the Issuer will purchase the aggregate principal amount of Notes and, to the extent they elect, Pari Passu Indebtedness required to be purchased pursuant to this Section 4.05 (the “ Asset Disposition Offer Amount ”) or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition Offer.

(f) On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Indebtedness or portions of Notes and such Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn in minimum denominations of €100,000 and in integral multiples of €1,000 in excess thereof.

(g) The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 4.05. The Issuer or the Paying Agent (at the direction and expense of the Issuer), as the case may be, will promptly (but in any case not later than five Business Days after termination of the Asset Disposition Offer Period) mail or deliver to each tendering Holder of Notes an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn and arrange for the deduction of the appropriate amount of Notes from such Holders account with Euroclear or Clearstream (as applicable). Any Note not so accepted will be promptly mailed or delivered (or transferred by book entry) by the Issuer to the Holder thereof.

(h) For the purposes of Section 4.05(a)(ii), the following will be deemed to be cash:

(i) the assumption by the transferee of Indebtedness of the Parent Guarantor or Indebtedness of a Restricted Subsidiary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and the release of the Parent Guarantor or such Restricted Subsidiary from, or its indemnification against, all liability on such Indebtedness in connection with such Asset Disposition;

(ii) securities, notes or other obligations received by the Parent Guarantor or any Restricted Subsidiary from the transferee that are converted by the Parent Guarantor or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;

(iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Parent Guarantor and each other Restricted Subsidiary are released from, or indemnified against any liability under, any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;

(iv) consideration consisting of Indebtedness of the Parent Guarantor or any Restricted Subsidiary (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Parent Guarantor or any Restricted Subsidiary; and

 

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(v) any Designated Non-Cash Consideration received by the Parent Guarantor or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 4.05 that is at that time outstanding, not to exceed the greater of €50.0 million and 1.1% of Total Assets (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).

The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations (or rules of any exchange on which the Notes are then listed) in connection with the repurchase of Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations (or exchange rules) conflict with provisions of this Section 4.05, the Issuer will comply with the applicable securities laws and regulations (or exchange rules) and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.

Section 4.06 Limitation on Affiliate Transactions .

(a) The Parent Guarantor will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Parent Guarantor (any such transaction or series of related transactions being an “ Affiliate Transaction ”) involving aggregate value in excess of €5.0 million unless:

(i) the terms of such Affiliate Transaction taken as a whole are not materially less favorable to the Parent Guarantor or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s length dealings with a Person who is not such an Affiliate; and

(ii) in the event such Affiliate Transaction involves an aggregate value in excess of €15.0 million, the terms of such transaction have been approved by a majority of the members of the Board of Directors.

Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (ii) of this Section 4.06(a) if such Affiliate Transaction is approved by a majority of the Disinterested Directors. If there are no Disinterested Directors, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 4.06 if the Parent Guarantor or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Parent Guarantor or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable transaction by the Parent Guarantor or such Restricted Subsidiary with an unrelated Person on an arm’s length basis.

(b) The provisions of Section 4.06(a) will not apply to:

(i) any Restricted Payment permitted to be made pursuant to Section 4.02, any Permitted Payments (other than pursuant to Section 4.02(b)(ix)(A)(ii)) or any Permitted Investment (other than Permitted Investments as defined in paragraphs (1)(b), (2) and (11) of the definition thereof);

 

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(ii) any issuance, transfer or sale of Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Parent Guarantor or any Restricted Subsidiary, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Parent Guarantor, in each case in the ordinary course of business;

(iii) any Management Advances and any waiver or transaction with respect thereto;

(iv) any transaction between or among the Parent Guarantor and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction) or between or among Restricted Subsidiaries;

(v) the payment of reasonable fees and reimbursement of expenses to, and customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, consultants or employees of the Parent Guarantor or any Restricted Subsidiary (whether directly or indirectly and including through any Person owned or controlled by any of such directors, officers or employees);

(vi) the Transactions, the entry into and performance of obligations of the Parent Guarantor or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date as these agreements and instruments may be amended, modified, supplemented, extended, renewed, replaced or refinanced from time to time in accordance with the other terms of this Section 4.06 or to the extent not more disadvantageous to the Holders in any material respect and the entry into and performance of any registration rights or other listing agreement;

(vii) the execution, delivery and performance of any Tax Sharing Agreement, or any arrangement pursuant to which the Parent Guarantor or any of its Restricted Subsidiaries is required or permitted to file a consolidated tax return, or the formation and maintenance of any consolidated group for tax, accounting or cash pooling or management purposes in the ordinary course of business;

(viii) 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 Parent Guarantor or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or the Senior Management of the Parent Guarantor 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;

(ix) any transaction in the ordinary course of business between or among the Parent Guarantor or any Restricted Subsidiary and any Affiliate of the Parent Guarantor or an Associate or similar entity that would constitute an Affiliate Transaction solely because the Parent Guarantor or a Restricted Subsidiary or any Affiliate of the Parent Guarantor or a Restricted Subsidiary owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;

 

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(x) issuances or sales of Capital Stock (other than Disqualified Stock or Designated Preference Shares) of the Parent Guarantor or options, warrants or other rights to acquire such Capital Stock;

(xi) (A) payments by the Parent Guarantor or any Restricted Subsidiary to any Founder Entities or their Affiliates of annual management, consulting, monitoring or advisory fees and related expenses, whether pursuant to the Advisory Services Agreement or otherwise, in an aggregate amount not to exceed €3.75 million per year and (B) customary payments by the Parent Guarantor or any Restricted Subsidiary to any Founder Entities or their Affiliates for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with loans, capital markets transactions, acquisitions or divestitures, which payments (or agreements providing for such payments) in respect of this Section 4.06(b)(xi) are approved by a majority of the Board of Directors in good faith;

(xii) any transaction effected as part of a Qualified Receivables Financing;

(xiii) any participation in a public tender or exchange offers for securities or debt instruments issued by the Parent Guarantor or any of its Subsidiaries that are conducted on arms’ length terms and provide for the same price or exchange ratio, as the case may be, to all holders accepting such tender or exchange offer;

(xiv) any transactions for which the Parent Guarantor or a Restricted Subsidiary delivers a written letter or opinion to the Trustee from an Independent Financial Advisor stating that such transaction is (A) fair to the Parent Guarantor or such Restricted Subsidiary from a financial point of view or (B) on terms not less favorable that might have been obtained in a comparable transaction at such time on an arm’s length basis from a Person who is not an Affiliate;

(xv) pledges of Capital Stock of Unrestricted Subsidiaries; and

(xvi) the entry into of service and supply agreements with third party service providers in relation to the collection and settlement of outstanding customer invoices.

Section 4.07 Impairment of Security Interest .

(a) The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, take or knowingly or negligently omit to take any action that would have the result of materially impairing the security interest with respect to the Collateral (it being understood, subject to the paragraph below, that the Incurrence of Permitted Collateral Liens shall under no circumstances be deemed to materially impair the security interest with respect to the Collateral) for the benefit of the Trustee and the Holders, and the Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, grant to any Person other than the Security Agent, for the benefit of the Trustee and the Holders and the other beneficiaries described in the Security Documents and the Intercreditor Agreement or any Additional Intercreditor Agreement, any Lien over any of the Collateral that is prohibited by Section 4.03.

 

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(b) Notwithstanding Section 4.07(a), (i) the Parent Guarantor and its Restricted Subsidiaries may Incur Permitted Collateral Liens and the Collateral may be discharged and released in accordance with this Indenture, the applicable Security Documents or the Intercreditor Agreement or any Additional Intercreditor Agreement; (ii) the applicable Security Documents may be amended from time to time to cure any ambiguity, mistake, omission, defect, manifest error or inconsistency therein; (iii) the Parent Guarantor and its Restricted Subsidiaries may discharge and release security interests with respect to the Collateral in connection with the implementation of a Permitted Reorganization and (iv) the security interest and the related Security Documents may be amended, extended, renewed, restated, supplemented or otherwise modified or released (followed by an immediate retaking of a Lien of at least equivalent ranking over the same assets); provided , however , that in the case of clause (i) and (iv) of this Section 4.07(b), except with respect to any discharge or release in accordance with this Indenture, the applicable Security Documents or the Intercreditor Agreement or any Additional Intercreditor Agreement, the Security Documents may not be amended, extended, renewed, restated, supplemented, released or otherwise modified or replaced, unless contemporaneously with any such action, the Parent Guarantor delivers to the Trustee either (1) a solvency opinion, in form and substance reasonably satisfactory to the Trustee from an Independent Financial Advisor confirming the solvency of the Parent Guarantor and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such amendment, extension, renewal, restatement, supplement, release, modification or replacement, (2) a duly executed certificate from the Chief Financial Officer or the Board of Directors of the relevant Person, in form and substance reasonably satisfactory to the Trustee, which confirms the solvency of the person granting such security interest, after giving effect to any transactions related to such amendment, extension, renewal, restatement, supplement, release, modification or replacement, or (3) an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, confirming that, after giving effect to any transactions related to such amendment, extension, renewal, restatement, supplement, release, modification or replacement, the Lien or Liens created under the Security Documents, so amended, extended, renewed, restated, supplemented, released, modified or replaced are valid 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, release, modification or replacement.

(c) In the event that the Parent Guarantor complies with the requirements of this Section 4.07, the Trustee and the Security Agent shall (subject to each of the Trustee and the Security Agent being indemnified and secured to its satisfaction) consent to such amendments without the need for instructions from the Holders.

Section 4.08 Additional Subsidiary Guarantees .

(a) The Parent Guarantor will not cause or permit any of its Restricted Subsidiaries that are not Subsidiary Guarantors, directly or indirectly, to Guarantee in whole or in part any Indebtedness of the Issuer or any Guarantor under the Senior Credit Facilities Agreement (or other Indebtedness that is Incurred under Section 4.01(b)(1)) or Public Debt unless such Restricted Subsidiary becomes a Subsidiary Guarantor on the date on which such other Guarantee is Incurred and, if applicable, executes and delivers to the Trustee a supplemental indenture in the form attached to this Indenture pursuant to which such Restricted Subsidiary will provide a Subsidiary Guarantee, which Subsidiary Guarantee will be subordinated to such Restricted Subsidiary’s Guarantee of such other Indebtedness.

(b) A Restricted Subsidiary that is not a Subsidiary Guarantor may become a Subsidiary Guarantor if it executes and delivers to the Trustee a supplemental indenture in the form attached to this Indenture pursuant to which such Restricted Subsidiary will provide a Subsidiary Guarantee.

 

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(c) Each additional Subsidiary Guarantee will be limited as necessary to recognize certain defenses generally available to guarantors (including those that relate to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, thin capitalization, distributable reserves, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally) or other considerations under applicable law.

(d) Notwithstanding Sections 4.08(a), 4.08(b) and 4.08(c), the Parent Guarantor shall not be obligated to cause such Restricted Subsidiary to Guarantee the Notes to the extent and for so long as the Incurrence of such Subsidiary Guarantee is contrary to the Agreed Security Principles or could give rise to or result in: (i) any breach or violation of statutory limitations, corporate benefit, financial assistance, fraudulent preference, thin capitalization rules, capital maintenance rules, guidance and coordination rules or the laws rules or regulations (or analogous restriction) of any applicable jurisdiction; (ii) any risk or liability for the officers, directors or (except in the case of a Restricted Subsidiary that is a partnership) shareholders of such Restricted Subsidiary (or, in the case of a Restricted Subsidiary that is a partnership, directors or shareholders of the partners of such partnership); or (iii) any cost, expense, liability or obligation (including with respect to any Taxes) other than reasonable out-of-pocket expenses.

(e) Future Note Guarantees granted pursuant to Section 4.08 shall be released as set forth under Section 10.06. A Note Guarantee of a future Subsidiary Guarantor may also be released at the option of the Issuer if at the date of such release there is no Indebtedness of such Subsidiary Guarantor outstanding which was Incurred after the Issue Date and which could not have been Incurred in compliance with this Indenture if such Subsidiary Guarantor had not been designated as a Subsidiary Guarantor. The Trustee and the Security Agent shall each take all necessary actions, including the granting of releases or waivers under the Intercreditor Agreement or any Additional Intercreditor Agreement, to effectuate any release of a Note Guarantee in accordance with these provisions, subject to each of the Trustee and the Security Agent being indemnified and secured to its satisfaction.

Section 4.09 Reports .

(a) For so long as any Notes are outstanding, the Parent Guarantor will provide to the Trustee the following reports:

(i) within 120 days after the end of the Parent Guarantor’s fiscal year, all information that would be required to be contained in a filing with the SEC on Form 20-F if the Parent Guarantor were required to file such form, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the report of the Parent Guarantor’s certified independent accountants on the financial statements;

(ii) within 60 days following the end of the first three fiscal quarters in each fiscal year of the Parent Guarantor, quarterly reports of the Parent Guarantor containing the following information: (A) an unaudited condensed consolidated balance sheet as of 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 year periods, together with any condensed footnote disclosure; (B) unaudited pro forma income statement information and balance sheet information (which, for the avoidance of doubt, shall not include the provision of a full income statement or balance sheet to the extent not reasonably available), together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the relevant quarter; (C) an operating and financial review of the unaudited financial statements, including a discussion of the results of operations, financial condition and EBITDA; and (D) material recent developments; and

 

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(iii) (A) all current reports that would be required to be filed with the SEC on Form 6-K if the Parent Guarantor were required to file such reports and (B) promptly after the occurrence of any material acquisition, disposition or restructuring or any senior executive officer changes at the Parent Guarantor or change in auditors of the Parent Guarantor or any other material event that the Parent Guarantor or any of its Restricted Subsidiaries announces publicly, a report containing a description of such event.

(b) For purposes of this Section 4.09, the Parent Guarantor will be deemed to have furnished the reports to the Holders as required by this covenant if the Parent Guarantor has filed such reports with the Commission via the EDGAR filing system and such reports are publicly available or the Parent Guarantor has posted such reports on the Parent Guarantor’s 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 will also be made available at the specified office of the Paying Agent.

(c) At any time that any of the Parent Guarantor’s Subsidiaries are Unrestricted Subsidiaries and any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, constitutes a Significant Subsidiary of the Parent Guarantor, then the annual and quarterly financial information required by clauses (i) and (ii) of Section 4.09(a) shall include either (A) 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 Parent Guarantor and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries or (B) stand-alone audited or unaudited financial statements, as the case may be, of such Unrestricted Subsidiary or Unrestricted Subsidiaries (as a group or otherwise) together with an unaudited reconciliation to the financial information of the Parent Guarantor and its Subsidiaries, which reconciliation shall include the following items: revenues, EBITDA, net income, cash, total assets, total debt, shareholders equity, capital expenditures and interest expense.

(d) In addition, for so long as the Notes remain outstanding and during any period during which the Parent Guarantor is not subject to Section 13 or 15(d) of the Exchange Act nor exempt therefrom pursuant to Rule 12g3-2(b), the Parent Guarantor shall furnish to the Holders and, upon their request, prospective purchasers of the Notes, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.

Section 4.10 Suspension of Covenants on Achievement of Investment Grade Status .

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 4.01, Section 4.02, Section 4.04, Section 4.05, Section 4.06, Section 4.07, Section 4.08 and Section 5.01(b)(iii) of this Indenture and, in each case, any related default provision of this Indenture, will cease to be effective and will not be applicable to the Parent Guarantor and its Restricted Subsidiaries. Such sections and any related default provisions will again apply according to their terms from the Reversion Date. Such sections will not, however, be of any effect with regard to actions of the Parent Guarantor or any Restricted Subsidiary properly taken during the continuance of the Suspension Event, and Section 4.02 will be interpreted as if it has been in effect since the date of such indenture except that no default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was

 

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suspended. On the Reversion Date, all Indebtedness Incurred during the continuance of the Suspension Event will be classified as having been outstanding on the Issue Date, so that it is classified as permitted under Section 4.01(b)(iv)(b). In addition, this Indenture will also permit, without causing a Default or Event of Default, the Parent Guarantor or any of the Restricted Subsidiaries to honor any contractual commitments or take actions in the future after any date on which the Notes cease to have Investment Grade Status as long as the contractual commitments were entered into during the Suspension Event and not in anticipation of the Notes no longer having Investment Grade Status. The Parent Guarantor shall notify the Trustee in writing that the conditions set forth in the first paragraph under this caption has been satisfied; provided that, no such notification shall be a condition for the suspension of the covenants described under this caption to be effective.

Section 4.11 Additional Intercreditor Agreements .

(a) At the request of the Issuer, in connection with the Incurrence by the Issuer or its Restricted Subsidiaries of any (i) Indebtedness permitted pursuant to Section 4.01(a) or Section 4.01(b)(i), Section 4.01(b)(ii), Section 4.01(b)(iv), Section 4.01(b)(v), Section 4.01(b)(vi), Section 4.01(b)(vii) (other than with respect to Capitalized Lease Obligations), Section 4.01(b)(xi) or
Section 4.01(b)(xii) and (ii) any Refinancing Indebtedness in respect of Indebtedness referred to in clause (i) of this Section 4.11(a), the Issuer, the relevant Restricted Subsidiaries, the Trustee and the Security Agent shall enter into with the holders of such Indebtedness (or their duly authorized Representatives) an intercreditor agreement (an “ Additional Intercreditor Agreement ”) or a restatement, amendment or other modification of the existing Intercreditor Agreement on substantially the same terms as the Intercreditor Agreement (or terms not materially less favorable to the Holders), including containing substantially the same terms with respect to release of Note Guarantees and priority and release of the security interests in the Collateral; provided that such Additional Intercreditor Agreement will not impose any personal obligations on the Trustee or Security Agent or, in the opinion of the Trustee or Security Agent, as applicable, adversely affect the rights, duties, liabilities or immunities of the Trustee or Security Agent under this Indenture or the Intercreditor Agreement.

(b) At the direction of the Issuer and without the consent of Holders, the Trustee and the Security Agent shall from time to time enter into one or more amendments to any Intercreditor Agreement to: (i) cure any ambiguity, omission, defect, manifest error or inconsistency of any such agreement, (ii) increase the amount or types of Indebtedness covered by any such agreement that may be Incurred by the Parent Guarantor or any Restricted Subsidiary that is subject to any such agreement (including with respect to any Intercreditor Agreement or Additional Intercreditor Agreement, the addition of provisions relating to new Indebtedness ranking junior in right of payment to the Notes), (iii) add Restricted Subsidiaries to the Intercreditor Agreement or an Additional Intercreditor Agreement, (iv) further secure the Notes (including Additional Notes), (v) make provision for equal and ratable pledges of the Collateral to secure Additional Notes, (vi) implement any Permitted Collateral Liens, (vii) amend the Intercreditor Agreement or any Additional Intercreditor Agreement in accordance with the terms thereof or (viii) make any other change to any such agreement that does not adversely affect the Holders in any material respect. In formulating its opinion on such matters, the Trustee shall be entitled to request and rely absolutely on such evidence as it deems appropriate, including an Officer’s Certificate and an Opinion of Counsel. The Issuer shall not otherwise direct the Trustee or the Security Agent to enter into any amendment to any Intercreditor Agreement without the consent of the Holders of the majority in aggregate principal amount of the Notes then outstanding, except as otherwise permitted below under Section 9.01 and the Issuer may only direct the Trustee and the Security Agent to enter into any amendment to the extent such amendment does not impose any personal obligations on the Trustee or Security Agent or, in the opinion of the Trustee or Security Agent, adversely affect their respective rights, duties, liabilities or immunities under this Indenture or the Intercreditor Agreement or any Additional Intercreditor Agreement.

 

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(c) In relation to any Intercreditor Agreement or Additional Intercreditor Agreement, the Trustee (and Security Agent, if applicable) shall consent on behalf of the Holders to the payment, repayment, purchase, repurchase, defeasance, acquisition, retirement or redemption of any obligations subordinated to the Notes thereby; provided , however , that such transaction would comply with Section 4.02 and the terms of the Intercreditor Agreement and any Additional Intercreditor Agreement.

(d) Each Holder, by accepting a Note, shall be deemed to have agreed to and accepted the terms and conditions of the Intercreditor Agreement or any Additional Intercreditor Agreement (whether then entered into or entered into in the future pursuant to the provisions described herein) and to have directed the Trustee and the Security Agent to enter into any such Additional Intercreditor Agreement. A copy of the Intercreditor Agreement or any Additional Intercreditor Agreement shall be made available for inspection during normal business hours on any Business Day upon prior written request at the offices of the Paying Agent for the Notes.

Section 4.12 Payment of Notes .

The Issuer shall promptly pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal and interest shall be considered paid on the date due if on such date the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.

Section 4.13 Withholding Taxes .

(a) All payments made by the Issuer, a Successor Company or Guarantor (a “ Payor ”) on the Notes or the Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any Taxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:

(i) Luxembourg or any political subdivision or Governmental Authority thereof or therein having power to tax;

(ii) any jurisdiction from or through which payment on any such Note or Note Guarantee is made by the Issuer, Successor Company, Guarantor or their agents, or any political subdivision or Governmental Authority thereof or therein having the power to tax; or

(iii) any other jurisdiction in which the Payor is incorporated, engaged in business, organized or otherwise considered to be a resident for tax purposes, or any political subdivision or Governmental Authority thereof or therein having the power to tax (each of clause (1), (2) and (3), a “ Relevant Taxing Jurisdiction ”),

will at any time be required from any payments made by or on behalf of a Payor with respect to any Note or Note Guarantee, including payments of principal, redemption price, premium, if any, or interest, the Payor will pay (together with such payments) such additional amounts (the “ Additional Amounts ”) as may be necessary in order that the net amounts received in respect of such payments after such withholding or deduction (including any such deduction or withholding from such

 

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Additional Amounts), will equal the amounts which would have been received in respect of such payments on any such Note or Note Guarantee in the absence of such withholding or deduction; provided , however , that no such Additional Amounts will be payable for or on account of:

 

  (A) any Taxes that would not have been so imposed but for the existence of any actual or deemed present or former connection between the relevant Holder or the beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Note or Note Guarantee or the enforcement or receipt of any payment in respect thereof;

 

  (B) any Taxes that are imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note (to the extent it is legally entitled to do so) to comply with a written request of the Payor addressed to the Holder, after reasonable notice, to provide certification, information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such beneficial owner or to make any declaration or similar claim or satisfy any other reporting requirement relating to such matters, in each case, that is required by applicable law, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Taxes;

 

  (C) any Taxes that are payable otherwise than by deduction or withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or any Note Guarantee;

 

  (D) any estate, inheritance, gift, value added, sales, transfer, personal property or similar Tax

 

  (E) any Taxes that are required to be deducted or withheld on a payment to an individual and that are required to be made pursuant to Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on taxation of savings income or any law implementing or complying with, or introduced in order to conform to such Directives or pursuant to the Luxembourg law of December 23, 2005 introducing a withholding tax on certain savings income paid to Luxembourg;

 

  (F) any Taxes imposed pursuant to or in connection with Sections 1471 through 1474 of the Code, the Treasury regulations thereunder or any similar law or regulations adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing;

 

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  (G) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another paying agent;

 

  (H) any combination of clauses (A) through (G) of this Section 4.13(a).

(b) Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is permitted or required for payment) within 30 days after the relevant payment was first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period) or (y) where, had the beneficial owner of the Note been the Holder, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (A) to (H) of Section 4.13(a).

(c) No Additional Amounts shall be paid with respect to any payment to any Holder who is a fiduciary or a partnership or other than the sole beneficial owner of such Notes to the extent that the beneficiary or settlor with respect to such fiduciary, the member of such partnership or the beneficial owner of such Notes would not have been entitled to Additional Amounts had such beneficiary, settlor, member or beneficial owner held such Notes directly.

(d) The Payor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. The Payor will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes, in such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and as is reasonably available to the Issuer and will provide such certified copies to the Trustee, if such certified copies are available. Such copies shall be made available to the Holders upon request and will be made available at the offices of the Paying Agent.

(e) If any Payor becomes aware that it will be obligated to pay Additional Amounts under or with respect to any payment made on any Note or Note Guarantee, at least 30 days prior to the date of such payment, the Payor will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such awareness of an obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the Payor may deliver such Officer’s Certificate as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee will be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.

(f) Wherever in this Indenture or the Notes Guarantees there is mentioned, in any context:

(i) the payment of principal;

(ii) purchase or redemption prices in connection with a purchase or redemption of Notes;

(iii) interest; or

(iv) any other amount payable on or with respect to any of the Notes, such reference shall be deemed to include payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

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(g) The Payor will pay any present or future stamp, court or documentary taxes, or any other property or similar taxes, charges or levies that arise in any jurisdiction from the execution, delivery, issuance, registration or enforcement of any Notes, any Note Guarantee, this Indenture, the Security Documents or any other document or instrument in relation thereto (other than a transfer of the Notes other than the initial resale by the initial purchasers) or the receipt of any payments with respect thereto (limited, solely in the case of taxes attributable to the receipt of any payments with respect thereto, to any such taxes that are not excluded under clauses (A) through (B) and (D) through (G) of Section 4.13(a) or any combination thereof) excluding any such taxes, charges or levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction, and the Payor agrees to indemnify the Holders for any such taxes paid by such Holders. The foregoing obligations of this Section 4.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to the Payor is organized, engaged in business or from or through which payment on any such Note or Note Guarantee is made by or on behalf of any Payor or any political subdivision or taxing authority or agency thereof or therein.

Section 4.14 Change of Control .

(a) If a Change of Control occurs, subject to this Section 4.14, each Holder will have the right to require the Issuer to repurchase all or part (equal to €100,000 in aggregate principal amount and integral multiples of €1,000 in excess thereof for the Notes) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided , however , that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.14, in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes as described under Section 5 of the Notes, and that all conditions to such redemption have been satisfied or waived.

(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes as described under Section 5 of the Notes and all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control, the Issuer will provide a notice (the “ Change of Control Offer ”) to each Holder of any such Notes, with a copy to the Trustee:

(i) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “ Change of Control Payment ”);

(ii) stating the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is provided) (the “ Change of Control Payment Date ”);

(iii) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;

(iv) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased; and

 

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(v) if such notice is provided prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control.

(c) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:

(i) accept for payment all Notes properly tendered pursuant to the Change of Control Offer;

(ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;

(iii) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer in the Change of Control Offer;

(iv) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and

(v) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the relevant Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer.

(d) If any Definitive Registered Notes have been issued, the relevant Paying Agent will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate (or cause to be authenticated) and mail (or cause to be transferred by book entry) to each Holder of Definitive Registered Notes a new Note equal in aggregate principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in an aggregate principal amount that is at least €100,000 and in integral multiples of €1,000 in excess thereof.

(e) If and for so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted for trading on the Euro MTF market and the rules of the Luxembourg Stock Exchange so require, the Issuer will publish notices relating to the Change of Control Offer as soon as reasonably practicable after the Change of Control Payment Date 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 notices on the official website of the Luxembourg Stock Exchange ( www.bourse.lu ).

(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.

(g) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations (or rules of any exchange on which the Notes are then listed) in connection with the repurchase of Notes pursuant to this Section 4.14. To the extent that the provisions of any securities laws or regulations (or exchange rules) conflict with provisions of this Indenture, the Issuer will comply with the applicable securities

 

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laws and regulations (or exchange rules) and will not be deemed to have breached its obligations, or require a repurchase of the Notes, under the Change of Control provisions of this Indenture by virtue of the conflict.

Section 4.15 Compliance Certificate .

The Issuer will deliver to the Trustee no later than the date on which the Parent Guarantor is required to deliver annual reports pursuant to Section 4.09, an Officer’s Certificate indicating whether the signers thereof know of any Default that occurred during the previous year. The Issuer is required to deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any events of which it is aware which would constitute any Defaults, their status and what action the Issuer is taking or proposes to take in respect thereof.

Section 4.16 Limitation on Issuer Activities .

(a) The Issuer will not engage in any business activity except any activity (i) relating to the Incurrence of Indebtedness represented by the Existing Notes until they are repaid pursuant to the Transactions, the Notes, any Additional Notes or as permitted by this Indenture (including any Indebtedness Incurred in the future) and making Investments pursuant to the Notes Proceeds Loan or any future proceeds loan with the proceeds from such Incurrence of Indebtedness (including the lending of the proceeds from the Incurrence of such Indebtedness and the receipt of interest, principal and other payments thereon), (ii) undertaken with the purpose of, related to, or otherwise incidental or resulting from the Incurrence of such Indebtedness or the making of such Investments or in connection with fulfilling its obligations thereunder, including pursuant to the Security Documents, the Notes Proceeds Loan, the Intercreditor Agreement, any Additional Intercreditor Agreement, future agreements similar to any of the foregoing, and any repurchase, purchase, repayment, redemption, refinancing or prepayment of, or any consent, amendment, supplement or modification with respect to, or similar actions with respect to, such Indebtedness and Investments, (iii) undertaken with the purpose of, related to or otherwise incidental or resulting from the establishment and maintenance of the Issuer’s corporate existence, (iv) other activities that are not material in nature (as compared to the consolidated business activities of the Parent Guarantor and its Restricted Subsidiaries taken as a whole) or otherwise could not reasonably be expected to result in an Event of Default pursuant to Section 6.01(e) of the definition thereof or (v) reasonably related to the foregoing.

(b) The Issuer shall not (i) issue any Capital Stock (other than to the Parent Guarantor or any Wholly Owned Subsidiary and the issuance of directors’ qualifying shares and other nominal amounts of Capital Stock that are required to be held by other Persons under applicable law) or (ii) undertake any transaction that will require the Issuer to register as an “investment company” or an entity “controlled by an investment company” as defined in the US Investment Company Act of 1940, as amended and the rules and regulations thereunder.

(c) The Issuer and the Parent Guarantor will not, and the Parent Guarantor will not permit any of its Restricted Subsidiaries or any other Person that is an obligor under the Notes Proceeds Loan, to (i) sell, dispose, prepay, repay, repurchase, redeem or otherwise acquire, reduce or retire any amounts outstanding under the Notes Proceeds Loan or (ii) amend, modify, supplement or waive any rights under the Notes Proceeds Loan in a manner that would adversely affect the rights in any material respect of the Issuer or its creditors with respect to the Notes Proceeds Loan, except in the case of clause (i) or (ii), (A) in connection with a redemption, repayment, purchase, refinancing, prepayment, repurchase, acquisition, reduction, retirement or similar action with respect to outstanding Notes in a manner not prohibited by this Indenture, (B) as provided for in the Security Documents, future agreements similar to any of the foregoing or as provided under Section 11.05 or (C) in connection with, pursuant to or to reflect any amendment, modification, supplement or waiver under the Notes or this Indenture.

 

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Section 4.17 Payments for Consent .

(a) The Parent Guarantor will not, and will not cause or 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 paid to all holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

(b) Notwithstanding Section 4.17(a), the Parent Guarantor 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 of the Notes in any jurisdiction where (i) the solicitation of such consent, waiver or amendment, including in connection with an exchange offer or offer to purchase for cash, or (ii) the payment of the consideration therefor (A) would require the Parent Guarantor 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 United States federal securities laws and the laws of the European Union or its member states), which the Parent Guarantor in its sole discretion determines (acting in good faith) would be materially burdensome; or (B) such solicitation would otherwise not be permitted under applicable law in such jurisdiction or with respect to such category of holders of Notes.

Section 4.19 Listing .

The Issuer will use its reasonable best efforts to (i) obtain the listing of the Notes on the Official List of the Luxembourg Stock Exchange and the admission to trading of the Notes on the Euro MTF Market of the Luxembourg Stock Exchange as promptly as practicable after the Issue Date and (ii) maintain such listing and admission to trading for so long as such Notes are outstanding; provided that if the Issuer is unable to obtain such listing, or if maintenance of such listing becomes unduly onerous, it will, prior to the delisting of the Notes from the Official List of the Luxembourg Stock Exchange, use its reasonable best efforts to obtain and maintain a listing of such Notes on another “recognised stock exchange” as defined in section 1005 of the Income Tax Act 2007 of the United Kingdom.

ARTICLE 5

SUCCESSOR COMPANY

Section 5.01 Merger and Consolidation .

(a) Parent Guarantor. The Parent Guarantor will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any Person, unless:

(i) the resulting, surviving or transferee Person (the “ Successor Company ”) will be a Person organized and existing under the laws of any member state of the European Union, the United Kingdom, including the British Virgin Islands, or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, Norway or Switzerland and the Successor Company (if not the Parent Guarantor) expressly assumes all the obligations of the Parent Guarantor under this Indenture, the Parent Guarantee, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents, as applicable; and

 

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(ii) the Parent Guarantor shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Company (in each case, in form and substance reasonably satisfactory to the Trustee), provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of clause Section 5.01(a)(i).

Any Indebtedness that becomes an obligation of the Parent Guarantor or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Section 5.01, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Section 4.01.

For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Parent Guarantor, which properties and assets, if held by the Parent Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Parent Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Parent Guarantor.

The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Parent Guarantor under this Indenture but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under such indenture or the Parent Guarantee.

The Parent Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Parent Guarantor, reincorporating the Parent Guarantor in another jurisdiction, or changing the legal form of the Parent Guarantor.

Section 5.01(a) will not apply to the creation of a new subsidiary of the Parent Guarantor that becomes a parent of one or more of the Parent Guarantor’s Subsidiaries.

(b) The Issuer. The Issuer will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any Person, unless:

(i) the Successor Company will be a Person organized and existing under the laws of any member state of the European Union, the United Kingdom or the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, the Bailiwick of Jersey, Norway or Switzerland and the Successor Company (if not the Issuer) will expressly assume (A) by supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Notes and this Indenture and (B) all obligations of the Issuer under the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents, as applicable;

 

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(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any Subsidiary of the Successor Company as a result of such transaction as having been Incurred by the Successor Company or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;

(iii) immediately after giving effect to such transaction, either (A) the Successor Company would be able to Incur at least an additional €1.00 of Indebtedness pursuant to Section 4.01(a) or (B) the Fixed Charge Coverage Ratio for the Parent Guarantor and its Restricted Subsidiaries would not be less than it was immediately prior to giving effect to such transaction; and

(iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Company (in each case, in form and substance reasonably satisfactory to the Trustee), provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of Section 5.01(b)(i) and Section 5.01(b)(ii).

Any Indebtedness that becomes an obligation of the Parent Guarantor or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Section 5.01, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance Section 4.01.

Notwithstanding clauses (ii), (iii) and (iv) of Section 5.01(b) (which do not apply to the transactions referred to in this sentence), 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.

(c) Subsidiary Guarantors. No Subsidiary Guarantor may:

(i) consolidate with or merge with or into any Person;

(ii) sell, convey, transfer or dispose of, all or substantially all its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or

(iii) permit any Person to merge with or into such Subsidiary Guarantor,

unless:

(A) the other Person is the Issuer, the Parent Guarantor, a Subsidiary Guarantor or any Restricted Subsidiary that becomes a Subsidiary Guarantor concurrently with the transaction; or

(B) (1) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Subsidiary Guarantor under this Indenture, its Subsidiary Guarantee, the

 

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Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents, as applicable; and (2) immediately after giving effect to the transaction, no Default has occurred and is continuing; or

(C) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Subsidiary Guarantor or the sale or disposition of all or substantially all the assets of the Subsidiary Guarantor (in each case other than to the Parent Guarantor or a Restricted Subsidiary) otherwise permitted by this Indenture,

provided however , that the prohibition in clauses (i), (ii) and (iii) of Section 5.01(c) shall not apply to the extent that compliance therewith could give rise to or result in (x) any breach or violation of statutory limitations, corporate benefit, financial assistance, fraudulent preference, thin capitalization rules, capital maintenance rules, guidance and coordination rules or the laws rules or regulations (or analogous restriction) of any applicable jurisdiction, (y) any risk or liability for the officers, directors or (except in the case of a Restricted Subsidiary that is a partnership) shareholders of such Restricted Subsidiary (or, in the case of a Restricted Subsidiary that is a partnership, directors or shareholders of the partners of such partnership) or (z) any cost, expense, liability or obligation (including with respect to any Taxes) other than reasonable out of pocket expenses.

Notwithstanding the preceding clause B(2) and the provisions described under Section 5.01(a) and Section 5.01(b) (which do not apply to transactions referred to in this sentence), (A) any Restricted Subsidiary (other than the Issuer) may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or a Guarantor and (B) any Subsidiary Guarantor may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer or any other Subsidiary Guarantor. Notwithstanding the preceding clause B(2) (which does not apply to the transactions referred to in this sentence), a Subsidiary Guarantor may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Subsidiary Guarantor reincorporating the Subsidiary Guarantor in another jurisdiction, or changing the legal form of the Subsidiary Guarantor.

Any Indebtedness that becomes an obligation of the Parent Guarantor or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Section 5.01, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Section 4.01.

ARTICLE 6

DEFAULTS AND REMEDIES

Section 6.01 Events of Default .

Each of the following is an “Event of Default” under this Indenture:

(a) default in any payment of interest, or Additional Amounts, if any, on any Note when due and payable, continued for 30 days;

(b) default in the payment of the principal amount of or premium, if any, on any Note issued under this Indenture when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;

 

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(c) failure by the Parent Guarantor or any of its Restricted Subsidiaries to comply for 60 days after written notice by the Trustee on behalf of the Holders or by the Holders of at least 25% in aggregate principal amount of the outstanding Notes with its other agreements contained in this Indenture or the Notes (in each case, other than a default in performance, or breach of, a covenant or agreement specifically addressed in clauses (a) and (b) of this Section 6.01;

(d) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Parent Guarantor or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the Parent Guarantor or any of its Restricted Subsidiaries) other than Indebtedness owed to the Parent Guarantor or a Restricted Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, which default:

(i) is caused by a failure to pay principal at stated maturity on such Indebtedness, immediately upon the expiration of the grace period provided in such Indebtedness (“ payment default ”); or

(ii) results in the acceleration of such Indebtedness prior to its maturity (the “ cross acceleration provision ”),

and, in each case, the aggregate principal amount of any such Indebtedness, together with the aggregate principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates €35.0 million or more;

(e) The Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:

(i) commences proceedings to be adjudicated bankrupt or insolvent;

(ii) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;

(iii) other than on a solvent basis, consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;

(iv) other than on a solvent basis, makes a general assignment for the benefit of its creditors; or

(v) admits in writing that it is unable to pay its debts as they become due;

(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(i) is for relief against the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary, in a proceeding in which the Parent Guarantor or any such Restricted Subsidiaries, that is a

 

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Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;

(ii) other than on a solvent basis, appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary, or for all or substantially all of the property of the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary; or

(iii) other than on a solvent basis, orders the liquidation of the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary and the order or decree remains unstayed and in effect for 60 consecutive days;

(g) failure by the Issuer, the Parent Guarantor or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final judgments aggregating in excess of €35.0 million (exclusive of any amounts that a solvent insurance company has acknowledged liability for), which judgments are not paid, discharged or stayed for a period of 60 days after the judgment becomes final (the “ judgment default provision ”);

(h) any security interest shall, at any time, cease to be in full force and effect (other than in accordance with the terms of the relevant Security Document, the Intercreditor Agreement, any Additional Intercreditor Agreement and this Indenture) with respect to Collateral having a fair market value in excess of €10.0 million for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement or the Security Document or any such security interest created thereunder shall be declared invalid or unenforceable or the Issuer, the Parent Guarantor or any Restricted Subsidiary shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for 10 days; and

(i) the Parent Guarantee or any Subsidiary Guarantee of a Significant Subsidiary ceases to be in full force and effect (other than in accordance with the terms of such Note Guarantee or this Indenture) or is declared invalid or unenforceable in a judicial proceeding or any Guarantor denies or disaffirms in writing its obligations under its Note Guarantee and any such Default continues for 10 days.

Notwithstanding the foregoing, a default under clause (c), (d) or (g) of this Section 6.01 will not constitute an Event of Default until the Trustee or the Holders of 25% in aggregate principal amount of the outstanding Notes notify the Issuer of the default and, with respect to clauses (c), (d) and (g) of this Section 6.01, the Issuer does not cure such default within the time specified in clause (c), (d) or (g) of this Section 6.01, as applicable, after receipt of such notice.

 

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Section 6.02 Remedies Upon Event of Default .

Holders of the Notes may not enforce this Indenture or the Notes except as provided in this Indenture and may not enforce the Security Documents except as provided in such Security Documents and the Intercreditor Agreement or any Additional Intercreditor Agreement.

Notwithstanding anything to the contrary herein, (i) if a Default occurs for a failure to deliver a required certificate in connection with another default (an “ Initial Default ”) then at the time such Initial Default is cured, such Default for a failure to report or deliver a required certificate in connection with the Initial Default will also be cured without any further action and (ii) any Default or Event of Default for the failure to comply with the time periods prescribed in Section 4.10, or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by such covenant or notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.

Section 6.03 Acceleration .

(a) If an Event of Default (other than an Event of Default with respect to the Issuer or the Parent Guarantor described in Section 6.01(e) or Section 6.01(f) above) occurs and is continuing, the Trustee by notice to the Issuer or the Holders of at least 25% in aggregate principal amount of the outstanding Notes by written notice to the Issuer and the Trustee, may, and the Trustee at the request of such Holders shall, declare the principal of, premium, if any, and accrued and unpaid interest, including Additional Amounts, if any, on all the Notes under this Indenture to be due and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest, including Additional Amounts, if any, will be due and payable immediately. In the event of a declaration of acceleration of the Notes because an Event of Default described in Section 6.01(d) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if the event of default or payment default triggering such Event of Default pursuant to Section 6.01(d) shall be remedied or cured, or waived by the holders of the Indebtedness, or the Indebtedness that gave rise to such Event of Default shall have been discharged in full, within 30 days after the declaration of acceleration with respect thereto and if (1) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, except nonpayment of principal, premium or interest, including Additional Amounts, if any, on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.

(b) If an Event of Default with respect to the Issuer or the Parent Guarantor described in Section 6.01(e) or Section 6.01(f) above occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest, including Additional Amounts, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.

Section 6.04 Other Remedies .

Subject to Articles 11 and 12 and to the duties of the Trustee as provided for in Article 7, if an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

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The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.

To the extent permitted by the Intercreditor Agreement, the Trustee may direct the Security Agent (subject to being indemnified and/or secured to its satisfaction in accordance with the Intercreditor Agreement) to take enforcement action with respect to the Collateral if any amount is declared or becomes due and payable pursuant to Section 6.02 (but not otherwise).

Section 6.05 Waiver of Past Defaults .

The Holders of a majority in aggregate principal amount of the outstanding Notes under this Indenture by notice to the Trustee may, on behalf of all Holders, waive all past or existing Defaults or Events of Default (except with respect to a covenant or provision which under this Indenture cannot be modified or amended without the consent of Holders of at least 90% of the principal amount of the Notes then outstanding, each of which may be waived with the consent of Holders of at least 90% of the principal amount of the Notes then outstanding) and rescind any such acceleration with respect to such Notes and its consequences if rescission would not conflict with any judgment or decree of a court of competent jurisdiction.

Section 6.06 Control by Majority .

The Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to Section 7.01, that the Trustee determines is materially prejudicial to the rights of other Holders or would involve the Trustee in personal liability; provided , however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.

Section 6.07 Limitation on Suits .

(a) Except to enforce the right to receive payment of principal or interest when due, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:

(i) such Holder has previously given the Trustee written notice that an Event of Default is continuing;

(ii) the Holders of at least 25% in aggregate principal amount of the outstanding Notes have requested in writing the Trustee to pursue the remedy;

(iii) such Holders have offered in writing the Trustee security and/or indemnity against any loss, liability or expense;

(iv) the Trustee has not complied with such request within 60 days after the receipt of the written request and the offer of security and/or indemnity; and

(v) the Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a written direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.

 

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Section 6.08 Rights of Holders to Receive Payment .

Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment, or to bring suit for the enforcement of any payment, of principal of, premium on, if any, interest or Additional Amounts, if any, on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), shall not be impaired or affected without the consent of such Holder other than as provided in Section 9.02 hereof; provided that a Holder shall not have the right to institute any such suit for the enforcement of payment if and to the extent that the institution or prosecution thereof or the entry of judgment therein would, under applicable law, result in the surrender, impairment, waiver or loss of the Lien of this Indenture upon any property subject to such Lien.

Section 6.09 Collection Suit by Trustee .

If an Event of Default specified in Section 6.01(a) or Section 6.01(b) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on the Notes for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.06.

Section 6.10 Trustee May File Proofs of Claim .

Subject to the Intercreditor Agreement, the Trustee may file such proofs of claim and other papers or documents and take such actions as may be necessary or advisable (including any claim for the properly incurred compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes) or any Guarantor, their creditors or their property and, shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the properly incurred compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize 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, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 6.11 Priorities .

If the Trustee or the Security Agent collects any money or property pursuant to this Article 6, it shall, subject to the terms of the Intercreditor Agreement, pay out the money or property in the following order:

FIRST: to the Trustee, the Agents and the Security Agent for amounts due under Section 7.02, Section 7.06 and Section 11.06;

 

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SECOND: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, interest 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 and Additional Amounts, if any, respectively;

THIRD: to the Issuer, any Guarantor or to such party as a court of competent jurisdiction shall direct.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.11. At least 15 days before such record date, the Trustee shall provide to each Holder and the Issuer a notice that states the record date, the payment date and amount to be paid.

Section 6.12 Undertaking for Costs .

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee or the Security Agent for any action taken or omitted by it as the Trustee or the Security Agent, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess properly incurred costs, including properly incurred attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a suit by the Trustee, the Security Agent or a Paying Agent, a suit by a Holder pursuant to Section 6.08 or a suit by Holders of more than 10% in principal amount of the Notes then outstanding.

Section 6.13 Waiver of Stay or Extension Laws .

The Issuer and each of the Guarantors (to the extent it may lawfully do so) 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 and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

Section 6.14 Restoration of Rights and Remedies .

If the Trustee or the Security Agent 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, or has been determined adversely to the Trustee or the Security Agent or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, any Guarantor, the Trustee, the Security Agent and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee, the Security Agent and the Holders shall continue as though no such proceeding had been instituted.

Section 6.15 Rights and Remedies Cumulative .

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.11, no right or remedy herein conferred upon or reserved to the Trustee, or the Security Agent 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.

 

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Section 6.16 Delay or Omission Not Waiver .

No delay or omission of the Trustee, or the Security Agent 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 6 or by law to the Trustee, or the Security Agent 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 6.17 Indemnification of Trustee .

Prior to taking any action under this Article 6, the Trustee shall be entitled to indemnification or other security satisfactory to it in its sole discretion against all losses, liabilities and expenses caused by taking or not taking such action.

ARTICLE 7

TRUSTEE

Section 7.01 Duties of Trustee .

(a) If an Event of Default, of which a Responsible Officer of the Trustee has actual knowledge, has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture or an indenture supplement hereto and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(b) Except during the continuance of an Event of Default:

(A) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants, duties or obligations shall be read into this Indenture against the Trustee; provided that to the extent the duties of the Trustee under this Indenture and the Notes may be qualified, limited or otherwise affected by the provisions of the Notes Documents, the Trustee shall be required to perform those duties only as so qualified, limited or affected, and shall be held harmless and shall not incur any liability of any kind for so acting; and

(B) in the absence of fraud 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. However, with respect to certificates or opinions specifically required to be furnished to it hereunder, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein) and shall be entitled to seek advice from legal counsel in relation thereto.

 

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(c) The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act, its own willful misconduct or fraud, except that:

(A) This Section 7.01(c) does not limit the effect of Section 7.01(b);

(B) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and

(C) 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 6.03, Section 6.05 or Section 6.06.

(d) Every provision of this Indenture that in any way relates to the Trustee is subject to Section 7.01(a), Section 7.01(b) and Section 7.01(c).

(e) No provision of this Indenture, the Intercreditor Agreement or the other Notes Documents shall require the Trustee to expend or risk its own funds or otherwise incur liability in the performance of any of its duties hereunder or under the Intercreditor Agreement or the other Notes Documents or to take or omit to take any action under this Indenture or under the Intercreditor Agreement or the other Notes Documents or take any action at the request or direction of Holders if it has grounds for believing that repayment of such funds is not assured to it or it does not receive indemnity or security satisfactory to it in its discretion against any loss, liability or expense which might be incurred by it in compliance with such request or direction nor shall the Trustee be required to do anything which is illegal or contrary to applicable laws. The Trustee will not be liable to the Holders 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. No provision of this Indenture or of the Notes Documents shall require the Trustee to indemnify the Security Agent, and the Security Agent waives any claim it may otherwise have by operation of law in any jurisdiction to be indemnified by the Trustee acting as principal vis-à-vis its agent, the Security Agent (but this does not prejudice the Security Agent’s rights to bring any claim or suit against the Trustee (including for damages in the case of gross negligence, willful misconduct or fraud of the Trustee)).

(f) 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.

(g) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

(h) Each Holder, by its acceptance of any Notes and the Note Guarantees of the Notes by the Guarantors, if any, consents and agrees to the Agreed Security Principles and the terms of the Notes Documents, the Intercreditor Agreement, and any other Security Documents to which the Trustee may be a party (including, without limitation, the provisions providing for foreclosure and release of Collateral) as the same may be in effect or as may be amended from time to time in accordance with their terms and authorizes and directs the Trustee to enter into and perform its obligations and exercise its rights under the Notes Documents, the Intercreditor Agreement, and such Security Documents in accordance therewith, to bind the Holders on the terms set forth in the Notes Documents, the Intercreditor Agreement, and such Security Documents and to execute any and all documents, amendments, waivers, consents, releases or other instruments authorized or required to be executed by it pursuant to the terms thereof.

 

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Section 7.02 Rights of Trustee .

(a) The Trustee may refrain from taking any action in any jurisdiction if the taking of such action in that jurisdiction would, in its opinion, based upon legal advice in the relevant jurisdiction, be contrary to any law of that jurisdiction or, to the extent applicable, the State of New York. Furthermore, the Trustee may also refrain from taking such action if it would otherwise render it liable to any person in that jurisdiction, the State of New York or if, in its opinion based upon such legal advice, it would not have the power to take such action in that jurisdiction by virtue of any applicable law in that jurisdiction, in the State of New York or if it is determined by any court or other competent authority in that jurisdiction, in the State of New York that it does not have such power.

(b) The Trustee may conclusively rely and shall be fully protected in relying on any document (whether in its original, electronic or facsimile form) 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.

(c) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.

(d) The Trustee may act through attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

(e) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement or any other Notes Document; provided , however , that the Trustee’s conduct does not constitute willful misconduct, gross negligence or fraud.

(f) The Trustee may retain professional advisers to assist it in performing its duties under this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement or any Notes Document. At the cost of the Issuer, the Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

(g) The Trustee shall not be bound to make any investigation into the facts or matters stated in any Officer’s Certificate, Opinion of Counsel, or any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, 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 to examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer.

(h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture or the Intercreditor Agreement, unless such Holders shall have offered to the Trustee indemnity and/or other security satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred by it in compliance with such request, order or direction.

 

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(i) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than the majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture (as qualified, limited or otherwise affected by the provisions of the Intercreditor Agreement), the Trustee, in its sole discretion, may determine what action, if any, shall be taken and shall be held harmless and shall not incur any liability for its failure to act until such inconsistency or conflict is, in its reasonable opinion, resolved.

(j) The Trustee shall have no duty to inquire as to the performance of the Issuer with respect to the covenants contained in Article 4. Delivery of reports, information and documents to the Trustee under Section 4.09 is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).

(k) 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.

(l) If any Guarantor is substituted to make payments on behalf of the Issuer pursuant to Article 10, the Issuer shall promptly notify the Trustee of such substitution.

(m) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified and/or secured to its satisfaction, are extended to, and shall be enforceable by the Trustee in each of its capacities hereunder, under the Intercreditor Agreement, any Additional Intercreditor Agreements and the other Notes Documents, by the Security Agent and by each Agent in their various capacities hereunder, custodian and other Person employed to act as agent hereunder. Each of the Trustee, the Security Agent and each other Agent shall not be liable for acting in good faith on instructions believed by it to be genuine and from the proper party.

(n) The Trustee shall not be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture.

(o) At any time that the security granted pursuant to the Security Documents has become enforceable and the Holders have given a direction to the Trustee to enforce such security, the Trustee is not required to give any direction to the Security Agent with respect thereto unless it has been indemnified or received security in accordance with Section 7.01(e). In any event, in connection with any enforcement of such security, the Trustee is not responsible for:

(i) any failure of the Security Agent to enforce such security within a reasonable time or at all;

(ii) any failure of the Security Agent to pay over the proceeds of enforcement of the Collateral;

(iii) any failure of the Security Agent to realize such security for the best price obtainable;

 

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(iv) monitoring the activities of the Security Agent in relation to such enforcement;

(v) taking any enforcement action itself in relation to such security;

(vi) agreeing to any proposed course of action by the Security Agent which could result in the Trustee incurring any liability for its own account; or

(vii) paying any fees, costs or expenses of the Security Agent.

(p) The permissive rights of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so.

(q) Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits, loss of business, goodwill or opportunity of any kind), even if foreseeable and even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

(r) The Trustee may assume without inquiry in the absence of actual knowledge of a Responsible Officer that the Issuer is duly complying with its obligations contained in this Indenture required to be performed and observed by it, and that no Default or Event of Default or other event which would require repayment of the Notes has occurred.

(s) 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, directly or indirectly, forces beyond its control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

(t) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture or the Notes Documents, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

(u) 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.

(v) The Trustee shall not be required to take notice or be deemed to have notice of any Default or Event of Default hereunder unless a Responsible Officer of the Trustee shall be specifically notified in writing of such Default or Event of Default by the Issuer or by the Holders of at least 25% of the aggregate principal amount of Notes then outstanding, at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.

(w) The Trustee and the Paying Agent shall be entitled to make payments net of any taxes or other sums required by any applicable law to be withheld or deducted.

 

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Section 7.03 Individual Rights of Trustee .

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Trustee. For the avoidance of doubt, any Agent, Paying Agent, Transfer Agent, Authenticating Agent or Registrar may do the same with like rights.

Section 7.04 Trustee’s Disclaimer .

The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Intercreditor Agreement, the Security Documents or the Notes or the Note Guarantees or any other Notes Document or the Collateral, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, and it shall not be responsible for any statement of the Issuer in this Indenture, the Offering Memorandum or any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication if signed by the Trustee. The Trustee shall not be charged with knowledge of the identity of any Significant Subsidiary unless the Trustee shall have received notice thereof in accordance with Section 12.01 hereof from the Issuer or any Holder. Nothing hereunder shall require the Trustee to file any financing or continuation statements or recording any documents or instruments in any public office at any time or otherwise perfecting or maintain the perfection of any Lien or security interest in the Collateral.

Section 7.05 Notice of Defaults .

If a Default occurs and is continuing and a Responsible Officer of the Trustee is informed in writing of such occurrence by the Issuer, the Trustee must give notice of the Default to the Holders within 60 days after being so notified by the Issuer. Except in the case of a Default in the payment of principal of, or premium, if any, or interest on any Note, the Trustee may withhold notice if and so long as the Trustee in good faith determines that withholding notice is in the interests of Holders.

Section 7.06 Compensation and Indemnity .

The Issuer, or, upon the failure of the Issuer to pay, each Guarantor (if any), jointly and severally, shall pay to the Trustee from time to time such compensation as the Issuer and Trustee may from time to time agree for its acceptance of this Indenture and services hereunder and under the Notes Documents. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.

In the event of the occurrence of an Event of Default or the Trustee considering it expedient or necessary or being requested by the Issuer to undertake duties which the Trustee reasonably determines to be of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee, the Issuer shall pay to the Trustee such additional remuneration for such duties.

The Issuer and each Guarantor (if any), jointly and severally, shall reimburse the Trustee promptly upon request for all properly incurred disbursements, advances and expenses incurred or made by it (as evidenced in an invoice from the Trustee), including costs of collection, in addition to the compensation for its services. Such expenses shall include the properly incurred compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Issuer and each Guarantor (if any), jointly and severally, shall indemnify the Trustee, the Agents and their respective officers, directors, agents and employers against any and all loss, liability, taxes or expenses (including properly incurred attorneys’ fees) incurred by or in connection with the acceptance or administration of its duties under this Indenture, the Notes Documents, including the costs and expenses of enforcing this Indenture against the Issuer (including this

 

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Section 7.06) and defending itself against any claim (whether asserted by the Issuer or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, under the Intercreditor Agreement, any Additional Intercreditor Agreement or the Notes Documents, as the case may be.

The Trustee shall notify the Issuer of any claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof; provided, however, that any failure so to notify the Issuer shall not relieve the Issuer or any Guarantor of its indemnity obligations hereunder, under the Intercreditor Agreement, any Additional Intercreditor Agreement or any other Notes Documents, as the case may be. Except in cases where the interests of the Issuer and the Trustee may be adverse, the Issuer shall defend the claim and the indemnified party shall provide reasonable cooperation at the Issuer’s and any Guarantor’s expense in the defense. Notwithstanding the foregoing, such indemnified party may, in its sole discretion, assume the defense of the claim against it and the Issuer and any Guarantor shall, jointly and severally, pay the properly incurred fees and expenses of the indemnified party’s defense (as evidenced in an invoice from the Trustee). Such indemnified parties may have separate counsel of their choosing and the Issuer and any Guarantor, jointly and severally, shall pay the properly incurred fees and expenses of such counsel (as evidenced in an invoice from the Trustee). The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by an indemnified party through such party’s own willful misconduct, gross negligence or fraud.

To secure the Issuer’s and any Guarantor’s payment obligations in this Section 7.06, the Trustee, the Security Agent and the Agents have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes.

The Issuer’s and any Guarantor’s payment and indemnity obligations pursuant to this Section 7.06 and any lien arising thereunder shall survive the satisfaction or discharge of this Indenture, any rejection or termination of this Indenture under any Bankruptcy Law or the resignation or removal of the Trustee and the Agents. Without prejudice to any other rights available to the Trustee and the Agents under applicable law, when the Trustee and the Paying Agents incur expenses after the occurrence of a Default specified in Section 6.01(e) and Section 6.01(f) with respect to the Issuer, the expenses are intended to constitute expenses of administration under the Bankruptcy Law.

For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Trustee in this Article 7, including its right to be indemnified, are extended to, and shall be enforceable by the Trustee in each of its capacities hereunder, under the Intercreditor Agreement and any Additional Intercreditor Agreement and by the Security Agent, each Agent, custodian and other Person employed with due care to act as agent hereunder. For purposes of this Section 7.06, “Trustee” shall include any predecessor Trustee; provided, however , that the gross negligence or willful misconduct of any Trustee shall not affect the rights of any other Trustee hereunder.

 

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Section 7.07 Replacement of Trustee .

(i) The Trustee may resign at any time by providing 30 days notice to the Issuer. The Holders of a majority in principal amount of the Notes then outstanding may remove the Trustee at any time by so notifying the Trustee and may appoint a successor Trustee. The Issuer shall be entitled to remove the Trustee or any Holder who has been a bona fide Holder for not less than six months may petition any court for removal of the Trustee and appointment of a successor Trustee, if:

(A) the Trustee has or acquires a conflict of interest in its capacity as Trustee that is not eliminated;

(B) the Trustee is adjudged bankrupt or insolvent; or

(C) the Trustee otherwise becomes incapable of acting as Trustee hereunder.

(ii) If the Trustee resigns, is removed pursuant to Section 7.07(i) or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.

(iii) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. 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 and the Notes Documents. The successor Trustee shall provide a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to the Trustee hereunder have been paid and subject to the lien provided for in Section 7.06.

(iv) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, (i) the retiring Trustee or the Holders of 10% in principal amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee, 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 that such appointment is reasonably satisfactory to the Issuer.

(v) Notwithstanding the replacement of the Trustee pursuant to this Section 7.07, the Issuer’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.

(vi) For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Trustee in this Article 7, including its right to be indemnified, are extended to, and shall be enforceable by each Agent and the Security Agent employed to act hereunder.

Section 7.08 Successor Trustee by Merger .

If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.

In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have.

 

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Section 7.09 Certain Provisions .

Each Holder by accepting a Note authorizes and directs on his or her behalf the Trustee to enter into and to take such actions and to make such acknowledgements as are set forth in this Indenture and the Intercreditor Agreement or other documents entered into in connection therewith.

The Trustee shall not be responsible for the legality, validity, effectiveness, suitability, adequacy or enforceability of the Security Documents or any obligation or rights created or purported to be created thereby or pursuant thereto or any security or the priority thereof constituted or purported to be constituted thereby or pursuant thereto, nor shall it be responsible or liable to any person because of any invalidity of any provision of such documents or the unenforceability thereof, whether arising from statute, law or decision of any court. The Trustee shall be under no obligation to monitor or supervise the functions of the Security Agent under the Security Documents and shall be entitled to assume that the Security Agent is properly performing its functions and obligations thereunder and the Trustee shall not be responsible for any diminution in the value of or loss occasioned to the assets subject thereto by reason of the act or omission by the Security Agent in relation to its functions thereunder. The Trustee shall have no responsibility whatsoever to the Issuer, any Guarantor or any Holder as regards any deficiency which might arise because the Trustee is subject to any tax in respect of the Security Documents, the security created thereby or any part thereof or any income therefrom or any proceeds thereof.

Section 7.10 Agents; General Provisions .

(i) Actions of Agents . The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint.

(ii) 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 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.

(iii) Money Held . The Agents hold all funds as banker and not in trust subject to the terms of this Indenture and shall not be liable for any interest earned thereon. Such money held by the Agents will not be held in accordance with the rules established by the UK Financial Conduct Authority in the UK Financial Conduct Authority’s Handbook of rules and guidance from time to time in relation to client money.

(iv) Publication of Notices . Any obligation the Agents may have to publish a notice to Holders of the Notes on behalf of the Issuer will have been met upon delivery of the notice to Euroclear or Clearstream, if and so long as any Notes are represented by one or more Global Notes and ownership of book-entry interests therein are shown on the records of Euroclear or Clearstream.

ARTICLE 8

SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE

Section 8.01 Satisfaction and Discharge of Liability on Notes; Defeasance .

(a) This Indenture, and the rights of the Trustee and the Holders under the Intercreditor Agreement and any Additional Intercreditor Agreement and the Security Documents will be discharged and cease to be of further effect (except as to surviving rights of conversion or transfer or

 

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exchange of the Notes, as expressly provided for in this Indenture) as to all outstanding Notes when (i) either (A) all the Notes previously authenticated and delivered (other than certain lost, stolen or destroyed Notes, and certain Notes for which provision for payment was previously made and thereafter the funds have been released to the Issuer) have been delivered to the Trustee for cancellation; or (B) all Notes not previously delivered to the Trustee for cancellation (1) have become due and payable, (2) will become due and payable at their Stated Maturity within one year or (3) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer; (ii) the Issuer has deposited or caused to be deposited with the Trustee (or such entity designated by the Trustee for this purpose), cash in euro, European Government Obligations denominated in euro or a combination thereof, as applicable, in an amount sufficient to pay and discharge the entire indebtedness on the Notes not previously delivered to the Paying Agent for cancellation, for principal, premium, if any, and interest to the date of deposit (in the case of Notes that have become due and payable), or to the Stated Maturity or redemption date, as the case may be; (iii) the Issuer has paid or caused to be paid all other sums payable under this Indenture; (iv) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be and (v) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel ( provided that such counsel may not be an employee of the Parent Guarantor or its Subsidiaries) each to the effect that all conditions precedent under this Section 8.01 relating to the satisfaction and discharge of this Indenture have been complied with, provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with clauses (i), (ii) and (iii) of this Section 8.01(a)).

(b) Subject to Section 8.01(a), 8.01(c) and Section 8.02, the Issuer at any time may terminate (i) all its and each Guarantor’s obligations under the Notes, any Note Guarantees and this Indenture (“ legal defeasance option ”), and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the Notes or (ii) its, the Parent Guarantor’s and the Restricted Subsidiaries’ obligations under Article 4 (other than Section 4.14) and under Section 5.01 (other than Section 5.01(a)(i), Section 5.01(a)(ii), Section 5.01(b)(i), Section 5.01(b)(ii) and Section 5.01(c)(iii)(B)(2)), and thereafter any omission to comply with such obligations shall not constitute a Default or an Event of Default with respect to the Notes and the events set forth in Section 6.01(c) (other than with respect to Section 5.01(a)(i), Section 5.01(a)(ii), Section 5.01(b)(i), Section 5.01(b)(ii) and Section 5.01(c)(iii)(B)(2)), Section 6.01(d), Sections 6.01(e) and 6.01(f) (in each case, with respect only to the Parent Guarantor and its Significant Subsidiaries), Section 6.01(g), Section 6.01(h) and Section 6.01(i) shall not constitute Events of Default (“ covenant defeasance option ”). The Issuer at its option at any time may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.

If the Issuer exercises its legal defeasance option or its covenant defeasance option, the Collateral will be released and each Guarantor (if any) will be released from all its obligations under its Note Guarantee.

Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.

(c) Notwithstanding Section 8.01(a) and Section 8.01(b) above, the Issuer’s and any Guarantors’ obligations in Section 2.07, Section 2.08, Section 2.09, Section 2.10, Section 2.11, Section 2.12, Section 2.13, Section 2.14, Section 7.01, Section 7.02, Section 7.03, Section 7.06, Section 7.07, this Article 8 and Section 11.06, as applicable, shall survive until the Notes have been paid in full. Thereafter, the Issuer’s and any Guarantors’ obligations in Section 7.06, Section 8.05, Section 8.06 and Section 11.06, as applicable, shall survive.

 

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Section 8.02 Conditions to Defeasance .

(i) The Issuer may exercise its legal defeasance option or its covenant defeasance option only if the Issuer has irrevocably deposited in trust (the “ defeasance trust ”) with the Trustee (or such entity designated by the Trustee for this purpose) cash in euro, European Government Obligations denominated in euro or a combination thereof, in such amounts as will be sufficient for the payment of principal, premium, if any, and interest on the outstanding Notes to redemption or maturity, as the case may be, and must comply with certain other conditions, including delivery to the Trustee of:

(A) an Opinion of Counsel in the United States to the effect that Holders or beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred (and in the case of legal defeasance only, such Opinion of Counsel in the United States must be based on a ruling of the U.S. Internal Revenue Service or change in applicable U.S. federal income tax law since the issuance of the Notes);

(B) an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying, defrauding or preferring any creditors of the Issuer; and

(C) an Officer’s Certificate and an Opinion of Counsel (which opinion of counsel may be subject to customary assumptions and qualifications), each stating that all conditions precedent provided for or relating to legal defeasance or covenant defeasance, as the case may be, have been complied with.

(ii) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of Notes at a future date in accordance with Article 3.

Section 8.03 Application of Money .

The Trustee shall apply the deposited money and the money from the European Government Obligations deposited with it pursuant to Section 8.02 in accordance with this Indenture to the payment of principal of and interest on the Notes.

Section 8.04 Repayment to Issuer .

The Trustee and the Paying Agent shall as soon as practicable upon written request by the Issuer turn over any money or European Government Obligations held by it as provided in this Article 8 which, in the written opinion of an internationally recognized firm of independent public accountants delivered to the Trustee (which delivery shall only be required if European Government Obligations have been so deposited), are in excess of the amount thereof which would then be required to be deposited to effect an equivalent discharge or defeasance in accordance with this Article 8.

Subject to any applicable abandoned property law, the Trustee shall pay to the Issuer upon written request any money held by them for the payment of principal or interest that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors, and the Trustee and the Paying Agent shall have no further liability with respect to such monies.

 

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Section 8.05 Indemnity for European Government Obligations .

The Issuer and any Guarantor, jointly and severally, shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited European Government Obligations or the principal and interest received on such European Government Obligations.

Section 8.06 Reinstatement .

If the Trustee is unable to apply any money or European Government Obligations in accordance with this Article 8 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, the Issuer’s and the Guarantors’ obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article 8 until such time as the Trustee is permitted to apply all such money or European Government Obligations in accordance with this Article 8; provided, however, that if the Issuer has made any payment of principal of or interest on any Notes because of 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 money or European Government Obligations held by the Trustee.

ARTICLE 9

AMENDMENTS AND WAIVERS

Section 9.01 Without Consent of Holders .

Without the consent of any Holder, the Issuer, the Trustee, the Security Agent and the other parties thereto, as applicable, may amend or supplement any Notes Documents to:

(a) cure any ambiguity, omission, defect, error or inconsistency, conform any provision to the “Description of the Notes” section of the Offering Memorandum, or reduce the minimum denomination of the Notes;

(b) provide for the assumption by a successor Person of the obligations of the Issuer or any Guarantor under any Notes Document;

(c) provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code);

(d) add to the covenants or provide for a Note Guarantee for the benefit of the Holders or surrender any right or power conferred upon the Parent Guarantor or any Restricted Subsidiary;

(e) make any change that does not adversely affect the rights of any Holder in any material respect;

(f) make such provisions as necessary (as determined in good faith by the Issuer) for the issuance of Additional Notes;

(g) to provide for any Restricted Subsidiary to provide a Subsidiary Guarantee in accordance with Section 4.01 and Section 4.08;

 

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(h) to evidence and provide for the acceptance and appointment under this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement, as applicable, of a successor Trustee or the Security Agent pursuant to the requirements thereof or to provide for the accession by the Trustee or the Security Agent to any Notes Document;

(i) to conform the text of this Indenture, the Security Documents or the Notes to any provision of the “Description of the Notes” in the Offering Memorandum 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 Security Documents or the Notes;

(j) as provided in Section 4.11;

(k) in the case of the Security Documents, to mortgage, pledge, hypothecate or grant a security interest in favor of the Security Agent for the benefit of parties to the Senior Credit Facilities Agreement, in any property which is required by the Senior Credit Facilities Agreement (as in effect on the Issue Date) to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Security Agent, or to the extent necessary to grant a security interest for the benefit of any Person; provided that the granting of such security interest is not prohibited by this Indenture and Section 4.07 is complied with;

(l) to add to the covenants or to provide for a Guarantee for the benefit of the Holders or surrender any right or power conferred upon the Parent Guarantor or any Restricted Subsidiary; or

(m) to add security to or for the benefit of the Notes, or to effectuate or confirm and evidence the release, termination, discharge or retaking of any Note Guarantee or Lien or any amendment in respect thereof with respect to or securing the Notes when such release, termination, discharge or retaking or amendment is provided for under this Indenture or the Security Documents.

Section 9.02 With Consent of Holders .

Subject to certain exceptions, the Notes Documents may be amended, supplemented or otherwise modified with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes) and, subject to certain exceptions, any default or compliance with any provisions thereof may be waived with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes). However, without the consent of Holders holding not less than 90% of the then outstanding aggregate principal amount of Notes affected, an amendment or waiver may not, with respect to any such Notes held by a non-consenting Holder:

(a) reduce the principal amount of such Notes whose Holders must consent to an amendment, supplement or waiver;

(b) reduce the stated rate of or extend the stated time for payment of interest on any such Note;

(c) reduce the principal of or extend the Stated Maturity of any such Note;

 

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(d) reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed, in each case as described in paragraph 5 of the Notes;

(e) make any such Note payable in money other than that stated in such Note (except to the extent the currency stated in the Notes has been succeeded or replaced pursuant to applicable law);

(f) impair the right of any Holder to institute suit for the enforcement of any such payment on or with respect to such Holder’s Notes;

(g) make any change to Section 4.13 that adversely affects the right of any Holder of such Notes in any material respect or amends the terms of such Notes in a way that would result in a loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation to withhold or deduct Taxes so described thereunder unless the Payor agrees to pay Additional Amounts, if any, in respect thereof;

(h) release (i) all or substantially all the Security Interests granted for the benefit of the Holders in the Collateral or (ii) all or substantially all the Guarantors from their obligations under the Note Guarantees or this Indenture, in each case, other than pursuant to the terms of this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement or the Security Documents, as applicable;

(i) waive a Default or Event of Default with respect to the nonpayment of principal, premium or interest on the Notes (except pursuant to a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration); or

(j) make any change in the amendment or waiver provisions which require the Holders’ consent described in this Section 9.02.

In formulating its decisions on such matters described in Section 9.01 and Section 9.02, the Trustee shall be entitled to rely on such evidence as it deems appropriate, including Officer’s Certificates and Opinions of Counsel.

For so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the Issuer will publish notice of any amendment, supplement or waiver in a newspaper having a general circulation in Luxembourg 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 ).

It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment of the Notes Documents, but it shall be sufficient if such consent approves the substance thereof. A consent to any amendment or waiver under this Indenture by any Holder of Notes given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.

After an amendment under this Section 9.02 becomes effective, in case of Holders of Definitive Notes, the Issuer shall mail to the Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 9.02.

 

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Except as set forth in this Section 9.02, the Notes issued on the Issue Date, and any Additional Notes, will be treated as a single class for all purposes under this Indenture, including with respect to waivers and amendments.

Section 9.03 Revocation and Effect of Consents and Waivers .

(a) A consent to an amendment or a waiver by a Holder shall bind the Holder and every subsequent Holder of that Note or portion of the Notes that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the written consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date on which the Trustee receives an Officer’s Certificate from the Issuer certifying that the requisite number of consents have been received. After an amendment or waiver becomes effective, it shall bind every Holder. An amendment or waiver becomes effective upon the (a) receipt by the Issuer or the Trustee of the requisite number of consents, (b) satisfaction of conditions to effectiveness as set forth in this Indenture and any indenture supplemental hereto containing such amendment or waiver and (c) execution of such amendment or waiver (or supplemental indenture) by the Issuer and the Trustee.

(b) The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their written consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding Section 9.03(a), those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.

Section 9.04 Notation on or Exchange of Notes .

If an amendment changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Note shall issue and the Trustee or an Authenticating Agent 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.

Section 9.05 Trustee and Security Agent to Sign Amendments .

The Trustee, the Issuer and the Security Agent shall sign any amendment authorized pursuant to this Article 9 if the amendment does not impose any personal obligations on the Trustee or the Security Agent or adversely affect the rights, duties, liabilities or immunities of the Trustee and the Security Agent under this Indenture and the Intercreditor Agreement, as applicable. If it does, the Trustee or the Security Agent may, but need not, sign it. In signing such amendment the Trustee and the Security Agent, as applicable, shall be entitled to receive an indemnity and/or security satisfactory to it and to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that such amendment complies with this Indenture, the other Notes Documents and that such amendment has been duly authorized, executed and delivered and is the legally valid and binding obligation of the Issuer and the Guarantors (if any) enforceable against them in accordance with its terms, subject to customary qualifications. Subject to this Section 9.05 and the terms of the Intercreditor Agreement, the Security Agent shall at the direction of the Issuer sign amendments to this Indenture.

 

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ARTICLE 10

NOTE GUARANTEES

Section 10.01 Note Guarantees .

(a) The Notes will be guaranteed, as of the Issue Date, by the Parent Guarantor and the Subsidiary Guarantors.

(b) Subject to this Article 10, any Guarantor, as primary obligor and not merely as a surety, jointly and severally, unconditionally, on a senior basis and subject to the Agreed Security Principles and any limitations set out in any supplemental indenture, guarantees to each Holder of a Note authenticated and delivered by the Trustee (or the Authenticating Agent), to the Trustee and its successors and assigns to the Security Agent (on behalf of and for the benefit of the Holders, for the purpose of this Article 10, and not in its individual capacity, but solely in its role as representative of the Holders in holding and enforcing the Collateral and the Security Documents), irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:

(i) the principal of, Additional Amounts and premium, if any, and interest on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest, Additional Amounts and premium, if any, on the Notes (to the extent permitted by law) and all other obligations of the Issuer to the Holders or the Trustee or the Security Agent hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(c) To the extent permitted by the applicable law and subject to the Agreed Security Principles, each Guarantor hereby agrees that its obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action or any delay or omission to assert any claim or to demand or enforce any remedy hereunder or thereunder, any waiver, surrender, release or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor 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 a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.

(i) If any Holder, the Trustee, or the Security Agent is required by any court or otherwise to return to or for the benefit of the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either the Issuer or the Guarantors to the Trustee, the Security Agent, or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

 

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(ii) Each Guarantor agrees that it will 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 guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders, the Security Agent, and the Trustee, on the other hand,

(A) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and

(B) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.

(iii) Each Guarantor also agrees to pay any and all costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the Security Agent in enforcing any rights under this Section.

(d) Notwithstanding any other provision of the Notes Documents, the Note Guarantee granted by a Guarantor incorporated in Austria (an “ Austrian Guarantor ”), is meant to be and shall be interpreted as abstract guarantee ( abstrakter Garantievertrag ) and the obligations of such Austrian Guarantor shall be obligations as principal debtor and not as surety ( Bürgschaft ) and not as a joint obligation as a borrower ( Mitschuldner ) and such Austrian Guarantor undertakes to pay the amounts so demanded under or pursuant to this Note Guarantee unconditionally, irrevocably, upon first demand and without raising any defences or objections, set-off or counterclaim and without verification of the legal ground ( unbedingt, unwiderruflich, auf erste Aufforderung und unter Verzicht auf alle Einwendungen oder Einreden, ohne Aufrechnung oder die Geltendmachung von Gegenforderungen und ohne Prüfung des Rechtsgrunds ).

Section 10.02 Successors and Assigns .

This Article 10 shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee, the Security Agent 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 assignee, all subject to the terms and conditions of this Indenture.

Each party to this Indenture hereby agrees and undertakes to execute and deliver all such documents and do all such acts and things which are legally required to fully and effectively give effect to this Section 10.02.

 

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Section 10.03 No Waiver .

Neither a failure nor a delay on the part of the Security Agent, the Trustee or the Holders in exercising any right, power or privilege under this Article 10 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 Security Agent, the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article 10 at law, in equity, by statute or otherwise.

Section 10.04 Modification .

No modification, amendment or waiver of any provision of this Article 10, nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same 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 any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstances.

Section 10.05 Execution of Supplemental Indenture for Guarantors .

Each Subsidiary which is required to become a Guarantor pursuant to this Indenture shall promptly execute and deliver to the Trustee a supplemental indenture in the form attached to this Indenture as Exhibit B pursuant to which such Subsidiary shall become a Guarantor under this Article 10. Concurrently with the execution and delivery of such supplemental indenture, the Issuer shall deliver to the Trustee an Opinion of Counsel and an Officer’s Certificate to the effect that such supplemental indenture has been duly authorized, executed and delivered by such Subsidiary and that, subject to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws relating to creditors’ rights generally to the principles of equity, whether considered in a proceeding at law or in equity, and any other matters which are set out as qualifications or reservations as to matters of law of general application, the Note Guarantee of such Guarantor is a legally valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms and to such other matters as the Trustee may reasonably request. The obligations of a Guarantor executing and delivering a supplemental indenture to this Indenture providing for a Note Guarantee of the Notes under this Article 10 shall be subject to such limitations as are mandated under applicable laws in addition to the limitations set forth in Section 10.07 and set out in the relevant supplemental indenture.

Section 10.06 Release of the Note Guarantees .

(a) The Note Guarantee of a Guarantor will terminate and release:

(i) in the case of a Subsidiary Guarantee other than the Guarantees from Topco or Holdco, upon a sale or other disposition (including by way of consolidation or merger) of ownership interests in the Subsidiary Guarantor (directly or through a parent company) such that the Subsidiary Guarantor does not remain a Restricted Subsidiary, or the sale or disposition of all or substantially all the assets of the Subsidiary Guarantor (other than to a Restricted Subsidiary), in each case, otherwise not prohibited by this Indenture;

(ii) in the case of a Subsidiary Guarantee other than the Guarantees from Topco or Holdco, upon the designation in accordance with this Indenture of the Subsidiary Guarantor as an Unrestricted Subsidiary;

(iii) upon defeasance or discharge of the Notes, as provided in Article 8;

 

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(iv) with respect to a Subsidiary Guarantor (other than Topco or Holdco) that is not a Significant Subsidiary, so long as no Event of Default has occurred and is continuing, to the extent that such Subsidiary Guarantor (other than Topco or Holdco) (A) is unconditionally released and discharged from its liability with respect to the Senior Credit Facilities Agreement and (B) does not guarantee any other Credit Facility or Public Debt

(v) upon the full and final payment and performance of all obligations of the Issuer under this Indenture and the Notes;

(vi) upon the release of the Guarantor’s Note Guarantee under any Indebtedness that triggered such Guarantor’s obligation to guarantee the Notes under Section 4.08;

(vii) in accordance with the provisions of the Intercreditor Agreement or any Additional Intercreditor Agreement;

(viii) as described in Article 9;

(ix) in connection with the implementation of a Permitted Reorganization; or

(x) with respect to an entity that is not the successor Guarantor, as a result of a transaction permitted by Section 5.01.

(b) The Trustee and the Security Agent shall take all necessary actions reasonably requested in writing by the Parent Guarantor, including the granting of releases or waivers under the Intercreditor Agreement or any Additional Intercreditor Agreement, to effectuate any release of a Note Guarantee in accordance with these provisions, subject to customary protections and indemnifications. Each of the releases set forth above shall be effected by the Trustee and the Security Agent without the consent of or liability to the Holders or any other action or consent on the part of the Trustee or the Security Agent.

Section 10.07 Limitations on Obligations of Guarantors .

(a) Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the obligations guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed by the applicable Guarantor without rendering the Note Guarantee, as it relates to such Guarantor, voidable under applicable laws relating to fraudulent conveyance, fraudulent transfer, improper corporate benefit, financial assistance or similar laws affecting the rights of creditors generally.

(b) Limitations on Obligations of Local Guarantors.

(i) Limitations on Obligations of Austrian Guarantors. To the extent that the Note Guarantee in this Section 10 is given by any Austrian Guarantor, any and all obligations ( Verpflichtungen ) and liabilities ( Haftungen ) of an Austrian Guarantor under such Note Guarantee shall at all times be limited so that at no time the assumption of a liability ( Haftungen ) and/or obligation ( Verpflichtung ) shall be required to the extent that such liability ( Haftung ) or obligation ( Verpflichtung ) would violate Austrian capital maintenance rules ( Kapitalerhaltungsvorschriften ) pursuant to Austrian company law, in particular sections 82 et seq. of the Austrian Act on Limited Liability Companies ( Gesetz über Gesellschaften mit beschränkter Haftung ) and/or sections 52 and 65 et seq. of the Austrian Stock Corporation Act ( Aktiengesetz ) (the “ Austrian Capital Maintenance Rules ”). Should any obligation ( Verpflichtung ) and/or liability ( Haftung ) of an Austrian Guarantor

 

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under the Note Guarantee in this Section 10 violate or contradict the Austrian Capital Maintenance Rules and therefore be held invalid or unenforceable in whole or in part or should the assumption or enforcement of such obligation ( Verpflichtung ) or liability ( Haftung ) expose any managing director or member of the supervisory board of any Austrian Guarantor to personal liability or criminal responsibility, such obligation/or liability shall be deemed to be replaced by an obligation ( Verpflichtung ) and/or liability ( Haftung ) of a similar nature (i) which is in compliance with the Austrian Capital Maintenance Rules, (ii) which does not expose the managing directors or members of the supervisory board of the Austrian Guarantor to any personal liability or criminal responsibility; and (iii) which provides the best possible security interest admissible in accordance with the Austrian Capital Maintenance Rules in favour of the Holders. By way of example, should it be held that the Note Guarantee pursuant to this Section 10 contradicts the Austrian Capital Maintenance Rules in relation to any amount of the obligations secured by such Note Guarantee, the Note Guarantee pursuant to this Section 10 shall be reduced to such an amount which is permitted pursuant to the Austrian Capital Maintenance Rules, and potentially even to zero.

(ii) Limitations on Obligations of German Guarantors. In relation to each Guarantor incorporated in the Federal Republic of Germany in the form of a GmbH or GmbH & Co. KG (a “ German Guarantor ”), the following limitations shall apply:

(A) The Holders, the Trustee and the Security Agent agree, other than in accordance with the procedure set out in the following paragraphs of this Section 10.07(b)(ii), not to enforce any guarantee created hereunder granted by a German Guarantor if and to the extent that such guarantee is an up-stream or cross-stream guarantee and the enforcement would otherwise lead to the situation that it would create or aggravate an existing under-balance ( Unterbilanz ) of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner) and that such German Guarantor did not have sufficient net assets (i.e. assets minus liabilities and liability reserves ( Reinvermögen )) to maintain its (or, in the case of a GmbH & Co. KG, its general partner’s) stated share capital ( Stammkapital ) whereby the net assets shall be determined in accordance with applicable law at the time of the determination, provided that for the purposes of the calculation of the amount to be enforced (if any) the following balance sheet items shall be adjusted as follows:

(1) the amount of any increase of stated share capital of such German Guarantor (or, in the case of a GmbH & Co. KG, the stated share capital of its general partner) after the date of this Indenture which is not permitted under the Notes Documents shall be deducted from the stated share capital;

(2) loans and other contractual liabilities incurred by such German Guarantor, and/or, in the case of a GmbH & Co. KG, its general partner, in violation of the provisions of any of the Notes Documents shall be disregarded to the extent that such violation results from grossly negligent or willful misbehavior; and

(3) to the extent payment under the guarantee would deprive a German Guarantor, or (in the case of a GmbH & Co. KG) the general partner of such German Guarantor, of the liquidity necessary to fulfill its financial liabilities to its creditors, then, for the determination of the net assets, the assets of such German Guarantor or, in the case of a GmbH &

 

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Co. KG, the assets of its general partner shall be calculated at the lesser of their book value ( Buchwert ) and their realization value assuming a negative prognosis for the business continuance ( Liquidationswert bei negativer Fortführungsprognose ).

(B) The limitations set out in the preceding paragraph shall only apply if and to the extent that (i) within 15 Business Days following the making of a demand against a German Guarantor under the guarantee created hereunder the relevant German Guarantor has confirmed in writing to the Trustee (x) to what extent the guarantee is an up-stream or cross-stream guarantee as described in paragraph (A) above and (y) which amount of such cross-stream and/or up-stream guarantee cannot be enforced as it would cause the net assets of such German Guarantor or, in the case of a GmbH & Co. KG, its general partner to fall below its stated share capital or create or aggravate an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner) (taking into account the adjustments set out in paragraph (A) above) (the “ Management Determination ”); and (ii) if the Trustee contests the Management Determination (arguing that no or a lesser amount would be necessary to maintain the stated share capital or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner)), within 40 Business Days of the date the Trustee has notified the respective German Guarantor that it contests the Management Determination, the Trustee receives a determination by auditors of international standard and reputation (the “ Auditor’s Determination ”) appointed by the German Guarantor of the amount that would have been necessary on the date the demand under the guarantee was made to maintain its or its general partner’s stated share capital or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner).

(C) If the Trustee, acting reasonably, disagrees with the Auditor’s Determination, it shall notify the respective German Guarantor accordingly. The Holders, the Trustee and the Security Agent shall only be entitled to enforce the guarantee up to the amount which is undisputed between themselves and the respective German Guarantor in accordance with the provisions of paragraph (B) above. In relation to the amount which is disputed by the Trustee, the Holders, the Trustee and the Security Agent shall be entitled to further pursue their claims under this guarantee (if any) in court but shall bear the burden of proof that the Auditor’s Determination is incorrect; it being understood, for the avoidance of doubt, that the respective German Guarantor shall not be obliged to pay such further amount claimed by the Holders or the Trustee or the Security Agent on demand.

(D) If the guarantee was enforced without limitation because the Management Determination and/or the Auditor’s Determination (as the case may be) was not delivered within the relevant timeframe, the relevant Holders or Trustee or Security Agent shall repay to the respective German Guarantor any amount which is necessary to maintain its stated share capital or, in the case of a GmbH & Co. KG, that of its general partner or to avoid the creation or aggravation of an existing under-balance of such German Guarantor (or, in the case of a GmbH & Co. KG, of its general partner), calculated as of the date the demand under the guarantee was made and in accordance with paragraph (A) above.

 

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(E) In the case that any German Guarantor claims in accordance with the provisions of paragraphs (B) and (D) above that the guarantee granted hereunder can only be enforced in a limited amount (as set out above), the relevant German Guarantor (or, in the case of a GmbH & Co. KG, its general partner) shall realize 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 to the extent legally permitted and commercially justifiable.

(F) The limitations set out in this Section 10.07(b)(ii) shall apply mutatis mutandis to all payment obligations of a German Guarantor incurred under or in connection with the Notes Documents in respect of the obligations of any of its Holding Companies or Affiliates (other than any of its Subsidiaries) under or in connection with the Notes Documents (by way of indemnification or otherwise).

(G) The limitations set out in this Section 10.07(b)(ii) do not apply if and to the extent that the German Guarantor is a party to a domination and/or profit and loss pooling agreement ( Beherrschungs - und / oder Gewinnabführungsvertrag ) as dominated entity, provided that the enforcement of the guarantee and/or other payment obligations does not lead to a violation of the capital maintenance requirement as set out in Section 30 para 1 of the German Limited Liability Companies Act ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ).

(H) In this Section 10.07(b)(ii):

(1) “ 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.

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

(3) “ Subsidiary ” means, in relation to any company or corporation, a company or corporation:

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

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

c) which is a Subsidiary of another Subsidiary of the first mentioned company or corporation;

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

(iii) Limitations on Obligations of Belgian Guarantors. The liability of any Guarantor incorporated in Belgium (a “ Belgian Guarantor ”) under the Senior Finance

 

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Documents and the Notes Documents in relation to the Notes shall in all circumstances be limited to an amount equal to: (a) any intra-group loans or facilities made to a Belgian Guarantor by any other member of the Group (as defined in the Senior Credit Facilities Agreement) (whether or not such intra-group loan is retained by the Belgian Guarantor for its own purposes or on-lent to another member of the Group); or (b) 85 per cent. of the 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) of that Belgian Guarantor calculated on the basis of the most recent audited annual accounts available at the date on which the relevant demand is made, whichever amount is higher. In addition, any guarantee granted by a Belgian Guarantor shall not include any liability which would constitute unlawful financial assistance, as determined under article 329 or 629 (or equivalent) of the Belgian Companies Code, nor unlawful dividend distribution, as determined under article 320 or 617 (or equivalent) of the Belgian Companies Code.

(iv) Limitations on Obligations of Finnish Guarantors. To the extent that the Note Guarantee described herein is given by any Guarantor incorporated in Finland (each a “ Finnish Guarantor ”), the guaranteed obligations and liabilities of each Finnish Guarantor shall be limited in addition to any other limitations set out in this Indenture if (and only if), and only to the extent they would constitute (i) unlawful financial assistance within the meaning of Chapter 13 Section 10 of the Finnish Companies Act (1.9.2006/624, as amended, the “ Finnish Companies Act ”) or (ii) unlawful distribution of assets within the meaning of Chapter 13 Section 1 of the Finnish Companies Act, and it is agreed that the liability of each Finnish Guarantor under the Note Guarantee hereunder only applies to the extent permitted by the above mentioned provisions of the Finnish Companies Act.

(v) Limitations on Obligations of Luxembourg Guarantors .

(A) Notwithstanding the foregoing and any other provision of any Senior Finance Documents to the contrary, the obligations and liabilities of any Luxembourg Guarantor under any Senior Finance Documents for the obligations of any other obligor (other than that Luxembourg Guarantor) which is not a Subsidiary of that Luxembourg Guarantor shall be limited at any time (with no double counting), to an aggregate amount not exceeding 90-95 per cent. of the greater of:

(1) the sum of (i) the Luxembourg Guarantor’s own funds (capitaux propres) (as referred to in Annex I to the Grand-Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the Luxembourg law of 19 December 2002 on the commercial companies’ register and the accounting and annual accounts of undertakings, as amended (the “Own Funds”)) and (ii) any intragroup debt owed by such Luxembourg Guarantor to any of its direct or indirect shareholders and to any member of the Group which is subordinated in accordance with this Indenture (as determined by Annex 1 of the Grand-Ducal Regulation of 18 December 2015 in relation to, inter alia, article 34 of the Luxembourg law of 19 December 2002 on the Register of Commerce and Companies, on accounting and on annual accounts of the companies) (the debts referred to in (ii) is referred to as the “Subordinated Affiliate Debt”), in each case as determined on the basis of the then latest available annual accounts of the Luxembourg Guarantor duly established in accordance with applicable accounting rules, as at the date this Indenture was entered into; or

 

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(2) the sum of (i) the Own Funds and (ii) the Subordinated Affiliate Debt, in each case as determined on the basis of the then latest available annual accounts of the Luxembourg Guarantor duly established in accordance with applicable accounting rules, as at the date on which the guarantee or security is called or enforced.

(B) Where, for the purpose of the above determination, (i) no duly established annual accounts are available for the relevant reference period (which will include a situation where, in respect of the determinations to be made above, no final annual accounts have been established in due time in respect of the then most recently ended financial year) or (ii) the relevant annual accounts do not adequately reflect the status of the Subordinated Affiliate Debt or Own Funds as envisaged above, in the sole opinion of the security agent, acting reasonably or (iii) the Luxembourg Guarantor has taken corporate or contractual actions having resulted in the increase or decrease of its Own Funds or its Subordinated Affiliate Debt since the close of its last financial year, the Own Funds and the Subordinated Affiliate Debt will be valued either (i) at the fair market value or (ii) if no such market value has been determined, in accordance with the generally accepted accounting principles in Luxembourg and the relevant provisions of the Luxembourg law of 19 December 2002 on the commercial companies’ register and the accounting and annual accounts of undertakings, as amended.

(vi) Limitations on Obligations of Norwegian Guarantors. The obligations and liabilities of any Guarantor incorporated in Norway (each a “ Norwegian Guarantor ”) in its relevant capacity under the Senior Finance Documents and the Notes Documents in relation to the Notes shall be limited if (and only if) required by the mandatory provisions of the Norwegian Private Limited Liability Companies Act of 13 June 1997 No. 44 or the Norwegian Public Limited Liability Companies Act of 13 June 1997 No. 45 (as the case may be) (the “ Norwegian Companies Act ”), including but not limited to Sections 8-7 and 8- 10 cf. Sections 1-3 and 1-4, regulating unlawful financial assistance and other restrictions on a Norwegian limited liability company’s capacity or ability to grant guarantees and joint and several liability, loans or security interests. It is understood that the obligations and liabilities of each Norwegian Guarantor under the Senior Finance Documents and the Notes Documents shall always be interpreted so as to make each Norwegian Guarantor liable to the fullest extent permitted by the above provisions of the Norwegian Companies Act.

(vii) Limitations on Obligations of Spanish Guarantors. In respect of a Spanish Guarantor, and notwithstanding the foregoing and any other provisions of this Indenture, the obligations and liabilities of any Spanish Guarantor under this Indenture, shall be deemed not to be assumed by such Spanish Guarantor to the extent that they constitute or may constitute unlawful financial assistance within the meaning of article 150 of the Spanish Royal Legislative Decree 1/2010, of 2 July, approving the Spanish Capital Companies Law (the “ Spanish Companies Law ”) (where the company is a Spanish public company ( Sociedad Anónima )) or article 143 of the Spanish Companies Law (where the company is a Spanish limited liability company ( Sociedad de Responsabilidad Limitada )). Accordingly, the obligations and liabilities of any Spanish Guarantor under this Indenture, or any other provision of the Intercreditor Agreement, the Senior Credit Facilities, the Notes Documents in relation to the Notes and any of the other Finance Documents shall not include and shall not be extended to any repayment obligations in respect of financing used in or towards (1) payment of or refinance of the purchase price or subscription for the shares or quotas in the Spanish Guarantor and/or the acquisition of or subscription for the shares or quotas in its controlling corporation directly or indirectly (or, where the company is a Spanish limited

 

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liability company ( Sociedad de Responsabilidad Limitada ), of any company of its group) or (2) repaying or refinancing a financing used for the purposes stated in (1) above. Likewise, the obligations and liabilities of any Spanish Guarantor under this Indenture, the Intercreditor Agreement, the Senior Credit Facilities Agreement, the Notes Documents in relation to the Notes and any of the other Finance Documents shall not include and shall not be extended to any obligations which could reasonably be expected to result in a breach of article 401 et seq of the Spanish Companies Law.

(viii) Limitations on Obligations of Swedish Guarantors . Notwithstanding any provision to the contrary in any Notes Document, the obligations and liabilities under any Notes Document of each Subsidiary Guarantor incorporated in Sweden shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act (Sw. Aktiebolagslag (2005:551)) regulating:

(A) unlawful distribution of assets and transfer of value (Sw. värdeöverföring) pursuant to Chapter 17, Sections 1 to 4 of the Swedish Companies Act; and

(B) prohibited loans, security and guarantees pursuant to Chapter 21, Section 1 to 3 of the Swedish Companies Act.

Section 10.08 Non-Impairment .

The failure to endorse a Note Guarantee on any Note shall not affect or impair the validity thereof.

ARTICLE 11

COLLATERAL, SECURITY DOCUMENTS AND THE SECURITY AGENT

Section 11.01 Collateral and Security Documents .

(a) The payment obligations of the Issuer and the Guarantors under the Notes, the Note Guarantees and this Indenture will, subject to the Agreed Security Principles, benefit from (i) on the Issue Date, the security set forth in Schedule 1, (ii) on the Post-Closing Date, the security set forth in Schedule 2 and (iii) property and assets that thereafter secure the obligations under this Indenture, the Notes and the Note Guarantees pursuant to any Security Documents (including pursuant to Section 4.08).

(b) The Issuer will deliver to the Trustee copies of all documents delivered to the Security Agent pursuant to the Security Documents, and the Issuer will, and will cause each of the Restricted Subsidiaries to, do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Security Documents, to assure and confirm to the Trustee that the Security Agent holds, for the benefit of the Trustee and the Holders, duly created, enforceable and perfected Liens as contemplated hereby and by the Security Documents, so as to render the same available for the security and benefit of this Indenture and of the Notes secured thereby, according to the intent and purposes herein expressed. Subject to the Agreed Security Principles, the Issuer will take, and will cause its Restricted Subsidiaries to take (including as may be requested by the Trustee or the Security Agent) any and all actions reasonably required to cause the Security Documents and the Intercreditor Agreement to create and maintain, as security for the obligations of the Issuer and the Guarantors hereunder, valid and enforceable perfected Liens in and on all the Collateral ranking in right and priority of payment as set forth in this Indenture and the Intercreditor Agreement, and subject to no other Liens other than as permitted by the terms of this Indenture and the Intercreditor Agreement.

 

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(c) Neither the Trustee nor the Security Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any property securing the Notes, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Security Documents or any delay in doing so.

(d) Each of the Issuer, the Trustee and the Holders agree that the Security Agent shall be the joint creditor (together with the Holders) of each and every obligation of the parties hereto under the Notes and this Indenture, and that accordingly the Security Agent will have its own independent right to demand performance by the Issuer of those obligations, except that such demand shall only be made with the prior written notice to the Trustee and as permitted under the Intercreditor Agreement. However, any discharge of such obligation to the Security Agent, on the one hand, or to the Trustee or the Holders, as applicable, on the other hand, shall, to the same extent, discharge the corresponding obligation owing to the other.

(e) The Security Agent agrees that it will hold the security interests in the Collateral created under the Security Documents to which it is a party as contemplated by this Indenture and the Intercreditor Agreement, and any and all proceeds thereof, for the benefit of, among others, the Trustee and the Holders, without limiting the Security Agent’s rights including under Section 11.02, to act in preservation of the security interest in the Collateral. The Security Agent will, subject to being indemnified and/or secured in accordance with the Intercreditor Agreement, take action or refrain from taking action in connection therewith only as directed by the Trustee, subject to the terms of the Intercreditor Agreement.

(f) Each Holder, by its acceptance thereof of a Note, shall be deemed (i) to have consented and agreed to the terms of the Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement entered into in compliance with Section 4.11. (including, without limitation, the provisions providing for foreclosure and release of the Collateral and authorizing the Security Agent to enter into the Security Documents on its behalf) 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 Agent to enter into the Security Documents and to perform its obligations and exercise its rights thereunder in accordance therewith, (ii) to have authorized the Issuer, the Trustee and the Security Agent, as applicable, to enter into the Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement and to be bound thereby and (iii) to have appointed and authorized the Security Agent and the Trustee to give effect to the provisions in the Intercreditor Agreement and any Additional Intercreditor Agreement. Each Holder, by accepting a Note, appoints the Security Agent as its trustee under the Security Documents and authorizes it to act on such Holder’s behalf, including by entering into and complying with the provisions of the Intercreditor Agreement. The Trustee hereby acknowledges that the Security Agent is authorized to act under the Security Documents on behalf of the Trustee, with the full authority and powers of the Trustee thereunder. The Security Agent is hereby authorized to exercise such rights, powers and discretions as are specifically delegated to it by the terms of the Security Documents, including the power to enter into the Security Documents, as trustee on behalf of the Holders and the Trustee, together with all rights, powers and discretions as are reasonably incidental thereto or necessary to give effect to the trusts created thereunder. The Security Agent shall, however, at all times be entitled to seek directions from the Trustee and shall be obligated to follow those directions if given. The Security Agent hereby accepts its appointment as the trustee of the Holders and the Trustee under the Security Documents, and its authorization to so act on such Holders’ and the Trustee’s behalf. The claims of Holders will be subject to the Intercreditor Agreement and any Additional Intercreditor Agreement entered into in compliance with Section 4.11.

(g) Subject to Section 4.07, the Issuer is permitted to pledge the Collateral in connection with future issuances of its Indebtedness or Indebtedness of its Restricted Subsidiaries, including any Additional Notes, in each case, permitted under this Indenture and on terms consistent with the relative priority of such Indebtedness.

 

 

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Section 11.02 Suits To Protect the Collateral .

Subject to the provisions of the Security Documents and the Intercreditor Agreement, the Security Agent shall have power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Security Documents or this Indenture, and such suits and proceedings as the Security Agent, in its sole discretion, may deem expedient to preserve or protect the security interests in the Collateral created under the Security Documents (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 Lien on the Collateral or be prejudicial to the interests of the Holders or the Trustee).

Section 11.03 Resignation and Replacement of Security Agent .

Any resignation or replacement of, the Security Agent shall be made in accordance with the Intercreditor Agreement.

Section 11.04 Amendments .

Subject to the rights and obligations of the Security Agent under the terms of the Intercreditor Agreement, the Security Agent agrees that it will enter into an amendment to the Intercreditor Agreement or enter into or amend any other Additional Intercreditor Agreement entered into in accordance with Section 4.11 upon a direction of the Issuer to do so, given in accordance with Section 4.11. The Security Agent shall sign any amendment authorized pursuant to Article 9 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Security Agent, subject to the rights and obligations of the Security Agent under the terms of the Intercreditor Agreement.

Section 11.05 Release of Liens .

(a) The Parent Guarantor and its Subsidiaries will be entitled to release the security interests in respect of the Collateral under any one or more of the following circumstances:

(i) other than the security interest in respect of shares of Capital Stock of the Issuer, in connection with any sale or other disposition of Collateral to a Person that is not the Parent Guarantor or a Restricted Subsidiary (but excluding any transaction subject to Article 5), if such sale or other disposition does not violate Section 4.05 or is otherwise permitted in accordance with this Indenture;

(ii) in the case of a Guarantor that is released from its Note Guarantee pursuant to the terms of this Indenture, the release of the property and assets, and Capital Stock, of such Guarantor;

(iii) as described under Article 9;

(iv) upon payment in full of principal, interest and all other obligations in respect of the Notes or defeasance or discharge of the Notes, as provided in Article 8;

(v) if the Issuer designates any Restricted Subsidiary to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture, the release of the property and assets, and Capital Stock, of such Unrestricted Subsidiary;

 

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(vi) in connection with the implementation of a Permitted Reorganization;

(vii) in connection with the granting of Liens on such property or assets, which may include Collateral, or the sale or transfer of such property or assets, which may include Collateral, in each case pursuant to a Qualified Receivables Financing; and

(viii) as otherwise permitted in accordance with this Indenture.

(b) In addition, the security interest created by the Security Documents will be released (a) in accordance with an enforcement action pursuant to the Intercreditor Agreement or any Additional Intercreditor Agreement and (b) as may be permitted by Section 4.07.

(c) The Security Agent and the Trustee (if necessary) will take all necessary action reasonably requested by the Issuer to effectuate any release of Collateral securing the Notes and the Note Guarantees, in accordance with the provisions of this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement and the relevant Security Document subject to the customary protections and indemnifications. Each of the releases set forth above shall be effected by the Security Agent without the consent of the Holders or any action on the part of the Trustee (unless action is required by it to effect such release).

(d) The Security Agent and the Trustee will agree to any release of the security interest in respect of the Collateral that is in accordance with this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement and the relevant Security Document, without requiring any Holder consent or any action on the part of the Trustee. Upon request of the Issuer, upon receipt of an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent in respect of such release have been satisfied, the Security Agent shall execute, deliver or acknowledge any necessary or proper instruments of termination, satisfaction or release to evidence the release of Collateral permitted to be released pursuant to this Indenture, the Intercreditor Deed and the Security Documents. At the request of the Issuer, the Security Agent shall execute and deliver an appropriate instrument evidencing such release (in the form provided by the Issuer).

(e) Notwithstanding any other provisions in this Agreement or any other Senior Finance Document, the sale, lease, transfer or disposal of assets subject to Transaction Security Documents governed by Swedish law shall always be subject to the prior written consent of the Security Agent, such consent to be granted at the Security Agent’s sole discretion on a case by case basis.

Section 11.06 Compensation and Indemnity .

The Issuer, failing which the Guarantors, to the extent legally possible and subject to the Agreed Security Principles, shall pay to the Security Agent from time to time compensation for its services, in accordance with the applicable fee letter, subject to any terms of the Intercreditor Agreement as in effect from time to time which may address the compensation of the Security Agent. The Security Agent’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and each Guarantor, if any, jointly and severally, if any, to the extent legally possible and subject to the Agreed Security Principles, shall reimburse the Security Agent upon request for all out-of-pocket expenses properly incurred or made by it (as evidenced in an invoice from the Security Agent), including costs of collection, in addition to the compensation for its services. Such expenses shall include the properly incurred compensation and expenses, disbursements and advances of the Security Agent’s agents, counsel, accountants and experts. The Issuer and each Guarantor, if any, jointly and severally shall indemnify the Security Agent and its officers, directors, agents and employers against any and all loss, liability or expense (including properly incurred attorneys’ fees) incurred by or in connection with its rights, duties, and obligations under this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement or the Security Documents, as the case may be, including the properly incurred costs and expenses of defending

 

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itself against any claim or liability in connection with the exercise or performance of any such rights, powers or duties. The Security Agent shall notify the Issuer of any claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof; provided, however , that any failure so to notify the Issuer shall not relieve the Issuer or any Guarantor of its indemnity obligations hereunder, under the Intercreditor Agreement, any Additional Intercreditor Agreement or the Security Documents, as the case may be. The Issuer shall defend the claim and the indemnified party shall provide cooperation at the Issuer’s and any Guarantor’s expense in the defense. Notwithstanding the foregoing, such indemnified party may, in its sole discretion, assume the defense of the claim against it and the Issuer and each Guarantor, if any, shall, jointly and severally, pay the properly incurred fees and expenses of the indemnified party’s defense (as evidenced in an invoice from the Security Agent). Such indemnified parties may have separate counsel of their choosing and the Issuer and the Guarantors, jointly and severally, to the extent legally possible and subject to the Agreed Security Principles, shall pay the properly incurred fees and expenses of such counsel (as evidenced in an invoice from the Security Agent). The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by an indemnified party through such party’s own willful misconduct, gross negligence or fraud.

To secure the Issuer’s and any Guarantor’s payment obligations in this Section 11.06, the Security Agent shall subject to the Intercreditor Agreement and any Additional Intercreditor Agreement, have a lien on the Collateral and the proceeds of the enforcement of the Collateral for all monies payable to it under this Section 11.06.

The Issuer’s and any Guarantor’s payment obligations pursuant to this Section 11.06 and any lien arising hereunder shall, if any, to the extent legally possible and subject to the Agreed Security Principles, survive the satisfaction or discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy law or the resignation or removal of the Security Agent. Without prejudice to any other rights available to the Security Agent under applicable law, when the Security Agent incurs expenses after the occurrence of a Default specified in Section 6.01(e) or Section 6.01(f) with respect to the Issuer, the expenses are intended to constitute expenses of administration under the Bankruptcy Law.

Section 11.07 Conflicts .

Each of the Issuer, the Guarantors (if any), the Trustee and the Holders acknowledge and agree that the Security Agent is acting as security agent and trustee not just on their behalf but also on behalf of the creditors named in the Intercreditor Agreement and acknowledge and agree that pursuant to the terms of the Intercreditor Agreement, the Security Agent may be required by the terms thereof to act in a manner which may conflict with the interests of the Issuer, the Guarantors, the Trustee and the Holders (including the Holders’ interests in the Collateral and the Note Guarantees) and that it shall be entitled to do so in accordance with the terms of the Intercreditor Agreement.

 

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ARTICLE 12

MISCELLANEOUS

Section 12.01 Notices .

Any notice or communication shall be in writing, in the English language and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the others’ address:

if to the Issuer:

Nomad Foods BondCo Plc

5 New Square

Bedfont Lakes Business Park

Feltham, Middlesex TW14 8HA

United Kingdom

Attention: Anja van Bergen-van Kruijsbergen

with a copy to:

Greenberg Traurig, P.A.

401 East Las Olas Boulevard

Suite 2000

Fort Lauderdale, Florida 33301

Attention: Donn A. Beloff

if to the Registrar, Transfer Agent or Authenticating Agent:

Deutsche Bank Luxembourg S.A.

2, boulevard Konrad Adenauer

L-1115 Luxembourg

Luxembourg

Attention: Lux Registrar

Fax: +352 47 3136

if to the Trustee:

Deutsche Trustee Company Limited

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Attention: Managing Director

Fax: +44 (0)207 547 6149

if to the Security Agent:

Credit Suisse AG, London Branch

One Cabot Square

London E14 4QJ

United Kingdom

Attention: Ian Croft

Fax: +44 (0)207 888 8398

if to the Paying Agent:

Deutsche Bank AG, London Branch

Winchester House

1 Great Winchester Street

London EC2N 2DB

United Kingdom

Attention: Debt & Agency Services

Fax: +44 (0)207 547 6149

 

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Each of the Issuer or the Trustee by notice to the others may designate additional or different addresses for subsequent notices or communications.

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 with a copy to the Trustee. For so long as any of the Notes are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange shall so require, notices with respect to the Notes will be published in a newspaper having general circulation in Luxembourg or, to the extent and in the manner permitted by such rules, posted on the official website of the Luxembourg Stock Exchange ( www.bourse.lu ). For so long as any Notes are represented by Global Notes, all notices to Holders will be delivered to Euroclear and Clearstream, each of which will give such notices to the holders of Book-Entry Interests. Such notices may also be published on the website of the Luxembourg Stock Exchange ( www.bourse.lu ), to the extent and in the manner permitted by the rules of the Luxembourg Stock Exchange.

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 seventh 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 such Holder 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.

Any notices provided by the Issuer to an Agent shall be in the English language or a certified translation.

Notwithstanding any other provision of this Indenture and other Notes Documents, any communication to be made under or in connection with the Notes Documents shall be made to the address outside the Republic of Austria. The foregoing sentence applies mutatis mutandis to any communication made by fax, electronic message or in other written form.

Section 12.02 Certificate and Opinion as to Conditions Precedent .

Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:

(i) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and any other matters that the Trustee may reasonably request; and

(ii) if requested by the Trustee, an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with and any other matters that the Trustee may reasonably request.

 

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Section 12.03 Statements Required in Certificate or Opinion .

Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 4.16) shall include:

(i) a statement that the Person making such certificate or opinion has read such covenant or condition;

(ii) 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;

(iii) a statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable that Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(iv) a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with.

Section 12.04 When Notes Disregarded .

In determining whether the Holders of the required principal amount of the Notes have concurred in any direction, waiver or consent, the Notes owned by the Issuer or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer will be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which the Trustee knows are so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding at the time shall be considered in any such determination.

Section 12.05 Rules by Trustee, Paying Agent and Registrar .

The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.

Section 12.06 Legal Holidays .

If the due date for any payment in respect of any Notes is not a Business Day at the place at which such payment is due to be paid, the Holder thereof will not be entitled to payment of the amount due until the next succeeding Business Day at such place, and will not be entitled to any further interest or other payment as a result of any such delay. If a regular record date is not a Business Day, the record date shall not be affected.

Section 12.07 Governing Law .

THIS INDENTURE AND THE NOTES, INCLUDING ANY NOTE GUARANTEES, AND THE RIGHTS AND DUTIES OF THE PARTIES THEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 12.08 Consent to Jurisdiction and Service .

The Issuer and each Guarantor irrevocably (i) agree that any legal suit, action or proceeding against the Issuer or any Guarantor arising out of or based upon this Indenture, the Notes or any Note Guarantee or the transactions contemplated hereby may be instituted in any U.S. Federal or state court in the Borough of Manhattan, The City of New York court and (ii) waive, to the fullest extent they may effectively do so, any objection which they may now or hereafter have to the laying of venue of any such proceeding. The Issuer has appointed (and any Subsidiary becoming a Guarantor shall appoint) TOMS Capital LLC, located at 450 W 14th Street, New York, NY 10014, United States of America, as their authorized agent (the “ Authorized Agent ”) upon whom process may be served in any such action arising out of or based on this Indenture, the

 

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Notes or the transactions contemplated hereby which may be instituted in any New York court, expressly consent to the jurisdiction of any such court in respect of any such action, and waive any other requirements of or objections to personal jurisdiction with respect thereto and waives any right to trial by jury. Such appointment shall be irrevocable. The Issuer and each Guarantor represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Issuer and each Guarantor shall be deemed, in every respect, effective service of process upon the Issuer and each Guarantor. For the avoidance of doubt and insofar as Belgian law would apply, the designation by each Belgian Guarantor of an agent for service of process pursuant to this Section 12.08 constitutes an election of domicile with the meaning of Article 111 of the Belgian Civil Code.

Section 12.09 No Recourse Against Others .

No director, officer, employee, incorporator or shareholder of the Issuer, the Parent Guarantor or any of its Subsidiaries or Affiliates as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes 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 12.10 Successors .

All agreements of the Issuer and each Guarantor, if any, in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.

Section 12.11 Counterparts .

This Indenture may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Indenture by facsimile or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. One signed copy is enough to prove this Indenture.

Section 12.12 Table of Contents; 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 12.13 Prescription .

Claims against the Issuer or any Guarantor for the payment of principal, or premium, if any, on the Notes will be prescribed five years after the applicable due date for payment thereof. Claims against the Issuer or any Guarantor for the payment of interest on the Notes will be prescribed three years after the applicable due date for payment of interest.

Section 12.14 Place of Performance . The parties agree that the exclusive place of performance (“ Erfüllungsort ”) for all rights and obligations under any Notes Document shall be at the seat of the Security Agent in London, or any other place reasonably designated by the Security Agent but in any case a place outside the Republic of Austria, which especially means that the payment of amounts under this Indenture shall be made to a bank account respectively, and from a bank account outside of the Republic of Austria. It is expressly agreed between the parties hereto that any such performance within the Republic of Austria will not establish Austria as the place of performance and shall be deemed not effective with respect to any party hereto.

 

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Section 12.15 Additional Limitations . Notwithstanding any provision to the contrary in any Notes Document, the obligations (Verpflichtungen) and liabilities (Haftungen) of an Austrian Guarantor under any Notes Document shall at all times be limited so that at no time the assumption of a liability (Haftung) and/or obligation (Verpflichtung) shall be required to the extent that such liability (Haftung) or obligation (Verpflichtung) would violate Austrian Capital Maintenance Rules. Should any obligation (Verpflichtung) and/or liability (Haftung) of an Austrian Guarantor under any Notes Document violate or contradict the Austrian Capital Maintenance Rules and therefore be held invalid or unenforceable in whole or in part or should the assumption or enforcement of such obligation (Verpflichtung) or liability (Haftung) expose any managing director or member of the supervisory board of any Austrian Guarantor to personal liability or criminal responsibility, such obligation/or liability shall be deemed to be replaced by an obligation (Verpflichtung) and/or liability (Haftung) of a similar nature (i) which is in compliance with the Austrian Capital Maintenance Rules, (ii) which does not expose the managing directors or members of the supervisory board of the Austrian Guarantor to any personal liability or criminal responsibility; and (iii) which provides the best possible security interest admissible in accordance with the Austrian Capital Maintenance Rules in favour of the Holders.

 

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EXHIBIT A-1

PROVISIONS RELATING

TO THE NOTES

These provisions relating to the Notes are in addition to and not in lieu of the provisions relating to the Notes found in Articles 2 and 3 of the Indenture. In the event any inconsistency between the language in this Exhibit A-1 and corresponding language in the Indenture, the language in the Indenture shall control.

 

  1. Definitions .

Capitalized terms used but not otherwise defined in this Exhibit A-1 shall have the meanings assigned to them in the Indenture. For the purposes of this Exhibit A-1 the following terms shall have the meanings indicated below:

“ Applicable Procedures ” means, with respect to any transfer or transaction involving a Regulation S Global Note or beneficial interest therein, the rules and procedures of the Common Depositary for such Global Note, Euroclear and Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.

“ Definitive Registered Note ” means a certificated Note that does not include the Global Notes

Legend.

“ Global Notes ” has the meaning given to it in Section 2.1(a)(v) of this Exhibit A-1.

“ Global Notes Legend ” means the legend set forth under that caption in this Exhibit A-1.

“ QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

“ Regulation S ” means Regulation S under the Securities Act.

“ Regulation S Global Notes ” has the meaning given to it in Section 2.1(a)(ii) of this Exhibit A-1.

“ Regulation S Notes ” means all Notes offered and sold outside the United States in reliance on Regulation S.

“ Restricted Period ”, with respect to any Notes, means the period of 40 consecutive days beginning on and including the later of (a) the day on which such Notes are first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice of which day shall be promptly given by the Issuer to the Trustee, and (b) the Issue Date with respect to such Notes.

“ Restricted Notes Legend ” means the legend set forth under that caption in this Exhibit A-1.

“ Rule 144A ” means Rule 144A under the Securities Act.

“ Rule 144A Global Notes ” has the meaning given to it in Section 2.1(a)(i) of this

“ Rule 144A Notes ” means all Notes offered and sold to QIBs in reliance on Rule 144A.

“ Transfer Restricted Notes ” means Definitive Registered Notes and any other Notes that bear or are required to bear the Restricted Notes Legend.

 

A-1-1

  2. The Notes .

 

  2.1 Form and Dating .

 

  (a) Global Notes .

(i) Notes offered and sold within the United States to QIBs in reliance on Rule 144A and denominated in euro shall be issued initially in the form of one or more permanent global notes in fully registered form without interest coupons (collectively, the “ Rule 144A Global Notes ”).

(ii) Notes offered and sold outside the United States in reliance on Regulation S and denominated in euro shall be issued initially in the form of one or more permanent global notes in fully registered form without interest coupons (collectively, the “ Regulation S Global Notes ”).

(iii) The Rule 144A Global Notes and the Regulation S Global Notes shall bear the Global Notes Legend and the Restricted Notes Legend. The Rule 144A Global Notes and the Regulation S Global Notes shall be deposited on behalf of the purchasers of the Notes represented thereby, and registered in the name of the nominee of the applicable Common Depositary, duly executed by the Issuer and authenticated by the Trustee or an Authenticating Agent as provided in the Indenture.

(iv) Beneficial ownership interests in the Regulation S Global Notes shall not be exchangeable for interests in the Rule 144A Global Notes or any other security without a Restricted Security Legend until the expiration of the Restricted Period.

(v) The Rule 144A Global Notes and the Regulation S Global Notes are each referred to herein as a “ Global Note ” and are collectively referred to herein as “ Global Notes ”. The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee or Registrar and the Common Depositary or its nominee and on the schedules thereto as hereinafter provided, in connection with transfers, exchanges, redemptions and repurchases of beneficial interests therein.

(b) Book-Entry Provisions . This Section 2.1(b) shall apply only to a Global Note deposited with or on behalf of the Common Depositary.

The Issuer shall execute and the Trustee or an Authenticating Agent, as the case may be, shall, in accordance with this Section 2.1(b) and Section 2.2 and pursuant to an order of the Issuer signed by one Officer, authenticate and deliver initially one or more Global Notes that (i) shall be registered in the name of the nominee of the Common Depositary for such Global Note or Global Notes and (ii) shall be delivered by the Trustee or Authenticating Agent, as the case may be, to such Common Depositary or pursuant to such Common Depositary’s instructions.

Members of, or participants in, Euroclear or Clearstream (“ Agent Members ”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Common Depositary or under such Global Note, and the Common Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by Euroclear or Clearstream or impair, as between Euroclear or Clearstream and their respective Agent Members, the operation of customary practices thereof governing the exercise of the rights of a holder of a beneficial interest in any Global Note.

 

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(e) Definitive Registered Notes . Except as provided in Section 2.3 or 2.4 of this Exhibit A-1, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of certificated Notes.

2.2 Authentication . The Trustee or an Authenticating Agent, as the case may be, shall authenticate and make available for delivery the Notes upon a written order of the Issuer signed by one of its Officers. Such order shall (a) specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, (b) direct the Trustee or an Authenticating Agent to authenticate such Notes and (c) certify that all conditions precedent to the issuance of such Notes have been complied with in accordance with the terms hereof.

2.3 Transfer and Exchange .

(a) Transfer and Exchange of Definitive Registered Notes . When Definitive Registered Notes are presented to the Registrar or Transfer Agent, as the case may be, with a request:

(i) to register the transfer of such Definitive Registered Notes; or

(ii) to exchange such Definitive Registered Notes for an equal principal amount of Definitive Registered Notes of other authorized denominations,

the Registrar or the Transfer Agent, as the case may be, shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met, provided, however, that the Definitive Registered Notes surrendered for transfer or exchange:

(1) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Registrar or the Transfer Agent, as the case may be, duly executed by the Holder thereof or its attorney duly authorized in writing; and

(2) in the case of Transfer Restricted Notes, are accompanied by the following additional information and documents, as applicable:

(i) if such Definitive Registered Notes are being delivered to the Registrar or the Transfer Agent, as the case may be, by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in the form set forth on the reverse side of the Note);

(ii) if such Definitive Registered Notes are being transferred to the Issuer, a certification to that effect (in the form set forth on the reverse side of the Note); or

(iii) if such Definitive Registered Notes are being transferred pursuant to an exemption from registration in accordance with Rule 144A, Regulation S or Rule 144 under the Securities Act or in reliance upon another exemption from the registration requirements of the Securities Act, (x) a certification to that effect (in the form set forth on the reverse side of the Note) and (y) if the Issuer or Registrar or Transfer Agent, as the case may be, so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 2.3(e)(i) of this Exhibit A-1.

 

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(b) Restrictions on Transfer of a Definitive Registered Note for a Beneficial Interest in a Global Note . A Definitive Registered Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Registrar of a Definitive Registered Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer, the Registrar and the Transfer Agent, together with:

(i) certification (in the form set forth on the reverse side of the Note) that such Definitive Registered Note is being transferred (1) to a QIB in accordance with Rule 144A or (2) outside the United States in an offshore transaction within the meaning of Regulation S and in compliance with Rule 904 under the Securities Act; and

(ii) written instructions directing the Registrar to make an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the account to be credited with such increase,

then the Trustee or the Registrar shall cancel such Definitive Registered Note and cause the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Definitive Registered Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Definitive Registered Note so cancelled; provided that, in no event shall a Regulation S Global Note be exchanged by the Issuer for a Definitive Registered Note prior to the expiration of the Restricted Period. If no Global Notes are then outstanding and the Global Note has not been previously exchanged for certificated securities pursuant to Section 2.4 of this Exhibit A-1, the Issuer shall issue and the Trustee or an Authenticating Agent shall authenticate, upon written order of the Issuer in the form of an Officer’s Certificate, a new Global Note in the appropriate principal amount.

(c) Transfer and Exchange of Global Notes .

(i) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Common Depositary, in accordance with the Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Common Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver a written order given in accordance with the Common Depositary’s procedures containing information regarding the participant account of the Common Depositary to be credited with a beneficial interest in such Global Note or another Global Note and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred. Transfers by an owner of a beneficial interest in a Rule 144A Global Note to a transferee who takes delivery of such interest through a Regulation S Global Note, whether before or after the expiration of the Restricted Period, shall be made only upon receipt by the Registrar of a certification in the form provided in Exhibit B from the transferor to the effect that such transfer is being made in accordance with Regulation S or pursuant to an exemption from registration under the Securities Act provided by Rule 144 (if applicable) under the Securities Act.

(ii) Notwithstanding any other provisions of this Exhibit A-1 (other than the provisions set forth in Section 2.4 of this Exhibit A-1), a Global Note may not be transferred as a whole except by the Common Depositary to a successor Common Depositary or a nominee of such successor Common Depositary.

(d) Restrictions on Transfer of Regulation S Global Note .

(i) Prior to the expiration of the Restricted Period, interests in the Regulation S Global Note may only be held through Euroclear or Clearstream. During the Restricted Period, beneficial ownership interests in the Regulation S Global Note may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures and only (1) to the Issuer, (2) so long as such security is eligible for resale pursuant to Rule 144A, to a person whom the selling holder reasonably believes is a QIB that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, (3) in an offshore

 

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transaction in accordance with Regulation S, (4) pursuant to an exemption from registration under the Securities Act provided by Rule 144 (if applicable) under the Securities Act or any other available exemption or (5) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any state of the United States. Prior to the expiration of the Restricted Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest through the Rule 144A Global Note shall be made only in accordance with Applicable Procedures and upon receipt by the Registrar of a written certification from the transferor of the beneficial interest in the form provided in Exhibit C to the effect that such transfer is being made to a QIB within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A. Such written certification shall no longer be required after the expiration of the Restricted Period.

(ii) Upon the expiration of the Restricted Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with applicable law and the other terms of the Indenture.

(e) Legend .

(i) Except as permitted by the following paragraph (ii), (iii) or (iv), each Note certificate evidencing the Global Notes and the Definitive Registered Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only):

“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 SECURITY 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 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)][IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S)], 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 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

 

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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 IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS, AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S 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, (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN ON THE REVERSE OF THIS NOTE 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.

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY SUCH PLANS (COLLECTIVELY, “PLANS”), OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA, NON U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE OR A NON EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.”

Each Definitive Registered Note shall bear the following additional legend:

“IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.”

(ii) Upon any sale or transfer of a Transfer Restricted Note that is a Definitive Registered Note, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Registered Note that does not bear the legends set forth above and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Transfer Agent and Registrar that its request for such exchange was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Note).

(iii) Upon a sale or transfer after the expiration of the Restricted Period of any Note acquired pursuant to Regulation S, all requirements that such Note bear the Restricted Notes Legend shall cease to apply and the requirements requiring any such Note be issued in global form shall continue to apply.

 

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(iv) Any additional Notes sold in a registered offering under the Securities Act shall not be required to bear the Restricted Notes Legend.

(f) Cancellation or Adjustment of Global Note . At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Registered Notes, transferred, redeemed, repurchased or cancelled, such Global Note shall be returned by the Common Depositary to an Authenticating Agent for cancellation or retained and cancelled by an Authenticating Agent. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Registered Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or cancelled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Registrar with respect to such Global Note, by the Trustee, to reflect such reduction.

(g) Obligations with Respect to Transfers and Exchanges .

(i) To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee or an Authenticating Agent shall authenticate, Definitive Registered Notes and Global Notes at the Registrar’s request.

(ii) No service charge shall be made for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant to Section 2.07, 3.06, 4.05, 4.14 or 9.04 of the Indenture).

(iii) Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

(iv) All Notes issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as the Notes surrendered upon such transfer or exchange.

(h) No Obligation of the Trustee .

(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Common Depositary or any other Person with respect to the accuracy of the records of the Common Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Common Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Common Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Common Depositary subject to the applicable rules and procedures of the Common Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Common Depositary with respect to its members, participants and any beneficial owners.

(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance, with any restrictions on

 

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transfer, exchange, redemption, purchase or repurchase, as applicable, imposed under the Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption, purchase or repurchase, as applicable of any interest in any Note (including, without limitation, any transfers between or among Common Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof, it being understood that without limiting the generality of the foregoing, 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 the Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption, purchase or repurchase, as applicable, of any interest in any Note.

2.4 Definitive Registered Notes .

(a) A Global Note deposited with the Common Depositary pursuant to Section 2.1 of this Exhibit A-1 shall be transferred to the beneficial owners thereof in the form of Definitive Registered Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.3 of this Exhibit A-1 and (i) the Common Depositary notifies the Issuer that it is unwilling or unable to continue as a Common Depositary for such Global Note and a successor depositary is not appointed by the Issuer within 120 days of such notice or after the Issuer becomes aware of such cessation, or (ii) if the owner of a book-entry interest in such Global Note requests such exchange in writing delivered through the Depository or the Issuer following an Event of Default and enforcement action is being taken in respect thereof under the Indenture.

(b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by the Common Depositary to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee or an Authenticating Agent shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Registered Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 2.4 shall be executed, authenticated and delivered only in minimum denominations of € 100,000 and multiples of € 1,000 in excess thereof and registered in such names as the Common Depositary shall direct. Any certificated Note in the form of a Definitive Registered Note delivered in exchange for an interest in the Global Note shall, except as otherwise provided by Section 2.3(e), of this Exhibit A-1, bear the Restricted Notes Legend.

(c) Subject to the provisions of Section 2.4(b) of this Exhibit A-1, the registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.

(d) In the event of the occurrence of any of the events specified in Section 2.4(a)(i) or (ii) of this Exhibit A-1, the Issuer will promptly make available to the Trustee a reasonable supply of Definitive Registered Notes in fully registered form without interest coupons.

 

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EXHIBIT A-2

[FORM OF FACE OF NOTE]

[3.250% SENIOR SECURED NOTES DUE 2024]

[Global Notes Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK SA/NV (“EUROCLEAR”), OR CLEARSTREAM BANKING, SOCIETE ANONYME (“CLEARSTREAM”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ITS AUTHORIZED NOMINEE, OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF EUROCLEAR OR CLEARSTREAM OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

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 TAKING OF THIS DOCUMENT OR ANY CERTIFIED COPY THEREOF OR ANY DOCUMENT WHICH CONSTITUTES SUBSTITUTE DOCUMENTATION THEREOF INCLUDING WRITTEN CONFIRMATIONS OR REFERENCES (THE “STAMP DUTY SENSITIVE DOCUMENTS”) INTO AUSTRIA MAY CAUSE THE IMPOSITION OF AUSTRIAN STAMP DUTY. THE SAME, INTER ALIA, APPLIES TO (I) THE SENDING OF STAMP DUTY SENSITIVE DOCUMENTS TO AN AUSTRIAN ADDRESSEE BY FAX, (II) THE SENDING OF ANY E-MAIL COMMUNICATION TO WHICH AN ELECTRONIC SCAN COPY (E.G., PDF OR TIF) OF A STAMP DUTY SENSITIVE DOCUMENT IS ATTACHED TO AN AUSTRIAN ADDRESSEE AND (III) THE SENDING OF ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO A STAMP DUTY SENSITIVE DOCUMENT TO AN AUSTRIAN ADDRESSEE. ACCORDINGLY, IN PARTICULAR, KEEP ANY STAMP DUTY SENSITIVE DOCUMENTS OUTSIDE OF AUSTRIA AND AVOID (A) SENDING STAMP DUTY SENSITIVE DOCUMENTS BY FAX TO AN AUSTRIAN ADDRESSEE, (B) SENDING ANY E-MAIL COMMUNICATION TO WHICH AN ELECTRONIC SCAN COPY OF A STAMP DUTY SENSITIVE DOCUMENT IS ATTACHED TO AN AUSTRIAN ADDRESSEE AND (C) SENDING ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO A STAMP DUTY SENSITIVE DOCUMENT TO AN AUSTRIAN ADDRESSEE.

 

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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 SECURITY 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 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)][IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S)], 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 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 IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS, AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S 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, (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE REVERE OF THIS NOTE 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.

BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT (1) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF OR WITH ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY SUCH PLANS (COLLECTIVELY, “PLANS”), OR A “GOVERNMENTAL PLAN” (AS DEFINED IN SECTION 3(32) OF ERISA), “CHURCH PLAN” (AS DEFINED IN SECTION 3(33) OF ERISA, NON U.S. OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO FEDERAL, STATE, LOCAL OR NON U.S. LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR (B) THE ACQUISITION AND HOLDING OF THIS SECURITY OR AN INTEREST THEREIN BY THE HOLDER DOES NOT AND WILL NOT CONSTITUTE OR RESULT IN A NON EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE OR A NON EXEMPT VIOLATION OF SIMILAR LAW, AND (2) THE HOLDER WILL NOT SELL OR

 

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OTHERWISE TRANSFER THIS SECURITY UNLESS SUCH SUBSEQUENT TRANSFEREE HAS MADE THE REPRESENTATIONS AND WARRANTEES IN (1) ABOVE.

[Each Definitive Registered Note shall bear the following additional legend:]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

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Common Code: 1 [Reg S]

[144A ]

ISIN: 2 [Reg S]

[144A ]

3.250% Senior Secured Notes due 2024

 

No.             

      €             

NOMAD FOODS BONDCO PLC

Nomad Foods BondCo Plc, a public limited company incorporated under the laws of England and Wales, promises to pay to [●] or its registered assigns the principal sum of                                  EUROS subject to adjustments listed on the Schedule of Increases or Decreases in the Global Note attached hereto, on May 15, 2024.

Interest on the Notes will accrue at a rate per annum equal to 3.250%.

Interest Payment Dates: May 15 and November 15, commencing November 15, 2017.

Record Dates: May 1 and November 1.

Additional provisions of this Note are set forth on the other side of this Note.

Dated:

 

 

1   ISIN: [144A: XS1600825183] / [Reg S: XS1600824962]
2   COMMON CODE: [144A: 160082518] / [Reg S: 160082496]

 

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IN WITNESS WHEREOF, Nomad Foods BondCo Plc has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

Nomad Foods BondCo Plc

By:                                                                                   

Name:

Title:

This is one of the Notes referred to in the Indenture.

 

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DEUTSCHE BANK LUXEMBOURG S.A. ,

not in its individual capacity but solely as Authenticating Agent duly appointed by Deutsche Trustee Company Limited, as Trustee

By:                                                                                   

Name:

Title:

By:                                                                                   

Name:

Title:

 

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[3.250% Senior Secured Notes due 2024]

 

1. (a) Interest.

Nomad Foods BondCo Plc, a public limited company incorporated under the laws of England and Wales (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “ Issuer ”), promises to pay interest on the principal amount of this Note at the rate of 3.250% per annum. The Issuer shall pay interest on this Note semiannually in arrears on May 15 and November 15 of each year, commencing November 15, 2017. The Issuer will make each interest payment to Holders of record on May 1 and November 1 immediately preceding the related interest payment date. Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance until the principal hereof is due. Interest shall be computed on the basis of a 360-day year and the actual number of days elapsed. Interest on overdue principal, interest, premium or Additional Amounts will accrue at a rate that is 1% higher than the interest rate on the Notes.

 

2. Method of Payment.

Holders must surrender Notes to the Paying Agent to collect principal payments. The Issuer shall pay principal, premium, Additional Amounts, if any, and interest in euro. Principal, interest and premium, if any, on the Global Notes (as defined below) will be payable at the specified office or agency of one or more Paying Agents; provided that all such payments with respect to the Notes represented by one or more Global Note registered in the name of or held by a nominee of a common depositary for Euroclear and Clearstream, as applicable, will be made by wire transfer of immediately available funds to the account specified by the Holder or Holders thereof.

Principal, premium, if any, interest and Additional Amounts, if any, on Definitive Registered Notes will be payable at the specified office or agency of one or more Paying Agents maintained for such purposes in London. In addition, interest on the Definitive Registered Notes may be paid by check mailed to the person entitled thereto as shown on the register for the Definitive Registered Notes.

The rights of Holders to receive the payments of interest on such Notes are subject to applicable procedures of Euroclear and Clearstream. If the due date for any payment in respect of any Notes is not a Business Day at the place at which such payment is due to be paid, the Holder thereof will not be entitled to payment of the amount due until the next succeeding Business Day at such place, and will not be entitled to any further interest or other payment as a result of any such delay.

 

3. Paying Agent and Registrar.

Initially, Deutsche Bank AG, London Branch, will act as Paying Agent and Deutsche Bank Luxembourg S.A. will act as Registrar and Transfer Agent. The Issuer may appoint and change any Registrar, Transfer Agent or Paying Agent. The Parent Guarantor or any of its Restricted Subsidiaries may act as Registrar, Transfer Agent and Paying Agent.

 

4. Indenture.

The Issuer issued the Notes under the Indenture dated as of May 3, 2017 (the “ Indenture ”), among the Issuer, Nomad Foods Limited (the “ Parent Guarantor ”), Iglo Austria Holding GmbH, Iglo Austria GmbH, Iglo Belgium SA, Nomad Foods Europe Holdings Ltd, Nomad Foods Europe Holdco Ltd, Nomad Foods Europe Finco Ltd, Nomad Foods Europe Midco Ltd, Nomad Foods Europe Ltd, Birds Eye Ltd, Nomad Foods Europe IPco Ltd, Nomad Foods Europe Finance Ltd, Findus Finland Oy, iglo Holding GmbH, iglo GmbH, Frozen Fish International GmbH, Liberator German Newco GmbH, Nomad Foods Lux S.à r.l., Iglo Nederland B.V., Lion/Gem Norway 1 AS, Findus Norge Holding AS, Findus Norge AS, Findus España S.L.U., Findus Sverige Holdings AB, Findus Sverige AB, Frionor Sverige AB, Foodvest International AB,

 

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and Nomad Foods US LLC (together, the “ Subsidiary Guarantors ” and, together with the Parent Guarantor, the “Guarantors”), Deutsche Trustee Company Limited, as trustee (the “ Trustee ”), Deutsche Bank AG, London Branch, as paying agent, Deutsche Bank Luxembourg S.A., as Luxembourg registrar and Transfer Agent, and Credit Suisse AG, London Branch, as security agent (the “ Security Agent ”). The terms of the Notes include those stated in the Indenture. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of such terms and provisions. In the event of a conflict, the terms of the Indenture control.

The Notes are general, senior obligations of the Issuer. This Note is one of the Notes referred to in the Indenture.

 

5. Optional Redemption.

(a) Except as provided in this Section 5 and Section 6, the Notes are not redeemable at the option of the Issuer until May 15, 2020.

(b) At any time prior to May 15, 2020, the Issuer may redeem the Notes in whole or in part, at its option, upon not less than 10 days nor more than 60 days’ prior notice at a redemption price equal to 100% of the principal amount of such Notes plus the relevant Applicable Premium for the Notes as of, and accrued and unpaid interest and Additional Amounts, if any, to the redemption date.

(c) On or after May 15, 2020, the Issuer may redeem the Notes in whole or in part, from time to time at its option, upon not less than 10 days nor more than 60 days’ prior notice, at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest to the redemption date:

 

Twelve-month period commencing May 15,

   Redemption Price  

2020

     101.625 % 

2021

     100.813 % 

202 and thereafter

     100.000 % 

(c) Prior to May 15, 2020, upon not less than 10 nor more than 60 days’ prior notice, the Issuer may on one or more occasions redeem the Notes with the net cash proceeds received by the Issuer from any Equity Offering at a redemption price equal to 103.250% of the principal amount of the Notes so redeemed, plus accrued and unpaid interest to the redemption date, in an aggregate principal amount for all such redemptions not to exceed 40% of the original aggregate principal amount of the Notes (including Additional Notes); provided , that:

 

  (1) in each case the redemption takes place not later than 180 days after the closing of the related Equity Offering; and

 

  (2) not less than 60% of the original principal amount of the Notes being redeemed (including the principal amount of any Additional Notes) remain outstanding immediately thereafter.

Notice of any redemption upon any Equity Offering may be given prior to the completion thereof.

Any redemption and notice of redemption may, at the Issuer’s discretion, be subject to the satisfaction of one or more conditions precedent (including, in the case of a redemption related to an Equity Offering, the consummation of such Equity Offering).

“ Applicable Premium ” means the greater of:

 

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  (x) 1% of the principal amount of such Note; and

 

  (y) as of any redemption date, the excess (to the extent positive) of:

 

  a. the present value at such redemption date of (i) the redemption price of such Note at May 15, 2020 (such redemption price (expressed in percentage of principal amount) being set forth in the table under Section 5(c) hereof (excluding accrued but unpaid interest)), plus (ii) all required interest payments due on such Note to and including May 15, 2020 (excluding accrued but unpaid interest), computed upon the redemption date using a discount rate equal to the Bund Rate at such redemption date plus 50 basis points; over

 

  b. the outstanding principal amount of such Note,

as calculated by the Issuer or on behalf of the Issuer by such Person as the Issuer shall designate. For the avoidance of doubt, calculation of the Applicable Premium shall not be an obligation or duty of the Trustee or any Paying Agent.

“ Bund Rate ” means the yield to maturity at the time of computation of direct obligations of the Federal Republic of Germany (Bunds or Bundesanleihen) with a constant maturity (as officially compiled and published in the most recent financial statistics that have become publicly available at least two Business Days (but not more than five Business Days) prior to the redemption date (or, if such financial statistics are not so published or available, any publicly available source of similar market data selected by the Parent Guarantor or the Issuer in good faith)) most nearly equal to the period from the redemption date to May 15, 2020; provided , however , that if the period from the redemption date to May 15, 2020 is not equal to the constant maturity of a direct obligation of the Federal Republic of Germany for which a weekly average yield is given, the Bund Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of direct obligations of the Federal Republic of Germany for which such yields are given, except that if the period from such redemption date to May 15, 2020 is less than one year, the weekly average yield on actually traded direct obligations of the Federal Republic of Germany adjusted to a constant maturity of one year shall be used.

 

6. Redemption for Taxation Reasons.

The Issuer or Successor Company, as defined below, may 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 of the Notes (which notice will be irrevocable) at a redemption price equal to 100% of the outstanding principal amount thereof, together with accrued and unpaid interest, if any, to, but excluding, the date fixed for redemption (a “ Tax Redemption Date ”) (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) and all Additional Amounts (see Section 4.13 of the Indenture), if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, if the Issuer, Successor Company or Guarantor determine in good faith that, as a result of:

 

(1) any change in, or amendment to, the laws or treaties (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction (as defined below) affecting taxation; or

 

(2) any change in, amendment to or introduction of an official position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including pursuant to a holding, judgment or order by a court of competent jurisdiction) of a Relevant Taxing Jurisdiction (each of the foregoing in clauses (1) and (2), a “ Change in Tax Law ”),

 

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the Issuer, Successor Company or Guarantor (in the case of a Guarantor, only if the relevant payment cannot be made by the Issuer or any other Guarantor without triggering payment of Additional Amounts) are, or on the next interest payment date in respect of the Notes would be, required to pay any Additional Amounts, and such obligation cannot be avoided by taking reasonable measures available to the Issuer, Successor Company or Guarantor (including, for the avoidance of doubt, the appointment of a new Paying Agent where this would be reasonable but not including assignment of the obligation to make payment with respect to the Notes). In the case of redemption due to withholding as a result of a Change in Tax Law in a jurisdiction that is a Relevant Taxing Jurisdiction at the date of the Offering Memorandum, such Change in Tax Law must be announced and become effective on or after the date of the Offering Memorandum. In the case of redemption due to withholding as a result of a Change in Tax Law in a jurisdiction that becomes a Relevant Taxing Jurisdiction after the date of the Offering Memorandum, such Change in Tax Law must be announced and become effective on or after the date the jurisdiction becomes a Relevant Taxing Jurisdiction, unless the Change in Tax Law would have applied to the predecessor of the Successor Company. Notice of redemption for taxation reasons will be published in accordance with the procedures described under Section 3.03 of the Indenture. Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Payor would be obliged to make such payment of Additional Amounts if a payment in respect of the Notes were then due and (b) unless at the time such notice is given, such obligation to pay such Additional Amounts remains in effect. Prior to the publication or mailing of any notice of redemption of the Notes pursuant to the foregoing, the Issuer or Successor Company will deliver to the Trustee (a) an Officer’s Certificate stating that it is entitled to effect such redemption and that it would not be able to avoid the obligation to pay Additional Amounts by taking reasonable measures available to it and (b) a written opinion of an independent tax counsel of recognized standing to the effect that the Issuer, Successor Company or Guarantor has or have been or will become obligated to pay Additional Amounts as a result of a Change in Tax Law. The Trustee will accept and shall be entitled to rely on such Officer’s Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above and compliance with the Indenture, without further inquiry, in which event it will be conclusive and binding on the Holders.

The foregoing will apply mutatis mutandis to any jurisdiction in which any successor to the Issuer is incorporated or organized or any political subdivision or taxing authority or agency thereof or therein.

 

7. Sinking Fund .

The Issuer is not required to make mandatory redemption payments or sinking fund payments with respect to the Notes. The Parent Guarantor and its Restricted Subsidiaries may at any time and from time to time purchase Notes in the open market or otherwise.

 

8. Notice of Redemption.

Subject to the next paragraph, not less than 10 days but not more than 60 days before a date for redemption of Notes, the Issuer shall transmit to each Holder (with a copy to the Trustee) a notice of redemption in accordance with Section 12.01 of the Indenture; provided, however , that any notice of redemption provided for by Section 6 of the Notes shall not be given earlier than 90 days prior to the earliest date on which the Payor would be obliged to make a payment of Additional Amounts unless, at the time such notice is given, the obligation to pay such Additional Amounts remains in effect.

At the Issuer’s request, the Registrar or the Paying Agent shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense. In such event, the Issuer shall deliver to the Registrar and the Paying Agent on or prior to the date on which notice of redemption is to be delivered to the Holders, an Officer’s Certificate requesting that the Registrar or the Paying Agent give such notice and the information required and within the time periods specified by this Section.

 

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If less than all of the Notes are to be redeemed at any time, the Paying Agent or the Registrar will select Notes for redemption on a pro rata basis or in accordance with the procedures of Clearstream or Euroclear (as applicable), unless otherwise required by law or applicable stock exchange or depository requirements. Neither the Paying Agent nor the Registrar will be liable for any selections made by it in accordance with this paragraph.

If the Notes are to be redeemed in part only, the notice of redemption shall state the portion of the principal amount to be redeemed. In the case of a Definitive Registered Note, a new Definitive Registered Note in principal amount equal to the unredeemed portion of any Definitive Registered Note redeemed in part will be issued in the name of the Holder thereof upon cancellation of the original Definitive Registered Note. In the case of a Global Note, an appropriate notation will be made on such Global Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. Subject to the terms of the applicable redemption notice, Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption

So long as any Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted for trading on the Euro MTF market and the rules of the Luxembourg Stock Exchange so require, any such notice to the Holders of the Notes shall to the extent and in the manner permitted by such rules be posted on the official website of the Luxembourg Stock Exchange and in addition to such release, not less than 10 days nor more than 60 days prior to the redemption date, the Issuer will provide such notice to Holders with a copy to the Trustee. Such notice of redemption may also be posted on the website of the Luxembourg Stock Exchange ( www.bourse.lu ) to the extent and in the manner permitted by the rules of the Luxembourg Stock Exchange.

 

9. Additional Amounts.

All payments made by a Payor on the Notes or any Note Guarantee, as applicable, will be made free and clear of and without withholding or deduction for, or on account of, any Taxes subject to and in accordance with Section 4.13 of the Indenture.

 

10. Repurchase of Notes at the Option of Holders upon (i)  a Change of Control and (ii)  the occurrence of certain Asset Sales.

If a Change of Control occurs, each Holder of Notes will have the right, subject to certain conditions specified in the Indenture, to require the Issuer to repurchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) as provided in, and subject to the terms of, the Indenture.

In accordance with Section 4.05 of the Indenture, the Issuer will be required to, or may be permitted to, offer to purchase Notes upon the occurrence of certain events, including certain Asset Dispositions.

 

11. Security .

The Notes will be secured by the Collateral. Reference is made to the Indenture and the Intercreditor Agreement for terms relating to such security, including the release, termination and discharge thereof. Enforcement of the Security Documents is subject to the Intercreditor Agreement. The Issuer shall not be required to make any notation on this Note to reflect any grant of such security or any such release, termination or discharge.

 

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12. Denominations; Transfer; Exchange.

The Notes are in registered form without interest coupons in minimum denominations of € 100,000 and multiples of € 1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. In connection with any such transfer or exchange, the Indenture requires the transferring or exchanging Holder to, among other things, furnish appropriate endorsements and transfer documents, furnish information regarding the account of the transferee at Euroclear or Clearstream, where appropriate, furnish certain certificates and opinions, and pay any taxes, duties and governmental charges in connection with such transfer or exchange. Any such transfer or exchange will be made without charge to the Holder, other than Taxes payable in connection with such transfer.

 

13. Persons Deemed Owners.

Except as provided in Section 2, the registered Holder of this Note will be treated as the owner of it for all purposes. Only registered Holders will have rights under the Indenture, including, without limitation, with respect to enforcement and the pursuit of other remedies.

 

14. Unclaimed Money .

If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Issuer at its written request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look to the Issuer for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.

 

15. Discharge and Defeasance .

Subject to certain conditions, the Issuer at any time may terminate all its and each Guarantor’s obligations under this Note, any Note Guarantee and the Indenture if the Issuer, among other things, deposits or causes to be deposited with the Trustee, cash in euro, European Government Obligations denominated in euro, or a combination thereof, in an amount sufficient for the payment of principal, premium, if any, and interest on the outstanding Notes to redemption or maturity, as the case may be.

 

16. Amendment, Waiver.

The Indenture and the Notes may be amended as set forth in the Indenture.

 

17. Defaults and Remedies.

Each of the following is an “ Event of Default ” under the Indenture:

(a) default in any payment of interest, or Additional Amounts, if any, on any Note when due and payable, continued for 30 days;

(b) default in the payment of the principal amount of or premium, if any, on any Note issued under this Indenture when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;

(c) failure by the Parent Guarantor or any of its Restricted Subsidiaries to comply for 60 days after written notice by the Trustee on behalf of the Holders or by the Holders of at least 25% in aggregate principal amount of the outstanding Notes with its other agreements contained in this Indenture or the Notes (in each case, other than a default in performance, or breach of, a covenant or agreement specifically addressed in clauses (a) and (b) of Section 6.01 of the Indenture;

 

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(d) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Parent Guarantor or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the Parent Guarantor or any of its Restricted Subsidiaries) other than Indebtedness owed to the Parent Guarantor or a Restricted Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, which default:

(i) is caused by a failure to pay principal at stated maturity on such Indebtedness, immediately upon the expiration of the grace period provided in such Indebtedness (“ payment default ”); or

(ii) results in the acceleration of such Indebtedness prior to its maturity (the “ cross acceleration provision ”),

and, in each case, the aggregate principal amount of any such Indebtedness, together with the aggregate principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates € 35.0 million or more;

(e) The Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:

(i) commences proceedings to be adjudicated bankrupt or insolvent;

(ii) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;

(iii) other than on a solvent basis, consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;

(iv) other than on a solvent basis, makes a general assignment for the benefit of its creditors; or

(v) admits in writing that it is unable to pay its debts as they become due;

(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(i) is for relief against the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary, in a proceeding in which the Parent Guarantor or any such Restricted Subsidiaries, that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;

(ii) other than on a solvent basis, appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary, or for all or substantially all of the property

 

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of the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary; or

(iii) other than on a solvent basis, orders the liquidation of the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary and the order or decree remains unstayed and in effect for 60 consecutive days;

(g) failure by the Issuer, the Parent Guarantor or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final judgments aggregating in excess of € 35.0 million (exclusive of any amounts that a solvent insurance company has acknowledged liability for), which judgments are not paid, discharged or stayed for a period of 60 days after the judgment becomes final (the “ judgment default provision ”);

(h) any security interest shall, at any time, cease to be in full force and effect (other than in accordance with the terms of the relevant Security Document, the Intercreditor Agreement, any Additional Intercreditor Agreement and this Indenture) with respect to Collateral having a fair market value in excess of € 10.0 million for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement or the Security Document or any such security interest created thereunder shall be declared invalid or unenforceable or the Issuer, the Parent Guarantor or any Restricted Subsidiary shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for 10 days; and

(i) the Parent Guarantee or any Subsidiary Guarantee of a Significant Subsidiary ceases to be in full force and effect (other than in accordance with the terms of such Note Guarantee or this Indenture) or is declared invalid or unenforceable in a judicial proceeding or any Guarantor denies or disaffirms in writing its obligations under its Note Guarantee and any such Default continues for 10 days.

A default under clause (c), (d) or (g) of Section 6.01 of the Indenture will not constitute an Event of Default until the Trustee or the Holders of 25% in aggregate principal amount of the outstanding Notes notify the Issuer of the default and, with respect to clauses (c), (d) and (g) of Section 6.01 of the Indenture, the Issuer does not cure such default within the time specified in clause (c), (d) or (g) of Section 6.01 of the Indenture, as applicable, after receipt of such notice.

 

18. 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 or its Affiliates and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Trustee.

 

19. No Recourse Against Others.

No director, officer, employee, incorporator or shareholder of the Parent Guarantor or any of its Subsidiaries or Affiliates, as such, shall have any liability for any obligations of the Issuer or any Guarantor under any Notes 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.

 

A-2-14

20. Authentication .

This Note shall not be valid until an authorized signatory of the Trustee or an Authenticating Agent manually signs the certificate of authentication on the other side of this Note. The signature shall be conclusive evidence that the security has been authenticated under the Indenture.

 

21. Abbreviations .

Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).

 

22. Governing Law .

THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

23. Common Codes and ISINs .

The Issuer in issuing the Notes may use Common Codes and ISINs (if then generally in use) and, if so, the Trustee shall use Common Codes and ISINs 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 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.

 

24. Subject to Intercreditor Agreement .

This Note and the Indenture are entered into with the benefit of and subject to the terms of the Intercreditor Agreement and any Additional Intercreditor Agreement. In the event of any conflict between this Note, the Indenture and the Intercreditor Agreement or any Additional Intercreditor Agreement, the terms of the Intercreditor Agreement or any Additional Intercreditor Agreement, as applicable, shall apply, except that with regards to the rights, duties and obligations of the Trustee, the Indenture shall apply.

The Issuer will furnish to any Holder of Notes upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note.

 

A-2-15

[ASSIGNMENT FORM]

THE TAKING OF THIS DOCUMENT OR ANY CERTIFIED COPY THEREOF OR ANY DOCUMENT WHICH CONSTITUTES SUBSTITUTE DOCUMENTATION THEREOF INCLUDING WRITTEN CONFIRMATIONS OR REFERENCES (THE “STAMP DUTY SENSITIVE DOCUMENTS”) INTO AUSTRIA MAY CAUSE THE IMPOSITION OF AUSTRIAN STAMP DUTY. THE SAME, INTER ALIA, APPLIES TO (I) THE SENDING OF STAMP DUTY SENSITIVE DOCUMENTS TO AN AUSTRIAN ADDRESSEE BY FAX, (II) THE SENDING OF ANY E-MAIL COMMUNICATION TO WHICH AN ELECTRONIC SCAN COPY (E.G., PDF OR TIF) OF A STAMP DUTY SENSITIVE DOCUMENT IS ATTACHED TO AN AUSTRIAN ADDRESSEE AND (III) THE SENDING OF ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO A STAMP DUTY SENSITIVE DOCUMENT TO AN AUSTRIAN ADDRESSEE. ACCORDINGLY, IN PARTICULAR, KEEP ANY STAMP DUTY SENSITIVE DOCUMENTS OUTSIDE OF AUSTRIA AND AVOID (A) SENDING STAMP DUTY SENSITIVE DOCUMENTS BY FAX TO AN AUSTRIAN ADDRESSEE, (B) SENDING ANY E-MAIL COMMUNICATION TO WHICH AN ELECTRONIC SCAN COPY OF A STAMP DUTY SENSITIVE DOCUMENT IS ATTACHED TO AN AUSTRIAN ADDRESSEE AND (C) SENDING ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO A STAMP DUTY SENSITIVE DOCUMENT TO AN AUSTRIAN ADDRESSEE.

To assign this Note, fill in the form below:

I or we assign and transfer this Note to:

 

 

(Print or type assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. No.)

 

 

 

 

 

 

 

 

(Insert assignee’s name, address and zip or post code)

and irrevocably appoint

 

 

to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

Date:                                                      

Your Signature:

 

 

Sign exactly as your name appears on the other side of this Note.

 

A-2-16

Signature Guarantee*:                                                                                                                                                                                     

 

* (Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee)

 

A-2-17

[FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES]

This certificate relates to €             principal amount of Notes held in (check applicable box) ☐ book-entry or ☐ definitive registered form by the undersigned. The undersigned (check one box below):

 

☐ as requested the Trustee by written order to deliver, in exchange for its beneficial interest in the Global Note held by the Common Depositary, a Definitive Registered Note in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above);

 

☐ as requested the Trustee by written order to exchange or register the transfer of a Note.

In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that such Notes are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

(1)    ☐          the Issuer; or
(2)    ☐          the Registrar for registration in the name of the Holder, without transfer; or
(3)    ☐          pursuant to an effective registration statement under the U.S. Securities Act of 1933; or
(4)    ☐          inside the United Sates to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
(5)    ☐          outside the United Sates in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture); or
(6)    ☐          pursuant to Rule 144 under the U S. Securities Act of 1933 or another available exemption from registration.

Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5) or (6) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Trustee or the Issuer has reasonably requested 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 of 1933.

 

Date:                                                                                

Your Signature:  

 

A-2-18

 

                                                                                                                                                                                          

 

Sign exactly as your name appears on the other side of this Note.

Signature Guarantee*:                                                                                                                                                    

 

* (Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee)

TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the U.S. Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Date:                                                                  

  

Signature:                                                                                                                                                                          

                                     (to be executed by an executive officer of purchaser)

 

A-2-19

Schedule of Increases and Decreases in the Global Notes

The initial principal amount of this Global Note is €            . The following increases or decreases in this Global Note have been made:    

 

Date of

Increase/Decrease

  

Amount of

Decrease in

Principal Amount of this
Global Note

  

Amount of Increase in
Principal Amount of this
Global Note

  

Principal Amount of this
Global Note Following
such Decrease or Increase

  

Signature of Authorized
Signatory of Registrar or
Paying Agent

           
           

 

A-2-20

[FORM OF OPTION OF HOLDER TO ELECT PURCHASE]

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.14 ( Change of Control ) or Section 4.05 ( Limitation on Sales of Assets and Subsidiary Stock ) of the Indenture, check the box:

 

Asset Disposition ☐

  

Change of Control ☐

If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.14 or Section 4.05 of the Indenture, state the amount (minimum amount of €100,000):

 

€                                         

Date:                                                                          

  

Your Signature:

 

(Sign exactly as your name appears on the other side of the Note)

     

Signature Guarantee*:                                                                                                                                                    

*  (SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE)

 

A-2-21

EXHIBIT B

FORM OF SUPPLEMENTAL INDENTURE

SUPPLEMENTAL INDENTURE

THE TAKING OF THIS DOCUMENT OR ANY CERTIFIED COPY THEREOF OR ANY DOCUMENT WHICH CONSTITUTES SUBSTITUTE DOCUMENTATION THEREOF INCLUDING WRITTEN CONFIRMATIONS OR REFERENCES (THE “STAMP DUTY SENSITIVE DOCUMENTS”) INTO AUSTRIA MAY CAUSE THE IMPOSITION OF AUSTRIAN STAMP DUTY. THE SAME, INTER ALIA, APPLIES TO (I) THE SENDING OF STAMP DUTY SENSITIVE DOCUMENTS TO AN AUSTRIAN ADDRESSEE BY FAX, (II) THE SENDING OF ANY E-MAIL COMMUNICATION TO WHICH AN ELECTRONIC SCAN COPY (E.G., PDF OR TIF) OF A STAMP DUTY SENSITIVE DOCUMENT IS ATTACHED TO AN AUSTRIAN ADDRESSEE AND (III) THE SENDING OF ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO A STAMP DUTY SENSITIVE DOCUMENT TO AN AUSTRIAN ADDRESSEE. ACCORDINGLY, IN PARTICULAR, KEEP ANY STAMP DUTY SENSITIVE DOCUMENTS OUTSIDE OF AUSTRIA AND AVOID (A) SENDING STAMP DUTY SENSITIVE DOCUMENTS BY FAX TO AN AUSTRIAN ADDRESSEE, (B) SENDING ANY E-MAIL COMMUNICATION TO WHICH AN ELECTRONIC SCAN COPY OF A STAMP DUTY SENSITIVE DOCUMENT IS ATTACHED TO AN AUSTRIAN ADDRESSEE AND (C) SENDING ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO A STAMP DUTY SENSITIVE DOCUMENT TO AN AUSTRIAN ADDRESSEE.

SUPPLEMENTAL INDENTURE No. [●] (this “ Supplemental Indenture ”), dated as of [●], among [●], a company organized and existing under the laws of [●] (the “ Guarantor ”), Nomad Foods BondCo Plc, a public limited company incorporated under the laws of the England and Wales, with its registered office at 5 New Square, Bedfont Lakes Business Park, Feltham, Middlesex, TW14 8HA, United Kingdom, as the issuer (the “ Issuer ”), and Deutsche Trustee Company Limited, as trustee (the “ 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 May 3, 2017 providing for the issuance of the Issuer’s euro denominated 3.250% senior secured notes due 2024 (the “ Notes ”);

WHEREAS, the Indenture provides that under certain circumstances a Subsidiary of the Parent Guarantor may execute and deliver to the Trustee a supplemental indenture pursuant to which such entity shall unconditionally guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “ Note Guarantee ”); and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Issuer, the Guarantor and the Trustee are 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 Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

B-1

2. AGREEMENT TO GUARANTEE. The Guarantor hereby agrees to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in the Indenture including but not limited to Article 10 thereof.

3. [GUARANTEE LIMITATIONS.]

4. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator or stockholder of any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes Documents, the Note Guarantees or this Supplemental Indenture 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.

5. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE NOTE GUARANTEES.

6. Each of the parties hereto irrevocably agrees that any suit, action or proceeding arising out of, related to, or in connection with the Indenture, this Supplemental Indenture, the Notes and the Note Guarantees or the transactions contemplated hereby, and any action arising under U.S. federal or state securities laws, may be instituted in any U.S. federal or state court located in the State and City of New York, Borough of Manhattan; irrevocably waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding; and irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding. The Issuer and each of the Guarantors has appointed TOMS Capital LLC, located at 450 W. 14th Street, New York, NY 10014, United States of America, as its authorized agent upon whom process may be served in any such suit, action or proceeding which may be instituted in any federal or state court located in the State of New York, Borough of Manhattan arising out of or based upon the Indenture, this Supplemental Indenture, the Notes or the transactions contemplated hereby or thereby, and any action brought under U.S. federal or state securities laws (the “ Authorized Agent ”). The Issuer and each of the Guarantors expressly consents to the jurisdiction of any such court in respect of any such action and waives any other requirements of or objections to personal jurisdiction with respect thereto and waives any right to trial by jury. Such appointment shall be irrevocable unless and until replaced by an agent reasonably acceptable to the Trustee. The Issuer and each of the Guarantors represents and warrants that the Authorized Agent has agreed to act as said agent for service of process, and the Issuer agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Issuer shall be deemed, in every respect, effective service of process upon the Issuer and any Guarantor.

7. C OUNTERPARTS . 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.

8. E FFECT OF H EADINGS . The Section headings herein are for convenience only and shall not affect the construction hereof.

9. T HE T RUSTEE . 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 Guarantor and the Issuer.

 

B-2

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: [●]

NOMAD FOODS BONDCO PLC

as Issuer

By:  

 

  Name:
  Title:

 

B-3

DEUTSCHE TRUSTEE COMPANY LIMITED

as Trustee

By:  

 

  Authorized Signatory
By:  

 

  Authorized Signatory

 

B-4

[GUARANTOR]
By:  

 

  Name:
  Title:

 

B-5

Schedule 1

Issue Date Security Documents

 

Security provider

  

Transaction Security Documents

  

Governing Law

Nomad Foods Limited;

Nomad Foods Europe Finco Limited;

Nomad Foods Europe Midco Limited;

Nomad Foods Bondco plc;

Nomad Foods Europe Limited;

Nomad Foods Europe IPco Limited;

Birds Eye Limited;

Nomad Foods Europe Finance Limited;

Nomad Foods Europe Holdings Limited; and

Nomad Foods Europe Holdco Limited

   Debenture incorporating fixed and floating charges over all present and future assets    England and Wales
Nomad Foods Europe Midco Limited    Share pledge over the entire issued share capital of the Nomad Foods US LLC    New York, United States

 

Schedule 1

Security provider

  

Transaction Security Documents

  

Governing Law

Nomad Foods Europe Midco Limited    Share pledge over the entire issued share capital of Nomad Foods Lux S.à r.l.    Luxembourg
Nomad Foods US LLC    Pledge and security agreement over substantially all assets    New York, United States

Nomad Foods

Lux S.à r.l.

  

Bank account pledge

Receivables pledge

   Luxembourg

 

Schedule 1

Schedule 2

Post-Closing Date Security Documents

The following are to be provided within 20 Business Days from the Closing Date:

 

Security provider

  

Transaction Security Documents

  

Governing Law

Nomad Foods Europe Limited    Share pledge over the shares of Iglo Austria Holding GmbH    Austrian
Nomad Foods Europe Limited    Share pledge over the shares of iglo Holding GmbH    German
iglo Holding GmbH    Share pledge over the shares of Liberator German NewCo GmbH    German

The following are to be provided within 60 Business Days of the Closing Date:

 

Security provider

  

Transaction Security Documents

  

Governing Law

Iglo Austria GmbH    Bank account pledge (excluding any cash pooling accounts)    Austrian
Iglo Austria Holding GmbH   

Intercompany receivables pledge agreement (above a threshold of EUR 5 million)

Share pledge over the shares of Iglo Austria GmbH

   Austrian
iglo Holding GmbH   

Bank account pledge (excluding any cash pooling accounts and any accounts which the Group are in the process of closing as at the 2017

Effective Date (as defined in the Senior Credit Facilities Agreement)) Confirmation/amendment agreement in respect of assignment of intercompany receivables (above a threshold of EUR 5 million)

   German
iglo GmbH   

Bank account pledge (excluding any cash pooling accounts and any accounts which the Group are in the process of closing as at the 2017

Effective Date (as defined in the Senior Credit Facilities Agreement))

Confirmation/amendment agreement in respect of intercompany

   German

 

Schedule 2

Security provider

  

Transaction Security Documents

  

Governing Law

  

receivables (above a threshold of EUR 5 million) (if any such intercompany receivables exist)

Confirmation/amendment agreement in respect of assignment over iglo GmbH’s intellectual property rights

  
Liberator German Newco GmbH   

Bank account pledge (excluding any cash pooling accounts and any accounts which the Group are in the process of closing as at the 2017

Effective Date (as defined in the Senior Credit Facilities Agreement)) Confirmation/amendment agreement in respect of intercompany receivables (above a threshold of EUR 5 million) (if any such intercompany receivables exist)

   German
Frozen Fish International GmbH   

Bank account pledge (excluding any cash pooling accounts and any accounts which the Group are in the process of closing as at the 2017 Effective Date (as defined in the Senior Credit Facilities Agreement))

Confirmation/amendment agreement in respect of intercompany receivables (above a threshold of EUR 5 million) (if any such intercompany receivables exist)

Confirmation/amendment agreement in respect of assignment over

Frozen Fish International GmbH’s intellectual property rights

   German
Nomad Foods Europe Limited    Share pledge over the shares of CSI Compagnia Surgelati Italiana S.p.A.    Italian
Nomad Foods Europe Limited    Share pledge over the shares of Findus Sverige Holdings AB    Swedish
Findus Sverige Holdings AB   

Bank account pledge (excluding any cash pooling accounts)

Assignment of intercompany receivables (above a threshold of EUR 5 million)

Share pledge over the shares of Findus Sverige AB

   Swedish

 

Schedule 2

Security provider

  

Transaction Security Documents

  

Governing Law

Findus Sverige AB   

Bank account pledge (excluding any cash pooling accounts)

Assignment of intercompany receivables (above a threshold of EUR 5 million)

Share pledge over the shares of Frionor Sverige AB

   Swedish
Frionor Sverige AB    Pledge over certain intellectual property of Frionor Sverige AB    Swedish

 

Schedule 2

Exhibit 99.4

NOMAD FOODS ANNOUNCES CLOSING OF REFINANCING TRANSACTION

Feltham, England — May  3, 2017. Nomad Foods Limited (“Nomad Foods” or the “Company”) today announced that it has completed a private offering of €400.0 million aggregate principal amount of 3.250% senior secured notes due 2024 (the “Notes”).

The Company also announced that it has closed the refinancing of its existing senior credit facilities which involved prepaying its existing term facilities and establishing a €500.0 million term facility and a USD610.0 million term facility, both with maturity dates extending to May 2024 (the amendment and restatement of the senior credit facilities together with the issuance of the Notes, the “Refinancing”). As part of the Refinancing, the Company extended the maturity of its €80.0 million revolving credit facility until May 2023.

The net proceeds of the Refinancing were used to repay the Company’s existing senior indebtedness including the existing €500.0 million floating rate senior secured notes due 2020 issued by Nomad Foods BondCo Plc, the Company’s indirect, wholly-owned subsidiary.

The Notes and the Company’s obligations in respect of the senior credit facilities (as amended and restated) are guaranteed and secured on a senior basis by certain assets of the Company and certain of its subsidiaries.

About Nomad Foods

Nomad Foods (NYSE: NOMD) is a leading frozen foods company building a global portfolio of best-in-class food companies and brands within the frozen category and across the broader food sector. Nomad Foods produces, markets and distributes brands in 17 countries and has the leading market share in Western Europe. The Company’s portfolio of leading frozen food brands includes Birds Eye, Iglo, and Findus.

Primary IR Contact

John Mills, Partner

ICR, Inc.

Phone: 646-277-1254

E-mail: John.Mills@icrinc.com

Important Regulatory Notice

This announcement is for information purposes only and does not constitute an offer to sell or the solicitation of an offer to buy the Notes or any other security and shall not constitute an offer, solicitation or sale in the United States or in any jurisdiction in which, or to any persons to whom, such offering, solicitation or sale would be unlawful.

The Notes and any related guarantees have not been, and will not be, registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), or any U.S. state securities laws, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. Accordingly, the Notes and any related guarantees are being offered and sold in the United States only to qualified institutional buyers in accordance with Rule 144A under the Securities Act and to non-U.S. persons in offshore transactions outside the United States in accordance with Regulation S under the Securities Act. The offer and sale of the Notes was made pursuant to an exemption under the Prospectus Directive, as implemented in Member States of the European Economic Area, from the requirement to produce a prospectus for offers of securities. This announcement does not constitute an advertisement for purposes of the Prospectus Directive.

This announcement contains “forward-looking statements” that are based on estimates and assumptions and are subject to risks and uncertainties. Forward-looking statements are all statements other than statements of historical fact or statements in the present tense, and can be identified by words such as “targets”, “aims”, “aspires”, “assumes” “believes”, “estimates”, “anticipates”, “expects”, “intends”, “hopes”, “may”, “would”, “should”,

“could”, “will”, “plans”, “predicts” and “potential”, as well as the negatives of these terms and other words of similar meaning. The forward-looking statements in this announcement are made based upon the Company’s estimates, expectations and beliefs concerning future events affecting the Company and are subject to a number of known and unknown risks and uncertainties. The Company cautions that these forward-looking statements are not guarantees and that actual results could differ materially from those expressed or implied in these forward-looking statements. Undue reliance should, therefore, not be placed on such forward-looking statements. Any forward-looking statements contained in this announcement apply only as at the date of this announcement and are not intended to give any assurance as to future results.

This announcement contains inside information by Nomad Foods BondCo Plc under Regulation (EU) 596/2014 (16 April 2014).