From: | The persons listed in Schedule 1 to this Additional Facility C Accession Agreement (the “Facility C Lenders”, such defined term to include any lender which becomes a New Lender in respect of the Term Loan C Facility, by the execution by the Facility Agent of a Transfer Certificate or Assignment Agreement) |
1. | In this Additional Facility C Accession Agreement (this “Agreement”): |
2. | Unless otherwise defined in this Agreement, terms defined in the Facilities Agreement shall have the same meaning in this Agreement and a reference to a Clause is a reference to a Clause of the Facilities Agreement. The principles of construction set out in Clause 1.2 (Construction) of the Facilities Agreement apply to this Agreement as though they were set out in full in this Agreement. |
3. | We refer to Clause 2.2 (Additional Facilities) of the Facilities Agreement. This Agreement is an Additional Facility Accession Agreement for the purposes of the Facilities Agreement. |
4. | This Agreement will take effect on the date on which the Facility Agent notifies the Borrower and the Facility C Lenders that it has received the documents and evidence set out in Schedule 2 to this Agreement, in each case in form and substance satisfactory to it (acting reasonably), or, as the case may be, the requirement to provide any of such documents or evidence has been waived by the Facility Agent on behalf of the Majority Facility C Lenders (the “Effective Date”). |
5. | Unless otherwise indicated herein, the terms of this Agreement shall be consistent in all material respects with the terms of the Facilities Agreement including, without limitation, with respect to interest period, conditions precedent, tax gross-up provisions and indemnity provisions, representations and warranties, utilisation mechanics, cancellation and prepayment (including |
6. | No Utilisation may be made of the Additional Facility made available pursuant to this Agreement, if, at the time of such Utilisation, an Event of Default is continuing or would result from such Utilisation. |
7. | The Additional Facility made available pursuant to this Agreement is a term loan. |
8. | We, the Facility C Lenders, agree: |
(a) | to become party to and to be bound by the terms of the Facilities Agreement as a Lender in accordance with Clause 2.2 (Additional Facilities); and |
(b) | to become a party to the Intercreditor Agreement as a Senior Creditor and to observe, perform and be bound by the terms and provisions of the Intercreditor Agreement in the capacity of a Senior Creditor. |
9. | The Additional Facility Commitment of each Facility C Lender for the purposes of the definition of Additional Facility Commitment in Clause 1.1 (Definitions) of the Facilities Agreement is its Facility C Commitment. |
10. | The Termination Date in respect of the Term Loan C Facility is the Facility C Maturity Date. |
11. | The Term Loan C Facility shall be repaid in full on the Facility C Maturity Date. |
12. | Subject to the terms of this Agreement, the Facility C Lenders agree to make available to the Borrower a term loan facility in an amount equal to the aggregate of the Facility C Commitments. The Availability Period in respect of the Term Loan C Facility is the period from and including the Effective Date (which shall be the Additional Facility Commencement Date for the purposes of the Facilities Agreement) up to and including 18 January 2018 or such other date agreed between the Facility C Lenders and the Borrower. |
13. | The Margin in relation to the Term Loan C Facility is 2.75% per annum or such other rate agreed between the Facility C Lenders and the Borrower. |
14. | The interest rate for the Term Loan C Facility will be calculated in accordance with Clause 12 (Interest) of the Facilities Agreement, being the sum of EURIBOR and the applicable Margin. For the avoidance of doubt, each party to this Agreement accepts and acknowledges that EURIBOR has the meaning given to it under Clause 1.1 (Definitions) of the Facilities Agreement provided that if EURIBOR as determined in accordance with that definition is less than zero, it shall be deemed to be zero. The first Interest Period to apply to each Facility C Loan will be set out in the respective Utilisation Request for that Facility C Loan. |
15. | Loans under this Additional Facility will be used for general corporate purposes and/or working capital purposes, including, without limitation, the refinancing, repayment or prepayment of any existing indebtedness of any member of the Group including the payment of fees and expenses in connection with the refinancing. |
16. | The Term Loan C Facility may be drawn by up to three Loans (or any other number of Loans agreed between the Facility C Lenders and the Borrower) and no more than three Utilisation Requests (or any other number of Utilisation Requests agreed between the Facility C Lenders and the Borrower) may be made in respect of the Term Loan C Facility under the Facilities Agreement. |
17. | For the purposes of partial assignments, transfers or novations of rights and/or obligations by a Lender in respect of this Additional Facility, the Lenders and the Borrower agree that such assignment, transfer or novation shall be in a minimum amount of €1,000,000 or such lower amount agreed to by the Facility Agent and the Borrower (save that in the case of a partial assignment, transfer or novation by a Lender of its rights and/or obligations under this Additional Facility to an Affiliate or Related Fund of that Lender, such assignment, transfer or novation shall be in a minimum amount of €500,000 or such lower amount agreed to by the Facility Agent and the Borrower). |
18. | If on or prior to the date falling six months after the date of this Agreement (but not otherwise) the Borrower: |
(a) | makes any prepayment of the Term Loan C Facility in connection with any Repricing Transaction (as defined below) other than where such prepayment is funded by the issuance of notes by any member of the Group or a special purpose vehicle which on-lends the proceeds of such notes to a member of the Group; or |
(b) | effects any amendment of this Agreement or the Facilities Agreement resulting in a Repricing Transaction, other than, for the avoidance of doubt, any amendments contemplated by Schedule 3 (First Amendments, Waivers, Consents and Other Modifications) resulting in a Repricing Transaction, |
(c) | in the case of paragraph (a) above, a prepayment fee equal to 1.00 per cent. flat on the amount of that Facility C Lender’s Facility C Loan which is prepaid and such prepayment fee shall be due and payable on the date of such prepayment; and |
(d) | in the case of paragraph (b) above, a prepayment fee equal to 1.00 per cent. flat on the aggregate amount of the Facility C Loans of each Facility C Lender that shall have been the subject of a mandatory assignment under the Facilities Agreement following the failure of such Lender to consent to such amendment on or prior to the date falling six months after the date of this Agreement and such prepayment fee shall be due and payable on the effective date of such assignment. |
(a) | Provided that any upsizing of the Term Loan C Facility permitted under this paragraph will not breach any term of the Facilities Agreement, the Term Loan C Facility may be upsized by any amount, by the signing of one or more further Additional Facility Accession Agreements in respect of the Term Loan C Facility (an “Additional Accession Agreement”), that specifies (along with the other terms specified therein) Unitymedia Hessen GmbH & Co. KG as the sole Borrower, that the Commitments under that Additional Accession Agreement are denominated in euro, to be drawn in euro and with the same Termination Date and Margin as specified in this Agreement. |
(b) | For the purposes of this paragraph 19 (unless otherwise specified), references to each Facility C Lender and Facility C Loan shall include Lenders and Loans made under any such further Additional Accession Agreement. |
(c) | Where any Facility C Loan has not already been consolidated with any other Facility C Loan, on the last day of any Interest Period for that unconsolidated Facility C Loan, that Facility C Loan will be consolidated with any Facility C Loan which has an Interest Period ending on the same day as that unconsolidated Facility C Loan, and all such Loans will then be treated as one Loan under the Term Loan C Facility. |
20. | For the purposes of any amendment or waiver, consent or other modification (including with respect to any existing Default or Event of Default) that may be sought by the Borrower under the Facilities Agreement or any other Finance Document on or after the date of this Agreement, |
(a) | any and all of the items set out in Schedule 3 (First Amendments, Waivers, Consents and Other Modifications) of this Agreement; |
(b) | any consequential amendment, waiver, consent or other modification, whether effected by one instrument or through a series of amendments, to the Facilities Agreement or any other Finance Document to be made either to implement the changes envisaged in Schedule 3 (First Amendments, Waivers, Consents and Other Modifications) of this Agreement; and/or |
(c) | any other amendment, waiver, consent or modification, whether effected by one instrument or through a series of amendments, to the Facilities Agreement or any other Finance Document to be made to conform any Finance Document to any Liberty Global Reference Agreement provided that any amendment, waiver, consent or modification to conform the Facilities Agreement or any other Finance Document to any Liberty Global Reference Agreement referred to at paragraphs (vi), (ix), (x), (xi), (xiii) and (xiv) (in each case, other than any amendment, waiver, consent or modification to conform the Facilities Agreement or any Finance Document in relation to any covenant, event of default or definition in such Liberty Global Reference Agreements) shall be limited to any amendment, waiver, consent or modification which is specifically referenced in Schedule 3 (First Amendments, Waivers, Consents and Other Modifications) of this Agreement and, in each case, any consequential amendments, waivers, consents or modifications), |
21. | Each Facility C Lender hereby acknowledges and agrees (in the capacity of a Lender and, if it is a Hedging Bank, in the capacity of a Hedging Bank) and agrees to procure, unless it is prohibited from doing so, that any of its Affiliates or Related Funds that are Lenders under a Revolving Facility or Hedging Banks acknowledge and agree (in their capacity as Lenders under a Revolving Facility or Hedging Banks, as applicable) that the Facility Agent and/or the Security Trustee (as applicable) may, but shall not be required to, send to the Facility C Lenders any further formal amendment request in connection with all, or any of the proposed amendments set out under paragraph 20 above and the Facility Agent and/or the Security Trustee (as applicable) shall be authorised to consent on behalf of each Facility C Lender, as a Lender under one or more Additional Facilities and as a Hedging Bank under the Intercreditor Agreement, to any such proposed amendments set out under paragraph 20 above (and the Facility Agent and the Security Trustee shall be authorised to enter into any necessary documentation in connection with the same), and such consent shall be taken into account in calculating whether the Majority Lenders, or the relevant requisite Lenders, or the Hedging Banks, have consented to the relevant |
22. | Each Facility C Lender hereby waives (in the capacity of a Lender and, if it is a Hedging Bank, in the capacity of a Hedging Bank) and agrees to procure, unless it is prohibited from doing so, that any of its Affiliates or Related Funds that are Lenders under a Revolving Facility or Hedging Banks waive (in their capacity as Lenders under a Revolving Facility or Hedging Banks, as applicable) receipt of any fee in connection with the foregoing consent, notwithstanding that other consenting Lenders under the Facilities Agreement or Hedging Banks under the Intercreditor Agreement may be paid a fee in consideration of such Lenders’ or Hedging Banks’ consent to any or all of the foregoing amendments, waivers or other modifications. |
23. | The Company agrees and acknowledges that it will not seek any amendment or waiver, consent or other modification in relation to paragraphs 11 (Springing Financial Covenant) or 12 (Cure Provisions) of Schedule 3 (First Amendments, Waivers, Consents and Other Modifications) of this Agreement unless the Composite Revolving Facility Majority Lenders have consented to such amendment or waiver, consent or other modification. |
24. | On the first Utilisation Date in respect of the Term Loan C Facility, the Borrower confirms, on behalf of itself and the Company confirms on behalf of itself and each other Obligor, that the Repeating Representations are true and correct as if made at the first Utilisation Date in respect of the Facility C Loan with reference to the facts and circumstances then existing, and as if each reference to the Finance Documents includes a reference to this Agreement. |
25. | Each of the Obligors further represents and warrants on the first Utilisation Date in respect of the Term Loan C Facility that the execution and delivery by it of this Agreement and the performance of the transactions contemplated by this Agreement will not violate any agreement or instrument to which it is a party or which is binding upon it or any member of the Group or any of its assets or any member of the Group’s assets, where such violation would or is reasonably likely to have a Material Adverse Effect. |
26. | Each of the Guarantors party to this Agreement confirm that its obligations under Clause 21 (Guarantee and Indemnity) of the Facilities Agreement, the Security created by it pursuant to the Transaction Security Documents and its obligations under the Finance Documents, shall continue unaffected and that upon execution of the relevant Transaction Security referred to in Clause 25.16 (Condition Subsequent) of the Facilities Agreement by all parties thereto such obligations extend to the Total Commitments as increased by the addition of the Facility C Commitment and that such obligations shall be owed to each Finance Party including the Facility C Lenders. |
27. | We confirm to each Finance Party that: |
(a) | we have made our own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in the Facilities Agreement and have not relied on any information provided to us by a Finance Party in connection with any Finance Document; and |
(b) | we will continue to make our own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Facilities Agreement or any Facility C Commitment is in force. |
28. | Each of the Facility C Lenders hereby agrees with each other person who is or who becomes a party to the Intercreditor Agreement that with effect on and from the Effective Date it will be bound by the Intercreditor Agreement as a Senior Creditor (as defined in the Intercreditor Agreement) (in its capacity as a Lender under the Facilities Agreement) as if it had been party originally to the Intercreditor Agreement in that capacity and that it shall perform all of the undertakings and agreement set out in the Intercreditor Agreement and given by a Senior Creditor (as defined in the Intercreditor Agreement). This Agreement is the “Accession Agreement” referred to in Clause 13.2(b) of the Intercreditor Agreement. |
29. | Other than in respect of any relevant Transaction Security that is released in accordance with Clause 38 (Intercreditor Agreement and Asset Security Release) of the Facilities Agreement prior to such time, as a condition subsequent to this Agreement, the Company shall procure that on or before 8 March 2018, each Obligor identified in Schedule 2 Part 4 (Conditions Subsequent—Transaction Security) of the Facilities Agreement grants the Transaction Security (in form and substance satisfactory to the Facility Agent (acting reasonably)) identified opposite its name in Schedule 2 Part 4 (Conditions Subsequent—Transaction Security) of the Facilities Agreement. |
30. | This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto. |
31. | If a term of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect: |
(a) | the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or |
(b) | the legality, validity or enforceability in other jurisdictions of that or any other term of this Agreement. |
32. | This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
33. | Clause 42.1 (Jurisdiction of the English courts) of the Facilities Agreement is incorporated into this Agreement as if set out in full and as if references in that clause to “this Agreement” are to this Agreement. |
34. | This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement. |
35. | This Agreement is an Accession Agreement for the purposes of and as defined in the Intercreditor Agreement. |
Facility C Lender | Facility C Commitment (€) |
The Bank of Nova Scotia | 825,000,000 |
(a) | A copy of the Constitutional Documents of each Obligor. |
(b) | In respect of each Obligor incorporated in Germany, a recent excerpt from the commercial register (Handelsregister) of the Obligors, not older than 14 days from the date of this Agreement. |
(c) | A copy of a resolution of the shareholder(s) of each Obligor approving the terms of, and the transactions contemplated by, this Agreement and resolving that it execute, deliver and perform this Agreement. |
(d) | A specimen of the signature of each person authorised to execute, on behalf of each Obligor, this Agreement and related documents to which it is a party and to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with this Agreement. |
(e) | In relation to each Obligor incorporated in a jurisdiction other than Germany, a certificate by the directors of each Obligor confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments will not cause any borrowing, guarantee, security or similar limit binding on that Obligor to be exceeded. |
(f) | A certificate by the directors of each Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Agreement. |
(g) | In respect of each Obligor incorporated in the State of Delaware, a good standing certificate of that Obligor from the Secretary of State of the State of Delaware, dated no earlier than 1 Business Day prior to the date of this Agreement, provided that “Business Day” for the purposes of this paragraph (g) means a day (other than a Saturday or Sunday) on which banks are open for general business in the State of Delaware. |
(a) | A legal opinion of Allen & Overy LLP legal advisers to the Facility Agent and the Mandated Lead Arrangers as to English law. |
(b) | A legal opinion of Freshfields Bruckhaus Deringer legal advisers to the Company as to German law. |
(c) | A legal opinion of Ropes & Gray International LLP legal advisers to the Company as to Delaware law. |
(a) | A duly executed copy of this Agreement. |
(b) | A duly executed copy of the Fee Letter. |
(c) | A certificate of the Senior Subordinated Notes Issuer (as defined in the Intercreditor Agreement) to the Super Priority Representatives, the Senior Representatives and the Senior Subordinated Representatives (each as defined in the Intercreditor Agreement) confirming that each of the conditions set out in paragraphs (a)(i) to (v) of clause 13.2 of the Intercreditor Agreement have been satisfied. |
(d) | A copy of a designation certificate executed by the Senior Subordinated Notes Issuer (as defined in the Intercreditor Agreement) designating the Term Loan C Facility under this Agreement as Senior Debt (as defined in the Intercreditor Agreement) and this Agreement as a Senior Designated Debt Document (as defined in the Intercreditor Agreement). |
1. | Alternative Benchmarks: |
(a) | Add the following new definitions to Clause 1.1 (Definitions) as follows: |
(b) | Replace the definition of “Screen Rate” in Clause 1.1 (Definitions) with the following: |
(i) | at any time prior to an Alternative Benchmark Commencement Date in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or |
(ii) | at any time on or following an Alternative Benchmark Commencement Date in relation to LIBOR, the Alternative Benchmark Rate for the relevant currency and period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date; and |
(i) | at any time prior to an Alternative Benchmark Commencement Date in relation to EURIBOR, the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson |
(ii) | at any time on or following an Alternative Benchmark Commencement Date in relation to EURIBOR, the Alternative Benchmark Rate for Euro for the relevant period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with the Company on or about the relevant Alternative Benchmark Commencement Date, |
2. | Related Fund: amend Clause 1.1 (Definitions) to delete the definition of “Related Fund” and replace it with the following: |
3. | Rollover: |
(a) | Delete the definition of “Rollover Loan” in Clause 1.1 (Definitions) and replace it with the following: |
(i) | (other than as used in relation to Clause 8.2 (Rollover Loans)) the aggregate amount of which is equal to or less than the maturing Revolving Facility Loan; and |
(ii) | made or to be made to the same Borrower in the same currency for the purpose of refinancing that maturing Revolving Facility Loan; and |
(b) | a Loan in relation to a Revolving Facility: |
(i) | made or to be made on the same day that a demand by the Facility Agent pursuant to a drawing in respect of a Documentary Credit is due to be met; |
(ii) | the aggregate amount of which is equal to or less than the amount of the relevant claim in respect of that Documentary Credit; |
(iii) | in the same currency as the relevant claim in respect of that Documentary Credit; and |
(iii) | made or to be made for the purpose of satisfying the relevant claim in respect of that Documentary Credit.” |
(b) | Amend paragraph (c) of Clause 4.2 (Further Conditions Precedent) to delete the following words “provided that the amount of the Maturing Loan is equal to or greater than the amount of that Rollover Loan” and to replace them with the words “or a Documentary Credit which is being renewed pursuant to Clause 7.2 (Renewal of Documentary Credits)”. |
4. | Super Majority Lenders: add the following new definition to Clause 1.1 (Definitions): |
5. | Cost of Funds: |
(a) | Amend paragraph (b) of Clause 14.4 (Cost of Funds) such that it also applies if LIBOR or EURIBOR is to be determined by reference to a Reference Bank Rate or an Alternative Reference Bank Rate and to provide that, in entering into negotiations with the Company with a view to agreeing a substitute basis for determining the rate of interest, the Facility Agent may act in its sole discretion and will not be required to consult with or seek any consent or instruction from the Lenders or any other Finance Party. |
(b) | Delete paragraph (c) of Clause 14.4 (Cost of Funds) and replace it with the following: |
(c) | Amend paragraph (e) of Clause 14.4 (Cost of Funds) to provide that if a Lender does not supply a quotation by the given time period in paragraph (a)(ii), the rate of interest for that Lender will be the weighted average of the quotations notified to the Facility Agent by the other Lenders. |
6. | Amendments and Waivers: |
(a) | Amend paragraph (g) of Clause 37.2 (Exceptions) to add the following additional limb: |
(b) | Amend Clause 37.2 (Exceptions) to include the following additional paragraph: |
7. | Affiliate Subsidiary: |
(a) | Add a new definition in Clause 1.1 (Definitions) as follows: |
(b) | Amend the definition of “Group” in Clause 1.1 (Definitions) to add the words “and each Affiliate Subsidiary” after the words “from time to time”. |
8. | Auditors: delete the definition of “Auditors” in Clause 1.1 (Definitions) and replace it with the following: |
9. | Construction: |
(a) | Amend paragraph (a) of Clause 1.2 (Construction) to add the following additional limbs: |
(i) | any matter being “permitted” under this Agreement or any other Finance Document shall include references to such matters not being prohibited or otherwise being approved under this Agreement or any other such Finance Document; and |
(ii) | “consolidated” has the meaning given to it in Schedule 16 (Definitions) to this Agreement. |
(b) | Delete paragraph (f) of Clause 1.2 (Construction) in its entirety. |
10. | Increase and Additional Facilities: |
(a) | Amend Clauses 2.2 (Additional Facilities) and 2.4 (Increase) to delete sub-paragraph (a)(i) of each such clause. |
11. | Springing Financial Covenant: amend the covenant set out in Clause 24.3 (Financial condition) so that is reads as follows: |
“(a) | In the event that on the last day of a Ratio Period the aggregate of the Revolving Facility Outstandings (other than Documentary Credits that are cash collateralised or undrawn) and any net indebtedness under each Ancillary Facility (together with the Revolving Facility Outstandings (other than Documentary Credits that are cash collateralised or undrawn) and any net indebtedness under each Ancillary Facility, in each case, as defined in the Super Senior Revolving Credit Facility Agreement) |
(b) | If the financial covenant set out in paragraph (a) has been breached for a Ratio Period but is complied with on the last day of the next Ratio Period (either because the Financial Ratio Test Condition is not met for that next Ratio Period or because the Financial Ratio does not exceed 4.75:1 for that next Ratio Period), then, the prior breach of such financial covenant or any Event of Default arising therefrom shall not (or shall be deemed to not) directly or indirectly constitute, or result in, a breach of any representation, warranty, undertaking or other term in the Finance Documents or a Default or an Event of Default unless the Facility Agent has taken any action under Clause 26.3 (Maintenance Covenant Revolving Facility Acceleration) before the delivery of the Compliance Certificate in respect of that next Ratio Period.” |
12. | Cure Provisions: delete Clause 24.4 (Cure provisions) and replace it with the following: |
“Clause 24.4 | Cure provisions |
(a) | The Company may cure a breach of the financial ratio set out in Clause 24.3 (Financial condition) by procuring that: |
(i) | additional equity is injected into, and/or additional Subordinated Shareholder Loans (as defined in Schedule 16 (Definitions)) are provided to, one or more members of Group in an aggregate amount equal to or greater than the amount which if it had been deducted from Indebtedness (as defined in Schedule 16 (Definitions)) for the Ratio Period in respect of which the breach arose, would have avoided the breach; or |
(ii) | additional equity is injected into, and/or additional Subordinated Shareholder Loans (as defined in Schedule 16 (Definitions)) are provided to, one or more members of the Group in an aggregate amount equal to or greater than the amount which if it had been added to Consolidated EBITDA (as defined in Schedule 16 (Definitions)) for the Ratio Period in respect of which the breach arose, would have avoided the breach; or |
(iii) | Revolving Facility Outstandings and/or net indebtedness under any Ancillary Facility are (and/or Revolving Facility Outstandings and/or net indebtedness under any Ancillary Facility, in each case, as defined in the Super Senior Revolving Credit Facility Agreement) prepaid (from any source selected by the Company in its sole discretion) in an amount which, if such prepayment had occurred immediately prior to the calculation on the last day of the Ratio Period in respect of which the breach arose, the Financial Ratio Test Condition as at the last day of that Ratio Period would not have been met and therefore the financial ratio would not have been required to be tested. |
(i) | in the case of paragraph (a)(i) or (a)(ii) above, an amount equal to or greater than the required amount of additional equity or the proceeds of any Subordinated Shareholder Loans (as defined in Schedule 16 (Definitions)) is received by one or more members of the Group; or |
(ii) | in the case of paragraph (a)(iii) above, the amount of the Revolving Facility Outstandings and/or net indebtedness under any Ancillary Facility (and/or Revolving Facility Outstandings and/or net indebtedness under any Ancillary Facility, in each case, as defined in the Super Senior Revolving Credit Facility Agreement) that are required to be prepaid are so prepaid, |
(i) | in respect of more than five Ratio Periods during the life of the Facilities; or |
(d) | The Company shall make an election (at its sole discretion) by notice to the Facility Agent prior to the end of the Cure Period as to whether a breach of the financial ratio set out in Clause 24.3 (Financial condition) shall be cured pursuant to a recalculation as described in either sub-paragraph (a)(i), (a)(ii) or (a)(iii) above. |
(e) | If the Company makes an election for a recalculation as described in sub-paragraph (a)(i) or (a)(ii) above, it shall be under no obligation to apply the amount of additional equity or the proceeds of any Subordinated Shareholder Loans (as defined in Schedule 16 (Definitions)) that are received by one or more members of the Group in prepayment of the Facilities or for any other specific purpose and such amount will be deemed to be deducted from Indebtedness (as defined in Schedule 16 (Definitions)) or added to EBITDA (as defined in Schedule 16 (Definitions)) for the purposes of Clause 24.3 (Financial condition) (as applicable) as at the last day of the relevant Ratio Period. |
(f) | If the Company makes an election for a recalculation as described in sub-paragraph (a)(iii) above, the amount of the Revolving Facility Outstandings and/or net indebtedness under any Ancillary Facility (and/or Revolving Facility Outstandings and/or net indebtedness under any Ancillary Facility, in each case, as defined in the Super Senior Revolving Credit Facility Agreement) that are prepaid shall be deemed to be deducted in the calculation of the Financial Ratio Test Condition for the purposes of Clause 24.3 (Financial condition) as at the last day of the relevant Ratio Period. |
(g) | For the purpose of ascertaining compliance with Clause 24.3 (Financial condition), the Financial Ratio Test Condition and the ratio set out in Clause 24.3 (Financial condition), will be tested or retested, as applicable, giving effect to the elections and adjustments referred to in paragraph (d), (e) and (f) above. If, after giving effect to |
(h) | Where a cure is exercised under this Clause 24.4 in respect of a breach of Clause 24.3 (Financial condition) for any financial quarter and the Company makes an election for a recalculation as described in sub-paragraph (a)(ii) above, the amount of additional equity or the proceeds of any Subordinated Shareholder Loans (as defined in Schedule 16 (Definitions)) that are received by one or more members of the Group shall also be added in calculating EBITDA for any future Ratio Period that includes such financial quarter. Any adjustments pursuant to this paragraph will not be treated as a separate cure.” |
13. | Calculations: delete Clause 24.6 (Calculations) and Clause 24.7 (Determinations). |
14. | Additional Guarantors: amend paragraphs (a) and (b) of Clause 28.4 (Additional Guarantors) to provide that any Subsidiary of the Ultimate Parent (as defined in Schedule 16 (Definitions)) (other than a Subsidiary of the Company or a Permitted Affiliate Parent) can also become a Guarantor. |
15. | Resignation of Guarantor: amend paragraph (d) of Clause 28.6 (Resignation of Guarantor) to add the following additional limbs: |
(vii) | if such Guarantor is an Affiliate Subsidiary and such Affiliate Subsidiary becomes a Subsidiary of or is merged into the Company, any Permitted Affiliate Parent or another Restricted Subsidiary of the Company or any Permitted Affiliate Parent which is not an Affiliate Subsidiary (as such terms are defined in Schedule 16 (Definitions)), and in each case, such Guarantor is not otherwise required to become or remain a Guarantor under the terms of this Agreement at such time; or |
(viii) | as a result of, and in connection with, any Solvent Liquidation (as defined in Schedule 16 (Definitions)).” |
16. | Release of Security: amend paragraph (b) of Clause 28.8 (Release of Security) to add the following additional limb: |
“(vi) | with the approval of the Super Majority Lenders.” |
17. | Construction: add the following wording to the start of sub-paragraph (a)(xii)(C) of Clause 1.2 (Construction): |
18. | Calculation of interest: amend paragraph (c) of Clause 12.1 (Calculation of interest) by deleting the words “(in the case of a Loan denominated in US Dollars or an Additional Currency)” and replacing them with the words “(in the case of a Loan denominated in any other currency)”. |
19. | Right of Cancellation and repayment in relation to a single Lender: amend paragraph (e) of Clause 9.4 (Right of cancellation and repayment in relation to a single Lender) to include the words “of the relevant Lender” after the words “the outstanding Loans”. |
20. | Stamp taxes: delete Clause 16.5 (Stamp taxes) in its entirety and replace it with the following: |
(a) | any such Taxes payable in connection with any Transfer Certificate or Assignment Agreement or other document relating to the assignment or transfer by any Lender of any of its rights and/or obligations under any Finance Document; or |
(b) | any registration duties and any Tax payable due to a registration, submission or filing by a Finance Party of any Finance Document where such registration, submission or filing is or was not required to maintain or preserve the rights of that Finance Party under the applicable Finance Documents.” |
21. | Increased costs: Amend paragraph (a) of Clause 17.3 (Exceptions) to include the following additional limbs: |
“(ix) | compensated for by Clause 16.5 (Stamp Taxes) or Clause 16.6 (Value added tax) (or would have been so compensated for under such clause but was not so compensated solely because any of the exceptions set out therein applied); |
(x) | attributable to a change (whether of basis, timing or otherwise) in the Tax on the overall net income of the Finance Party (or any Affiliate of it) or of the branch or office through which it lends any Loan; |
(xi) | attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority upon the Finance Party (or any Affiliate of it) by virtue of its having exceeded any country or sector borrowing limits or breached any directives imposed upon it;” |
22. | Currency indemnity: amend the time period in paragraph (a) of Clause 18.1 (Currency indemnity) from “three” Business Days to “ten” Business Days. |
23. | Representations: |
(a) | Amend Clause 22.9 (No filing or stamp taxes) to add the words “(it being understood that this Clause 22.9 does not extend to assignments or transfers made pursuant to Clause 27 (Changes to the Finance Parties) or, as the case may be, to the enforcement of Transaction Security)” prior to the words “except any filing”. |
(b) | Amend paragraph (a) and (b) of Clause 22.13 (No breach of laws) to include the sentence “This is not a Repeating Representation.” at the end of each such paragraph. |
(c) | Delete Clause 22.15 (Security) in its entirety. |
(d) | Amend paragraph (a) of Clause 22.16 (Ranking) to include the sentence “This is not a Repeating Representation.” at the end of the paragraph. |
(e) | Amend Clause 22.20 (Material Authorisations) to include the sentence “This is not a Repeating Representation.” at the end of the paragraph. |
24. | Tax: delete Clause 25.6 (Taxation) in its entirety and replace it with the following: |
(a) | such payment is being contested in good faith and adequate reserves are being maintained for those Taxes; or |
(b) | such failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.” |
25. | COMI: |
(a) | Amend Clause 22.19 (Centre of main interests and establishments) to delete the words “The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings” and replace them with the words “Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast))” and delete the words “Article 2(h) of the Regulations” and replace them with the words “Article 2(10) of the Regulation”. |
(b) | Amend Clause 25.13 (Centre of main interests and establishments): |
(i) | to delete the words “The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings” in paragraph (a) and replace them with the words “Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast))”; and |
(ii) | to delete the words “Article 2(h) of the Regulations” in paragraph (b) and replace with “Article 2(10) of the Regulation”. |
26. | Disenfranchisement of Defaulting Lender: delete paragraph (a) of Clause 27.15 (Disenfranchisement of Defaulting Lender) in its entirety and replace it with the following: |
27. | Changes to the Obligors: |
(a) | Amend paragraph (a) of Clause 28.2 (Additional Borrowers) to delete sub-paragraph (vi) in its entirety. |
(b) | Amend paragraph (a) of Clause 28.6 (Resignation of a Guarantor) to delete sub-paragraph (ii) in its entirety and replace it with the following: |
“(ii) | the resignation is permitted under paragraph (c) of Clause 37.2 (Exceptions)” |
28. | Snooze: amend the time period in paragraph (i) of Clause 37.2 (Exceptions) from “15 Business Days” to “10 Business Days”. |
29. | 2017 Amendment Effective Date: Replace all references to “2017 Amendment Effective Date” in Schedule 14 (Covenants), Schedule 15 (Events of Default) and Schedule 16 (Definitions) with “First Amendment Effective Date”. |
30. | Reports: Add “(3)” prior to the second paragraph of Section 4.03(a)(2) of Schedule 14 (Covenants) and replace “(3)” at the beginning of Section 4.03(a)(3) with “(4)”. |
31. | References to Company, Permitted Affiliate Parent and Restricted Subsidiaries: |
(a) | Conform references to “the Company”, “any Restricted Subsidiary”, “Permitted Affiliate Parent”, “Company or a Permitted Affiliate Parent”, “Company, a Permitted Affiliate Parent or a Restricted Subsidiary”, “Company, a Permitted Affiliate Parent or any Restricted Subsidiary” or “Company, any Permitted Affiliate Parent or any Restricted Subsidiary” in line with recent Liberty precedent. |
(b) | Insert “, any Permitted Affiliate Parent” after reference to “the Company” in Section 4.09(b)(20) of Schedule 14 (Covenants). |
(c) | Insert “or a Permitted Affiliate Parent” after first reference to “that becomes a Restricted Subsidiary” in Section 4.11(b)(4) of Schedule 14 (Covenants). |
(d) | In the definition of “Consolidated Net Income” in Schedule 16 (Definitions), replace reference to “the Company’s equity in the net income” in Clause (2) of the definition thereof with “the Company’s or any Permitted Affiliate Issuer’s equity in the net income”. |
(e) | References to “the Permitted Affiliate Parent” are replaced with references to “a Permitted Affiliate Parent”, “any Permitted Affiliate Parent”, “such Permitted Affiliate Parent” or otherwise, in each case in accordance with recent Liberty precedent. |
32. | Restricted Payments: |
(a) | Amend each reference to “Section 4.09(b)(14)” in Section 4.07(b)(15)(B) of Schedule 14 (Covenants) to “Section 4.09(b)(15)”. |
(b) | Delete “Section 4.07(b)(16)(A), Section 4.07(b)(16)(B) and Section 4.07(b)(16)(C)” in Section 4.07(b)(15)(B) of Schedule 14 (Covenants). |
(c) | Insert after Section 4.07(b)(24) a new Clause (25): |
“(25) | any Business Division Transaction, provided, that after giving pro forma effect thereto, the Company, an Affiliate Issuer or a Restricted Subsidiary could Incur at least €1.00 of additional Indebtedness under Section 4.09(a)(2).” |
(d) | Amend reference to “Section 4.07(b)(24)” in Section 4.07(c) of Schedule 14 (Covenants) to “Section 4.07(b)(25)”. |
33. | Incurrence of Indebtedness: |
(a) | Insert “(a)” prior to “€420 million” in Section 4.09(b)(1)(B) of Schedule 14 (Covenants). |
(b) | Replace “plus (C)” in Section 4.09(b)(1)(C) of Schedule 14 (Covenants) with: |
(c) | Amend references to “Section 4.07(a)(4)(C)(ii)” to refer to “Section 4.07(a)(C)(ii)” and “Section 4.07(a)(4)(C)(iii)” to refer to “Section 4.07(a)(C)(iii)” in Section 4.09(b)(16) of Schedule 14 (Covenants). |
(d) | Insert after Section 4.09(c)(7) of Schedule 14 (Covenants) a new Clause (8): |
“(8) | in the event that the Company, a Permitted Affiliate Parent or a Restricted Subsidiary enters into or increases commitments under a revolving credit facility, enters into any commitment to Incur or issue Indebtedness or commits to Incur any Lien pursuant to clause (28) of the definition of “Permitted Liens,” the Incurrence or issuance thereof for all purposes under this Agreement, including without limitation for purposes of calculating the Consolidated Net Leverage Ratio or usage of clauses (1) through (22) of Section 4.09(b) (if any) for borrowings and re-borrowings thereunder (and including issuance and creation of letters of credit and bankers’ acceptances thereunder) will, at the Company’s option, either (a) be determined on the date of such revolving credit facility or such entry into or increase in commitments (assuming that the full amount thereof has been borrowed as of such date) or other Indebtedness, and, if such Consolidated Net Leverage Ratio test or other provision of this Agreement is satisfied with respect thereto at such time, any borrowing or re-borrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be permitted under this Section 4.09 irrespective of the Consolidated Net Leverage Ratio or other provision of this Agreement at the time of any borrowing or re-borrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) (the committed amount permitted to be borrowed or re-borrowed (and the issuance and creation of letters of credit and bankers’ acceptances) on a date pursuant to the operation of this clause (a) shall be the “Reserved Indebtedness Amount” as of such date for purposes of the Consolidated Net Leverage Ratio and, to the extent of the usage of clauses (1) through (22) of Section 4.09(b) (if any), shall be deemed to be Incurred and outstanding under such clauses) or (b) be determined on the date such amount is borrowed pursuant to any such facility or increased commitment, and in the case of clause (a) above the Issuer may revoke any such determination at any time and from time to time.” |
34. | Affiliate Transactions: |
(a) | Insert “(including a Permitted Joint Venture)” after reference to “or similar entity” in Section 4.11(b)(20) of Schedule 14 (Covenants). |
(b) | Insert after Section 4.11(b)(23) of Schedule 14 (Covenants) a new Clause (24): |
“(24) | transactions between the Company, any Permitted Affiliate Parent, any Restricted Subsidiary and a Parent and/or an Affiliate, to effect or facilitate a transfer of any property or asset from the Company, any Permitted Affiliate Parent and/or any Restricted Subsidiary to the Company, any Permitted Affiliate Parent and/or another Restricted Subsidiary, as applicable.” |
35. | Guarantees: Insert after Section 4.15(c) of Schedule 14 (Covenants) a new Clause (d): |
“(d) | Notwithstanding anything herein to the contrary, Section 4.15(a) shall not be applicable to any guarantee provided by a Restricted Subsidiary that existed |
36. | Security Interests: Replace “, provided that, contemporaneously with any such action in clauses (ii), (iv) and (v), the Company or the Permitted Affiliate Parent delivers to the Facility Agent either” in the third proviso in Section 4.17 with: |
37. | Merger: Amend reference to “this clause (v)” to “this clause (7)” in Section 5.01(f) of Schedule 14 (Covenants). |
38. | Events of Default: In Clause (3) of Schedule 15 (Events of Default): |
(a) | Amend reference to “Intercreditor Deeds” to refer to “Intercreditor Agreement” and “Additional Intercreditor Deed” to refer to “Additional Intercreditor Agreement”, respectively. |
(b) | Delete “so long as the Company or the Permitted Affiliate Parent is, as applicable, attempting to cure such failure as promptly as reasonably practicable”. |
39. | Definitions: |
(a) | Insert “, “beneficially held”, “beneficially holding”,” after ““beneficially owns”” in the definition of “beneficial owner” in Schedule 16 (Definitions). |
(b) | Insert the following new definition to Schedule 16 (Definitions): |
(c) | In the definition of “Consolidated EBITDA” in Schedule 16 (Definitions): |
(i) | Delete, in Clause (14) thereof, “to the extent such fees or other amounts (a) are not included in the externally reported operating cash flow or equivalent measure of the Reporting Entity (as defined in any earnings releases and other publicly disseminated information relating to the Reporting Entity) or (b) are deemed to be exceptional or unusual items”; and |
(ii) | Insert after Clause (17) thereof a new Clause (18): |
“(18) | any gross margin (revenue minus cost of goods sold) recognized by an Affiliate of the Company, any Permitted Affiliate Parent or any Restricted Subsidiary in relation to the sale of goods and services in relation to the business of the Company, the Permitted Affiliate Parent or any Restricted Subsidiary.” |
(d) | In the definition of “Consolidated Net Income” in Schedule 16 (Definitions): |
(i) | Replace the reference to “Clause (3)” in Clause (1) thereof to refer to “Clause (2)”. |
(ii) | Replace reference to “the Holders” in Clause (2) thereof to refer to “the Finance Parties”. |
(iii) | Insert “Equity Offering, recapitalization, merger, consolidation,” after “refinancing,” in Clause (4) thereof. |
(iv) | Insert “or other equity-based” after “stock-based” in Clause (6) thereof. |
(e) | In the definition of “Consolidated Net Leverage Ratio” in Schedule 16 (Definitions): |
(i) | Insert “on a Consolidated basis as of such date and the Reserved Indebtedness Amount as of such date,” after “Restricted Subsidiaries” in Clause (1)(A) thereof. |
(ii) | Amend reference to “Section 4.09(b)(15)(b)” to “Section 4.09(b)(15)(B)” in Clause (1)(A)(iv)(A) thereof. |
(iii) | Insert after Clause (1)(A)(vi) thereof a new Clause (1)(A)(vii): |
“(vii) | any Indebtedness incurred pursuant to Section 4.09(b)(6)(C) for a period of six months following the date of completion of an acquisition referred to in such Section 4.09(b)(6)(C);” |
(iv) | Replace Clause (2) thereof with: |
“(2) | the Pro forma EBITDA for the period of the most recent two consecutive fiscal quarters for which, at the option of the Company or any Permitted Affiliate Parent, (i) financial statements have previously been furnished to the Facility Agent pursuant to Section 4.03 or (ii) internal financial statements of the Reporting Entity are available immediately preceding the date of determination, multiplied by 2.0;” |
(f) | In the definition of “Credit Facility Excluded Amount” in Schedule 16 (Definitions) replace the words “€400,000,000 million” with the words “€ 400 million”. |
(g) | In Clause (2) of the definition of “Distribution Business” in Schedule 16 (Definitions) delete “and, in either case, material to”. |
(h) | Replace the definition of “fair market value” with: |
(i) | Insert the following new definition to Schedule 16 (Definitions): |
(j) | Replace the definition of “IFRS” with: |
(k) | Insert the following at the end of the definition of “Incur” in Schedule 16 (Definitions): |
(l) | Replace the definition of “Initial Term Loans” with: |
(m) | Insert “and (iii) any Restricted Payment” at the end of the definition of “Limited Condition Transaction” in Schedule 16 (Definitions). |
(n) | Replace Clause (19) of the definition of “Permitted Investment” in Schedule 16 (Definitions) with: |
(o) | Replace Clause (21) of the definition of “Permitted Investment” in Schedule 16 (Definitions) with: |
(p) | Insert the following new definition to Schedule 16 (Definitions): |
(q) | Amend reference from “clauses (30) through (34)” to “clauses (29) through (33)” in Clause (1)(d) of the definition of “Receivables Entity” in Schedule 16 (Definitions). |
(r) | Amend reference from “Notes” to “Loans” and “Holders” to “Finance Parties” in Clause (3) of the definition of “Refinancing Indebtedness” in Schedule 16 (Definitions). |