i ri,),.,:1
EXECUTION VERSION I JuNr 201 7
Dnreo
AcRoxoRo.o. as Parent Txe extmes L6TEo tlt scHEIx.n-E as OriginalBonorers
I
Txe exrmes usrEotr scrEDUl-E as Guarantors
1
Mlosor Pncrrc Tausr Lmreo as Agent
C
Maosox Pnqrrc TR{rsr LtiltrED as Security Agent
-andTxe
lrslrunoxs
LtsrED tx
Scxeouu
1
as Original Lerders
EUR up
to 1,060,000,000 SupEn€ruonrrv Tsnn Faclumrs Aonseuenr
t"
r'd
',Ssu"
Hogart Lovells I{der
ref : 162925-O0(ml
Ret UBOl/8657rc
l-h$n Lo$Fs ldamilord LLP Atlantic House, tlo{bom Vtrd.rct Lstdon EC1A 2FG
Courerrs Cuuse
/"i
rL-
EXECIJTION VERSION
PrCee
1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
Cxaxees ro rHE cALct LATtor or trtgRest
tl.lt
11.
FEES
#
Tax Gnoss-Up axo lrroemrmes
{5
Dernmorus eruo lxrenpRETATtoN Txe Faclurcs PuRpose
Cor{DmoxsorUnusanol
UrLlsmot
38
PnepIvuexTANDcAilcELLATIoN
lxrenesr
16.
CoSTSANDExPENSEs
30. 31. 32.
lxcReeseo Cosrs
OrnenNDErNrnEs
GulmxreeANDr{rrEff}tw RepResexmrroxs
lxronmmomUroenrexlxcs Gexenru- Uiloenru<$tcs EverursoFDEFAuLT CHANGES To THE LerloeRs
REsrRtcnott ox Dear puRcxlse Tnnrslcnoxs
CxlreesrorH€Oeucons txs AcerrAM) omERs oFrxe SecuRrwAeeNT
RoLe or
Gonoucr oF
8{t
42
lilTEREsr p=Rroos
Mmeeuox ByrxE Lelmens
27. 28. 29.
34
s5
RepaYmeut
RoLE
at 3{
12. 13. 14. 15. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.
!
BUSINESS BYTHE FIilAT,IcE PARTIES
4:t
5{ 52
st 55 56 60
6I 65 T8
8it 88 89
9{ to0
rlt
SxenrreAiloNGTHEFfiANcEPARnEs
I{{
PlvuenrMEcHArrtEs
tt3
Ser0rr
t{7
Appuclrpn or pnocreos
t{y tt8
Nonces
33. CALcUIATIoNSAIiIDGERTFIcATES 34. PlRnll txvALtDrw 35. Rsmeotes aro WanrRs LrBo1/BASRANSU/5657909. I 6
J
ra ,21
tzt flogen fouefls
,
I I
-ii36.
Aueuonetrs
87.
CcxrprrnALtrY
123
30.
CotrtoerrnlrrY or FuNotuc Rlres
126
30.
CourteRpants
127
40.
GclvtRttrlc uew
128
41.
EttroRcEuerr
128
AND
Warvens
121
Scxeouues 1.
2.
Tme
Onrctxnt Plnnes
129
Parrt I - The Original Lenders Parrt ll - The Original Borrowers Parrt ltl - The Guarantors Parrt lV - The Post4losing Guarantors
129 130
Cclnompus PREceoeHr
133
Parrt A - Conditions precedent to lnitial Utilisation Parrt B - Conditions Subsequent Parrt C - Conditions precedent to be delivered by an Additional Guarantor Parrt D - Transaction Security Documents and security related documents
133 135 136
131
132
to be
derlivered by Guarantors Part E - Unencumbered Assets Part F - lntellectual Property
138
3.
FORU OF TRANSFER CERTIFICATE
149
4.
FcIRTTT
AGREEMENT
152
5.
Fclnm oF INcREASE coNFtRl,tATloN
155
6.
FoRn
7.
Fonnr oF INcREMENTAL FACILIw LExorR ACGESSION
154
8.
FORM oF AccESsIoN LETTER
167
9.
ExrsnNG Secunrw
168
10.
U'nusnnoN ANo AppLrcATloN oF LoANS
Jle
11.
ReoernprtoN At{D Repavuert MecnaHlcs
172
12.
ResrRuctuntxe MtuesroNEs
176
13.
FORUS OF NOTIFIABLE DEBT PURGHASE TRA}ISACTION NOTICE
177
Pirrt
or AssIcxnIENT
or
NE$r Lenoen
Accesston
I - Form of Notice on Entering into Notifiable Debt Purchase Transaction
142 147
159
177
of Notice on Termination of Notifiable Debt Purchase Transaction / N,otifiable Debt Purchase Transaction ceasing to be with Shareholder Affiliate 178 P;art 2 - Form
14.
Fonu oF UflLsATloN REeuEsr (FActLrry A Um*uocATED AriouNT)
179
{5.
FoRu oF INcRETEilTAL FAcILrTY Nonce
't80
l
t) r!
Tr-rrs
Acneeuerur is dated
8 June 20'17
BerwErN:
(1)
(2)
AGRoKoR d.d', a coflqpany incorporated in the Republic of Croatia (registerecl number (MBS) 0800 209 70 and PIN (olB) 05937759187) with its registered om* rt Trg DiaZena Petroviea 3' 10000 Zagreb, Croatia represented by Ante Rarnljak acting in his capacity the extraordinary comrn'issioner of the company pursuant to A(icle 12 of as the Extraordinary Administraticn Proceedings Law, in accordance with the resoluti*n of the Commercial court in Zagreb on opening Extraordinary Administration proceeding of 10 April 2017 urder no. St-t13g1117 (the',parenf'); THE ENTITIE$, listed in Part ll of Schedule 1 (Ihe Originat parties)as original borrowers
(together with tlre parent, the .,Original Borrowers,,);
(3) (4)
THE ENTITIES listed in Part lli of Schedule 1 (The ariginat parties) as guarantors (together with the parent, the,'Original Guarantors,,); j THE INSTITUTIONS listeC in Part I of Scheduie 1 (the ariginatParges) as originat tenders (the "Original Lenders,,);
(5)
Madison Pacific Trust Ltunit€d with registered address at fiZA,17th Floor, Tower One, Admiralty Centre, 18 Harcourt Road, Hong Kong as agent of the other Finanoe parties (the "Agenf);and
(6)
Madison Pacific Trust Limited with registered address at l120,17th Floor, Tovyer one, Admiralty Centre, l8 Harcourt Road, Hong Kong as security agent for the Secured parties (the "Securigr Agent',).
lr
b,
ts eeReeo As FoLLows:
Section'l lnterpretation
1. 1.1
&"t
Derurtttot.ts axo lHteRpRET*TtoH
Definitions ln this Agreernent:
"2019 Notes" rneans the rptes governed by the Z01g Notes lndenture, and constituted
by:
(a)
a Regulation S global note - Euro denominated g.8757o Senior Note due 2019 lSlN: XS0776111188, Common code: A7T6111IG: and
(b)
a Rule 1446 globatoote - Euro denominated 9.875% Senior Note due 201g, tStN: XS07761 10966, Cornrnon code: 07761 1096.
"2019 Notes lndent'rre" means the indenture dated ,. ol Apmil Zs, zOlZ by and arnong Agrokor d.d.. Ihe BNY Mellon Corporate Trustee Services Lirnited, as Trustee, Ttre Bank
Lt 801
/BASRANSU/5657909.
t5
Hog,arr
Lowlll
-2of New York Mellon, as Transfer Agent and Paying Agent, the Bank of New york Mellon (Luxembourg) S.A., as Registrar and the guarantor listed therein. "2020 Notec" means the notes governed by the 2020 Notes lndenture, and constituted by:
(a)
a Regulation S global note - Euro denominated g.125o/o Senior Notes due 2020, lSlN: XS0836495183, Common code: 083649518;
(b)
a Rule
(c)
a Regulation S global note - US Dollar denominated 8.875% Senior Notes due 2020, lSlN: USX0027KAG32, CUSIP: XAO2ZKAG3; and
(d)
a Rule 144,4 global note - US Dollar denominated 8.875% Senior Notes due
144,4 global note
Euro denominated g.125Yo Senior Notes due 2020, lSlN: XS0836495696, Common code: 083649569;
-
2020, lSlN: US00B55UAB52, CUStp: 00855U AB5.
-L
"2020 Notes lndenture" means the indenture dated as of october 10, 2012 by and among Agrokor d.d., The Bank of New York Mellon, as Trustee, Transfer Agent and Paying agent, The Bank of New York Mellon (Luxembourg) S A., as Registrar and the guarantors listed therein. "Accession Lefter" rneans a document substantially in the form set out in Schedule g (Form of Accessio n Lette r). "Accounting Principles" means generally accepted accounting principles in the Original Jurisdiction of the relevant Obligor (as appticable), inctuding tFRS.
"Additional Guarantor" means a company which becomes a Guarantor in accordance with Clause 24 (Changes fo the Ob/rgors). "Advisory Body" rneans, in relation to the Extraordinary Administration proceedings of the Group, the advisory body appointed by the head official of the Ministry within 1S days from the appointment of the Commissioner and notified to the court and Commissioner.
"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.
"Applicable Exchange Rate" means in the case of
(a) (b)
:
USDIEUR: g1:€1.0596; and EUR/HRK: €1: HRK 7.4365.
"Assignment Agreemerf' means an agreement substantially in the form set out in or any other form agreed between the
Schedule 4 (Fom of Asslgnrnent Agrcemenf) relevant assignor and assignee.
"Auditot'ls" rneans PricenvaterhouseCoopers LLP or any other firm appointed by the Parent or the Borrowers to act as the Group's statutory auditors.
"Authorisation" means an authorisation, consent, approval, resolution, licence, permit, exemption, filing, notarisation or registration. "Availability Period" means:
(a)
in relation to:
-3-
(i)
the Facr)ity A A{located Amount, the period from and including o.re date of this Agreement to and including in. Jv"dication utitisation Date; and any Facill$ A unallocated Amount, the period ftorn and incrdirag the date of this Agreement to and inctuding 2017; and in relatton to the lnoemental Facility, the period specified in the Facirity Notice rerating to such rncr#entar'i;;ty detivered by thelncrementar parent in cla,se 2'3 (lncrementat Facitity) anu urose rncremendiracirity [:Tffiffirwith
riiri
(ii)
i; il;;
(b)
"Available commitmenf'means, in relation to a Facilrty, a Lenders cornmiknent rnintrs: (a) the amount of its advance of any outstanding Loans
(b)
unde,r that Facirity; and
in relation to any proposed Utilisation, the amount of its advance of any Loans Facility that are due to be rnade on or o*io." the propoaed
;:l::rhat
uririsation
"Available Facility" rEans, in relation to a Facility, the aggrqgate fior the tlne being of each Lender,s Availabb Commitment in respect
\t
of that Facility.
"Backstop Lette/' means the backstop letter dated on or aborrt the date of this
Agreement between ttre parent and the originar Lender
aJ
zagreoacka Banka.
"Bankruptcy Act" Bankruptcy Act published in the Republic of croatia,s officialGazette no' IrIlt 71l{5 of-ttrc 17 June zois, as anrended or re-enacted from tirne to tirne.
"Bills of Exchange" means any bills of exchange issued by a nremtrer of the Group in ct uding for the ayoidance ot couut,
Efi
g;bd-Br.i;
ft ;;fi J,
"Borrowed' neans the Original Borrower.
"Business Day" rneans a day (other than a saturday or sunday) on which banks are
open for general business in London and Zagreb.
"cashflocY Forecast" means {he original cashffow Forecast as updated in accordanoe with Clause 1 9.3(b) {l ntormation,,pui n, req uirements).
"Cash Margin,, means 3.g per cent. per annum.
'Change of Control', means:
(a)
(b)
the direc{ or irdirect sare, rease,
transfer, conveyance or other disposfion (including anY.f{ionalisation), in one or a series of rdated transactions, of all or substantiary aricf the prope.ties or.:.*l: of ,he Group(taken as a wtroh) to any person other than to a person or entity which is ,na* t[" supervision or arbject to the Extraordinary Administralion proceedings; or cessation of the commissioner's role, unless such cessation is d.rc to conclusion of a Setilemenl Agreement.
"charged
Prqert/' illslns all of the assets
expressed to be, the
which fronr tinre to time are, or are $rt*)ct of the Transaction Security
''Closing Oate. means tfie lnitial Utilisation Date. "Code" means the US lnbrnalRevenue Code of Igg6.
J
-4,,Commlgalone/' means the court appointed extraordinary commissioner holding the rights and dutles of atl of the Original Borroweds corporate bodies pursuant tc the Extraordi nary Administration Proceed ing s Law.
',Commltment', means
the Facility
A Commitment
and the lncremental
Fetcility
Commitment.
"Commlfunent lncrease Date" means each Syndication lncrease Date and each date on which an tncrease Confirmation is executed in respect of the Facilfty A Unallocated Amount in accordance with Clause 5.3 (Facility A Unallocated Amounf).
"Commitment Letted' means the new money financing commitment letter entered into between the Parent and the Existing Funders (as defined therein) dated on or about the date of this Agreement.
,,Confidential tnformation" means all information relating to the Parent, any Olbligor and/or any other'member of the Group, the Finance Documents or the Facilities of t,vhich 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 the Facilities from:
(a) (b)
any member of the Group or any of their respective advisers; or
another Finance Pafl, 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 indudes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derilted or copied from suctt information but excludes information that:
(i)
is or becornes public information other than as a direct or indirect rersult of any breach by that Finance Pafi of Clause 37 tConfidentiality): or
(ii)
is identified in writing at the time of delivery as non-confidential
b,y any
member of the Group or any of its advisers; or
b
(iii)
is known by that Finance Party before the date the information is disr:losed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date from a source which is, as far as that
Finanoe 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, ard is not otherwise subject to, any obligation of confidenliality.
"Confidentiality Undertaking'' means a confldentiality undertaking substantiall'1 in a recommended form of the LMA or in any other form agreed between the Parent and the Agent.
"Creditors' Committee" means any official committee of oreditors formed in relation to the Extraordinary Administration Proceedings of the Group under the Extraot'dinary Administration Prooeedings {-aw.
"Debt Purchase Transastion" means, in relation to a person, a transaction whene such person:
(a) (b)
purchases by way of assignment or transfer;
enters into any sub+articipation in respect of; or
-5-
(c)
enters into any other agreement or arrangernent having an econcrnic effect
substantially sinrilar to a sub_participation in respect of,
any Commitrnent or amour( outstanding under this Agreement.
"Default" means an Event of Default or any event or eircumstanoe specifie.d in Clause 21 (Evenfs of Defuult) which would (with the expiry of a grace penod, the giuing of notice, the making of any determination under the Finance Documents or any cornbiruation of any of
the foregoing) be an Event of
ffiult.
"Default Margin" rneans i0 per oent. per annum. "Delegate" means any delegate, agent attorney or co-trusiee appointd by the Security
Agent.
"DlP Lender" means a financial institution which is a creditor in respect of the Existing DIP Financing and whicfr becornes a Party as a Lender in acc.,ordanoe with Clause 2.2 (lncrcased Commitments and New t_ender Accessrbns). "Disruption Event" rneans either or both of:
(a)
a material disruption to those payment or communications systenrs or to those financiai markels which are, in each case, required to operate in order for payments to be rnade in oonnection with the Facilities (or direrwise in order for the transactions conternplated by the Finance Docurnents to be car,ied out) rvhich disruption is not caused by, and is beyond the control of, any of the parhes; or
(b)
the occunence of any otfrer event which resutts in a dbruption (o6 a tecf,rnbal or system+related nahr'e) to the treasury or payrvlents operations cf a pa(y preventing that, or any other par{ry:
(i)
from performing
(ii)
from communicating with other Parties in accordance with the terms of the Finance Documenb,
and which (in either sucfr case) whose operations are disrupbd_
ib
J
payment obligations under ihe finance Docurnents; or
b not caused by, and is beyond the control of, the party
"Eligible Bills of Exchange" mealns any bill of exchange or sirnitar r+egotiable instrurnent issued by a member of the Group (whether or noi under a frarnework agreernent) provided that it benefib fronr secrrrity and/or guarantees equivalent to ttre security, guarantees and indernnities ageinst loss granted in respect of and/or contained in the Existing Loan Agreernenb and the Existing Bond Documentation, inc{udirry as a minimum a guarantee or principal debt obligation from one or more of Ledo d.d. i..gor Jamnica d.d., and provided further that it is properly and legally incuned.
"Eligible lnstitution" IrEans any Lerder or other bank, financrial instiMion, tnJs*., fund or other entity which, in eacfi case, is not a Shareholder Affiliate or a rnermber of &e Group and which is a creditor in respect of Financial tndebtedness ouied by a rnertrber cf the Group or has exposure b a rnernber of the Group by virtue of being a *rpp{ier Borrower.
"Escrow Accounts"' means ttre Refinance Escrow Account, tfre Repayneer(
Account and the Liquiriity EscrowAccount.
to a
fgsr-6\,t/
"EscFow Agreements" means the Refinance Escrow Agreernent, ttre Rqaynent Escrow Agree+nent and ttrc Liqddity Escrow Agreement.
J
6"E,scrow Agent" means, as at the date of this Agreement, Bank of New york Mellon, London Branch or such replacernent or successor agreed by the Lenders from time to tinne (which shall not be a creditor of the Parent or any member of the Group). "EURIBOR" means, in relation to any Loan:
(a) (b)
the applicable Screen Rate as of 1 1.00 a.m. (Brussels time) and for a period equal in length to the lnterest Period of that Loan; or as otherwise determined pursuant to Clause 10.1 (tJnavailabitity
of Screen Rafe),
and if, in either case, that rate is less than zero, EURTBOR shall be deemed to be zero.
"Event of Default" means any event or circurnstance specified as such in Clause
21
(Events of Default).
I
"Eixcluded cornpanies" means Agrokor-Energija d.o.o, A.N.p. Energija d.o.o, Energija Gradec d.o.o., Agrolaguna d.d., Tisak d.d., Backstage d.o.o, Tisak-usluge d.o.o., Tisak inPost d.o.o., Photo Boutique d.o.o., Vjesnik-usluge d.o.o., Gulliver Travel d.o.o. Karisma Hotels Adriatic d.o.o., Adriasense d.o.o., HKA tri d.o.o., HKA pet d.o.o., Hoteli Kolocep d.rC., Hoteli Zivogosce d.d., KHA centri d.o.o., Poslovni system Mercator d.d, Agrokor AG Zttg, Fonyodi Kft and Jana North America and in respect of Poslovni system Mercator d.d, each of its direct and indirect subsidiaries.
"Existing Bonds" means the 2019 Notes and the 2020 Notes issued by the parent under the Existing Bond Documentation. "Existing Bond Documentation" means the 2019 Notes lndenture and the 2020 Notes lnrjenture.
"Existing DIP Financing" means the DIP financing provided by certain financial institutions on or about 13 April 2017 to certain members of the Group in an aggregate anrount equal to €80,000,000.
tv
"Existing Financial lndebtedness" means the Existing Bonds, the Existing Loans and Eligible Bills of Exchange (but excluding the Existing DIP Financing or any other postpe,tition indebtedness).
"Existing Loans" means any loans borrowed by a member of the Group under the Existing Loan Agreements.
"Existing Loan Agreements" means the loan agreements and other finance documents entered into by any member of the Group (including all such documents and agreements entered into by any member of the Group prior to the commencement of the Extraordinary Aclministration Proceedings) as set out in the list delivered by the Parent to the Agent in accordance with paragraph 3(h) of Part A of schedule 2 (conditions prccedeng.
"Existing Suppty Contracts" rneans the existing supply contracts between Trade Creditors and certain members of the Group as identified in an lncremental Facility Notice delivered to the Agent pursuantto Clause 2.1(lncrcmental Facility).
"Existing Supplier Debt" means all amounts outstanding or owed pursuant to the Existing Supply Contracts.
"Extraordinary Administration Proceeding" means administration proceedings instigated under the Extraordinary Administration proceedings Law.
7"Extraordinary Adrnimistrafion Fr,oceedings Law" rneans the {aw on extraordrnary administration proceedirgs for cornpanies of systernic irnportanoe for the Republic of
Croatia published in {ire Republic of Croatia's Official Gazette no. 32117 of 6 Alpr.il a01y.
'EUR 2020s" means those 2O20 Notes denominated in Euros;
"Euro Notes" rneafis the IOIS Nde€ and the EUR 2020s. "Facility" means Facitity A tlr the lncremental Facility,
"Facility A" rneans the terrn loan facility made ayailable und,er this Agrreerrtert as
described in pacagraptr (a) of Ciause Z_1 (The FasTitres).
"Facilityt A Allocated Anrount" means the Total Facility A Comrnitmeng as at t{re Third syndication lncrease Date (for the avoidance of doubt, this exdudes tfn Facilitv A {J nallocated Anrount).
"Facility A Unallocated Jatrslount Lltilisation Date" rneans eactl Utilisation Date on *&ric*l a Loan is made in respect of ttre Facility A Unallocated Amount in amordance with Clatrse 5.3 (Facility A Unal*lcz&d Arr*aun.fi.
L,
"Facility A Cornrnitmeflf ' Rleans:
(a)
in relation to an Or8inal Lerder, ttrc amount set oppo.site its narnel urder the heading'FacilityA Comrnitnrenf in Part 1 of Schedule f (trhe erigi,nat pardbs) and the amount of any other Facility A Comrnitrnent transhned to i1l under this Agree'ment or *sunred by it in accordanoe with clause 2.? {fuareamd Commibnents anrillbrry l_qrdrur Aw,ssxrns), and
(b) in relation to arvy ot{rer l-ender,
the amount of any Facility A
C;ommitrnent
bansferred to it ts'der this Agreernent or assumed by it in accordance r*ith Clause 2.2 {lncreased Gmaimfalenfs and New Lender A*essr-ons), to the edent not cancefld,
redued or transfened by it under this Agreement.
"Facility A Loan" rnearls a loan made or to be made under Facility A or tre principal amount outstanding for ttle tirne being of that loan.
"Facilityr A Unallocated Jl*ttoLtnt" rrlearLs the lonrer of (a) EUR960,0OO,Om |eris the To{ail Facility A Comnritrnents inrneoiatdv f.ol{orriqg the Final Syndication lncrease Orate and (b}
€80,000.000.
"Facility Office" meetlB the cffice or ofhoes notified by a Le.nder to the Agent inwritirg on or before tt€ date it beoornes a 'Lender (or, fo{lcrving that date, by noL less than five Business Days' written rutioe| m the office or officei throtrgh whi{*i it wifi perhorrn 6ts oblig ations under this A$ieernerd. "FATCA" means:
(a) (b)
sections 147,1 to 1474
6 fte code
or any assoriated reguladions;
any treaty, law or regulation of any other iurisdictiorq, or rdating to an intergoven'rner&l q$eefitent betrret the US ard any other iurisdictiofl, *ni"t, (in either case) faciliffi*es the implernentation cr any law of regulatiCIn relbu,od {o in paragraph (a) &orc;or
:
-8
(c)
-
3'
any agreement pursuant to the implementation of paragraphs (a) or (b) above with
the US lntemal Revenue Service, the US government or any governmental or
taxation authority in any other jurisdiction. "F,ATCA
Appllcatlon Date" means:
(a)
in relation to a '\rithholdable payment" described in section 1473(1XA)(i) of the Code (wttich relates to payments of interest and certain other payments from sources within the US), 1 July Zel4;
(b)
in relation to a '\rithholdable payment" described in section 1473(lXAXii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
(c)
in relation to a "passthru payment" described in section 1471(d){7) of the Code not fallinq 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
derduction or withholding required by FATCA as a result of any change in FATCA after the dalle of this Agreement.
"F/\TCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA. "F/\TCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction. "FI\TCA FFl" means a foreign financiat institution as defined in section 1421(d){4) of the US lntemal Revenue Code of 1986 which, if any Finance Party is not a FATCA Exempt Party, could be required to make a FATCA Deduction. "Fee Letter" means any letter or letters dated on or about the date of this Agreement belween any Finance Party and the Parent setting out any fees payable to a Finance Party.
"Final lncrease Amount" means an amount equalto €g60,000,000 less:
(a)
the aggregate of all Facility A Commitments committed prior to Third Syndication lncrease Date; and
(b)
the Facilig A Unallocated Amount.
"Finance Document" means:
(a) (b) (c) (d) (e)
this Agreement;
any Fee Lefter;
anylncrementalFacilityNotice; each Security Document;
any Accession Letter, any lncrease Confirmation, New Lender Accession and lncremential Facility Lender Accession and any Resignation Letter;
(0
each Escrow Agreement;
(g)
the Backstop Letter;
,,n
,('
-9-
(h) (i)
the Commitment lietter; and any other document designated as a "Finance Bocunaent" by the Agent and the Parent.
"Finance Party" means the Agent, the Security Agent, the Esc,row Agent or a Lernder.
"Financial Adviser" rneerns PJT Partners (as financial advisers to the Participating Bondholders as defined in the Commitment Letter).
"Financial lndebtedness" means any indebtedness for or in respect of:
(a) (b)
moneys borrowed;
any arrlount raised by acceptance under any ac,c€ptance credit facillty
or
dematerialised equivalent;
(c)
any amount raised pursuant to any note purctrase facility or the issue of bonds, notes, debentures, loan stock or any similar instrurnent;
(d)
the amount of any liability in respect of any lease or hire purchase contnact which would, in accordance with Accounting Principles, be treated as a financer or capital lease:
(e)
receivables sold or discounted (other than any reeivables to the exterrt they are sold on a non-recourse basis);
(0
any amount raised under any other transaction (ine{uding any forward sab or purchase agreement) of a type not refened to in any other paragraph d tlris definition having the commercial effect of a bonowing;
(g)
any derivative transaction entered into in connection with protection agairrst or benefit from fluctuation in any rate or price and when calculating the varlue of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transarction. that amount) shall be iaken into account);
(h)
any counterindernnity or reimbursement obligatiur in respect of a guaran$ee, indemnity, bond, standby or documentary letter of credit or any other instrunrent issued by a bank or finandal institution; and
(i)
(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
"Finst Syndication lncrease Date'' means 14 June 2017 (or such later date as ntay be agreed by the Parent and the Original Lenders), being the date on which in acosrdar*ce with the Cornmitrnent Letter and the Backstop Letter:
(a)
in relation to an lncrease Lender, the Agent exec{rtes an lncrease Confinnation entered into by sr-rch lncrease Lender in respect of any increase in Facdig A Comrnitments ass.unrcd by it; and
(b)
in relation to an BigiHe lnstitution whictr is not an Original Lender, the Agent executes a New Lender Accession entered into by such Eligible lnstitutioa in respect of the Facitry A Comrnitments assumed by it,
in each case, in accordance with Clause 2.2 (lnueased Gommrfments and New Letlder Accessions).
10 -
"Fllrot Eyndlcatlon Utllisation Date" means 16 June 2017 (or such later date as may be egreed by the Parent and the Originat Lenders).
"Fundlng RotG" means any individuat rate notified by a Lender to the Agent pursuant to paragraph (a)(ll) of Ctause 10.2 (Cosf of tundsl. "Group" means the Parent and each of its direct and indirect Subsidiaries for the time beiing incorporated in Croatia, and in respect of which the parent holds (direcfly or indlirectly) 25 per cent- or more of the stock of the entity (measured by voting power or nunrber of shares) and whether or not under the supervision or subject to the Extraordinary Adrninistration Proceedings, excluding in all cases th; Excluded
Companies.
"Guarantor" means an Original Guarantor or an Additional Guarantor unless ceirsed to be a Guarantor in accordance with Clause 24 (Changes to the Obtigors).
it
has
"Holding compdny" means, in relation to a person, any other person in respect of which
1
it
is;
a Subsidiary.
"lFlRS" means international accounting standards within the meaning
of the IAS
Relgulation 1606/2002 to the extent applicabte to the relevant financial statements.
"lmpaired Agent" rneans the Agent at any time when:
(a)
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for
payment;
(b) (c)
the Agent otherwise rescinds or repr.rdiates a Finance Document; an lnsolvency Event has occuned and is continuing with respect to the Agent;
unless, in the case of paragraph (a) above:
(i)
its failure to pay is caused by:
(1) (2)
C (ii) (iii)
administrative or technical enor; or a Disruption Evenl and
payment is made within 3 Business Days of its due date; or
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
"lncrease confirmation" rneans a document substantially in the form set out in schedule 5 (F:orm of lncrease Confirmationl. "lnc;rease Lende/'means each the Original Lender and any other Lender that enters into an lncrease Confirmation in acmrdance with the Commitment Letter and the Backstop Letter.
"lnc;remental Facilitf' means the term loan facility made availabte under this Agreement pursuant to Clause 2.3 (lnaemental Facltit{1"lnc;remental Facility Commitmenf' rneans:
(a)
in relation to an entity identified as a Lender in an lncremental Facility Notice
which established an lncrernental Facility, the arnount set opposite its name under
- 11the heading "lncrernental Facitity Commitnrenf in such lncrernental Facility Notice and the amount uf any otfrer lncrernental Facility Comrnitmeat transferred to it under this Agreement;
(b)
in
relation
to any other
Lender, the amount
of any lncrecriemtal Facility
Commitment transferred toit under this Agreernent.
"lncremental Facility Lender Accession" rneans a document substantially in ttre form set out in schedule 7 (fufln of lnuemental Facility Lender Accession). "lncremental Facility Loan" rneans a loan made or to be made under the lrqcremental Facility or the principal arnount outstanding for the time being of that loan.
"lncremental Facility lllaximum Amount" rneans an aggregate anrount up maximum of €50,000,000.
to
a
"lncremental Pacility t{otice" rneans a notice substantially in the fonn set out in Schedule 15 (Farm of lrrcremenlal Facitity Nofice) delivered by the Farent to,tre Agent in accordance with Clause 2.3 {lncremental Facility).
V
"lncremental Facility Utilisation Date" means, in relation to the lncremental Faaility, the date set out in the relevant lncrernental Facitity Notice. "lnsolvency Event" in re{ation to an entity means that the entity:
(a) (b)
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
becomes insolvent or is unable to pay its debts or fails or adnrits in lwi{ing its trey become due;
inability generally to pay its debts as
(c) (d)
makes a general assbnment, arrangement or cornposition with or for ttle benefit of its creditors;
institutes or has instituted against it, by
a regulator, superuisor or any similar
official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the
jurisdiction of its incorporation or organisation or the jurisdirtion of its head or home office, a pmceeding seeking a judgment of insolyency or banknlptcy or any other relief under any bankruptry or insolvency law or other similar liaw affecting creditors' rights, or a petition is presented for its windiag-up or liquidartion by it or such regulator, supervisor or sinnilar official;
(e)
(0 (g) (h)
has instituted against it a proceeding seeking a judgmeot d insolvency or bankruptcy or any other relbf under any bankruptcy or insotvency law or other similar law afiect'ng creditors'rights, or a petition is presented 6or its windingr.rp or liquidation, and, in the case of any sucft proceeding or petition instituted or presented against it, such proceeding or petition is ,institutred or preserrrted by a person or entity rlot described in paragraph (d) above and: results in a iudgnrent of insofvenry or bankruptcy or the entry of an oaler for relief or the making of an order 60r aF winding-up or liquidation; or
is not dismissed, discfiargeA, siayed or restrained in each case the institution or presentation ttrered;
uv{thir:r 3O
days of
has a resotution passed for its winding-up, official rnanager,r-rent or tiquidation (other than pursrwd to a consolidation, amalgamation or nrerger);
\l
-12-
.'f
l ,r ,!
(i)
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other simj[a.r official for it or for all or substantially all its assets (other than for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);
0)
has a secured pafi take possession of att or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against a[ or substantialty all its assets and such secured par$ maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
3
(k)
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above, or
(l)
takes any action in furtherance of, or indicating its consent to, approval of, or
I
acquiescence in, any of the foregoing acG.
"lnitial Utilisation Date" means the date which is one Business Day after the date on which the Parent has opened its Euroclear, Clearstream and DTC aceount (as necessary for the first Utitisation) held with Bank of New York Mellon, London Branch for the purposes of paragraphs 2 and 3 of Part A of Schedule 11 (Redemption and Repayment Mechanix), or such earlier date as may be determined by the Original Lenders. "lnterest Period" means, in relation to a Loan, each period determined in accordance with Clause 9 (/nteresf Pen'ods).
"lnterpolated Screen Rah" means, in relation to any Loan, the rate (rounded to the sanne number of decimal places as the two relevant Screen Rates) which results from interrpolating on a linear basis between:
3
(a)
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the lnterest period of that Loan; and
(b)
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the lnterest period of that Loan,
each as of 11.00 am (Brussels time).
"Joint Venture'' means any joint venture entity, whether a company, unincorporated firm, unclertaking, association, jnint venture or partnership or any other entity.
"Lendef means:
(a) (b)
the Original Lender;and any bank, financial institution, trust, fund or other entity which has become a party as a Lender in acoordance with Clause 2.2 (tnaeased Commitments and New Lender Accessr'ons) or Clause 22 (Changes fo lhe Lenders),
which in each case has not ceased to be a Parg in accordance with the terms of this Agreement.
"Liquidity Escrow Accounf' rneans the account held in England by the parent with the Escrow Agent with the fotlowing details:
Beneficiary: The Bank of Neuy York Mellon SA/NV
-13Name: AGROKOR LIQUIDITY ESCROW CSH Accsrnt Number 9873 1 O978O SWFT: IRVTBEBB
and from which withdrawals shall be made in accordance with the Liquidity Escrow Agreernent and the terms of this Agreement (as &re same may be reclesignated, substituted or replaced frorn tirne to time).
"La[ff
rneaos the Loan Market Association.
"Loan" rrcans a Facility A Loan or an lncrernental Facility Loan.
'Hadison Accounf' means the account of the Agent sfcified in Clause 29.'l (Payrnents to the AgenQt
"Majority t-ende(s" means:
(a)
for the purposes of Clause 2.4 (Extenskxt Optxxt) and Clause 20.6 (Rersfructrnng Planl, a Lender or Lenders whose Commitrrrenb aggregate more tlran 60 per cent. of the Total Facility A Commitments (or if the Tota! Facility A Commitments hare been reduced to zero, aggregate more Sran 60 per cent. of the Tctal Facility A Cornmitrnents ir.nnrediatety prior to the redudion); and
(b)
for all other purpoaes, a Lender or Lenders wlrose Commitments aggregate rnore than 6627, per cont. of the Total Commihnents (or, if the Total Cornmitnnents haye
been reduced to zero, aggregated rnore than
6621,
per cent. of ttre
J
Tota{
Comrnitrnents imrnediately prior to the reduction).
rHajority HonSank [-endets" me€lns a Lender or Leflders \rfiictl are also Funds wtrsse Commitrnents agEregate more than 50 per cent. of the Tota{ Facility A Commitrments held by all Facitity A Lenders which are also Funds {or, if the Total Facility A Commitrnents held by such non-bank lenders have been reduced to zero, aggregated more than 50 per cent. of the Total Facility A Commibnents immediately prior to that reduct{on}. For ttre purposes of this definition Funds" tneans entities that are established as irwestnrent funds for the purposes of investing in loans, securilres or other fnancial assets and xf,uictl are managed by an investrnent adviser or lnvestment rnanager that is independent frorn the majority of investors in sucfi furd.
'tlargin" meilns:
(a)
in rclation to Facftli$ A, tt€ Cash Margin or tte PIK Margin or the Defiault Margin as deErmined in acoordance with Clause E (/nferesfl'and
(b)
in relatbn to any lncrernenta{ Facility, tre peroerrtage rate per annum spectfied by the Parent in the rdevant lncremen€l Faoility Nstioe subject to any margin adjustmer( mec*ranisrn seecineA therein (subiest to paragraph (cXvi) of Chuse 2.3 (IncrerenW fed@l-
'Haterial Adverse Effecf' fipans a rnaterial adyerse efud
(a) (b)
on
:
the business, opaations or financial condition of the Grosp taken as a lvhole,
the abt:ltty of an O{rirgor to p'erfonn its paynent offi(gations under tire Fir*anoe Doarnents (indixfing as a resutt of a mabrial numbe,r of ttre suppliers and/or any counterparties ts material stpply agreernents, takirq any actron whioh is dekimental to the operations of the Group); or
)
-14-
(c)
IJ
t,"r')
the validity or enforceability of the Finance Documents or the rights or remedies of any Finance Party under the Finance Documents.
"Mlaterlal Company" means, at any time a direct or indirect Subsidiary of the parent which (when consolidated with its Subsidiaries, if any, to the extent consolidated numbers are available at the relevant time, or if not available, unconsolidated) has (i) turnover in excess of €5,000,000 or (ii) gross assets in excess of €20,000,000, in each case, other than an Excluded Company. "Mlaturity Date" means, subject to Clause 2.4 (Extension Option), in relation to Facility A and the lncremental Facility, the earlier of:
(a) (b) (c)
't0 July 2018;
the Settlement Date; and the openilrg of insolvency proceedings under the Bankruptcy Act in respect of any Obligor or Material Company.
"Month" rneans a period starting on one day in a calendar month and ending on the numerically corresponding day in the next ca[endar month, except that:
j
(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 a period begins on the last Business Day of a calendar month, that period shall end on the last Business Day of the calendar month in which that period is to end.
The above rules will only apply to the last Month of any period.
"New Lender" means an Eligible lnsfitution which has become a Party as a Lender in accordance with Clause 2.2 (lncreased Commitment and New LenderAccessions).
a document substantially Schedule 6 (Form of New Lender Accr,ssrbn). "New Lender Accession" means
in the form set out
in
"Olbligor" means a Borrower or a Guarantor.
"Olbligors' Agenf' means the Parent, appointed to act on behatf of each Obligor in relation to the Finance Documents pursuant to c{ause 2-6 (obligors, Agent). "Original Cashflow Forecast" means the budget for the Group (to include a 13 week ca:;hflow forecast) delivered to the Agent pursuant to paragraph 3(e) of part A of Sc hed
u
le 2 {C o n d itio n s P recede nt to I n itiat U tit i sation) .
"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws the Obligor is incorporated as at the date of this Agreement or in the case of an
Additional Guarantor, as at the date on $/hich that Additional Guarantor becomes a party to this Agreement.
"Original Obligor'' means the Original Bonorrer and each Original Guarantor.
_15_
"Pari Basket" means in resoect of paragraph (e) of the definition of Permitterl Financial lndebtedness and paragrraph (n) of the definition of Permitted Guarantee €25,(80,.0O0 (or its equivalent) in aggrega& at any time. "Participating Member S'tab" rneans any member state of the European Ur*rn flrat fras the Euro as its lawft.rl cuTrency in accordanoe with legislation of tlre European Union relating to Economic and Monetary Union. "Party" means a party to this Agreement,
"Permitted Company Disposal" rneans the disposal of Sojara d.d.o., Adriatica.NET d.o.o., solana Pag d.d., Frojecktgradnja d.o.o., poliklinika Aviva, 4007 d.o.o.
"Permitted Financial lndeHedness" means subject to Clause 20.10(b) (Raokingl Financial lndebtedness
(a)
:
arising under any of tlrc Finance Documents, which constitutes a perrnitted Transaction or in respect of which the Majority Lenders have given their prior written consent;
(b)
arislng under any a$angements entered into prior to tire comrnencenrent of the Extraordinary Administration Proceedings (but for the avoidance of doubt any refinancing of any such arrangements is not perrnitted, save to the extent the relevant debt constihrtes Specified Existing Financial lndebtedn*s and is refinanced in accordance with the terms of this Agreernent);
(c)
arising under a foreign exchange transaction for spot or forward rfelivery or commodity hedging in each case entered into in connection with protection against ffuctuation in currency rates or cornmodi$ prioes where trat fore(trn exchange expos{.rre or commodity price exposure arises in the ordinarll course of trade, but not for invesfrnent or speculative purposes;
(d) (e)
arising under a Fennitted Loan or a Permitted Guarantee; and
any Financial lndebtedness (not permitted by the preceding paragraplis and not owed directly or indirectly to any Shareholder Affiliate) the outstanding amount of which, when aggregated with the amount of any Financial lndlebtedness guaranteed under paragraph (n) of the definition of Fermitted Guarantl* (without double counting) does not exceed the Pari Basket. lt is agreed ttlat such Financial lndebtedness may rank pari passu with (but not senior to) the paynrent obligations of the OH(1ors under the Finanoe Documents.
"Permitted Guarantee" oteans subject to Clause 20.10(b) (Ranking).
(a) (b) (c)
the endorsernent
d
negotiable instruments
fui
the ordinary course of trattre;
any performan@ or sirnilar bond guaranteer,ng performance by a menrber of the Group under any mnbact entered into in the ordinary oourse of trade;
any guarantee gfven by a member of the Group for obligations arising in the ordinary coulse of business of another member of the Group (provida! that after the date of this Agreenrent no guarantee may be provided under this subparagraph (c) in respect of any such obligations that arose prior to the
(d)
any guarantree of any Permitted Financial lndebtsdness under paragr4drs (a), {c} and (d) of sucfr definition;
J
J
10
(0)
any guErantaO glvBil ln rerpoel of llro rioltltq Br tsl.oll nrrnrrgonrontE fFilnilt€d puriuanl l0 pEragraptr (c) of Qlrugo 20 fl (fuspaltvo ltlodttd) ol tha tls{rnrlron ol "Porrnlltod Etourlly",
(0
sny gusrrnt0e undil
lhr FlnEnon
Tilnfiotlon or io vfil$r the
0ooumanil, wlrlolr oon$tltules a llonnttsd MeJodly Lmdoru havc glvon tholr prtor wrtuen
oonront;
(
(s)
any guerlntoo ontsrod lnto prlor to lho commoncement of the Extraordinary Admlnlrlratlon Proooedlngel
(h)
any guarantoes glvon under the customary terms of its ordinary course of banking arrangoments (excludlng loans and overdrafts) in respect of a member of the Group;
(i)
any guarantee given in respect of any financial indebtedness permitted pursuant to paragraph (c) of the definition of "Permitted Financial lndebtedness";
0)
any guarantees to landlords and counter-indemnities in favour of financial institutions which have guaranteed rent and service charge obligations of the Group;
(k)
customary indemnities given
to
professional advisors
or
consultants
in
the
ordinary course of business; (t)
any guarantee which, if it were a loan, would be a Permitted Loan provided that
for the purposes of determining whether any monetary threshold has been complied with, the amount of all relevant loans and guarantees shall be aggregated;
C
(m)
any guarantee (not permitted by the preceding paragraphs) given by a member of the Group to a person who is not a member of the Group (other than Shareholder Affiliates) provided that the aggregate principal amount guaranteed at any time does not, when aggregated with any other Permltted Non-Group Transactions, exceed the Permifted Non-Group Basket; and
(n)
any guarantee (not permitted by the preceding paragraphs) given by a member of the Group, provided that the maximum aggregate guaranteed amount under all
such guarantees, when aggregated with any Permitted Financial lndebtedness incurred under paragraph (e) of such definition, does not exceed the Pari Basket at any time. lt is agreed that a guarantee under this paragraph may rank pari passu with (but not senior to) the payment obligations of the Obligors under the Finance Documents,
and in all circumstances excluding any guarantee given prior to the date of
this Agreement in respect of Bills of Exchange in existenc€ on the date of this Agreement and disr:losed in accordance with Schedule 2 (Conditions PrecedenQ.
"Permitted Loan" means: (a)
any trade credit extended by any member of the Group to its customers on normal commercial tenns and in fte ordinary course of its trading activities other than any Bills of Exchange held by a bank, financlal institution or other entity regutarly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets;
(b)
a loan existinE prior to the commencement of the Extraordinary Administration Proceedings
-17
-
(c)
a loan rnade by a rnember of the Group to another menrber of the Gror.rp;
(d)
a loan made by any member of the Group to an Excluded Company 6at is under or subject to the Extraordinary Administration proceedings provided that:
(i) (ii) (e)
the aggregate amount of the Financial lndebtedness under any such loans does not exceed €25,000,000 at any tirne; and
the relevant member of the Group grants security over the receivable in respect of such loan within 20 Business Days of such loan belng made, on terms satisfactory to the Agent (acting reasonably);
any loans to employees or to share or unit or benefit trust: schemes, in an aggregate principal amount outstanding which does not at any ti,me exceed
€1,000,000 (or its equivalent);
(0 (g) (h) (i)
deposits'of cash with financial institutions for cash rnanagement purposes or in the ordinary course of business,. any loan or credit which constitutes Permitted Financial lndebtedness,
V
a loan rvhich constitutes a Permitted Transaction or to which the li4ajority Lenders have given their prior written consent; and any loan or other credit (not permitted by the preeding paragraphs) made by a member of the Group to a person who is not a member of the Group provided that the aggregate principal amount of such loans, when aggregated with other Permitted Non-Group Transactions, does not exeed the Permifted Non-Group Basket.
"Permitted Non€roup Basket" means €25,000,000 (or its equiva{ent) in aqgregate at any time.
"Perrnitted Non€ roup Transactions', rneans:
(a)
the aggregate consideration for any assets disposed of pursuant to paragraph (bXix) of Clause 20.1S (Dr'sposals);
(b) (c) (d)
the outstanding amount of any loan made pursuant to paragraph (i) ot 'Fermitted Loan"; the amount of any guarantees granted pursuant to paragraph (m) of the definition of "Pe{rnitted Guarantee,'. and
the aggregate Joint Venture lnvestments and Tstal Purchase pnce in respect of acquisitions and joint ventures permitted under Clause 20.24 {Acquisitians and Joint Venturcs).
"Permitted Securit}r" has the meaning given to it in C{ause 20.3 (Negative ptalge) "Permifted Transaction" means any disposal required, Financial lndebtednes;s incuned, guarantee, indemnity or Security or euasi-Security grven, or other transaction ansing, under the Finance Documents.
"PlK lnterest" has the rneaning given to that ternt in Ciause 8.2 (paynrenf of /aferesl PIK Margin).
"PlK Margin" means 4 per cent. per annum.
-
\J
- 18 -
"Poat€loclng Obligors" means an Additional Obligor listed in Part lV of Schedule (T h'o
O
1
rlgl n al Paft i e s).
"Prlimary Lende/' means.
(a)
a Lender in respect of an assignment or transfer made in the ordinary course of the primary syndication of the Facility;
(b)
any New Lender which executes a New Lender Accession in respect of the Facility A Commitments assumed by it pursuant to Clause 2.2 (tncreased Commitments and New Lender Accessrbns) or pursuant to Clause 29.12 (Defaulting Lenders);
(c)
any lncremental Facility Lender which executes an lncremental Facility Lender Accession in respect of the lncremental Facility Commitments assumed by it pursuantlo an lncremental Facility Notice; or
(d)
in respect of any transfer or assignment by the Original Lender to a holder of an Existing Bond on or prior to the Third Syndication Utilisation Date.
"Public-only Lende/' means each Original Lender and each Lender which has included a statement in a New Lender Accession, Transfer Certificate or Assignment Agreement confirming that it is to be treated as a Public-only Lender.
"Quarter Date" means each of 31 March, 30 June, 30 September and 31 December.
"Quasi€ecurity" has the meaning given to that term in Clause 20.3 (Negative Pledge). "Quotation Day" means, in relation to any period for which an interest rate is to be dehrmined, two TARGET Days before the first day of that period unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Agernt in accordance with market practice in the Retevant Market (and if quotations woutd
nonnally be given on more than one day, the Quotation Day will be the last of those days).
"Receive/' means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Properg.
"Refinance Escrow Account" means the account held in England by the Parent with the Escrow Agent with the following details: Beneficiary: The Bank of New York Mellon SA/htV
Narne: AGROKOR REFINANCE ESCROW CSH Account Number: 987296780 SWIFT: IRWBEBB
fronn which withdrawals shall be made in accordance with the Refinance Escrow Agreement and the terms of this Agreement (as the same may be redesignated, substituted or replaced from tirne to time). "Refinance Escrow Agreement" means tlre Escrow Agreement entered into between the Parent, the Agent and the Escrow Agent in rdation to the Refinance Escrow Account on or arbout the date of the Agreement. "Related Fund" in relation to a fund (the'tnstfund'), means a fund which is managed or advised by the same investment manager or investrnent adviser as the first fund or, if it is
- 19managed by a dffierent impes(rnent rilanq€r or investment adviser, a f,und wtrorc investment manager or investrnent adviser is an Affiliate of the investment rnarurger or investment adviser of the first frrnd. "Releva nt Ju risd ic{io n" fiiea.ns
(a) (b) (c) (d)
:
ttte Original Juisfictinn of each Obligor, the lurisdiction diirnorporatbn of eacfi other r*ember of the Group;
the jurisdiction in tr*rir*l any puHicly traded shares or securities sutqiec* to the Transaction Seaxity are listed; and
the jurisdiction vuhere any asset subject Transaction S€curftV is sifuated.
to or intended to be s{rqiect to
U:}e
"Relevant Markef'means ttre European interbank rnarket.
'Tlelevant Syndication Increase Amounf' means in relation to a {iyndica6on Commibnent lncrease Date, an amount equal to the aggregate of all Faci{ity A Commitments assumed r.rnder eactr Lender Accession and/or lncrease Confirrnation dated as at such Syndication Conrmibrtent lnorease Date.
v'
"Repayment Escrow Account" rneans ttre account held in England by 0're Parent with the Escrow Agent with th,e fdlowirq detaib: Beneficiary: The Bank of S{erl Yod( Me{k}n SA/NV
Name: AGROKOR REPAYMEiIT ESCRCIIfV CSH Account Number: 9872gBgX8O SWIFT. IRVTBEBB
from which withdrawals strall be made in accordance with the Repayment Esc-row Agreement and the tefms of this Agreement (as the same may be recksignated, substituted or replaced ftorn tirne to tirne).
^Repayrnent Escrow Agreernent" rrleans the escrow agreernent entered inlp betrreen the Parent, the Agent and the EsorowAgent in relation to the Repayment Esorow Aocount on or about the date of thb Agneenrent.
"Repr€sentative" means any delegate" agenL manager, adrninistrator, oomine,
attorney, trustee or cushdian.
'Restrucfu ring AdvisoC me(rrc AtrixParfirers.
"Scl€en Rate" rmeans !l,re Euro interbank offe{ed rate adncinistered by the European Money Markets lnstihte (or any drer person ufiicfi takes over the adrninis*ration of that rate) for the relevar* pe$iod dispiayed (before any cErrectioo. recakuledjoo or republication by tre a&nidsfabr) ofl pa(F EL,RIEORO! of t*!e Thornson Rer.rtiers soree{l (or any replaoement Thornson Reirters page rvhich displays that rab) 66 on ttre appropriate p4e of stdl trter information smice $rhiat' pub{ishes that rab fronr tirme to time in place of Thonrson Reubs. lf such page or senrice ceases to be avirilable, the Agent may spocifu ano&mr page sr seruioe displaying ttre re*evant rate afhr csmsdtation with the C,ornpany.
g
('\',(' -20"Sccond Syndlcatlon lncrease Date" means 21 June 2A17 @r such later date as may be egreed by the Parent and the Original Lenders)being the date on which in accordance wlth the Commitment Letter and the Backstop Letter:
(a)
ln relatlon to an lncrease Lender, the Agent executes an lncrease Confirmation ent€red lnto by such lncrease Lender in respect of any increase in Facility A Commltments assumed by it; and
(b)
in relation to an Eligible lnstitution which is not an Original Lender, the Agent executes a New Lender Accession entered into by such Eligible lnstitution in respect of the Facility A Commitments assumed by it,
in erach case, in accordanoe with Clause 2.2 (lncreased Commitments and New Lender Accnssions).
"Second Syndication Utilisation Date" means 23 June 2017 (or such later date as may be iagreed by the Parent and the Original Lenders).
L
"Secured Obligations" means all obligations at any time due, owing or incurred by the Obligors to any Secured Party under the Finance Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as principal or surety or in some other capacity). "Secured Parties" means the Security Agent, any Receiver or Delegate, the Agent, the Esc,row Agent and each Lender frorn time to time party to this Agreement. "Securi$/" means a moftgage, charge, pledge, lien or other security interest securing any obligation of any person or eny other agreement or arrangement having a similar effect.
"Security Documents" means any document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the Sec;ured Obligations.
"Settlement Date" means the date on which the Settlement Agreement is confirmed effective by the Court pursuant to the Article 43 of the Extraordinary Administration
L
Proceedings Law.
"Settlement Agreement' means the settlement agreement between the parent as debtor, its affiliated and controlled companies and the creditors pursuant to the Article 43 of the Extraordinary Administration Proceedings Law.
"Shareholder Affiliate" rneans lvica Todori6:
(a) (b)
each of the Persons associated with him;
any trust of which Mr. lvica Todoric or any of his Subsidiaries or
a
person
assocr'ated with hirn is a trustee;
(c) (d)
any partnership of which Mr. lvica Todori6 or any of his Subsidiaries or persons associated with him is a parfrrer; and any trust, fund or other entity which is managed by, or is under the control of, Mr. lvica Todori or any cf his Subsidiaries or Persons associated with him.
For the purposes of this definition, "Person" means any individuat, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated orgianisation, limited liability company or other entity.
)
-21
-
"Specified Existing Financial Indebtedness,, meafts.
(a)
in respect of the Original Lender or an lncrease
{i)
Ler#r:
the amotnt of Existing Financial lndebtedness to which the
Original Lender is legally and/or beneficially entitled under the Existing Bonds to be
refinaneed from a utilisation of Facility A on the lnitial Utilisation Date as set out in paragraph 1 1(b) of Schedule 10 ({/f/isatron and Applicatian of foans), and
(ii)
(b)
the amount of Existing Financial lndebtedness to which the
Original Lender or an lncrease Lender is legally andlor beneftcially entifled under the relevant Specified Existing Financi*g Documents as set out in the retevant lncrease Confirmation and to be refinanced from a utilisation of Facilfu A in accordance with this Agreernent,
in respeh of a New Lender the amount of Existing Financial lndebtedness to which the New Lender is legally andior beneficialty entitled under the relevant Specifrcd Existing Financing Documents as set out in the relevant New Lender Accession and to be refinanced from a utilisation of Facility A in accondance with this Agreement, provided tl.rat:
(i)
in the case of any New Lender that is a DIP Lender, its Specified Existing Financial lndebtedness shall not indude any ot the Existing DllP Finance; and
(ii)
no Bilts of
Exchange may constitute Specified Existing Financiat
lndebtedness unless they constitute Eligib{e Bills of Exchange;
(c)
in respect of an lncremental Facility Lender, the arnount of the Supptier Debt or Eligible Bills of Exchange owed to the relevant lncrerental Facility Lender under the Specified Existing Financing Docvrnents and to be refinancred from a utilisation of the lncremental Facility as set out in the relevant lncremental Facility Notice.
"Specified Existing Financing Documents,, means:
(a) (b)
in respect of the original Lender, the Existing Eond Documentation;
in respect of any frlew Lender, the Existing Bond Documentation and./or Existing Loan Agreements and/or Eligible Bills of Excfrange evidencing the terms of such New Lendefs Specified Exisling Finanoiat lndebtedness as set out in the New Lender Accession;
(c) in respect of an lncrease Lender, the Existing Bond Documentation and/or Existing Loan Agreements and/or Eligibb Blls of Exc*range evidencing the ienfls of suctt lncrease tendeis Specified Existing F;inancial lndebtedness ai set u.rt in the lncrease Confinnation; and
(d)
in respect of an lncremental Facility Lender, trc documents and agreements evidencing the terms of such lncremental faoilfty Lenders Specified Existing Financial lndeHedness as set out in the {norernentalFacility Notioe.
"Subsidiary" means:
(a)
Ledo d.d.;
{b)
Agrokor Trgovina d.o.o;
:
-22(c)
any person (referred to as the "first person") in respect of which another person (referred to as the "second person"): (i)
holds a majority of the voting rights in that first person or has the right under the constitution of the first person to direct the overall policy of the first person or alter the terms of its constilution; or
(ii)
is a member of that first person and has the right to appoint or remove a majority of its board of directors or equivalent administration, management or supervisory body; or
(iii)
has the right to exercise a dominant influence (which must include the right to give directions with respect to operating and financial policies of the first person which its directors are obliged to comply with whether or not for its benefit) over the first person by virtue of provisions contained in the articles (or equivalent) of the first person or by virtue of a control contract which is in writing and is authorised by the articles (or equivalent) of the first person and is permitted by the law under which such first
(
person is established; or (iv)
is a member of that first person and controls alone, pursuant to
an
agreement with other shareholders or members, a majority of the voting rights in the first person or the rights under its constitution to direct the overall policy of the first person or alter the terms of its constitution; (v)
has the power to exercise, or actually exercises, dominant influence or control over the first person; or
(vi)
together with the first person are managed on a unified basis
and, for the purposes of this definition, a person (the "holding entity") shall be treated as a member of another person if: (A)
any of that holding entity's direct or indirect Subsidiaries is a member of that person; or
(B)
any shares in that other person are held by a person acting on behalf of the holding entity or any of its direct or indirect Subsidiaries.
A Subsidiary shall include any person the shares or ownership interests in which are subject to Security and where the legal title to the shares or ownership interests so secured are registered in the name of the secured par$ or its nominee pursuant to such Securi$. A Subsidiary shall, in respect with cornpanbs and legal entities incorporated pursuant to the Croatian Companies Act, include (without limitation) any other company or entity deemed to be a subsidiary in accordance with the provision of the Article 473 of the Croatian Companies Act.
"Super Majority Lenders" means a Lender or Lenders whose Commitments aggregate more than 90 per cent. of the Total Facility A Commitments (or, if the Total Facility A Cornmitments have been reduced to zero, agEregated more than g0 per cent. of the Total Facility A Commitments immediately priorto that reduction).
"Super Senior Priori$r" rneans prionty over the claims of other creditors as against any mernber of the Group, an Obligor or any of their Afiiliates, in each case derived in respoct of a claim incurred in the course of the Extraordinary Administration Proceedlng and for the purpose of decreasing system risk, operating business, preserving assets or eettllng claims arising from business operations, inckrding (without limitation) the claims arlslng ln
a') - /-,r
-
the event that settlement in the Extraordinary Administration Proceeding is not agreed or if the bankruptcy procedure (or any other proedure initiated after the Extraordipary Administration Proceedirq) is comrnenced against any member of the Group, an Obligor or any of their Affiliates within the scope of the Exkaordinary Administration Prnceedings Law as stipulated in Artide 39 of the Exhaordinary Administration Proceedings Law.
"Supplier Debt" means debt oured by any rnernber of the Group to an lncrernental Facility Lender in its capacity as a Tra& Creditor prior to such lncrementat Facilig Lender acceding to this Agreement as a Lender.
"Syndication lncrease Date" means each of the First Syndication lncrease Date, the Second Syndication lncrease Date and the Third Syndication lncrease Date.
"Syndication Utilisation Date'' rneans each of the First Syndication Utilisation
Datre, the
Second Syndication Utilisation Date and the Third Syndication Utilisation Date.
"TARGET2" mehns the Trans-European Automated Real-time Gross Settlement Elgress Transfer payment system which utilises a single shared platform and which was launc{red on 19 November 2A07.
"TARGET Day" means any day on which TARGET2 is open for the sett{ement of payments in Euro. "Tax" means any tax, tevy, 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 ttre sarne).
"Third Syndication lnctease Date" ryleans 28 June 2017 (or such later date as may be agreed by the Parent and the Original Lenders)being the date on whic*r in accordance with the Commitment Letter and the Backstop l_etter:
(a)
in relation to an lncrease LeruCer, the Agent executm an lncrease Confirmation entered into by such lncrease Lender in respect of any increase in Facility A Commitments assumed by it;and
(b)
in relation to an Eligible lnsditution which is not an Original Lender, the Agent executes a New Lender Accession entered into by such Eligible lnstitution in respect of the Facilrty A Oornnritrrents assumed by it,
in each case, in accordanoe with Clause 2.2 (lncrcased Commitments and New L-ender Accessions).
'Third Syndication Utilisation flab" rneans 30 June 2017 (or such later dab as may be agreed by the Parenl and the Or(lind tenders). "Total Purchase Pric€" ff€ans the aggreg,ate consideration for any aquis,ition by any rnember of the Group induding cosb and expenses and any Financia{ lndebtedness or other assumed actual or contiqEent laability (including deferred consideratbn), in eactr case remaining in any sr,rctl acquired cornpanies or businesses at ttre time of aqrdsifion. "Total Commitments" means the aggregate of the Total Facility A Commitnents and the
Total lncremental Facility Commibnents boing €200,000,000 at the datle of this Agreement.
''Total Facility A Comrnitsnents'm€ans the aggregatre of the Facr'lity A Conrrnibr.rents being €200,000,000 as at the date of this Agreement.
(t -24"Total lncremental Facility Cornmitrnents" means the aggregate of the lrrcremental Facility Commitments being zero as at the date of this Agreement. 'Trade Creditors" means trade creditors vvhich supply members of the Group with:
(a)
products, merchandise and other supplies for the purpose of onward sale of such supplies to the customers of the Group; and
(b)
services in the ordinary course of business of such member of the Group,
and, in each case, is not a bank, finanoial institution, trust, fund or other entity whieh is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financialassets.
'Transaction Costs" means allfees, costs and expenses (including legal fees) incurred by the Finance Parties in connection with the preparation and syndication of the Finance Documents and any related docunrents, and, in relatjon to the participation by the Existing Funders, incurred pursuant to and as defined in the Cornmitment Letter, in respect of Facility A, including without limitation, any account fees payable by the Agent in respect of the opening and maintenance of the Madison Account, all fees, costs and expenses of the Escrow Agent in connection with ttle Escrow Agreements and Escrow Accounts and any fees costs and expenses of an Original Lender or any member of the ad hoc committee of beneficial o\ryners of Existing Bonds incuned in connection with the acquisition of Facility A Loans before the final Utilisatirn Date.
"Transaction Security" msans the Sectrrity created or expressed to be created in favour of the Security Agent pursuantto ttte Secu{ity Documents. "Transfer Certificate" means a certif,cate substantially in the form set out in Schedule 3 (Form of Transfer Ceftifnate) or any sther form agreed between the Agent and the Parent.
"Transfer Date" means, in relation to an assignment or a transfer, the latrer of:
a
(a)
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certifi cate ; and
(b)
the date on wtrich the Agent execules the relevant Assignment Agreement or Transfer Certificate.
"Unpaid Sum" means any sum due ard payable but unpaid by an Obligor under the Finance Documents. "US Dolla/ means the tavyfr*l crflrerrcy dfl,le Urfted States of America. "US 2020s" means those 2O2O [,{otes denonrinated in US Dollars. "US Tax Obligor" means:
(a) (b)
a person which is resident tor
hx p{r{pcses in the United States of Arnerica; or
a person some or all of whose payrr.Efits under the Finance Documents are from sources within the united sdes br tAS Heral income tax purposes.
"Utilisation" means a utilisation of a Facftty. "Utilisation Date" means the date on whictr a Loan is to be made under this Agreement including the lnitial Utilisation Dab, eaoh Syndir=tion Utilisation Date and each Facility A Unallocated Amount Utitsation Da{e.
-25"Utilisation Request" rneans a notice substantially in the fonn set out in Schedule (Fom of Utitisation Regrr'esf {Facility A Unallocated Arnount)}"
14
'VAT''rneans:
(a) (b)
any tax imposad in compliance with the Council f)irective of 28 Norcrnber 2O06 on the common system of value added tax (EC Directive 20ffi1112); and
any other tiax of a similar nature, whether irnpmed in a rnernber 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 any referene in this Agreement to:
(i)
the "Agent", the "Parent', a "Borroryef', a 'lGuatantof", the "security Agenf', any "Finance Par$t", any "Lendef, any 'Secured Party", or any "Par$/" or any other person shall be construed so as to include its successors in title, permifted assigns and permitted transferees to, or of,
f1
its rights and/or obligations under the Finance Documents and, in the case of the Searity Agent, any person for the tirne being appointed as Secur"ity Agent or $ecurity Agents in accordanoe with the Finanoe Documents;
(ii)
a transaction between a person (the first person) and another person (the second person) being on "arm's length" terrns rneans a kansaction on terms that are fair and reasonabte to the first person and no rnore or less tavouraHe to the second person than could reasonably be elp'ected to be obtained in a comparable transaction b€ih*reen the second person and a person ufiich is not an Affiliate of the firsfr person;
(iii)
"assets" includes present and future properties" rev€nues and rights of every description;
(iv) a "Finance Documenf' or any other agreernent or inskument is a reference to that Finane Document or other agreernent or instrument as amended, novated, supplemented, extended, replaced or restated:
(v) (vi)
(vii)
a "gfoup of
[.endes" indudes all the Lenders;
"guarafitee" indudes any guarantee, letler of cnedit, bond, indemnity, or similar as$urance against loss, or any obligation, direci or indirect, ac{ral or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any psrson or to purchase assets of any persioll where, in each case, suoh obl,igation b assurned in order to maintain or assist the abili$ of sucfi persm 0o rmeet lb indehrtedness; "indebEdness" includes any obl,igation {wtre{trer inctred as principal or as surety) for the payment or repayment of nroney. wtrether present or future, actuel or contingent;
(vii$ a
"pe{Eon" indudes any indivirireal. fifin, oo{npany, oorporation, government, state or agency of a stab or any association, trust, joint ven&tre, mnsortium, parhership or o&rer entity (wheffler or not having separate legal personality);
(ix)
a "regulation" includes any regrdation, ftde. officiat direc{ive, request or guideline (*ihether or not having tfie force of law) of any gror;ernmental,
Y
t'
-26-
)
intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
(x)
a provision of law is a reference to that provision as amended or
re-
enected; and
(xi)
I
a time of day is a reference to London time.
(b)
The determination of the extent to which a rate is "for a period equat in length" to an lnterest Period shall disregard any inconsistency arising from the last day of that lnterest Period being determined pursuant to the terrns of this Agreement,
(c)
Section, Clause and Schedule headings are for ease of reference only.
(d)
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same mehning in that Finance Document or notice as in this Agreement.
(e)
A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
1.3
Currency Symbols and Definitions '€", "EUR" and "euro" denote the single currency of the Participating Member States. "HRK" denote Croatian Kuna, being the larivful currency of Croatia.
1.4
Commissioner (a)
The parties acknoruledge that the Cornmissioner enters into this Agreement for and on behaff of the Parent as legal representative. The Parties acknowledge that the Commissioner shall incur no personal liability under the Finance Documents nor in respect of any failure on part of the Group to observe, perform or comply with any such obligations; or under or in relation to any associated arrangements or negotiations, save as a result of any loss, liability or cost arising as a result of such individual's wilful default under the Finance documents which has a material adverse impact on the Lenders or where such individual acted fraudulently in giving a certificate, other document, representation or statement (in which case any liability of such individual shall be determined in accordance with applicable law), subjed to the qualifications set forth in the Finance Documents.
(b)
The Lenders acknowledge that (i) they have not relied on any statements of the Group wfpn making a credit decision to enter into any Finance Document (ii) the financial statemenls provided prior to the date of this Agreement may contain erors (iii) they have not been induced into making a credtt decision on the basis any prior or current statements or representations by the Group and (iv) the result of any incorrect staternent or representation under the Finance Documents shall not result in assefiirg any personal liability of any person associated with the
j
Group. 1.5
Third parfi righb
(a)
Unless expressly provirJed to the contary in a Finance D@urnent, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 199g (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreernent.
"(
-27
(b)
-
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind orvary this Agreement at anytinre.
ty
t/
\
-28Section 2 The Facilities 2,
Txe Fecrunes
2.1
The Facllftles (a)
Subject to the terms of this Agreernent, the Lenders make available a Super Senior Priority term loan facili$ denominated in euros in an aggregate amount equal to the Total Facility A Commitrnents, subject to an increase of Commitments in accordance with clause 2.2 (lncreased commitments and New Lender 4ccessions).
(b)
Facility A will be available to tl're Parent as Bonower"
(c)
Subject to the terms of this Agreement, a Lender may make available (but is not committeU to making availabb) a tenn loan facility in an aggregate amount not exceeding the lncrementat Facility Maximum Amount to the Parent as Borrower.
! 2.2
lncreased Commitments and New Lender Accessions
(a)
On each Syndication Commitment lngease Date, the Facility A Commitments shall be increased by an aggregate amount equal to the Relevant Syndication lncrease Amount.
(b)
fhe parties agree that the Relevant Syndication Amount on the Third
Syndication
lncrease Date shall be equalto the Final lncrease Amount. (c)
At any time during the Availability Period applicable to lncremental Facility, at the option and request of the Parcnt, the Trade Creditors may accede to this Agreement pursuant to an lnorernental Facilrty Lender Accession as a Lender provided that on the lncremental Facility Signing Date, the aggregate lncremental Facility Commitrnents assumd by such lncremental Lenders are equal to €s0,000,000.
(d)
Each Eligible lnstitution by executing a New Lender Accession and each lncremental Lender by executing an lncrernental Lender Certificate 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 New Lender(s) or lncremental Lende(s) in accordance with this Agreement on or prior to the date on which ttre increase in Facility A Commitments or lncremental Facility Commitments (as the cree nuy be) becomes effective.
(e)
The Facility A Commitments shail not, at any time, exceed €960,000,000.
(0
The lncremental Facility commilntenb sfraH not, at any time, exceed €s0,000,000.
(g)
The Agent shall, as smn as ,practicaHe on receipt, execute any lncrease Confi nnation or Accession Doournent.
(h)
The Parent shall promptty on demand pay the Agent the amount of all costs and expenses (including legal fees) p,roper{y incuned by the Agent in connection with an increase in Commitnrents under this Clause 2.2.
(i)
An increase in the Cornmitments relating to the lncremental Facitity will only be effective on the execution by the Agent of an lncremental Facility Lender Accession from the relevant Eligible lnstitution and the Agent being satisfied that it has complied with all necessary 'know your customeC' or other similar checks
Lr"
_29
_
under all applicabte laws and regulations in relation to the assumption of the increased Commitments by that Eligible lnstitution.
0)
2.3
lf prior to the First Syndication lncrease Date any proposed Nerr Lender that is a holder of any Existing Bonds notifies the Parent and/or the Backstop Parties (as defined in the Cornmitment Letter) that for regulatory or complianoe reasons it needs to fund its proposed partlcipation in Facility A in accordance with the Commitment Letter via private placement structure, the Parent and the Original Lenders shall rnake such changes to the Finance Documents as shall be reasonably required to aceommodate this request.
lncremental Facility (a)
(b)
(c)
Subject to this Clause 2.3 the Parent may, at any tirne and frorn time to time following the Third Syndication Utilisation Date by delivering to the Agent and the Security, Agent a duly completed lncremental Facility Notice signed by an authorised signatory and complying with paragraphs (c) and (d) below, establish an lncremental Facility by way of the introduction of a new additional commitment or facility as a Facllity under this Agreement.
I
The lncremental Facili$ may be utilised by way of designation of debt obligations incurred by a mernber of the Group after the commencement of the Extraordinary Administration Proceedings of the Group to a Trade Creditor under a supply contract (a'Supply Contract") as an lncremental Facility Loan. No consent of any Finance Party is required to establish an lncremental Facilig at in relation to an lncremental Facility, ttle relevant lncremental Facility Lenders making available the applicable lncrernental Facility)
any time (other than,
provided that (unless otherwise agreed by the Majority Lerders) each of the following applicable conditions are met:
(i)
the lncremental Facility Commitments specified in the relevant lncremental Facitity Notice (when aggregated with all then existing lncremental Facility Commitments), if designated in full would not exceed the lncremental Facility Maximum Amount;
(ii)
the maturity date shall be the same as the Maturity Date for Facility A and shall not provide for any scheduled repayment before the Maturity Date for Facility A;
(iii)
to the extent legally possible, the lncremental Facitity shall rank pai passu (in right of payment and security) (and not, in any, case senioQ with Facility A and shall be guaranteed and secured by the same guarar(ors and the same security as is guaranteeing and securing Facility A;
(iv)
at least 50 per cent of the lncremental Facility Loans shall be applied or deemed to be applied in reduction of the Specified Existing Financial lndebtedness of the lncremental Facility Lender under the Existing Supply Contrac-ts or Eligible Bills of Exchange of such lncrernental Facil[ty Lender (and the relevant Trade Creditor has acknowledged trat reductio{r by countersigning th e relevant ncremental Facility Notioe) ; I
(v)
the aggregate amount of the lncremental Facility used for the purposes of refinancirg any Etigible Bills of Exchange (wtren aggregated with the amount of proceeds from Facility A Loans also used to refinance Eligible Bilb of Excfiange) shall not exceed €90,000,000 or, if the za=ba Backstop Commiknent (as defined in the Backstop Letter) exceeds the Local Lender
v
,\,i;.)
-30-
lndividual Maximum Amount (as defined in the Commitment LetteQ for Zagrebac*a filanka, shall not exceed €100,000,000;
(d)
a
G
(vi) (vii)
the lncrernentalFacility Lender is a Trade Creditor;
(viii)
the terms of the Incremental Facility shall be on no more favourable than Facility A, including for the avoidance of doubt the relevanl margin and fees.
no individual Trade Creditor or its Affiliates shall hold lncremental Facility Commitrnents aggregating more than the higher of (1) €10,000,000 and (2130o/o of all lncremental Facility Commitments; and
Each lncremental Facility Notice is irrevocable and will not be regarded as having been duly competed unless it specifies:
(i)
the date on which the lncremental Facility Commitments are to become effective and the applicable Availability Period;
(ii)
the Supply Contract under which the lncremental Facility is provided (a copy of such oontract to be attached to the lncrementat Facility Notice);
(iii)
evidence satisfactory to the Agent (acting on the instructions of the Majority Lenders), that 50 per cent. of the amount being designated (whether by designation of amounts owed under any Supply Contract or otherwise) as an lncremental Facility are applied in the reduction of the Specified Exis'ting Financial lndebtedness of the lncremental Facility Lender under the Fxisting Supply Confacts or Eligible Bills of Exchange in whatever way specified;
(iv)
the purpose of the lncremental Facility Commitrnents not
(v) (vi) (vii)
the amount and currency of the lncremental Facility Commitments;
(viii)
the rnaryin applfuable to each Loan to be made available under the
otherwise applied in redemption of the Speclfied Existing Financial lndebtedness of the lnoremental Facility Lender;
the final repaynrent date flor the lncremental Facility Loans;
the amoust of ttle lncremental Facility Comnritment allocated entity named in the lncrernental Facility Notice as a Lender,
to
each
lncrementd Faciltty,
(ix)
any proyisixts agreed bef.,een the Parent and the entity providing the ncrernental facf ity Commitments relati rq to con ditional ity. I
(e)
Each lncremental Facility Notioe shall be countersigned by eact entity to which an lncremental Facility f;ornmitment is allocated. Any entity to which an lncremental Facility Commitrnent is albcated shall compty with the provisions of Clause 22 (chanEes to the Le,rders) to the extent applicable. By countersigning the lncremental Facility Notioe eactr such entity agrees to commit the lncremental Facility Cornrnitnent set out ragainst its name and in the case of an entity which is not already a [-ender, to beconre a Lender and party to this Agreernent.
(0
Upon receipt of a duly cornple{ed lncremental Facility Notice, the Agent and the security Agerfi shall acknont{edge receipt of such notice and, if appropriate, the accession of the relevant Lenders to this Agreonrent pursuant to the lncremental
-31
-
Facility Lender Accession and the Agent shall infonn the Lenders of sur:h receipt. The Agent and the Security Agent are atrthorised to disclose details of the lncrenrental Facility Notice and in relation to any {ncremental Facility to the Lenders on request. The Agent and the Security Agent shall only be obliged to sign an lncremental Facility Notioe upon its cornpletion of all "know your customer' or other checks relating to any person that it is required to carry out in relation to the aocession of any entity as a Lender.
(g)
The Agent shall notify the Parent and the Lenders of the changed amounts of the lncremential Facility Commitments prornptly after receipt of each lncremental Facility Notice.
(h)
The lncremental Facility Commitrnents shall have the same terms as Facility A other than (i) Clauses 12 (Tax-Gross-Up and ln*mnities) and 13 (lncreased Cosfs) shall not apply to the lncremental Facility Commitments and (ii) as to each item reqgired to be specified in the lncrernental Facility Notice provided.
(i)
The Agent (acting on the instructions of the Majority Lenders) hereby authorises the Security Agent, in the event of delivery by the Parent of an lncremental Facility Notioe, to execute any amendments to the Secunty Documents required by the Lenders as a result of paragraph (cXiii) above (to the extent laMut)..
0
lf the other provisions of this Clause 2.3 are rnet, each Party:
(k)
(i)
agrees that lncremental Facility Cornmitrnents may be made avaitable to the Bonoryers; and
(ii)
inevocably authorises and instructs the Agent and the Security Agent to sign an Incremental Facility Notice to reoord the lncrementat Facility Comrnitments as set out in the relevant lncrermental Facility Notice and the estab[ishment of (or the increase in lrrremental Facility Commitments in respect of) the lncremental Facility.
Each Obligor confirms:
(i)
the authority of the Parent to agree and implement the establishment of lncremental Facility Commitments and the lncremental Facility in accordance with the procedures and up to the amounts permitted by this agreernent (as amended or modifred from lime to time); and
(ii)
2.4
that all its guarantee and indemnity obligations recorded in Clause 17 (Gtraranfee and lndernnity) andlor in any Accession Letter or other Finanoe Document will extend to indude the lncrenrental Facility Loans and other obligations arising under the lncrernental Facility sublect to any limits as specffically reorded in Clause 17 (Guanntee and lndemnity!,lhe relevant Acoession Deed or elsewhere in tre Finanre Documents.
Extension Option
(a)
v
Sut{ecd to paragraph (d) below, the Maturity Date applicable to Facitity A and the lncrernental Facility shall be extended by 24 rrnonths if:
(i) (ii)
the Set0enrent Date has ocanned on or before 10 July 2018; the Farent requests an extension to all or my of the Facilities by notioe in writing received by the Agent not less than 60 days before the Original Maturity Date (as defined below);
\,
-32-
'-
\t:-'(.1
(iii)
no later than 30 days prior to the Original Maturig Date, the Parent has provided the Agent with details of any additionat Security, guarantees, indemnities and other assuranc€ against loss which can be granted by any member of the Group in favour of the Security Agent on or after the Settlement Date in order to ensure that the Facilities retain the Super Senior Priority ranking expressed to be created in accordance with the Finance Documents as at the date of this Agreement (which shall include securi$, guarantee, indemnities and other assurance against loss requested by the Agent and as a minimum first ranking security over all material assets held by any member of the Group) (the "Enhanced Security Package"),
(iv) (v)
no Event of Default has occurred and is outstanding; and
the Majority Lenders and the Majority Non-tsank Lenders have each, as separate and distinct classes, approved the terns of the Settlement Agreement and the details relating to the Enhanced Security Package.
C
For the purposes of this Clause 2.4 "Original *laturity Date" means the earlier of 10 July 2018 and the anticipated Settlement Date. (b)
The Agent shall promptly notify the Lenders of any request to extend the Facilities under paragraph (a) above.
(c)
Each Lender shall notify the Agent of its decision (which shatl be in its sole discretion) whether or not to approve the Settlement Agreement and the Enhanced Security Package under paragraph (a) aborre no later than 14 days before the Original Maturity Date. lf the Settlenrent Agreement and Enhanced Security Package is approved by the Majority l-enders and the Majority Non-Bank Lenders, the Agent shall notify the Lenders of the new Maturity Date, which shall be the date falling 24 months afterthe Settlement Date.
(d)
Sub.iect to this paragraph (d), the Extension shall be made available on the same terms as the Fadlities other than:
(i)
an amendment to this Agnaement to include a cash sweep requiring mandatory prepayment of the Loans by an amount equal to no less than 60 per cent. of any excess cashflow;
(ii)
the Parent shall (and shall ensure that each elevant member of the Group will) promptly enter into such documents as are necessary to provide the Lenders with the benefit of the Enhanoed Security Package; and
(iii)
definition of 'PlK Margin" sigll be dd# and the definition of 'cash Margin" shall be amended to 6 per cent per annum (with consequential amendments to provide fo'r only Cash pay and non PIK interest) and the EURIBOR floor will be amended to reflec{ the then prevailing market conditions.
The Parties agree to negotiate the terns of Se Erdension in good faith (including but not limited to the basis of calo.dation of intrerest, any amendments to the definition of Permitted Financial lndebGdness and relevance and scope of the requircrnent for ttte consent of the Restructuring Adviser). For the avoidance of doubt, all suclt anrendments wilJ be sut{ect to approval by the Majority Lenders and the Majonty Non8ank Lenders (in eacfi case as separate and distinct dasses).
-332.5
Finance Parties' rights and obligations (a)
The obligations of each Finance Party under the Finance Documents are se*reral. 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 Finane Party is responsible for the obligations of any other Finance Party urder the Finance Documents.
(b)
The rights of each Finanre Party under or in connection with the
(c)
Finance Docurnents are separab and independent rights and any debl arising under the Finance Documents to a Finance party from an obligor is a separate and independent debt in respect of which a Finance Party shall be entiled to enforce its rights in accordanoe with paragraph (c) below. The rights of eacfi Finance Party include any debt owing tro that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or other amount or,,led by an Obligor yvhich relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalQ is a debt owing to that Finance party by that Obligor.
\,
A Finance Party may, except as specifically provided in the Finance Docur*ents, separately enforoe its rights under or in connection with the Finance Docurnents.
2.6
Obligors'Agent (a)
Each Obligor (ofier than the Parent) by its execxrtion of this Agreement or an Accession Letter inevocably appoints the Panent (acting through one Gr more authorised signatories) to act on its behalf as its agent in relation to the Finance Docu ments and inevocably authorises :
(i)
the Parent on its behatf to supply all information concerning ihelf contemplated by th's Agreement to the Finance Parties and to girre all notices and instructions, to execute on its behatf any Accession Letter to
to effuct the relevant arnendments, supplements and variations capable of being given, made or effucted by any obligor notwithstanding that they may affect the oblgor, withoui further reierence to or the consent of that Obligor; and make strch agreements and
(ii)
each Finance Party to give any notice, demand or other communkxtion to that obligor pursuant to the Finance Doanments to the parent,
and in each case ffre OHigor shatl be bound as though the Obligor itself had grrven the notices and inshuctions or executed or made the agreements or effected the arnendments, supplemenb or variations, or receiyed the relevant notiae, dernand or otrer communk;atim. (b)
Every act, omission, agrreement, undertaking, sefilernent, waiver, arnendrnent, supptement, varidon, notice or ofirer communication given or rnade by ttre Obligors' Agent or given to the Obligors' Agent under any Finan"e Documerfr on behalf of another Obligror or in connection with any Finanoe Document (whetfrer or not known to any otfcr Obligor and wtrether ocurning before or after such dfrer Obligor became an OH$or under any Finanoe Docurnent) shall be binding for all purposes on that oHigor as if that ouigor had ergressly rnade, given or concuned with it. ln the event of any oonflict betrveen any notices or strer communications of the obligors' Agent and any other obligor, those of the Obligors' Agent strall prerrail.
v
-343.
PuRposE
3.1
Purpose
(
(({-,\
(a)
Subject to Clause 5.6 (Urnifafions), each Borrower shall apply an aggregate amount equal to 50 per cent of the amounts borrowed by it under Facility A towards refinancing the Specified Existing Financial lndebtedness of each raCitity A Lender in accordance wi$r Sctredu{e 1o (Utilisation and Apptication of toani) and Schedule 11 {Redemption and Repayment tvlechanics) and financing Transaction Costs provided that the aggregate amount of such Facility A Loans utilised by the Borroner for the purposes of refinancing any Eligibie Bills of Exchange constituting specified Existing Financial lndebtedness shall not exceed €90,000,000, or if the Zaba Backstop Commitment (as defined in the Backstop Letter) exceeds the Local Lender lndividual Maximum Amount (as defined in the Commitment Letter) for Zagrebacka Banka, €100,000,000.
(b)
Subject io Clause 5.6 (limrfaftrms), each Borrower shall apply an aggregate amount equal to 50 per ent of all amounts borrowed by it under Facitity (being, A for the purposes of this par4raph (b) any funds credited direcily or inoirecfly to the Liquidity Escrow Account in accordance with Schedule 1o (lJtilisation and
of Loans)) torrards the general corporate and working capital puqposes of the Group (including a transfer to an account of the parent located in Croatia) and provided that an aggregate amount of such Facility A Loans equal to
Application
€80,000,000 shall be applied on the fhjrd Syndication Utilisation Date in redemption, prepayment and cancetlation of the Existing Dlp Financing (including by way of set-off in ttre circumstances refened to in paragraph 4 of Siheoule t o (Util i s ation a nd Apgitxtion d Loans)).
(c)
t
3.2
The Borrower irrevocably ausrorises the Agent to credit amounts borror,,rred by it under Facility A to the balance of the Repayment Escrow Account to be applied in accordance with Schedub 1o {Uffisafron and Apptication of Loans), Schedule 11 (Redemption and Repaytrcnt Nlechanbs) and the terms of the Escrow Agreements.
Monitoring No Finance Party is bound to mmitor or veriff the application of any amount borrowed pursuant to this Agreement.
4.
Coxorrpxs oF UnltsATaor
4.1
lnitial conditions precedent
(a)
The lnitial Utilisation oate shall not occur unless the Agent has received all of the docunrents and otfrer sidenoe listed in PartA of schedule z (ca6itions Prccedent to lnitial Utrrsafiofl) in to,nn and substance satisfactory to the Agent. Fhe Agent shall notify tirc Parent and the Lenders promply upon being so safisfrcd.
(b)
other than to the exlert lhat a Lender notifies the Agent in rvriting to the contrary before the Agent girrcs the notification described in p"ragraprr'(a) above, the Lenders authorise (but do not require) the Agent to give that noiidcation. The Agent shall not be li$le br any danrages, costs or losses whatsoever as a result of giving any such noffficatirm.
-35Sectlon 3 Utilisatlon 5.
Ulttsltrox
5.1
lnitial Utilisation Date On the lnitial Utilisation Date, Facili$ A shall be utitised by way of one Loan in an amount equal to the Total Facility A Commitments as at the date of this Agreement, being €200,000,000 to be advanced and applied in accordance wittt Schedule 10 (Utilisation
and Application af Loans) and the mechanics set out in Schedule 11 {Redemption and Repayment Mecfianrcs). 5.2
Syndication Utilisation Dates On each Syndication Utilisation Date, subject to Clause 2.2 (lncrcased Commitments and New LenderAcoessions), Facility A shall be utilised in an amount equal to the Available Commitments for Facility A as at the relevant Syndication Utilisation Date, being the Relevant Syndication lncrease Amount, to be advanced and applied in accordance with Schedule 1A (Jfitisation and Application of Loans) and the mechanics set out in set out in Schedule 11 (Redemption and Repayment Mechanics).
5.3
Facility A Unallocated A,mount
(a)
At any time following the Third Syndicatlon Utilisation Date but prior to the end of the Availability Period for the Facili$ A Unallocated Arnount, the Bonower may request a Utilisation of the Available Comrnitrnents under Facility A by submitting a Utilisation Request in the form set out in Schedule 14 (Fom af Utilisation Reguesf (Facility A Unallocated Amounf)) by 11arn (London time) on the date falling at least 10 Business Days prior to the proposed Utilisation Date.
(b)
Each such Utilisation Request shallspecify.
(i)
the proposed Facitity A Unallocated Amount Utilisation Date, which must be a Business Day within the applicable Availability Period;
(ii)
the amount of the Utilisation, whictr must be in a minimum amount of €20,000,000 or if less the Available Commitnent.
5.4
(c)
Each Utilisation made available under this clause 5.3 \Facility A Unallocated Amoung shall be advanced and applied in accordance with Schedule 10 {Utilisatian and Application of Loans) and the mechanics set out in set out in Schedule 11 {Redemption and Repayment Mxhanics).
(d)
\Mthin 5 Business Days of receipt of a Utilisation Request in respect of the Facility A Unallocated Arnount one or more lncrease Lenders and/or Neur Lenders (as determined in accordance with the Backstop Letter) shall enter in lncrease Confirmations and/or New Lender Accessions and assume Facility A Commitments in an aggregate amount equal to the amount of the proposed Utilisation of the Facility A Unallocated Amount.
lncremental Facility Utilisation Date
The Borrmrer may uhlise the Incremental Facility on the lncrenental Facility Utilisation Date as specified in the lrcremental Facility Notice and the lncrementalFacility Loan shall be applied in accordance with the lncremental Facility Notioe.
(
-Jb6.6
Furthor condltlons precedent Tho Lenders will only be obliged to comply with Clause 5.7 (Lenders' Participafions), if on the retevant Utlllsation Date, no Event of Default has occuned and is continuing or would r€Bult from the proposed Loan.
5.6
Llmltatlons
(a)
No Facitity A Loans drawn prior to the Third Syndirxtion Utilisation Date shall be applied forthe purposes of refinancing the Existing DIP Financing.
(b)
The aggregate amount of Facility A Loans utilised by the Borrower under paragraph 3.1 (Pupose) for the purposes of refinancing the Existing DIP Financing shall not exceed €80,000,000.
(c)
No Facility A Loans may be utilised for the purposes of refinancing or repaying any Eligitile Bills of Exchange owed to a bank or financial institution (or owed to a bank or financial institution prior to the commencement of the Extraordinary Administration Proceedings but subsequently transfened) untess they constitute Specified Existing Financial lndebtedness of a Lender and such refinancing or repayment is made in accordance with the provisions of this Agreement.
(d)
No Facility A Loans may be utilised by the Bonower under paragraph (b) of Claum 3.1 (Purpose) directly or indirectly for the purpose of paying any debt due to a supplier of inventory or trade stock of the Group where the relevant supply contract was entered into prior to the comrnenc€rnent of the Extraordinary Administration Proredings ("PrePetition $upplier Debt') until after the Third Syndication Utilisation Date and then only if the followirq conditions are met:
(i)
the Borrower shall consult with the Financial Adviser before paying any Pre-Petition Supplier Debt;
(ii)
5.7
and
the aggregate amount of Pre-Petition Supplier Debt that may be paid from the proceeds of Facility A Loans may not exceed:
(1)
up to an aggregate amount of €75,000,O00 to hotders of Supplier Debt incurred prior to 10 April 2017 where such holders have at the time of payment agrced to resume or continue the advance inventory on a business as usual basis. The selection of this class and payment quanfum to be decided upon in consultation with the Financial Adviser; aM
(2)
up to an aggregate amount of €75,0O0,000 to selected holders of Suplier Debt incurred pr.ior to 1,0 Apri,l2017 and with methodology and in amounts approved by the Financial Adviser.
Lenders' Participations
(a)
lf the csnditions set out in this Agreement have been met, each Lender shall rnake
its participation in eactr loan available through its Facility Office in the manner set out in Schedule 1A (/Utitisr,tian and Apfuatiorq of Loans), the relevant amount of such participation to be funded to (he Madison Account (for onward transmission by the Agent in acoor&nce with Clause 5.9 (EscrowAcoounfs) below).
(b)
The amount of each Lendefs participation in each Loan witl be equal to the pnrportion bome by its Available Commitrnent to the Available Facility immediately prior to the rnaking of the Loan.
r.
-375.8
Redemption and Repayment of Ex,bting Flnancial lndebtedness For the avoidance of doubt, each party to this Agreement acknowledges and agrees that:
(a)
the Specified Existing Financial lndebtedness owed to each Facilig A Lender will be redeemed, repaid or prepaid and cancelled when a Facility A Loan urhich is drawn for the purposes of refinancing such Specified Existing Finanoilal lndebtedness is transferred from the Refinance Escrow Account to the Repayment Escrow Account in accordance with paragraph 2 of Scheduh trO (Utilisation and Appticatron ofloans), and
(b)
the redemption, repayment or prepayment of the relevant Specified Existirg Financial lndebtedness shafl take effect in accordance with Schedule 1I (Rede mptian
5.9
a
nd Repaynenf l!{ecftanrcs).
Escrow Accounts
(a) (b)
The Parent authorises the Agert to deduct the aggregate amount of Transaction Costs from the balance of the Repayment Account on each Utilisation Date in respect of Facility A prior to transhning funds in accordance with this Clause 5.9.
\.,
The Parent authorises:
(i)
the Agent to credit all announts borrowed by it under Facility A to the balance of the Repaynrent Escror Account to be applied (net of Transaction Costs) in aocordance with Schedule 10 (Utilisatim and Application of Loans); and
(ii)
(c)
the Escrolv Agent to traasfer any amount between the Escrow Accounts in the manner and order set out in Schedule $ (Utilisation and Applpation af Loans) without ttte need for any further consents or authorisations honr any party.
Any amounts credited to the balance of the Lquidity Escrow Account may be applied by the Parent in aemrdanoe with paragraph (b) of Clause 3.1 {Purporr;l.
v"
\\
-38Section 4 Repayment, Prepayment and Cancellation 6.
Rep,aYmrHt
6.1
Repayment on the Maturity Date
(a)
Each Borrower shall repay the Facility A Loans (including for the avoidance of doubt all accrued PIK lnterest) made to it in full on the Maturity Date.
(b)
Each Borrower shall repay
tre
Incremental Facility Loans made to
it on the
Maturity Date. 6.2
No reborrowing The Borrowers may not reborrow any part of a Facility which is repaid.
7_
PReipevttetr AND cANcELt-ATtoN
7.1
lllegality
(a)
lf, in any applicable jurisdiction, at any time, it becomes unlaMul for any Lender to perform any of its obligations as conternplated by this Agreement or to fund or maintain its participation in any Utilisation or it becomes unlaMul for any Affiliate of a Lender for that Lender to do so:
(i)
that Lender shall prornpty notify the Agent upon becoming aware of that event;
7.2
(ii)
upon the Agent not'fying ttre Parent, the Commitment of that Lender will be immediately cancelled; ard
(iii)
each Borrower shall repay that Lendefs participation in the Loans made to that Borrower on the last day of the lnterest Period for the relevant Loan occurring after the Agert has notified the Parent or, if earlier, the date specitied 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) and that Lendels cortes@ndirq Commitment(s) shall be cancelled in the amount of the Participatkms repaid.
Change of Control and Extension
(a)
Upon the occurrence of a Charge of Control or in the event that the extension option is not exercised prsuant to and in accordance with Clause 2.4 (Extension Optionl: (i)
the Parent shall prom${y notify the Agent upon becoming aware of that event; and
(ii)
a Lender shall not be oUired to fund the Utilisation; and
(iii )
the Agent shall, by rvritbn notie to the Parent, cancel the Total comrnitrnents of the Lenders and declare any outstanding utilisations, together with accrued interest, and all other amounts accrued under the Finanoe Docurrenb irrnedktdy due and payable, whereupon the Total Commitments will be canoefled and any outstanding Utilisations and all such amounts will beoome imrnediately due and payable.
-39-
7.3
Dlsposals
(a)
For the purposes of this Clause 7.3:
"Disposal" fileafts a sale, lease, licence, transfer, lean or other disposal by a person of any asset, undertaking or business {whetfrer by a vrduntary or involuntary singb transaclion or series of transactions); "Disposal Ptoceeds" {y}eans the consideration receivable by any member of the Group (inciuding any annount reoeivable in repayrnent of intercompany debt) for any Disposal made by any member of the Group exaept for Excludetd Disposal Proceeds and after deducting: (i)
any r€asonabb expenses which are incuned by any rnember olf ttte Group with respect to that Disposal to persons who are not members of the Group;and
(ii)
any Tax incured and required to be paid by the selbr in conrrec{i'on with that Disposal (as reasonably determined by the seller, on ttrc basis of existing rates and taking account of any available credit, dr:duction or aliowanoe);
t,
"Excluded Disposal Proceeds" means the consideratbn receivable by any member of the Grcxrp in relation to: (i)
any Disposal (other than a Permitted Company Bisposal) where the considerdion receivable is less than €10,000,Om (or its equivatent in other cunencies) wfren aggregated with other Dispmal Prorercs received sine the date of this Agreement; and
(ii)
any Disposal peryn;11"6 by paragraphs (b)(i) and (ii) of Clause 20.15 (Drposals);and
iii)
in respeot of any Disposal Proceeds which have been derived from a
(
Permitted Cornpany Disposal, an amount rr,hich is equal to 40 per cent. of the aggregate amount of such Disposal Proceeds ("Retaineri Bisposal Proceeds') provided that the relevant Retained Disposal prrcceeds are applied torads the purctase of a similar business or rep{irrement of asseb of the same general nature as those dispssed of as a permitted Cornpany Disposal or investment of other assets $or use in the Group, as soon as possible (but in any event within 180 days s such lcxnger period as the Uaixity Lenders may agree) after receipt. (b)
The Eorrovrens sfiallprqpay any or.rtstanding Facility A Loans and any tricrernental Facility Loans ard thersfter cancel Available Comrnitrnenb, in an anrount equal to:
(i)
90 per cent. of any Disposal Prooeeds other than Disposal Froceeds de{ived fuin a Pennitted Company Disposal;
(ii)
6o per cent. of the aggregate amount of any oisposa{ proce
t,
-40unloss ln the case of paragraph (b)(i) above the Parent obtains the prior wntten consent of the Majori$ Lenders to apply the relevant Disposal Proceeds for the purposes of financing:
(1) (2)
the working capital requirements of the Group; or any supptirx invoices owed to Trade Creditors,
provided that such invoices were incurred by the relevant rnember of the Group prior to the comrnenement of the Extraordinary Administration Proceedings and have been outstanding for more than 60 days. (c)
L
7.4
Te rrm
The Parent shall prepay Loans under this Clause 7.3 promptly following receipt of the relevant Disposal Proceeds or, in the case of Retained Disposal Proceeds on the date whicfi is 180 days after receipt of the Retained Disposal Proceeds if they are not applied in accordanoe with paragraph (c) of the definition of Excluded Disposal Froceeds.
ination of Extraord ina ry Adm in istration Proceed
i
n
gs
Upon termination of the Extraordinary Administration Proceedings in relation to any Borrower, the Facilities will be cancelled and all outstanding Loans, together with accrued intenest and all other amounts accrued under the Finance Documents, shall become imrnediately due and payable. 7.5
Voluntary prepaymerd (a)
A Borrower to whicfr a Facility A l-oan has been made may, if it or the parent gives the Agent three Business Days' (or such shorter period as the Majority Lenders may agree) prior notkx, prepay the whole or afly part of a Facilig A Loan (but if in part, being an amount that reduces the amount of that Loan by a minimum amount of EUR 10,000,000 (and integrat multiples of EUR 5,000,000 thereafter)).
(b)
L
other than as pemitted by paragraph (a) above, the Borrowers shall not be entitled to make any prepayment of the Facility A Loans or lncremental Facility Loans without the consent of all Lenders.
7.6
Restrictions (a)
Any notbe of canodiation or prepayrneflt given by any Party under this Clause 7 shall be inevocable and, unhss a conhary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the arnount of that cancellation or prepayrnent.
(b)
Any prepayrner{ urder tris Agreement shall be made together with accrued interest on the amount prepaid and without premium or penalty.
(c)
No Bonower rnay rebonow any part of a Facility which is prepaid.
(d)
No Bonower shall repay or prepay all or any part of a Loan or cancel aH or any part of the Commitrnemts except at the tirnes and in the manner expressly provided for in this Agreernent.
(e)
No amount of tlre Total Commitments cancelled under this Agreement may be subseque ntly rei nstated
.
-41 -
7.7
(0
lf the Agent receives a notice under this Clause 7 it shall promptly fomrard a copy of that notice to either the Parent or the affected Lender, as appropriate.
(g)
lf all or part of a Loan under a Facilig is repaid or prepaid, an amount of the Commitments (equal to the amount of the Loan which is repaid or prepaid) in respect of a Facility will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this paragraph (g) shall r,educe the Commitments of the Lenders rateably under the relevant Facitity.
Application of prepayments Any prepayment of Loans pursuant to Clause 7.3 (Drbposals) and Clause 7 -S (Votuntary prcpaymen0 shatl be applied pro rata across all outstaMing Facility A Loarns and the lncremental Facility and pro rata to each Lender's participation in the relevant Facility A Loan or lncremental Facility.
I
:_
-42Section 5 Costs of Utillsation
L
lrreRgsl
8.1
lntercst The rate of interest on each Loan for each lnterest Period is the percentage rate per annum determined by the Agent to be the aggregate of the applicable:
(a) (b) 8.2
I
Margin; and EURTBOR.
Payment of lnterest - PIK Margin
(a)
Subject to Clause 8.3 (Payment of lnfercst - Cash Margin) and Clause 8.4 (Payment of lnterest - Default Maryin), intenest shall accrue in respect of each Loan ("PlK lnterest") at the rate which is equal to the EURIBOR and applicable PIK Margin and shall be automatically capitalised and shall be added to the outstanding principal amount of that Loan on the last day of each lnterest Period.
(b)
After capitalisation, PIK lnterest shall:
(i) (ii) (iai) 8.3
L
8.4
be treated as part of the principal arnount of the Loan;
accrue PIK lnterest in acoordance with ttris Clause 8.2; and be subject to the repayment and prepayment provisions of this Agreernent.
Payment of lnterest- Cash itlargin
(a)
A Lender may elect that the intrerest on allor part of any Loan advanced by it is to be paid by the Borrower in cash at the end of the relevant lnterest Period provided that the Lender has made an election {ttre'Cash i/largin Option") in writing to the Parent no later than ten Business Days prior to last day of a Quarter Date.
(b)
Subject to Clause 8.4 {Payrnent of lntered - Default Maryin), if a Cash Margin Option is exercised by a Lender in accordanoe with paragraph (a) above, the Margin on any Loans advanoed by the re{evant Lender shall, with effect from the first day of the next lnterest Perbd, be ca,lculated at a rate which is equal to EURIBOR and the Cash Margin, payabl,e in cash on the last day of each lnterest Period.
Pay'ment of interest
(a)
-
Defautt l$argin
tf an Event of Defautt o@lrxs, the interest on any Loans advanced by the relevant Lender shall, with effect from the mrlier of the date on which the Agent gives
notice to the Parent and the Parent or an Obligor becoming aware of the occurence of the relevant Event of Defarrrtt, be calculated at a rate which is equal to EURIBOR and the Defauft Margin, pay:able in cash on the last day of each lnterest Period.
(d) lf an Event of Defauft ooours under Ctause 21.!3 {Guarantee Chal/enge), the Defautt Margin payable under paragraph ,(a) above on the last day of the next lnterest Period shall be increased by the arnount of Default Margin which would
_43_ have been payable had the Default Margin for each Loan been calculated as 10 per cent. per annum ftom the lnitial Utilisation Date.
8.5
Notification of rates of intercst
The Agent shall promptly notify the Lenders and the relevant Borrovver
of
the
determination of a rate of interest under this Agreement.
9. 9.1
lNteRest Penloos
Duration
(a) (b) (c) (d) 9.2
Each lnterest Period will be three Months. The first lnterest Period for a Loan (other than the first Loan) shall encl on the last day of the cunent lnterest Period relating to outstanding Loans. An lnterest Period for a Loan shall not extend beyond the Maturity Date.
The lnterest Period for a Loan shall start on the relevant Utilisation DaG Loan or (if already made) on the last day of its preoeding lnterest Period.
f
r that
v
Non-Business Days
a day which is not a Business Day, that Day in that calend2l sntrnth (if there Business next on the lnterest Period will instead end is one) or the preceding Business Day (if there is not).
lf an lnterest Period would
othenivise end on
10.
CHNNCES TO THE CALCUTATION OF IT{TEREST
10.1
Unavailability of Screen Rate
(a)
lnterpolated Screen Rate: lf no Screen Rate is available for EURIISOR for the lnterest Period of a Loan, EURIBOR shall be the lnterpolated Screern Rate for a period equal in length to the lnterest Period of that Loan.
(b)
Costs of funds: lf no Screen Rate is available for EURIBOR for:
(i) (ii)
EUR;or
the lnterest Period of a Loan and it is not possible to calculate the lnterpolated Screen Rate,
there shall be no EURIBOR for that Loan and Clause 10.2 (Cosl of'funds) shall apply to that Loan for that lnterest Period.
1O.2
Cost of funds
(a)
'Loan for the relevant lnterest Period shall be the percentage rate per annum which is the sum
lf this Clause 10.2 applies, the rate of interest on of the retevant
of:
(i) (ii)
the Margin;and
the rate notified to the Agent by that Lender as soon as praclicable and in any event within 5 Business Days of the first day of that lnterest Period, to be that wtrich expr€sses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan fnrrn whatever source it may reasonably select.
v
\i,
-44-
(b) (c) (d)
lf this Clause 10.2 applies and the Agent or the Parent so requires, the Agent and the Parent shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the L.enders and the Parent, be binding on all Parties. lf this clause 10.2 applies pursuant to clause 10.3
(Maket disruption): and
(i)
a Lender's Funding Rate is less than EURIBOR; or
(ii)
a
Lender does not supply
a
quotation
by the time specified in
paragraph (aXii) above,
the cost to that Lender of funding its participation in that Loan for that lnterest Period shall be deemed, for the purposes of paragraph (a) above, to be EURIBOR.
5'
10.3 Market disruption lf before close of business in London on the Quotation Day for the relevant lnterest Period the Agent receives notifications f-rom a Lender or Lenders (whose participations in a Loan excreed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan fronr whatever source it may reasonably select would be in excess of EURIBOR then there shall be no EURIBCIR forthat Loan and Clause 10.2 (Cosf of funds) shall applyto that Loan for the relevant lrfierest Period.
10.4
Notification to Parent lf Cllause 10.2 (Cosf of furds) appties, the Agent shall, as soon as is practicable, notify the Panent.
11. 1
1.1
Fees
Cornmitment Fee The Parent will pay to ttre Agent (for the account of the Original Lenderi a commitment fee in the amount and at tihe times agreed in a fee letter.
11.2
Agelncy Fee
The Parent will pay to tte Agent (fior its own account) an agency fee in the amount and at the times agreed in a Fee tefrer.
11.3
Securigr Agency Fee The Parent will pay to the Security Agent (for its own account) a security agensy fee in the amount and at tfie times qreed in a Fee Leter.
-45Section 6 Additional Payment Obligations
12.
TaxGnoss-Up rxo lxoemmles
12.1
Definitions (a)
tn this Agreement:
'Protected Party" means the Finance Party who is or will be subiect to any liability, or requircd to make any payment, for or on aocount of Tax in relation to a surn reoeived or reeeivable (or any sum deerned for the purposes o1[ Tax to be received or receivable) under a Finance Document.
"Qualifying Lender" means a Lender whictr is beneficially entitled to interest payable to that Lender in respect of an advance urder a Finance Do<;ument and which is:
(a) (i,)
a cornpany that is resident for Tax purpores in the Republic of Croatia; or
a non-resident bank or financial institutiors for the purposes of l\rticle 31 of the Profit Tax Act as published in the Official Gazette of the lRepublic of Croatia (payments to which under the said Article are exempterd from any witfrholding taxes); or
(iii)
a Treaty Lender.
'Tax credif' means a credit against, rdief or remission for, or refund
or
repayment of, any Tax.
'Tax Deduction" means a deduction or wittrtrolding for or on account rof Tax from a payment under a Finance Document, other &ran a FATCA Deduction. "Tax Paymenf' means either the increase in a payment rnade by an obligor to a Finance Parly under Clause 12.2 (Tax Gross-up) or a payrnent under Clause 12.3 {Tax lndemnitt'l. "Trea$t Lende/' means a Lender which:
(i) (ii) {iii}
is treated as a resident of a Treaty state for sre purposes of the Treaty;
a business in the Reprublic of Groatia through a permanent establishment with whictt ttrat Lendels participation in each Loan is effectively connected; and
does not carry on
is beneficially entifled to interest payable to that Lender for the purposes of the Treaty in respect of an advance under a Finance Doctrment,
'Treaty state" rneans a jurisdiction having a double taxation agrreement (a '"[reaty') with the Republic of Croatia which rnakes provision for full exemption from tax imposed by the Republic of Croatja on interest (b)
a contrary indication appears, in tris c*ause 12, a rerference to "determires" or "deternined" rneans a detenninaticn made in the absolute discretion of the person making the determination actmg reasonably ernd in good unless
faith.
5
r 1',
-46-
12.2
I
Tax Gross-up
all
payments to be made Deducdion, unless a Tax Deduction is required by law.
by it without any
(a)
Each Obligor shall make
(b)
Ttrc Parent shall promptly upon becoming au are that an Obligor must make aTax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Simi{arly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. lf the Agent receives such notification from a Lender it shall notiff the Parent and that Obligor.
(c)
lf 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 amotent equal to the payment which would have been due if no Tax Deduction had been required.
(d)
A payrnent:
(i)
Tax
to (x) an Original Lender or (y) a Primary Lender, shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax irnposed by the Republic of Croatia if, on the date on which the payment falls due the relevant Lender is a Treaty Lender and the Obligor making the payment could have rnade the payment to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g); or
(ii)
to a Lender (other than (x) an Original Lender or (y) a Primary Lender) shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the Republic of Croatia if, on the date on which the payment falls due:
(1)
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 any law or Treaty or any published practioe or published concession of any relevant taxing authority; or
(21
the relevant Lender is a Treaty Lender and the Obligor making the payrnent could have made the payment to the Lender without the Tax Deduction had that Lender cornplied with its obligations under paragraph (g),
and for the purposes of this c{ause 12.2(dxii), limb (iii) of the definition of "Treaty Lendef shall instead read as follows: "is entithd under tfrc provisions of an applieable Treaty to receive payments under a Finanoe Docurnent without a Tax Deduction, except that fior this purpose it shall be assumed that the following are satisfied: (x) any condition which relates (expressly or by implication) to the arnoufits or terms of any Loan or the Finance Documents or any cmrdittron which relates (expressly or by implication) to there not beirtg a special relationship between the Bonomer and tlrc Finanre Parly or between both of them and another peraon; and (y) any fiecessary procedural formalities.'
\'
-47
-
(e)
lf 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 Deducfion within the time allowed and in the minimum amount required by law.
(0
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 Parly entitled to the payment evidence reasonably satisfactory to that Flnance Party that the Tax Deductiorr has been made ot (as applicable) any appropriate payment paid to the relerrant taxing authority.
(g)
A Treaty Lender and each Obligor which makes a payment to which ttrat Treaty Lender is entitled shall co-operate in compteting any procedural formalities necessary for that Obligor to obtain authorisation to make that payrnerrt without a Tax Deduction.
(h)
12.3
The Lender shall supply to the Parent within ten Business Days of a reasonable request by the Parent such forms, documentstion and other information relating to its Qualifying Lender status (including, where applicable, a certificate of tax residence issued by the relevant tax authority) or its Treag Lender stiatus as the Parent may reasonably request in order to rnake payments of interest to the Lender without a Tax Deduction. For the avoidance of doubt, the provision of any such forms, documentation and other information above shall not be a precondition to liability under Clause 12.2(c).
Tax lndemnity
(a)
(b)
The Parent shall (within three Business Days of demand by the Lender) pay $o a Protected Party an amount equal to any loss, liabilig or cost which that Protected Party determines has been (direcily or indirectly) suffered for or on accrcunt of Tax by that Protected Party in respect of a Finance Document. Paragraph (a) above shallnot apply:
(i)
with respect to any Tax assessed on a Finance party:
(1)
under the law of the jurisdiction in which that Finanrx party is incorporated or, if different, ttre jurisdiction (or jurisriictions) in \rhich that Finance Party is treated as resident for tax purpos€s, or
(2)
under the law of the jurisdiction in which that Finance party's racility offie, branch or other permanent establishment is located in respect of amounts received or receivable in that jurisdiction,
if that rax is imposed on or calculabd by reference to the rnet inoonne received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or (ii)
to the extent a loss, liability or cost:
(1)
is mmpensated for by an increased payrnent urder C:lause 12,2
(Iax Gross-ap) or a payment under Clause
{21
12.6 (Siamp faxesl;
wonld haue been compensatred for by an increased pay,ment r,mder Clause 12.2 (Tax Gross-up) but was not so compensated sdely because the exclusions in paragraph (d) of Clause 1Z.Z {Tax Gnrss-up) applied;
I
-48
(3) (4)
Ir
-
relates to a FATCA Deduction required to be made by a Party; or
is attributable to VAT (which shall instead be dealt with pursuant to Clause 12.7 {VAnl
(c) A Protected Party making, or intending to make a clainr under paragraph (a) above shall promptly no$fy the Agent of the event which will give, or has given, rise to the claim, following u,hlcfi the Agent shall notify lhe Parent.
(d) 12.4
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Agent.
Tax Credit lf an Obligor rnakes a Tax Payment and the relevant Finance Party determines that:
(a)
t,
a Tax Crgdit is attributatfle to:
(i) (ii) (iii) (b)
an increased pqyrnent of whicfr that Tax Payment forms part; or that Tax Payrnertt; or a Tax Deduction in consequence of which that Tax Payment was required; and
that Finance Party f,ras obtained, and utitised, that Tax Credit,
the lFinance Party shall pay an arr'lourrt to tfre Obligor whieh that Finance Party determines will leave it (after that pa;rmerfi) in the sarne after-Tax position as it would have been in had the Tax Payment not been reqrired to be made by the Obligor.
12.5
Lender Status Confirrnatiwr
(a)
Each Lender which becornes a Party to this Agreement after the date of this Agreernent shall indicate in the New Lender Accession, Transfer Certificate or Assignment Agreemer{'rtuilicft it executes upon becoming a Party, and without liability to any Obt(pr, uftiotr of the fol{owing categories it falls in:
(i) (ii) (iii) (b)
not a Qualify{ry Lender; a Qualifying t"ender (otherthan a Treaty Lender); or a Treaty Lender;
lf a New Lender fails to csnfirm its status in ace,ordane with Clause 12.5(a) then such l',lew Lender sftall be kgtgd for the purposes of this Agreement (,including by each Obligor) as tf ft b rd a Aual{fyfurg Lender until such time as it nstifies the Agent which catqory applis {and the Agent, upon receipt of suclr notification,
shall inform the Borrouers). For the avoidance of doubt,
a Nar
l-erder
Accession, Transfer Certificate or Assignment Agreement shall not be invalidated by any failure of a L,ender to aom,$y wttr ttris Clause 12.5.
12.6
Stamp Taxes
thre Btsiness Days of demand, indemnify each Secured Party against arly cost, fuss or lbb*liS that Secured Party incurs in relation to all starnp duty, regisfation and ether sinilar Taxes payabte in respect of any Finance Document, save where the sanne arises 6 a result of or in connection with any assignment, transfer or novation (or dher disposal) by the Secured Party (or any
The Parent shall pay and,
yuithir,r
_49successor thereoQ of any right, benefit or obligation under a Finance Docunrent other than a transfer wtrere an Eyent of Default is occuning or in connection with Clause 15.1 (Mitigationl.
12.7 VAT
(a)
All amounts expressed to be payable under a Finanoe Document by any Party to a Finance Farty which (in whole or in part) constitute the conslieration for any supply for VAT purposes are deemed to be exclusive of any VA,T which is chargeable on ttrat supply, and accordingly, su[iec't b paragraph (b) b,elow, if VAT is or becomes c*rargeable on any suppty made by any Finance Party {o any Party under a Finance Document and such Finance Party is required to acrcount to the relevant tax authority for the VAT, that Party must pay to the Finance Party any (in addition to and at the same time as payrng any ofter consideration frcr such supply) an amount equal to the amount of the VAT (and such Financer Party must prompfly provide an appropriate VAT invoice to that Party, if applicable),
(b)
tf VAT is or becomes 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 other than the Recipient (the "Relevant Par!l') is required by the terms of any Finance Docurnent to pay an amount r:qual to the consideration for such supply to the Supplier (rather than being required to reimburse or indemniff the Recipient in respect of that consideration):
(i)
(where the Supplier is the person required to aocount to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the sarne time as paying that amount) an a&itional arnount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal t'o any credit or repayrnent the Recipient receives from the relevant tax authoriity rvhich the Recipient reasonably determines relates to the VAT chargeiable on that supply;and
(iU
(wtrere the Recipient is the person requied to account to the relevant tax authority for the VAT) the Relevant Par$ must promptly, fullowing demand
frorn the Recipient, pay to the Recipient an amount equat to the VAT chargeable on that supply but only to trc extent that thre Recipient reasonably determines that it is not entitled to credit or rcpaynlent frorn the relevant tax authority in respect of that VAT.
(c)
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) the relevant Finance Patty for the full amount of such cost or expense, includirg suctr part thereof as represents VAT, save to the extent lhat the Lender reasonably delermines that it is entitbd to credit or rr:payrnent in respect of suc*r VAT fiom fte rebvant tax authority.
(d)
Any reference in this Clause 12.7 lo any Party shall, at any time when such Party is treated as a rrember of a group for VAT purposes, include (where appropdate and unless Urc context otheruise requires) a reference to the representative mernber of strch group at suctr time (the tenn 'tepresentative mernbe/'to have the same neaning as in the relevant legislation o{ any jurisdirction having implernented Council Directtve 2006/11Urc on the comrnon sys{em of VAT or suctr equirratent ooncept as may be provided rmder equivalent legislation of anothe jurtsdiciion).
!'
ry
-50-
(e)
12.8
ln relation to any supply made by a Finance Party to any Parg under a Finance Document, if reasonably requested by such Finance Party, that Party rnust promptly provide such Finance Party with details of that Partt's VAT registration and sucft other information as is reasonably requested in connection with the Finance Party's VAT reporting requirements in relation to such supply.
FA]fCAlnformation
(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:
t1) (2) (ii)
I
a FATCA Exempt Party; or
supply
nota FATCA Exempt Pa.ty;
to that other Party such forms, docurnentation and other to its status under FATCA as that other party
information relating
reasonably r,equests for the purposes of that other Party's compliance with FATCA; and
(iii)
to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purpo*s of that other Party's oompliance with any other law, regulation, or exchange of information regime. supply
(b)
lf a Party confirms to another Party pursuant to paragraph (a)(i) above that tt is a FATCA Exempt Party and it subsequenty becomes aware that it is not or has ceased to be a FATCA Exempt Paff, that Party shall notify that other Farty reasonably prompt{y.
(c)
Paragraph (a) above shall not obtige any Finance Parg to do anything, and paragraph (a)(iii) above shall not oblige any Par$ to do anything which would or might in its reasonable opinion constitute a breach of:
I
(i) (ii) (iii) (d)
any law or regulation; any fiduciary duty; or
any duty of confidentialrty.
lf a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply
forms, docurnentation or other information requested in accordance with paragr.aph (aXi) or (ii) above (induding, for the avoidance of doubt, where paragraph (c) above applbs), then such Party shall be'beated 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 prwides the requested confirmation, fsms, documentiation or other information.
12.9
FA]|CADeducti'on
(a)
Each Party may make any FATCA Deduction it is required to make and any payment required in connectircn with that FATCA Deduction, and no Farty shall be required to increase any payment in resped of wtrich it makes such a FATCA Deduction or otherwise compensatre the reoipbnt of the payment for that FATCA Deductbn.
-51
(b)
-
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any c*range in the rate or the basis of such FATCA Deduction), notify the Pa(y to rrhom it is rnaking the payment and, in addition, shall notify the Parent and the Agent and the Agent shall notify the other Finance Parties.
13.
lxcRelseo Cosrs
13,1
lncreased costs
(a)
(b)
Subject to Clause 13.3 (Excepfions) the Parent shall, within three Bus;iness Days of a demand by the Agent, pay for the accoarnt of a Finance Party thel amount of any lncreased Costs incuned by that Finanoe Party or any of its Aflfiliates as a result of:
(i)
the introduction of or any change in (or in the interpretation, administr:ation cir application of1 any law or regulation after the date of this Agreement;
(ii)
compliance with any law Agreement; or
(iii)
the implementation or application of, or compliance with, Basel lll or CRD lV or any law or regulation that implements or applies Basel lll or CRD lV.
or
regulation made after the date
of
this
L
ln this Agreement:
"lncreased Costs" means:
(i)
a reduction in the rate of return from a Facitity or on a Finance Partt's (or its Affiliate's) overall capital;
(ii) (iii)
an additional or increased cost; or 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 Parg having entered into its Contmitment or funding or performing its obligations under any Finance Document;
"Basel lll" means:
(i)
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel lll: A global regulatory frannework tor more resilient banks and banking systems", "Basel lll: lntemational framework for liquidity risk measuement, standards and nnonitoring" and "Guidance for national authoritbs operating the countercyclical capital buffe/'published by the Basd committee on Banking superuision in December 2010, each as amended, supplemented or restated;
(ii)
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency rcquirement - Rules texf'published by ffre Basel Committee on Banking Superuision in November 2011, as amended, supplemented or restated; ard
(iii)
any further guidane or standards puHished by the Basel Ca'rnmittee on Banking Supervision relating to "Basel lll";and
\,
\i
-52 "CRD lV" means:
13.2
(l)
Regulation (EU) No 5758013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and
(ii)
Directive 2013/36lEU of the European Parliament and of the Council of 26 June 2013 on access to the activ'rty of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 20A2l87lEC and repealing Directives 2006/48/EC and 2006/49tEC.
lncreased cost claims
(a)
A Finance Party intending to rnake a dairn pursuant to Clause 13.1 (Inaeased cosfs) shall notifu the Agent of the event giving rise to the claim, following Which the Agent shall prompfly notiff the Parent.
(b)
|,
Each Finance Party shall, as soo{r 6 practicable after a demand by the Agent, provide a certificate confirming the arnount sf its lncreased Costs.
13.3 Exceptions (a) Clause 13.1 (lncreased cosls) does not apply to the extent any lncreased Cost is: (i) attributable to a Tax Deductio,n required by law to be made by an Obligor; (ii) compensated for by Glause 12.3 {Iax indemnity) (or would have been
compensated for under Clause 12.3 {Tax indemnity} but was nst so compensated sotely because any of the exclusions in paragraph (b) of Clause 12.3 {Tax irdffiindt4 aBptied); or
(iii) (b)
T
attributable to the witf{.d breac*r Affiliates of any law or regulation.
by the relevant Finance Farty or its
ln this Clause 13.3, a refurence to a 'Tax Deduction" has the same meaning given to that term in Clause 12.1 ,(Definrlbns).
14.
OrxeR INDEMNITIES
14.1
Currencyindemnity
(a)
lf any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award ginen or rnade in relation to a Sum, has to be converted from the currency (the first &rnency) in which that Sum is payable into another currency (the "Second Curencf) forttte purpose of:
(i) (ii)
making or filirq a dairn or proof aga*nst
trat Obligor;
obtaining or enforcing an order, judgment or award in relation to any litigation or arbihatkrn prmeedilgs,
that Obligor shall as an indep,ender{ oblgation, within three Business Dayrs of demand, indemnify each Finance Party to whorn that Sum is due against any oost, loss or liability arising qrt of or as a resrlt of the conversion including any discrepancy behreen (A) the rdte cf excharqe usad to convert that Sum frorrn the First Cunency into the Second Currency and (B) the rate or rates of exchange available to that person at the tirne of its reeid of ihat Sum.
-53-
(b) 14.2
Each Obligor waives any right it may have in any jurisdic{ion to pay any arnount under the Finance Documents in a currency or currency unit other lhan that in which it is expressed to be payable.
Other indemnities
The Parent shall (or shall procure that an Obligor will), within three Business Days of demand, indemniff each Finance Party against any cost, loss or liability result of:
(a) (b)
incurnf
by it as a
the occunence of any Event of Default; a failure by an Obligor to pay any amount due under a Finance Document on its due date, includirg without limitation, any cost, loss or liability arising a,s a result of Clause 28 (Sharing among the Finance pafties);
(c)
(d)
funding,'or making arrangements to fund, its participation in a Loan rerquested 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 r:f defautt or negligence by that Finance Party alone); or
t,
any Loan (or part of any Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the parent.
14.3 lndemnity
to the Agent
The Parent shall promptty indemnify the Agent against:
(a)
any cost, loss or liability incurred by the Agent as a resuK of:
(i) (ii) (iii) (b)
investigating any event which it reasonably believes is a Default;
acting or relying on any notice, request or instrucdion which it reasonably believes to be genuine, correct and appropriately authorised; or
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreenrent; and
any cost, loss or liability (including, without lirnitation, for negligence orr any other category of liability whatsoever) incurred by the Agent (otherwise tharr by reason of the Agent's gross negligence or wilful misconduct) in acting as Agent under the Finance Documents.
This indemnity shall survire the termination of this Agreement andior the resignation or remova[ of the Agent.
14.4
lndemnity to the Security Agent
(a)
Each ObligorloinUy and severally shall prompfly indemnify the Securig'Agent and every Receiver and Delegate against any cost, loss or liability incunerd by any of them (otherwise. in each case, than by reason of the relevant Securi$ Agenfs, Receiver's or Delegate's gross negligence or wiffulrnisconduct) as a result of:
(i) (ii)
any failure by an Obligor to comply with its (Cosfs aodExpenses);
oblffions urder
Clause 16
ac'ting or rdying on any notice, request or instnrdion $rttictr it reasonably believes to be genuine, corroct and approprlately authorised;
v'
-54-
(lii) (iv)
the talcing, holdrng, protection or enforcement of the Transaction Security;
the exercise of any of the rights, powers, discretions, authorities and remedies uestred in the Security Agient and each Reoeiver and Delegate by the Finanoe Oocuments or by law;
(v)
acting as Srcurity Agent, Receiver or Delegate under the Finance Documerfts or which othenrytse relates to any of the Charged Property; and
(vi) (b)
a
any dehult by any Obligor in the performance of any of the obligations expressed $o be assurned by it in the Finance Docurnents.
The Security Agent alrd every Receiver and Delegate may, in priority to any payment to the Seoured Parties, indemnify itsetf out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indernnity in this Clause trd.4 and shall have a lien on the Transac'tion Securfu and the proceeds cf tre enforcement of the Transaction Security for all moneys payable to it.
This indernni,ty shall survive the termination of the Agreement and/or the resignation of the Seanrig Agent. 15.
Mrrrellox
15.1
Mitigation
Lerms
(a)
Each Finance Fa@ shd'|, in ensuttation with the Parent, take all reasonable steps to rnitigale arqr circumstanoes whictr arise and whictr would result in any amount beooming payaHe under or pursuant to, or cancelled pursuant to, any of Clause7.1 (l{lryal*Nt; C*alse 12 {Tax Gross-Up-and lndemnrlres) or Clause 13 (lncreasd Cosfs), irdudiqg put not limited to) transfiening its rights and obligations underthe Finance Docurnents to another Affiliate or Facilig ffice.
(b)
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Doournerts.
tr 15.2
BY THE
Limitation of liabitity (a)
The Parent shall ,promp0y inrJernniff each Finance Party for al{ costs and expenses reason#y:incr.nr.ed by tfiat Finance Party as a result of steps taken by it under Clause 15.'1 ifi@atron).
(b)
A Finaace krty is rrc{ obtiged to take any sEpe under Clause 15.1 (Mitigafibn) if, in the ophion d f,IaI Finane p66y (acting reasonably), to do so might be prejudbialto lt.
-JJ-
16.
Gosrs Axa €xpErlsEs
16.1
Transacti,onexpens€s
Ttle Parent shall promptly on demand pay ttle Agent, ttre Security Agent, the Escrow fuent and the Original Lenders the amount of all costs and expenses (inclluding legal
fees), incuned by any of them (and, in the case of the Security Agent, by any Receiver or Delegate) in connection with participation by the Existing Lenders in respect pf Facility A pursuant to the Commitrnent Letter and the negofiation, preparation, printing, execution, syndication and perfection of:
(a) (b)
this Agreement and any other documents referred to in this Agreemrent and the Transaction Security; and any Finance Documents executed after the date of this Agreement,
including withotrt limitation any account fees payable by the Agent in respect of the opening and maintenanc€ of ttre Madison Account, all fees, costs and expenses of the Escrow Agent in respect of the opening and rnaintenance of the Escrow Accounts and any fees, costs and expenses of an Originat L.ender or any mernber of the ad hoc oommittee of beneficial owners of Existing Bonds incurred in connection with the acquisition of Facility A Loans before the final Utilisation Date.
16.2 Amendment
costs
It:
(a) (b)
an Obligor requesb an amendment, waiuer oroonsent; or an amendment is required pursuant to CIarrr.se 29"10 (Change
of cunencll,
the Parent shatl, within three Business Days of demand, reirnburse each of ther Agent and the Security Agent for the amount of all costs and expenses (including, but not lirnited to, legal fees) incuned by the Agent and the Secrrrity Agent (and in the case of the Securig Agent, by any Receiver or Delegate) in responding to, evaluating, negyotiating or complying with that request or requirement.
16.3
Enforcement and preservation costs The Parent shall, within three Business Days of dernand, pay to the Agent and each other Secured Party the amount of all costs and expenses (including legalfees) incuned by it in connection with the enforcement of or the presenration of any rights under any Finanoe Document and the Transaction Security and any procesdings instituted by or against the Searity Agent as a oonsequence of taking or hc*ding the Transaction lSecurry or enforcing these rights.
ly'
-56Section 7 Guarantee
17,
GurtRerree AHo
17.1
Guarantee and lndemnlty
II{DEMNITY
Eac;h Guarantor inevocably and unconditionally jointly and severally:
17.2
(a)
guarantees to each Finance Party punctual performance by each other Obligor of all that Obligor's obligations under the Finance Documents;
(b)
undertakes with each Finance Party that whenever another Obligor does not pay any amount when due under or in conrection with any Finance Document, that Guarantor shall immediately on demard pay that amount as if it was the principal obligor; and
(c)
agrees with each Finance Par$ that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or tiability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illeEality, have been payable by it under any Finance Document on the date wfren it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on the basis of a guarantee.
Continuingguarantee Thi:; guarantee is a c,ontinuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finanoe Documents, regardless of any intermediate payrnent or discharge in whole or in part.
17.3
Reinstatement
lf any discharge, release or arrangement (whether in respecl of the obligations of any Obligor or any security for those oHigations or otherwise) is made by a Finance Party in whole or in part on the basis of any payrnent, securi$ or other disposition which is avoided or rnust be restored in insolvency, liquidation, administration or otherwlse, without limitatjon, then the liability of each Guarantor under this Clause 17 will continue or be reinstate{ as if the discharge, release or arrar€ernent had not occurred.
17.4
Wa:iver of defunces Ther obligat'tons of each Guarantor under this Clause 17 will not be affected by an act, omission, matter or thing which, but for this Clause, urould reduce, release or prejudice any of its obligations under this Clause 17 (without limitation and whether or not known to it or any Finance Party) including:
(a)
any time, waiver or consent granted to, or ornposition with, any Obligor or other person;
(b)
the release of any other Obligor or any othor person under the terms of any composition or anangement with any creditor of any member of the Group;
(c)
the taking, variation, compromise, exchange, refie\ral or release of, or refusal or neglect to perfect, take up or enforoe, any rights against, or security over assets
-57 of, any Obligor or other person or any non-presentation or non-observance of any fonnali$ or other requirement in respect of any instrurnent or any failure to realise the full value of any security;
(d)
any incapacity or lack of power, authority or legal personality of or dit;solutirrn or change in the rnernbers or status of an Obligor or any other person;
(e)
any amendment, novation, supplement, extension (whether of maturity or otherwise), restaternent (in each case however fundamental and of rruhatsoever nature, and whether or not more onerous) or replacernent of any Finance Document or any other document or security including, without limritation, any change in the p{Irpose of, any extension of or increase in any fadlity or the addition of any ne*v {acility under any Finance Document or other document or securi$,
(0 (g)
any unenforceahlity, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or any insolvency or similar proceedings.
v
17.5 Guarantor lntent Without prejudice to the grcnerality of Clause 17.4 (Waiver of Defenes), eacl"r Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental and of whatsoever nature and whether or not more onerous) variation, increase, extension or addition of or to any of the Finance Documisnts andlor any facility or amount made available under any of the Finanoe Documents for the purposes of or in connection with any of the following: acquisitions of any natlre; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existlng facilities; refinancing any other indebtedness; making facilities available to nar borowers; 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 andlor expenses associated with any of the foregolng.
17.6 lmmediatenecou*se Each Guarantor waives any right it may have of first requiring any Finance Piarty (or any trustee or agent on its beftalf) to proceed against or enforce any other righE or secr.rrity or claim payment from any person before claiming frorn that Guarantor under this Clause 17. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
17.7
Appropriations Until all amounts u/hich rnay be or become payable by the Obtigors under or in connection with the Finance Documents have been inevocably paid in full, each Financc Party (or any trustee or agent on its behatQ may:
(a)
refrain from applyiryg or enforcing any other moneys, security or rights heH or received by that Finance Party (or any trustee or agent on its behatf) in respect of those amounts, or apply and enforce the same in such rnanner and order as it sees ftt (whether against those amounts or othenrise) ard no Guarantor shafi be entifled to the benefrt of the same; and
(b)
hold in an interest-bearing suspense account any moneys receivai frorn any Guarantor or on apcount of any Guaranto/s liabilig under this Clause 17.
t'
-58-
17.8
il:,?
Defrarral of Guarantors' rights
Until all amounts whlch 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 or by reason of any amount being payable, or liabilrty arbing, under this Clause 17:
(a) (b)
to be indemnified by an 0blQor;
to claim any contritrution from any other guarantor of any Obligo/s
obligations
under the Finance Doa:ments;
(c)
to take the benefit (in whob or in part and whether by way of subrogation or otheruvise) of any rights of the Firmnce Partjes under the Finance Documents or of
any other guarantee or security taken pursuant to, or in connection with, the Finance Docurnents by any Finanm Party;
o
(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 17.1 {Guarantee and indernnity);
(e) (f)
to exercise any right of
seloff against any Obligor; and/or
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
lf a Guarantor receives any benetrt, payrnent or distribution in relation to such rights it shall hold that benefit, payrnent or disfuibution to the extent necessary to enable all amounts urhich may be or becorne payabb to the Finance Parties by the Obligors under or in connection with the Finarrce Docunrents to be repaid in full on trust for the Finance Parllies and shall promptly pay or transfer the same to the Agent or as the Agent may direct for apptication in accordance with Clause 29 (Payment Mechanics). 17
.9
Relrease of Guarantors' dgftt of
contribution
lf any Guarantor (a "Retiring Guanantor"| ceases to be a Guarantor in accordance with the terms of the Finance Docurrrcnrts for sle p{"rrpose of any sale or other disposal of that Retiring Guarantor then on tre date suah Retiring Guarantor ceases to be a Guarantor:
(a)
that Retiring Guarantor is releagrd by each other Guarantor from any liability (whether past, preseot or future and whether actual or contingent) to make a contribution to any,atter Guararrtor arising by reason of the performance by any other Guarantor of its ob{rgafrions rrflder the Finance Documents, and
(b)
each other Guaranbr wairres any dghts it may have by reason of the performance of its obligations under the F{nance Docurnents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Financ,e Parties under any Finanoe Docurent or of any other security taken pursuant to, or in connection with,, amy Finance Document where such rights or security are granted by or in reldfurn to the assets of the Retiring Guarantor.
17.1O Additional security
b ftot in any way prejudiced by any other guarantee or security now or subsequenily held by arry Finance Party.
Thits guarantee is in additkm to and
t
-5917.11 Super Senior Priority The obligations of each Guarantor under this clause 17 shall have the status of Super Senior Priority in accordance with Article 13 paragraph 4 of Artide 39 of the Extnaordinary Administration Proceedings Law.
Y
U
t
-60Section I Reprerentati,ons, Undertakings and Events of Oefault
'lB.
Repnrsrxrerprs Eaclh Obligor makes ttre representations and warranties set out in this Clause 18 to each
Finarne Party on the date of this Agreement.
18.1
Status
(a) lt is a corporation, duly incorporated and validly existing Orig inal Jurisdiction
(b)
3,
(c) 18.2
under the law of its
.
tt and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted. tt is no( a FATCA FFI or a US Tax Obligor.
Bindingobligations The obligations expressed to be assumed by it in each Finance Document are, subject to any general principles of law as at the date of this Agreement (or, in the case of an Additional Obligor, at the date of the relevant Accession Letter) limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Condifions of U{/isahon) or Clause 24 (Changes fo lfie Oblifirors), legal, valid, binding and enfcrrceable obl(;ations.
18.3
Nonr-conflict with other obligations The entry into and perfonnance by it, aM the transactions conternplated by, the Finance Documents and the grantirq of the Transaction Seorrity do not and will not conflict with:
(a) (b) (c)
18.4
any law or regubtion applicable to it; its constitutional dacuments, or
any ruling, judgement, order, injunction or other decision binding upon it or any member of the Group or any of its assets or any member of the Group's assets or constifute a defuutt or termination event (hovusoever described) under any such agreernent or instrument.
Povrer and authoriQr It hits the power to enter into, perform and deliver, ard has taken all necessary action to authorise its entry into, petfurmane,e and delivery of, the Finance Documents to which it is a party and the transadirns contemplated by those Finar*ce Documents.
18.5
Validity and adrnissibility in evidence Atl l\uthorisations required or desirabie:
(a)
to enaHe it law,fiily to enter into, exercise its rffis and comply with its obligations in the Finance Docurnents to wfricfr it is a parly; and
(b)
to make the Finanoe Documents to which it is a party adrnissible in evidence in each Relevant Jurisdiction,
have been obtained
.oc
effected and are in ftrll forcre and effect.
l,'
-61
18.6
-
Governing law and enforcement
(a)
The choice of governing law of each of the Finance Documents will be recogr+ised and enforced in each Relerant Jurisdiction.
(b)
Any judgment obtained in England in relation to a Finance Docurrent will be recognised and enforced in each Relevant Jurisdiction.
18.7
Deduction of Tax It is not required to make any Tax Deduction (as defined in Clause 12.1 (Definr'fions)) frorn any payment it may make under any Finance Document to a Lender rrvhich is (i) a Qualifying Lender (other than a Treaty Lender); or (ii) a Treaty Lender in relation to which all necessary proceduralformalities have been complied with.
18.8
Transaction Security and Guarantaes
(a)
Each Security Document validly creates the Security which is exprerssed to be created by that Security Document and evidences the Securi$ it is e:xpressed to
u,
evidence.
18.9
(b)
Each member of the Group listed in Part lll (Guaranfors) of Scheclule 1 (Ihe Padies) is or will be a Guarantor on the Closing Date.
(c)
No Security or guarantees exist over all or any of the present or future asse8 of any member of the Group cttrer than as permitted by the terms of this Agreenrent or notified to the Agent before the date of this Agreement.
Repetition Each of the Representations are deemed to be made by eactr Obligor (by reference to the facts and circumstances then existing) on each Utilisation Date, on the date on whictl the Facility A Commitments are increased in accordance with Clause 2.2 {lnueaxd Commitments and New LenderAccessions) and the first day of each Interest Period.
19.
IXTORUNTIONUNDERTAKINGS
The undertakings in this Clause 19 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Cornrnitrnent is in force.
19.1
Financialinformation
"Annual Financial Statements" rneans the financial statements for a Financial Year delivered pursuantto paragraph {a} of Clause 19,1 (Financialsfafenrenfs). "Monthly Financial Statements" means the financial statements delivered psrsuant to paragraph (c) of Clause 19.1 (Financial stafernenfs).
"Quarterly Financial Statements" nteans the financial statements delivered pursuant to paragraph (b) of Clause 19.1 (Finanabl sfafements).
"Financial Quarter" rneans each financialquarter ending on a Quarter Date. "Financial Year" means the annual aocounting period of tfre Group ending on or about December in each Year.
3tr
%
-67 The Parent shall supply to the Agent in sfficient copies for all the Lenders:
(a)
as soon as the same become available, but in any event within 120 days after the end of each of its Financial Years (and for the Financial Year ending 31 December 2016, as soon as the sarne becorne availabie, but in any event by no later than 30 September 2A171, its and each Obligor's audited consolidated financial statements
for that Financial Year trogether with, if requested by the Agent, the audited consolidated financial statements for that Financial Year of any member of the Group,
5
(b)
as soon as the same become available, but in any event within 90 days (or in the case of the Financial Quarter ending 30 June 2017, as soon as the same beoome available, but in any event by no {ater than 31 October 2017) after the end of each of its Financial Quarters, its and each Obligor's financial statements for that financial quarter together with, if requested by the Agent, the financial statements for that Financial Quarter of any member of the Group; and
(c)
as soon as the same become available, but in any event within 45 days after the end of each month its financial statements on a consolidated basis for that month (to include cumulative management accounts for the Financial Year to date).
uirements as to financ'ral staternenls
19.2 (a)
Each set of financial state+nents delivered by the Parent pursuant to paragraphs (a) and (b) of Clause 19.1 (Financial information) shall be certified by a director of the relevant company as fairly representing its financial condition as at the date at which those financial statements 'rvere drawn up.
(b)
The Parent shall procure that each set of Annual Financial Statements and Quarterly Financial Staiernents delivered pursuant to of Clause 19.1 (Financial information) is prepared usir,g the Accounting Principles and with effect from 30 June 2017 shall lnclude:
(i) (i)
(ii)
a balance sheet, profit and loss account and cashflow statement;
a
breakdown for each Guarantor of key performance data including revenue, eamings be{ore interest, tax, depreciation and amortisation, capital expenditure and cashflow and for Konzum d.d., Jamnica d.d., Ledo d.d., Zvijezda d.d., Velpro Centar d.o.o., Roto Dnamic d.o.o. and ptK Vrbovec - Mesna lndustrija- d.d., a monthly inventory estimate and breakdown (mearing naw materials, finished goods, work in progress and merchandise) (on a consolidated basis where appropriate); and details of all liabilities (lncluding hade creditors, ae,cruals, provisions and payments received in adranoe) of eae}t Guarantor including any liatrilities incurred after the date of this Agreement (on a consolidated basis vrhere appropriate).
ln addition the Parent shall proanre that the Quartedy Financial Statenents shall a statement by the directors of the Parent commenting on the performance of the Group for the month to which the financial statements relate and the Financial Year to date and any rnaterial developments or material proposals affecting the Group or its business and the Monthly Financial Statements shall include a revenue staternent and a monthly inveniory estimate and breakdown. The Parent sha{l oonsider in good faith any reasonable request from the Financial Adyiser for more detailed information to be provided with the Monthly Fina ncial SEternents.
include
-63For the avoidance of doubt, Obligors shall include any entities which accede as Guarantors pursuant to Clause 2A.23 (Guarantorc) and Clause 20.26 ti0onditions SubseguenQ.
19.3
lnformation: specific requirements (a)
Audited Financial Shtements of the Group
(i)
within
(iii)
The Parent shall supply to the Agent and publicly discloser the 2016 Audited Financial Statements as soon as the same becorne available and
5 Business Days from the closing Date, the pilrent shail commission its Auditor to prepare the Group's audited crrnsolidated financial statements for the full year 2016 (the "2016 Auditedl Financial StatemenG"). on any event within six calendar months of the Closing Date^
(b)
Cashflow Forecast
(rt
By 10arn Zagreb time on Monday of every other calendar week following the Closing Date, the Parent shall procure that the Agent is provided with (iin sufficient copies for allthe Lenders):
19.4
(i)
an updated Cashflow Forecast (in form and substance satisfarlory to the Agent but including details of compliance (or othemrise) with the Minimum Liquidrty Test (as defined in clause 20.20 (Minimum Liquidity) for the 13 week pedod commencing after the delivery of the relevanrt Cashflow Forecast;
(ii)
a schedr.lle of atl disbursements above €25,000 rnade in the previous two calendar weeks; and
(iii)
details of any withdrawals from the Uquidity Escrow Account (including identity of recipients) made in the previous two cabndar weeks.
lnformation: miscellane,ous (a)
(b)
The Parent shall supply to the Agent (in sufficient copies for ali the Lerrders, if the Agent so requests):
(i)
promptly, such information as the security Agent may require; about the Charged Property and compliance of the Bonourer with the terms of any Security Documents; and
(ii)
promptly, suctr further information regarding the ftnancial condition, assets, business and operations of any member of the Group as any Finance Farty (through the Agent) may reasonably request.
once in every month (or more frequently if requested to do so by the Agent) at least two directors of the Parent (one of whom shall be the chief finandal officer (to the er
(c)
The Parent shall from time to time update the list of Existing Loan flgreernents, security and guarantees delivered under paragraph 3(tr) of sctredule z (Condifions Pr#nQ to ensure that it includes all loans (inc{uding intercompany
t>r
t1,r\'l t
-64loans), Security and guarantees entered into by any nrember of the Group prior to the commencernent of the Extraordinary Administrahon Proceedings.
(d)
The Parent shatl clearly mark any information provided to he Agent under this Agreernent that is Non-Public lnformation as "Non-Public lnforrnation". The Parent shall also deliver a copy of any such information to the Financial Adviser as the same time as such information is delivered to the Agent The Agent is authorised and instrucded not to deliver any information marked "Non-Public lnformation" to any Public-only Lender. For the purposes of this Agreement;
"Non-Public lnfnrmation" means any means any information that comprises "inside information" as defined in EU Market Abuse Regulation 596/2014 relating to the Group"
19.5
Notiification of defautt or mandatory prepayment event
(a)
Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
(b)
Each Obligor shafl notify the Agent promptly upon becoming aware of any circurnstances which rnight give rise to a repayment or prepayment under Clause 7.2 (Cfiang;e of Gontrol and Exfensxrn), C{ause 7.3 (Dlsposa/s) or C a u se 7 4 (T erminalion of Extra ord i n ary Adrn i n i stration P race e d i ng s) " I
(c)
.
Promptly upon a request by the Agent, the Parent shall suppty to the Agent a certificate signed by two of its directors or senior ofh*rs on its behalf certifying that no Defautt is oontinuing (or, if a Defauh is corrtinuinE, specifying the Defautt and the steps, if any, beirg taken to remedy it).
19.6 "Knowyourcustome/'
(a)
checks
lf:
(0
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 cfiange in the status of an Obfugor or the composition of the sharetrclders of an Obl(7or after the date of this Agreement;
(iii)
a proposed ass(;nment or transfer by a Lender of any of its rights and obligations under this Agreernent to a party that is not a Lender prior to such assignment ortransfer; or
(iv)
tfie opening of an aocount over ufiich Transaction Security is proposed to be taken,
obliges the Agent or arry Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with "know your customeC' or similar identification procedures in circurnsbnces where the necessary information is not already available to it, each Obltspr shall, prornptly uBon the request of the Agent or any Lender, suppty, or procure ttte supply of. suctr documentation and other eMdence as is reasonably rcquested by the Agent (for itself or on behalf of any Lende$ or any Lender (for itself or, in the case of ttre event described in paragraph (iii) aboue, on behalf of any prospective rew Lender) in order for the Agent, suci Lender or, in the case of the event descdbed in paragraph (iii) above,
-65any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your custome/' or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in thre Finance Documents.
(b)
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evid'en@ as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satirsfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents_
(c)
The Parent shall, by not less than 10 Business Days' prior written nr:tice to the Agent, notify the Agent (which shall promptly notiff the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 24 (Changes fo fhe Ob/rgors).
(d)
Following the giving of any notice pursuant to paragraph (c) above, if the acee*sion of such Additional Obligor obliges the Agent or any Lender to comply with "know your customel" or similar identification procedures in circumstances where the necessary information is not already available to it, the F,arent 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 behatf of any Lender) or any Lender (for itself or on behaif of any prospective new Lender) in order for the Agent or sucl"r Lender or any prospective new Lender to carry out and be satisfied it has compilied with all nec€ssary "know your custome/' or other similar checks under all applicable laws and regulations purcuant to the accession of such Subsidiary to this Agreement as an AdditionalObtigor.
(e)
The Agent is authorised and instructed to provide any know youn customer
\.r'
information that it receives under and in accordance with the Commitrnent Letter to the Escrow Agent.
20.
GENERALUuoERraxImcs
The undertakings in this Clause 20 remain in force from the date of this Agreernent for so long as any amount is outstanding under the Finance Documents or any Conrmitment is in force.
20.1
Authorisations Each Obligor shall promptly:
(a) (b)
obtain, comply with and do alt that is necesary to maintain in full force and effect; and supply certified copies to the Agent of,
any Authorisation required under any law or regulation of the Relevant Jurisdichons to enable it to perform its obligations under the Flnance Documents and to ensure the legality, validity, enforceability or admissibility in evidene in each Relevant Jurisdiction of any Finance Document.
\J
-oo-
20.2
Gonnptiance
'Y f-,'
with laws and regulations
The Parent shall (and shall ensure that eactr member of the Group shall) comply in all matrerial respects with all laws and regdations and any similar rules applicable in any Relevant Jurisdiction) to which it may be sut{ect.
20.3
Negative pledge ln this Clause 20.3 "Quasi-SecuriQr" means an arangement or transaction described in parergraph (b)below.
(a) (b)
No member of the Group will create or permit to subsist any Security over any of its assets. No member of the Group will:
(i)
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re*acquired by an Obligor or any other member of the Group;
(ii)
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii)
enter into any arrangement under which money or the benefit of a bank or other account may be applid, setofi or made subject to a combination of accounts; or
(iv)
enter into any otfier preferentiail amar€ernent having a similar effect,
in circumstances where the arrargenent or transaction is entered into primarily as a method of raising Financial Indefttredness or of financing the acquisition of an asset. (c)
Paragraphs (a) and (b) aborc do not apfry to any Security or (as the case may any transaction involvirg Bilb of Excharge whlott may not benefit from any Security or Quasi$ecurity other than in accordance with paragraph (i) below):
be) Quasi-Seorrity, listed bdow fPerrni6ed Security") (apart from
$1
(i)
any Security or QuasiSeoudty subsisting prior to the commencement of the Extraordinary Ad,ministration Proeeding ;
(ii)
any netting or set cffi arfiangement errtrered into by any member of the Group in the ordinary cornse of its banking arrangements for the purpGse of netting debit and oreffi balanoes but only so long as such arnangement does not permit credit ba{ar,rces of any rnember of the Group to be netted or set-off against debit balarrces d a person who is not a member of the Group;
(iii)
any payment or close out r€fiing or set+ff anangement pursuant to any hedging hansactbn er*emd irno by a mernber of the Group for the purpose of:
(1)
hedging any risk to $hifi any rnember of the Group is exposed in its ordinary sour€e trf kad*ng; or
(2)
its interesft
natre
or curtency managerTlent operations,
-67provided that such transactions are carried out in the ordinany course of business and {or non-speculative purposes only and constitutr: pennited Financial lndebtedness and excluding, in each case, any Security or Quasi-security under a credit support arrangernent in reiation trr a hedging transacdion;
(iv)
any lien arising by operation of law and in the ordinary 6gtr$-l of tr:ading and not as a result of any default or omission by any menrber of the Group;
(v)
the Transaction Sectrrity and Security or Quasi-security which constitutes a Permitted rramaction or in respect of which the Mai:rity Lenders have given their prior wrifien consent; and
(vi)
any Securrity or Quasi-Security constituted by deposits required ho be rpade by any rnernber of the Group as part of a tendering process for contrasts in the ordinary course of business; and
(vii)
any Security or Quasi-securlty arising under any redention of title, h.ire purchase or conditional sale arrangement or anangements hawng similar effect in respect of goods supplied to a member of the Grnup in the ordinary course of hading and on the supplier's standard or usual terms and not arising as a result of any default or omission by any member of
l"
the Group and provided that the amount secured under such arrangement or ananEernents is released or discharged within 90 days of incx"lnence (or 120 days in respeci of no more than 25 per cent. of the aggregate amount of indebtedness secured under all such arrangements). 1
20.4 )Payments
(
(a)
No Obligor shall (and the Parent shall ensure that no other member of the G,roup will):
(i)
make any payment to any Trade Creditors (unless funded by a utilisation of the lncremental Facility) or holder of a Bill of Exchange (to, the extent such Bill of Excfunge was entered into after the date of commencenent of the Extraordinary Administration Proceedings in resped of the Parent but before the date of this Agreement) in an amount in excess of €ti0,000; or
(ii)
make any norFpayroll disbursements above €100,000,
in each case without the prior written consent of tfie Restrucduring Adv*;or. (b)
No Obligor shatl (and tire Parent shall ensure that no other mermber otf the Group will) make any payrnents relating to compensation, severanoe, bonus or payrall to senior managernent of nrembers of the Group without the prbr urit6n consent of the Restructuring Advisor other than payments rnade in the ordinaql course of business or in rcspect of indisputable contractual obligations and not erxoeeding € 50,000.
(c)
No Obligor (and the Parent shall ensure that no rnember of the Gmupg uri{l malce any payment or repayrrent in respect of (nor will it refinance or redassiff the ranking og:
(i)
any Existirqg Flnanciat tndebtedness,
*./
a\
-68-
(ii)
any Pre-Petition Supplier Debt (as deflned in paragraph (d) of clause 5.6 (Limitations); or
(iii)
any Bills of Exchange entered into prior to the cornrnencement of the Extraordinary Administration Proceedings in respect of the Farent,
, ,
20
5
other than (1) to the extent it is Specified Existing Financial lndebtedness and is repaid or refinanced in accordance with this Agreement or (2) in the case of PrePetition Supplier Debt, it is made in accordance with paragraph (d) of clause 5.6 (L,mifaftbns).
.Jransactions with Affiliates Ther Parent shall not, and shall not pennit any other member of the Group, to directly or
indirectly, conduct any business, enter into or permit to exist any transaction or senes of relarted transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any property or the rendering of any service) with, or for the berrefit of, any (a) Affiliate whic*r is not a member of the Group or (b) shareholder of a member of the Group that is not also a member of the Group (an "Affiliate Transaction") including intercompany loans, unless the terms of such Affiliate Transaction are no less favourable to the Parent or such Group member, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a person that is not an Affiliate of the Parent or such Group member and such Affiliate Transaction is entered into in tlre ordinary course and has been approved by the Restructuring Advisor.
20.6 RestructuringPlan (a) Subject to any dutbs incumbent on senior managernent
or any director of an pursuant to the Extraordinary Obligor as a rnatter of law or the Commissioner Administration Prooeedings Law, no Obligor shatl (and the Parent shall ensure that no other mernber of the Group will) propose a plan for the financial restructuring of the Group (including but not limited to any composition, compromise, assignment or scherne of arrangement (or similar process) in any jurisdiction unless such terms have been approved by the Majority Lenders in writing.
(b)
Paragraph (a) above shal{ not apply to the extent that any such plan:
(i)
ensures that the Lenders are repaid
in full with respect to
sums
outstanding under the Finance Documents; or
(ii)
the Final Maturity Date is extended in accordance with Clause Qtun).
2.4
(Erfensnrn
The Parent shall ensure that it and the Commissioner consult with the fgrders and.-Egstructglgg*4q-vj9pr wtren determining any creditor classes dnA-i6; composition of any Credi!o"l!' Committee or Advisory Body for the purposes of any Extraordinary Administration Proceedings of the Group and for the avoidance of doubt the Parent shall ensure that to the extent legally possible the Lenders shall be treated as a separate creditor class with a separate vote and ranking super senior for all purposes.
20.7
No Merger
No Obligor shall be erter into (or agree to enter into) any amalgamation, demerger, merger, consolidatjon or corporate reconstruction other than any solvent merger or reorganisation where the OHigor is the surviving entity and the Agent is satisfied (acting
-69on the directions of the Majority Lenders (acting reasonably and on the basis of legal advicn)) that such merger or reorganisation does not adversely impact on the guarantee or Security provided by such Obligor. i
20.B Cash Management
System
The Parent shall ensure that each member of the Group shall establish and maintain a cash managernent system acceptable to the Restructuring Advisor.
20.9
Milestones
The Parent shall ensure that the milestones set out in Schedule 12 (Restructuing M/esfones) are achieved in accordance with the timetables set out in Schedule 12 (Re st ru ctu i ng Mriestones).
20.10 Ranking
(a)
Each Obligor shall ensure that at all times its payrnent obligations under the Finance Documents have Super Senior Priority, exoept for obligations nrandatorily
(
preferred by [aw.
(b)
No Obligor shall allow the creation of any clairn or payment obligation that would rank pan passu with, or senior to, its payment obligations under the Finance Documents without the consent of all the Lenders except for:
(i) (ai)
obligations mandatorily preferred by law; or
any Permitted Financial lndebtedness under paragraph (e) of such definition or Permitted Guarantees under paragraph (m) of such definition (for the avoidance of doubt provided such amounts do not excergd the Pari Basket).
20.11 Application of FATCA No Obligor shall become a FATCA FFI or a US Tax Obligor.
20.12 Arm's length basis No Obligor shall (and the Parent shall ensure that no mernber of the Group s;hall) enter into any transaction with any person except on arm's length terms and for full market value.
20.13 Further Assurance
(a)
Each Obligor shall, to the extent permitted under applicable law, promptly and duly do, or permit to be done, all such ac{s and execute and deliver, or permit the exeantion and delivery of, all such instruments and documents as tlre Security Agent may consider necessary for the purpose of procuring the full anrJ complete performancc by fte Obligor of the obligations expressed to be assumed by it under the Finance Documents and of the rights and powers thereby grarnted to the Security Agent for the purpose of creating, perfiecting, preserving, protectirq or enforcing the interests and rights of the Security Agent under the Finance Documents, including, without limitation:
(i)
to create or to perfect the Security cveated or intended to be created under
or
evidenced by each Searri$ Doctrment ffiich may indude the execution of a mortgage, charge, assignment or other Seorrity over all or any of the assets which are, or are intended to be, the sub{ect of the
:.
-70-
.1,q
Trensaction Security or the issue, re-issue, division or eonsolidation of any document of title or evidence of title, including any share certificates) or for the exercise of any rights, polrvers and remedies of the Security Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law;
(b)
(ii)
to confer on the Secunty
(iii)
following actual or putative enforcement of any Transaction Security, to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Serurity.
rA,gent or to confer on the Finance Parties Security over any property and assets of that Obtigor located in any jurisdiction equivalent or sirnilar to the Security intended to be conferred by or pursuant to the Security Docurnents; andlor
Each Obligor shall (and the Parent strall procr.tre that each other member of the Group will) take all such ac{ion as is available to it (including making allftlings and registrations) as may be necessary tor the purpose of the creation, perfection, protection or maintenance of any Security confiened or intended to be conferred on the Security Agent or the Finanoe Partres by or pursuant to the Finance Documents.
2A.14 Most Favoured Nation
(a)
lf, on or after the date of this Agreemen"rt any member of the Group subject to the Extraordinary Adminisffiation Pmceedirgs enters into Financial lndebtedness ("New Financial lndebhdnessJ purvrant to s/hich that member of the Group provides Security, guarantees or indenrnities of whiclt the Secured Parties do not have the benefit then the Parent shall:
(i)
notify the Agent within
(ai)
if requested by the Agent, &rc Parent shall promptly provide or procure
5
Business Days of the date of the financing agreement relating to such New Financial lndebtedness; and
that the relevant rnember of the Group provides the benefit of equivalent guarantees, indemnities or Seourity to the Security Agent (on behatf of each Secured Party) to rank in priority to the claims of the creditors under the New Financial lndebtedness.
& (b)
lf on or after the date of tris
A-greernent any rnember of the Group enters into pursuant tD trt*sh that mernber of the Group gives Financial lndebtedness representations, undertakings, Gsverurrts, euents of default andlor economic terns which compared to the equivderfr terrns in this Agreement are more beneficial to the provider of suctt Financid {ndeHedness the Parent will:
(i)
notify the Agent withln 5 Btriness Days of the date of the financing agreernent relating to s{.tott Fimancial lndebtedness; and
(ii)
if requested by the Agent (at ttre direction of the Majority Lenders), the Parent shall promp$y prsviie tr pToarlte that &e relevant member of the Group providss the b€rdt of an equivalent representation, undertaking, covenant event of defiadt and/u ecoftornic terms (as the case may be) to the Sea.rrity Agent (or beffio{eadi Securcd Party).
t
-71 -
20.15 Disposals
(a)
The Parent shall not (and the Parent shall ensure that no other mernber of the Group will), enter into a single transaction or a series of transactions (v,rhether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.
(b)
Paragraph (a) above does not apply to any sale, lease, transfer or other disposal (apart from any transaction involving Bilts of Exchange or shares in any member of the Group, which is not a Permitted Disposal in any circumstances other than in respect of a disposal of shares, each Permitted Company Disposal): (i)
of stock in trade made in the ordinary course of trading and on arm's length terms of the disposing entity;
(i
i)
(iii)
oj anf asset by a member of the Group to another member of tlre Group;
of assets (other than shares,
businesses, real estate or intellectual property) in exchange for other assets comparable or superior as to type, value and quality;
(iv)
pursuant to the grant of leasehold interests in, or licence of, real estate in the ordinary course of business, save to the extent prohibitai under the terms of any Security Documents over such real estate;
(v)
for cash on arm's tength terms of any obsolete assets not required for the efficient operation of the business of the Group by any mernber of the Group;
(vi)
of cash where that disposal is not otherwise prohibited under iihe Finane
\l
Documents; (vii)
constituting a Permitted Company Disposal on arms length terms and for cash;
(viii)
any disposal of assets arising as a result of a Permifted Trans;action or to which the Majority Lenders have given their prior written consent; and
(ix)
of assets which are not expressed to be subject to Transaction Security (unless the prior written consent of Lender is obtained) by a mermber of ttre
Group to a person which is not a member of the Group provitled that the aggregate consideration for such assets, when aggregated wilh any other Permifted Non-Group Transactions, does not exe,eed the Perrrnitted NonGroup Transactions Basket.
20.16 Loans or credit (a)
Except as permitted under paragraph (b) below, the parent shall not (and the Parent shall ensure that no other member of the Group will) be a creditor in respect of any Financial lndebtedness.
(b)
Paragraph (a) above does not apply to: (i)
a Permitted Loan; or
(ii)
a Pennited Transaction.
\./
-7224.17 No,Guarantees or indemnities (a)
Except as pennitted under paragraph (b) below, the Parent shall not (and the Parent shall ensure that no other member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person,
(b)
Paragraph (a) does not apply to a guarantee which is:
(i) (ii)
a Permitted Guarantee, or a Permitted Transaction.
20.18 Financial lndebtedness
C
(a)
Subject to paragraphs (c) and (d) below, except as permitted under paragraph (b) below, the Parent shall not (and the Parent shall ensure that no other member of the Group will) ,incur or allaw to rernain outstanding any Financial lndebtedness,
(b)
Paragraph (a) above does not appty to Financiat lndebtedness which is:
(i) (ii) (c)
Permitted Financi,al lndebtedness; or
a Permitted Transaction.
For the avoidance of doubt, notwithstanding any provision in the
Finance Documents to the oontrary, the Parent shall not (and shall ensure that no member of the Group will) ircur any Financial lndebtedness which is expressed to rank pai passu with or senbr to its payment obligations under the Finance Docunrents without the conserd of all Lenders other than any Permifted Financial lndebtedne.s under paragraph (e) of such definition or Permitted Guarantees under paragraph (tir) o{ such definition (for the avoidance of doubt provided such amounts do not ex,ceed the Fari Basket).
20.19 Diviidends and share redctnffion (a)
Except as permitted under paragraph (b) below, the Parent shall not (and shalt ensure that no rnernberolthe Group shall):
(i)
(ii) (iii) (iv)
declare, make or pay any dividend, charge, fee or other distrlbu6on (or interest on trry unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in rcspect of its share capital (or any class of its share cqpiH); repay sr disfuibirte any dividend or share premiurn reserve;
pay or allow any rnenrber of the Group to pay any management, advisory or other fae b or to the order of any of the shareholders of tfie Parent; or
redeem, repurcfiase, defease, retire or repay any of its share capital or resolve tlo do so,
(the matters dessribed in this paragraph (a) each a qRestricted Payrnent"). (b)
Paragnaph {a} abovedoes not apply to:
(i)
&e paymenl of a R,estricted Payment under sub.paragraphs (i), (ii) and (iv) of paragraph {a} above to any member of the Group ard for the avoidance of doubt nut to amy person which is not a mernber of the Group;
-73-
(ii)
the payment of a Restricted Payment under paragraph (a)(i') above to enable the Parent to meet its payment obligations under thre Finanse Documents (including the Payment of Transaction Costs); and
(iii)
constiluting a Permitted Transaction or to whic.fr the Majority Lenders have given their prior written consent.
20.20 Minimum Liquidity (a)
The Parent shall ensure that each Cashflow Forecast delivered under paragraph (b) of Clause 19.3 (Cashflow Forecas$ demonstrates that the liquidity lest set out in paragraph (b) below (the "Minimum Liquidity Tesf'):
(i)
is satisfied as at the first day Cashflow Forecast; and
(ii)
is forecast to be satisfied for the duration of the period covered by the
of the period covered by thre relevant
relevant Cashfl ow Forecast. (b)
The Minimum Liquidity Test referred to in paragraph (a) above means members of the Group holding a minimum of €40,000,000 in aggregate of Freely Available Cash, where "Freely Available Cash" means cash held with a Croatiurn bank (or an international bank approved by the Agent, acting on the instructions of the Majority Lenders, acting reasonably) which cash is unencumberr:d and is repayable within 30 days of dernand.
L
24.21 Extraordinary Administration Proceedings The Parent shall notify the Agent promptly upon becoming aware of any amendment which has been made or is proposed in respect of the terms of the Extraordinary Administration Proceedings Law.
20.22 Additional Security (a)
The Parent shall:
(i)
(ii)
deliver to the Agent, as soon as possible after the Closing Date and in any event within 30 days of the date of this Agreement, a list of any assets which are held by any member of the Group and which are not expressed to be subject to any security as at the date of this Agreement ("U nencumbe red Assets ") (the "Asset Report") :
ensure that each member of the Group will continue to identify unencumbered Assets in the ordinary course of the Extraordinary Administration Proceedings and shall sr.rpply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):
(1) (21
for the first two Months after the Closing Date, on the last day of each month; and thereafter on each Quarter Date,
an updated Asset Report setting out any additional material
Unencumbered
Assets identified by the relevant member of the Group and, to the extent not already provided to the Finance Parties prior to the date of this Agreernent or the extent entered into after the date of this Agreement, including details of any material security or guarantees granted or rnaterial Financial lnclebtedness incuned or material loans made by any me,mber of the Group"
t"
-74(b)
The Parent shall procure that any member of the Group which owns or otherwise holds any Unencumbered Assets identified during the process undertaken in aooordanoe with paragraph (a) above shall, as soon as reasonably practicable after request by the Agent (and in an event by no later than 120 days after such request), execute and deliver to the Security Agent such further security documents in relation to such material asseh as the Majority Lenders may reasonably require and are approved by the Creditors'Committee.
(c)
FollowinE each of (i) the Third Syndication Utilisation Date and (ii) the earlier of 15 October 2A17 and the date on which all amounts have boen drawn under Facility A pursuant to Clause 5.3 (Faci{ity A Unallocated Amoung (each a "Relevant Date"), the Parent shall promptly deliver to the Agent a certificate (signed by the Restructuring Advisor) setting out details of all loans between members of the Group which represent the on-lending of the proceeds of the Loans utilised on any utilisation Date ("lntercompany Loans") and, as soon as possible after request by the A$ent (and in any event no later than 60 days after each such Relevant Date) subject to applicable law and the Extraordinary Administration Proceedings, the Parent shall (and the Parent shall ensure that each relevant member of the Group will grant securi$ (in form and substance satisfactory to the Agent) over each lntercompany Loan advanced by it to anolher member of the Group.
(d)
Forthe purposes of this Clause:
(i)
subject to (ii) below it is acknowledged that it may be impossible or impractical to create security over oertain categories of assets in which case following consliltation with the Agent security will not be required to be granted over such assets,
(ii)
the Asset Report shall cover any mtegory of assets over which Transaction Security has ben granted (i*ctuding but not limited to material claims, bank accounts, insurane, inteltectual propefi, material kade receivables, shares and realestate);
(iii)
the Parent (and eacfr relevant rnomber of the Group) is required to enter execute and deliver to the Security Agent such further or additional Transaction Security Documents in relation to any assets to be secured pursuant to this Clause, in each case on substantiatly the same terms as the Transaction Security Docun*ents {if any) ctrarging similar assets and in each case carry out any action to pr:otect, perfect or give priority to the relevant Security; and
(iv)
for the puposes of this CIause 'tnaterial" means any asset which is considered by the Majority Lenders (acfiir€ reasonably) to be of material value or material to the operation of the hx,siness of the member of Group and will include any asset or assets the value of which exceeds €2,500,000.
2023
Guarantors
(a)
Subject to paragraph (b) below, the Parent strall procure that any entity which becomes a Material Company after the dah of ttris fureernent shall, as soon as possible and in any event within 2O Business Days of becoming a Material Company and subject to applicable law and flre Extnaordinary Administration Proceedings, become an Additbnal Gnarantor and strall grant such Security in favour of the Security Agent as is reasonaHy rcquested by the Agent.
]r
-
75'
(b)
The obligation to become an Additional Guarantor and grant Security descr,ibred in paragraph (a) will not apply to the extent that it would (i) result in any breaih of corporate benefit, financial assistance, fraudulent preference or thin czrpitaiisation laws or regulations (or analogous restrictions) of any applicable juri:;diction. (ii) result in a significant risk to the officers of the Additional Gtprantor of contravention of their fiduciary duties and/or civil or criminal liability crr (iii) costs that, in the opinion of the Agent (acting on the instructions of the Majority Lenders, acting reasonably), are disproportionate to the benefit obtained by the beneficiaries of the guarantee or Security proposed to be given. Tlre relevant member of the Group will use its reasonable endeavours to overcorne any such obstacle; including agreeing any limitation on the amount guaranteed or in relation to ability to dealin the charged assets as is customary in the relevant jurisdictkrn.
(c)
The Parent shall ensure that any entity which is incorporated in Croatta and in which the Parent holds (directly or indirectly) 25 per cent. or more ofthe voting stock (measured by voting power rather than number of shares) is brcrught under the supervision of or made subject to the Extraordinary Adrninistration Proceedings as soon as possible thereafter and in any event within 20 Business Days of the earlier of the Agent giving notice to the Parent or the Parent becorning aware that it holds such percentage of the voting stock of the relevant erntity.
(d)
The Parent is only obliged to comply with paragraph (b) above if to do so would not have a material adverse effect on the financial condition of the relevant entity.
(e)
The Parent shall ensure that the aggregate gross assets of all
v
lmmateriat
companies shall not at any time exceed €150,000,000. For the purposes of this clause "lmmaterial company" means any member of the Group that iis not (i) an Excluded company, (ii) a Materlal company or (iii) a member of the Group as at the date of this Agreernent.
20.24 Acquisitions and Joint Ventures (a)
Except as permitted under paragraph (b) below, the Parent shail not (and the Parent shall ensure that no other member of the Group will):
(i)
acquire
a
company or any shares or securities or
a
business or
undertaking (or, in each case, any interest in any of them);
(ii) (iii) (iv)
(b)
incorporate a company;
enter into, invest in or aquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture; or
hansfer any assets or lend to or guarantee or give an indernnity for or give Security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint venturc {,or agre to do any of the foregoing).
Paragraph (a) above does not apply to:
(i) (ii)
an acquisiiion or invesknent to which the Majority Lenders have giyen *reir pilormiten consent; the incorporatton of a limited liability company (or the acquisition of a sfuelf company) lvfiich on and at alltimes following incorporation (or acquisition) is a wholly owned rne-rnber of the Group and does not kade or aq.uire any assets or liabilities and provided that the amount subsclibed for er.lclt
v
-76_ ohares (or the consideration for {he shares acquired) does not exoeed €10,000 for each suctr inoorporation .or acquisition; {iii)
an acquisition (not being an acquisitim by the Parent) of minority interests in a limited liabitity entlty provtded,that the rclevant member of the Group holds more than a oorfiroilirg intereSt in such any entrty and the aggrcgate Total Purcirare ft[ce Sor &e acquisition when aggregated with the Total Purciase Prioe for any other,acquisition of minority shares under this paragraph (bxiii) shdlno( exceed €5,000,000 (or its equivafient) at any time; and
(iv)
an acquisition by a mernbe{ of $e Group of a company, of shares, securities or a business or urderhking (or, in each case, any interest in any of trtem) or tlre incorporation of a compariy or any acquisition of or investment in a Joint Venfure ('Joint Venture lnvestments") provided that the aggregate Total Pturchase Prlce for such acquisitions and the aggregate amouril of Joint Venh$e lnuestnents under this paragraph shali not (when aggregated with a{l sther Permitted Non-Group Transactions), at any time, exceed the Fer*itbd tton-Group Basket.
(
20.25 tsilk; of Exchange Nohtirithstanding any other term of this Agr'eer,nent, no nrrernber of the Group will enter into any Bills of Exchange after the date of this Agreenrertt.
20.26 Corditions eubsequent (a)
The Parent rnust procure lhat: (0
(ii)
( (b)
each Post-Oosing Guranbr $hdl acoede to this Agreement as an Additional Guarantsr ars soofil as possible and no later than S Business Days after the date of this fureer*iuft; and the respective docur,nents and otlpr evidence listed in Part B of scheduie 2 (Coditions Subsequent) are delivercd to the Agent in respect of the Original Obllprs and tte Po$€*osing Obligors (in form and substance satisfactory to it) bry no later (han 10 Business Days afier the Glosing Date.
The Parent shall, within 15 days
d:
(i)
15 July 2A\7 , deliver to the Agent a sst?ficate (sQned by the Restructrring Advisor) setting art detaib sf aU hrs behveen members of the Group (other than sfiort term intercuupny bans made in the ordlnary course of trading) 'vvtiich r,epresen{ {he on-{erdins of tfie proceeds of the Loans utilised on the'F,irst syodicailim uffi$ation Datre, the secmd syndication Utitisatiorc Dab arxd the {hird Syndication Utilisation Date; and
(ii)
15 October 2A1V, deliver to the Agent
a certificate (signed by the
Reshrcluring .4dvbo$ sefifucg s{Xt atll toans befiffeen mernbers of the Group (other trtan sholt *ern ,irercrrnpar*y loans made in ttre ordinary couree of kading) wtrictt rerresert &e on-lerxdirg of the prooeeds of the l-oans utitised on eadl F'mIHV A l*t&cded i{nrtount Utilisation Date ard carry out any action b pro(ed, frfeet or giue pr,iority to such Seourfy by no latrer than tfie relevantd# *ove. @ether fte'?01 7 ilnte.aontprty
Lffi
".
-v7 '{c)
-
to applicabte law and ttre Extraorclinary Adrninistration Proceedirqs, the Farent shall {and the Parent slral{ ensure th,at each member of tre Group will} as 6oon as possible aftet the Closlrq $ab and in arty eryent no :lder than 6O days of the clate of; SuQec.t
(i)
the oertificabs set otrt in par:agraphe {bxi} and {ii}
Sove grant security (in
fonn ard substance satisfactory {s tfrc Agent) orler eadh A$ilf lntercompany Loan advanced by it to .another nrernber of the Group;
(i0
this Agreen*ent, grant Secudty {in fonn and s{rbstance satrsfactory to ti,re Ag€fit) over all shares hetd in Frikom d.o.o. anid Driarnant a.d. {or over lhe shares of a newly inoorporated [imited liabi{rty cornpany vr4lich is t}ce irnmediate holding oornpafiy cf Frlksm d.o.o- and Diiarnant a.d. (es ap$icable)) in each case to ttie eldent r,easonahly practicable, and
\tii';
t$is Agnaement, grant sr-rcfl
and suirtance satisfactory
dher Securitv rcque#d by the Agent {in fnrnl ho the Agenti) and agreed to by the Parerd
(
{acting reasooablyi, and, in each case, shall car"ry out any aotiod? to Brobct, perfect or givr: prioriff to such Secunty by no leter than the raleramt dde above. {$)
{g)
Ihe Pareat
s'hall procure that eadr rner.r,tlrer sf {he
Gno.r,rp:
(t)
identifled ifl the table se{ odt in For,t 0 (Iransactmn Secunfy Ftoouments aN sr-anrlly related docornaq6afian fo be rldi.r,ered by Guarantrrs,) of Schedule 2 (Condrtroms Premabrrfi) stratl grani ti-,e Transaotirrn Secudty descrlbed in Part D (I"ansactlmi $esnr,?ty Dma*rsrfs and oaco@ cefitgd docametr#lion lo be #fivelr,d $y Guaa"ar*ers) and carry orf arry actiun to ptutect, perfect or gitne prbnry fro s{mh Tnansac{i,on '$ecwib- by the specified date identified oppmite frre nanrc sf that member otse Gr.oup rin Part '0 {Tta,nsalrltian Secunk} D6s{rn enls and socunfy relalad dxw*entalion fo be defrvercd by Su*rarriors) ot Schedde 2 {t*nditilens Pngoe&r*!;and
Si)
idenfif€d
in Part F {lrtdllectaal nqpe,iy} df k"Muh P 1{Sur.rdbome
Prucederlt) shali grant Trmasa'c{isn Secunty mrer ttle ir&ifhritural property described in Part F (lrtd[adual kqperty,i of AaMde Z ftCnr,rfiIncne Ftecedarf) and carry od an!, aelisn *o protept, perfu{fi or give .Pr&}& tc, sarcfi Transad{ion $ecur*W as s&on 'reasonaUy practicabb after the Glosing &de and in arry .euef,it by no ,*r than the date u#*iolo is 130 dayr dterthe dab of thb Agreemer.lt.
Each Obligm snust use, arxd rmrd prooure ttal any ot{rs nrer.rd}sr d &e G*arcp that is a pote*tid prorrider sT Trantsacli
/s,*"xtistratim enomeo*ngs
t0
fhe Parcnt shall {and tt}e Parffil
oirydti ,eftsrrirc ti'*at @cti meflqtx rri the Srrue by rm iater than 30 tsueimgs Oef6 ,dlbs,r the Ciosing Dah,, pmoure antj deliue{ &o fte Ag€s{ an upddted list rffturntr}oundbetd ffss€b, sishsfan[hlf in ihe furrn otr src taue set o{rl in $drcdub 2 (pait E'} {uaerncurnbered Aawts), containing, in rda{im So eacfi asseit {idred [horcin:
wlU).,
t0
fiie r*ar.ne.cf ttle rebvarvt tand ,Rqnsfy;
(
tr(
-78-
(tl) (iii)
the name of cadastral municipality;
{iv}
the nurnber of land and/or cadastrat plc(s}
]
the number of the land registry folio, and
(g)
The Parent shafl deliver to the Agent within 10 Bus'iness Days of delivery of the audited Annual Financial Staternents fror the financial Year ending 31 December 2016 a list of all Material Companies.
(h)
The Parent shall invite the express written support o{ holders of the Existing Bonds one sufficient detail of this Agreernent has beerl rnade public, and the Or(7inal Lender shall in good faith use its rcasonab{e efforts to contact those holders it with a view to obtaining that qa.itten support from holders of at of each lssuance of the Exis-ting Borids.
Eveuls oF DEFAULT
?
events or circumstances set out in this Ciause 21 (except for Clause 21.18 (Acce/erafibn)).
21.1
is an Event of
Default
Nonpayment An {Sbligor does not pay on the due date any arnount payabte pursuant to a Finance Document at the place ard in the currency in which it is expressed to be payable unless:
(e)
its tailure to pay is caused by:
(i} (ii) (b) 21.2
?
a Disruption Event; and
payment is made within hree Business Days of fts due date.
Breiach of obligations
(a)
An Obligor or any rnember of the Grcup does not comply with the terms of Clause 3.1(a) (Purpose), Clause 20.3 (ilegative Pledge) or Qlause 2Q.2O (Minimum Liquidityl.
(b)
No Event of Default shall occur urder paragrryh (a) above in respect of a breach of Clause 20.3 ( b€'afil,e fliedge) if ttre failure to oarn$y is capable of remedy and is rernedied within ftree Business Oays of the eaflbr of:
t0 {ii) 21.3
adrninistratirre or technical error; or
frr€ Ag€fit giving rwtioe
b
the Esrorver; and
an Obligor Oemrnrog au,arre ofthe failure to cornply.
Otherobligati'ons
(a)
An Obligor or any rnember cf fie Gnoq does nd cornply with any provision of the Finance Docurnents (other than ttrw r€fien?ed ts in Clause 21.1 (Non-paymeng or Ctause 21 .2 \Ereach af oblilpliansl.
(b)
Ns €vent of Default under paragnaph {a),*ole willoocur if the tailure to comply is capable of rernedy and is remec$ed u+thin fiue Eminess Days (or in the case of paragraph (e) of Clause 2A.23 (Guananbns), 20 Susiness Days) of the eaflier of:
(i)
the Agent givinE notice to the Bsn'oerer; and
_79_
{ii) 2q
A
an Obligori@aomirql aware sf the farilure to conpty.
hsolvency proceedings Other than the Extraordinary Adn*nisilldfui ftooeriings extstlng as at ti*e dde df tkis Agreernent" any corporaE aotion, legal .pre,medlng$ ,oa other procedur€ or s{ep is'taken in relation to:
{a}
the suspension of palmlsrrts, a mnr#lisn cf any indebtedness, wftrding.
(b)
a oompositioo, eomprom{se, *sigrNmefit or arrafiEerfl€nt with any onsditor of ,any member gf the &o,,,p;
(c)
the appointrnerrt of a liquidator idteer tfuan in reqBec{ of a solrcrtt llquidal*on of ,any member of the Group which is not an Oblbo{, receiuer, adminishative reoe{nrer, admin-nfator, oornpulsory rnarlager or other sirnilar ofFaer in rcspect of arry nrernber of tlte Group or any sf its assets; or
{d} G)
enforcement of
ar,6r
Security oMer €iny assets of any mernber of the Group; or
any analogous pruoe&ffe or
s@ is tsl€?t in ,any iurisdit*iom,
provided that this Glarrrse 2{.4 shall mt
or
vexatious and mrnrnenernenl.
ryty
to any tarindtng-{ry pd,ition '#hidh is 8iirrdlsus
i€ OfctaryeA, stalrcd or
dismissed nitlrin fourfima datfs df
21.5 Greditors'process Any expropriation, attachmert, sequestratbn, distess or exectrtion a$ecb any reset or assets of a member of tfte Group Gr any Obligor havirq an aggregate value of ,l€!,000,000 o{ more and is not disctmqed within fourteen days.
21-6 Unlawfulness
(a)
lt is or beconres ur.&rvlful fior an Obttgor or any par$ to a Finanoe Doc{,fizn*dt.(othet
Finance Party) to prfurrn any of ils oblQations trnder the Firwue Docr,lrnents or arry {rarreac*km S€ciirity creded or exprcssed to be oreaied or euMenceC W tE $eflrt4/ ilocurnents oeese€ to be effective.
than
a
{b}
Any obligaUon or obfudions rf an 651igor or tr4y other ,party fto a Fi*elre Document {drer than a Finance Pa{ty} under any Fi+ance Dscur,lren$ are ncii or cease to be bgd, qdid. hkrding orerdoropaHe.
(c)
Any Finane Docurnent ceEE€6 to be in fif,l foroe ard e#eot or afl$, rkansadtion Security ceases to be legal, vatd, birxling, enfuroeable or effiecfiive or is aHeged &y a party to it (ortrerthan a Finane Farty) to be ineffec*ite.
21.V Repudiation Any Obligor or a,ny garty to a Finanoe Doamentt {dher tfian a Finare furb4) rrepudiabs a Finanee Document or {my of ttrc Transactim $ec,r,trity or euidencm an inbr,ition ,to repudiate a Finanoe Dsauner[ or aay of trle Transadiom S€urriry
fr
)1
-B0-
21.8
Governmantallntervention Othrer than the Extraordinary Adrninistration Proceedings exisling as at the date of this Agrraement, by or under the authorig of any government or court: (a)
the managernent of any rnember of the Group is wholly or partially displaced or the authori$ of any rnernber of the Group in the conduct of its business is wholly or partlally curtailed; or
(b)
all or a majority of the issued shares of any member of the Group or the who{e or any material part of its,revenues or assets is seized, nationalised, expropriated or compulsorily acquired.
21.9 TransactionSecurity
f
(a)
Any Obligor fails to perforrn or mmply with any of the obligations assumed by it in the Transaction Security.
(b)
At any time any of ,the Transactbn Security is or becomes unlawful or is not, or ceases to be legal, valid, binding or enforceable or othenvise @ases to be effective,
(c)
At any time, any of the Transaction Security fails to have first ranking priority or is subject to any prior ranking or pari passu ranking Security.
21.1O lUlaterial adverse change Any event or circumstance occu{s,$}ftich, in the opinion of the Majority Lenders, reasonably likety to have a Mabrial Adverse
Effect.
nr.
or"
Jl *l
21.11 Ranking The payment obligations under lfie Finance Documents cease to benelrt fro, .upurl priority ranking under ttre Extraordi*mry Adnninistnation Proceedings Law except for I oblil3ations mandatorily preferned by the Extraordinary Administration Proceedings Law. )
(
21
.'12 Management and supervisory conrmittees The Commissioner does nd mnsult with the'Lenders in relation to the appointrnent ,;l identity of the management oornmittee and ttte supervisory committee intended to be in placn following the Settlensrt Date h respec't of the ten largest members of the Group by
revenue.
---)
21.13 Guarantee Challenge
(a)
The Commissioner, the Parefit otr any member of the Group comrnences a challenge in respect o{ the guaranlees contained in or in respect of the Existing Loan Agreements andlor Existing Bond Documentation and/or the co-debtorship of the Existing Loans and/or the Existing Bonds at any time after the date which is 60 Business Days aftertfie lnitialUtilisation Date.
(b)
The Commissioner, the Parent or any member of the Group or any other creditor of the Group sucoessftllly challeqge ttre guarantees contained in or in respect of the Existing Loan Agreenrents and/m Existing Bond Documentation and/or the codebtorship of the ExistiTqg Loans and/or the Existing Bonds.
I I
-81 21
.1
4
-
Extraordinary Adrninistr,stion proceedings Any amendment is mnde to the terms of the Extraordinary Adrninistrafion Frroceedings Law unless: (a)
such arnendment does not result in or req.lire an arnendrnent to or sthenvise affect any matreriai term of this Agreement (and for tfie avoidanoe of doubt, any arnendment to the structure of the Facilities under thb Agreer.nent, the credit risk assooiated with the financing under this Ag,rmment and/or the rqlttts of the Finance Parties Lurcder the terms of this Agreement stralt be deefl.IBd to be a material temr); or
(b)
the Agent (acding sn the instructions of the Majority t€nders) tras confirned within 5 Business Oays sf the relevant amendrnent becor,ning e$ective that the Majorrty Lenders have agreed that no Event of Default shall arise under this dause 21.14 as a result of sr:m{r arnendment"
21.15 Additi,onal Security
(
The Creditors' Commitee &es not grant approval fior materiat new security iclentified by the Parent or any rnember of the Group in accordance with Clause ZA.?2 \AdAmanil Sea.rnty) and requested by the Majorig Lenders.
21.16 Nondelively of Audited Financial Staternents
(a)
fhe 2016 Audilad Financial Statements, written interim obnervations emd/or any other information refened to in paragraph (a) of Clause 1g-3 (Audib
(b)
No Event of Default will occur under paragraph (a) above ff failure tro comply is rernedied within seven Business Days of the erlirr-r of the Agent givtqg notiC to the Borrower and an obligor becoming aware sf the falture to oomply.
.-21.17
of the Cornnrissioner or the Restructuring Adv-sor The govemment of Croatia or the court of the Extraordinary Adrnjnistration piooeedings replaces Ante Ramjlak as {re commissioner or tle Reskuctr,ing Advisor.
21.18 Acceleration On and d any time afH ffrc occunence of an Event *rf De{aratt whioh is oontinuing, the Agent may, and shall if so directed by the Majority Lenders, hy notkre to the Bonrounar:
(a)
canel all or part of fte Total be canoelled;
Commitrr,rents, at whic{a time teey sha{l intrnediately
(b)
dedare that all or part of the Loans. together wittr acarued intelesl and all dtrer arnounts acorued or outstanding under the Finanoe Docurnents be inmtedia6y due and payable, atu/hkh time they shall beoorne innmediately due and payabb;
(c)
dedare that all or part of the Loans be payable on dernand, at which tinre they shan ir*mediatdy become payable on dernand by the A6ent on the ir,,rstiuotions of the lrlajority LercdBrs;
(d)
exercrise, or direct fte $earlnty Agent to exencise, any or alt of its rigrfrts, renteckrs, porvers or discreQlons r,rndet any of the Finanoe Oocrerents ar]g1tg,r
.
(,
-82-
(e)
(
(
request that all or part of the funds standing to the credit of the Liquidity Escrow Account are returned to the Agent and applied in repayrnent of the Loans.
-83Section l0 Ghanges to Padies
22.
CHAI{GEs
22.1
AssignmenE and transfers by the Lenders
{a)
ro
rHE Lexoens
Subject to this Clause 22 ard to Clause 23 (Resfirction an DebI Transactions), a Lender (the'Ex*sting Lende/') may:
(i) (ii)
lldrare
assign any of its rights; or transfer by novation any of its righB and obligations,
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 (ftre "Nen, Transfer Lende/').
(b)
22.2
r
Notwithstanding paragraph (a) above, no Facilig A Lender may assign or tranrser or sub-participate any of its rights and/or obligations under this Agre*ment to a New Transfur Lender at any time during the period from and imluding a Commitrnent lncrease Date to aad including the Utilisation Date under Facility A. vuttich immediately follows the rebvant Commitment lncrease Date,
Conditions of assignment or transfer
(a)
An assignment will only be efiective on:
(i)
receipt by the Agent (whe{fier in the Assignment Agreernent or otheruise} of written confinnation frorn the New Transfer Lender (in fonn ard substance satisfactory tro &e Agent) that the New Transfur llender will assume the same obligations to the other Finance Parties as it u*or.l{d haye been under if it was an Or(1inal Lender, and
(ii)
performance by the Agent of al{ necessary "kfiow your custonx:t" or offier similar checks under all applicable laurs and regulations in retatkm to such assignment to a New Transfur Lender, the completion of whiclr tre Agpnt shall promptly notify to the Existing Lender and the New Transferr Lerder.
(b)
A transfer will onty be effective if the fortnnsfer) is cornpliexl with.
(c)
tf:
(i)
produre
set out in Clause 22.6 (Prooadrnre
a Lender assigns or trans{ers any of its rights or obligations urder ttre Finane Documents or changes its Facility Office; and
(ai)
as a resdt of circumstanoer extsting at f€ date the assignnrerd, kansbr or change otr-urs, an Obligor srould be obhged to make a paylner{ to tte New Transfer Lender or Lender acting Brnough its nenr Far$lity Offioe under Clause 12 {Tax Gross-Up aN {ndemnitbsl.
then the New Transfer Lender or Lemder acfiinlg through its new Facility Ofrice is only entitled to receive payment urudsr sucft oause to the sarne exbff m lhe Existing Lender or Lender acting ftru.flgh its previrrus Facility Offioe urs,lkl have
r
,84 been if the assignment, transfer or change had not occuned, This paragraptr (c) shall not apply:
(1)
ta the Original Lender;
{2) (3)
a Primary Lender;or
in relation to Clause 12.2 (Tax gross-up), to a Treag Lender that has complied with any neressary procedural formalities in accordanoe with paragraph (g) of Clause 12.2 (Tax gross-up) if the Obligor making the payment has not complied with any necessary proceduralformalities applicable to it in accordance with paragraph (g) of Clause 12.2 {Tax gross-up) to enable it to make payments to such Treaty Lender without a Tax Deduction.
(d) (
waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreernent on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
22.3
q
Each New Transfer Lender, by executing tfie relevant Transfer Certificate, Assignmtjnt Agreernent or Acoession Doc;ument confirms, for the avoidance of doubt, that the Agefit has authority to execute on its behalf any amendment or
Right of First Refusal
(a)
No Existing Lender rnay assign, transfer or sub-participate any of its rights and"/or obligations in respect of Facility A under this Agreement to a New Transfer Lender unless the Existing Lender has first servd a notice to the Agent (for transrnission to each other Facility A l-endm) in writing setting out the proposed terms and conditions (including sale prioe ard amount of the o.ffered Facilig A Comrnitments) and the rclevant pmposed LMA form trade confirmation (excluding transferee details) ("FIOFR Notice') .
(b)
During the Business Day immediately {ollowing receipt of the ROFR Notioe, any Facility A Lender ("Proposed ROFR Lendef) shall notify the Existing Lender of its intention to participate in tte *elemrd hansfer, assignment or sub-participation including the maximurn armount of the offered Facility A Commitments wh,ich the Proposed ROFR L-ender t*outd be witling to assume CROFR Offe/') on the terms and conditions set out in frre ROFR Nstice.
(c)
Any ROFR Offer rvhich is rnade pursuant to paragraph (b) above shall remain open for acceptance until the eod of the Business Day imrnediately following the date of the servim of the ROFR 0#er and if not aocepted within that period shalt be deemed tro have eryired.
(d)
lf the aggregate ROFR Offers reoeived are equal to or rnore than the offered Facilrty A Commitnents., the Existir,q Lender shall transfer the ofiered Facility A Commitrnents to eac$ Proposed ROFR'Lender in the amount of their respec{ive ROFR Offer (or lf ROFR Offiers are greater than the offered Facility A Commitments as rcduced pro ,nata). The Existing Lender shall notify each Proposed ROFR tender of ttle ar,nount of Facili$ A Commitnrents to be transfened to it on the Busines Day follrewirlg the date of receipt of the ROFR Offers (the "Notification Date'|, 'at uhich point the Existlng Lender is deemed to enter into a c,ontractual obligation or trade to transfer, assign or sub-participate (as the case may be) the ofured Faoiffi A Corntnitrnents to each Proposed ROFR Lender in acmrdance with tlrc terms of this dause. The Existing Lender and each
-85Proposed ROFR Lender will no later than one Business Day after the Notificailon Date enter into a trade confirmation in the form circulated within the ROFR Notice, confirrning the terms of the trade and the effective date of the trade as being the Notification Da[e.
(e) lf the aggregate ROFR Offers received are less than the offered Facility A Commitments, the Existirg Lender shall be entitled to make the relevant transfer, assignment or sub-participation to any third party on the proposed terms.
22.4
Assignment or transfer fee The New Transfer Lender shalt (unbss it is already a Lender), on the date upgn wtrich an assignment or transfer takes effect, pay to the Agent (for its own ar:count) an adminishatiue fee of € B,tXlO_
225
Limitation of responsibilfy of Existing Lenders
(a)
Unless expressly agreed representation Lender for:
(i)
to the eontrary, an Existing Lender makes
no
or warranty and assumes no responsibility to a New Transfer
I
the legality, validity, effectiveness, adequacy or enforceabrility of the Finance Doeurnents, the Transaction security or any other documents;
(ii) (iii) (iv)
the financia{ condition of any Obligor;
the perforwranoe and observance by any Obligor of its obllgations under the Finanoe Documents or any other docurnents; or
the accuracy of any statements (whether writen or oral) made in or
in
connection with any Finance Document or any other document, and any representations or wananties implied by law are excluded.
(b)
Each Netv Transbr Lender confirms to the Existing Lender and the othrer Finance Parties that it:
(0
has made (and shall continue to make) its own independent investigagon and assesnrent of the financial condition and affairs of each obligor and its related entities in connection wtth its participation in this Agreement and has not r# exdusively on any information provided to it by tlhe Existing Lender in cpnnection with any Finance Document; and
(ii)
tril{ cordtnlrc to rnake its own
independent apprais;rl of the relatd entities whilst arny amount antstanding under the Finanoe Documen'ls or any
crediturorthiness of eaclr Obligor and its
is or may be
Commitment is in foroe.
(c)
Nothing in any Finance Document obliges an ExisUng Lender to:
(0
aooept a re-transfur or re-assignment from a New Transfer Lerrder of any of the rigtr,ts ard obligations assigned or transfesed under this clause 22;
of (ii)
support any losses directly or indirec(y incurred by the Nenru Transfer Lender by reason of the non-performance by any obl$or of its oblqations under ttte Fiinane Documents or otherwise.
f
('\
-86-
22.6
Procedure for transfer (;r)
Subject to the conditions set out in Clause ?2.2 (Condifions of assignment or tmnsfefi a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfur C,ertificate delivered to it by the Existing Lender and ti+e New Transfer Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicabte (and in any event within 10 Business Days) after receipt by it of a duly completed Transfer Certificate appearing on its face to cornply with the terms of this Agreement and delivered in accordance with the tenns of this Agreement, execute that -fnansfer Certiftcate.
(t,)
The Agent shall only be oblged to execute a Transfer Certificate deliyered to it by the Existing Lender and the New Transfer Lender one it is satisfied it has
complied with all necessary "know your customei' or other similar checks under all applicable laws aM regulations in relation to the transfer to such New Transfer Lender.
_3
(c)
On the Transfer Date:
(i)
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by noyation its rights and obligations under the Finance Documents and in respect of the Transaction Securi$ each of the Obligors and the Existing Lender shall be released frorn further obligations towards
one another under the Finance Docurnents and in respect of
the
Transac{ion Security and their respective rights against one another shall be cancelled (being the Discharged Rights and Obligations");
(ii)
each of the Oblgors and the New Transfer Lender shall assume obligat'ons torvards one another andlor acquire rights against one another ttrrich dif,br fr--r the Discharged Rights and obligations only insofar as each of the Or,*gors and the l$ew Transfer Lerder have assumed and/or aoquircd the same in place of that Obligor and the Existing Lender,
(iii)
C
the Agert, the Security Agent, ttre New Transfer Lender and the other Lenders shall quire the same rights and assume the same obligations between thernselves and in respect of the Transaction Security as they would tsve acquir,ed and assumed had the New Transfer Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result cf the transfer and to that extent the Agent, the security Agent ard ttle Exis{ing Lender sha{{ each be released frorn further obligal*xrs to
(iv) 22.7
eefi
olher under the Finance Documents; and
the trlew Tranderf,er*der sfiall become a Farty as
a'[.ende/'.
Procedure forassigrnnerd
(a)
Subject to the conditions set out in Clause 22.2 (Condiliarls of assrgnment or tnnsferl an assignment may be effected in accordance wlth paragraph (c) below when the Agent execrfres an ottrerwise duly completed Assignment Agreement delivered to it'by the Exisling Lender and the New Transfur Lender. The Agent shall, sublect to paragraph {b) below, as soon as reasonably practicaHe (and in any event withitt 10 Eusiness Days) after receipt by it of a duly compteted Assignrnent Agreernent appearing on its faoe to comply with the tenns of this Agreenrent and delivered in accordance with the trerms of this Agreement, execute that Assignment AErreernent.
i
-87 (b)
(c)
The Agent shallonly be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Transfer Lender once it is satisfied it has complied with all neoessary "know your custorner" or other similar checks under all applicable laws and regulations in relation to the assignrnent to such lrlew Transfer Lender. On the Transfer Date:
ii)
the Existing Lender will asslgn absolutely to the New Transfer Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement;
(ii)
the Existing Lender will be released by each Obligor and the other Finance Pa(ies ftom the obligations owed by it (tlre "Relevant Obligations") and expressed to be the subject of the release in Hrc Assignment Agreement; and
22.8
(iii)
the New Transfer Lender shall becorne a Party as a "Lender" and wi{l be bound by obligations equivalent to the Relevant Obligations.
(iv)
Lenders may utilise procedures other than those set out in this Clause 22.7 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 22.6 (Procedure for transfeQ, to obtain a release by that Obligor from the obligations owed to trat Obligor by the Lenders nor the assumption of equivalent obligations by a New Transfer Lender) provided that they comply with the conditions set out in Clause 22.2 (Conditions af assignment or tnnsfefi.
Copy of Transfer Certificate, Assignment Agreement or lncrease Confirmation to Parent
as oooo oS reasonably practicable after it has executed a Trans{er Certiftcate, an Assignment Agreement, Accession Document or Increase Confirmation
Tlne Agent shall,
send to the Parent a copy of that Transfer Certificate, Assignrnent Agreement, Acoession Document or lncrease Confirmation.
22.9
Security over Lenders' rights ln addition to the other rights provided to Lenders under this Clause 22, each Lender rnay u'ithout consulting with or obtaining consent frorn any Obligor at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherurise) all or any of its rights under any Finance Docurnent to seoure obligations of that Lender irrc{uding, without limitation :
(a)
any charge, assignment or other Secudty to seanre obligations to a bderal reserve or central bank, and
(b)
in the case of any Lender which is a furd, any charge, assignment or otter Security granted to any holders (or tnrstee or representatives of holders) of obligations owed, or securities issued, by that l-ender as Seourity for those obligations
or
secr.lrities,
erxcept trrat no such charge, assignment or Security shall:
(i)
release a Lender from any of its ob{igatisrs under the Finanoe Docums+ts or substifut'e the beneficiary of the relevant cfrarge, assignment or Seouity for the Lender as a party to any of the Finance Documents; or
r
-88-
(ii)
require any payments to be rnade 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 Docurnents.
23.
RESTRrcTrofl or{ DEer PURoHASE
23.1
Prohibition on Debt Purchase Transactions by tlrc Gtoup
Tnlrtsacnols
The Parent shall not. and shall procure that each other member of the Group sh;all not, enter into any Debt Purchase Transaction or beneficially own all or any pad of the, share capital of a company that is a Lender or a party to a Deff Purchase Transaction of the type referred to in paragraphs (b) or (c) of ttrc definition of Debt Purchase Transacti,on.
23.2
Disenfranch isement of S.hareholder rAf,filiates
(a)
For so
I'rong
as any ShareholderAffitiate:
(i)
beneficialty owns a Comrnitrrrcnt;
(ri)
has entered into a sub-partrcipation agreement relating to a Comnlitment
ror
or other agreement or arranEement having a substantially similar economic efiect and such agreornent or arrangement has not been terminated,
in ascertainirp:
(1) (2)
the Malori$ Lenders;or whether:
(aa) (bb)
any given Frcefitage (including unanimity) of the Total Gonnc*rmnts, or the agreenrent of any specified group of Lenders,
has been ohtained to a@roue any request for a consent, ,waiver, amendment of o$rer v& urder the Finance Documents such Commitment shatl be deerned to be zero and such Shareholder Aff]liate or
the person with whom ft tl6 efitered into such sub-participation, other agreement or arrangenent shafi be deemed not to be a Lender for the purposes of paragraphs (1) and {2} above (unless in the case of a person not being a SharehoHer ASEt&a$e it is a Lender by virtue olherwise ltran by benefi cial ty owning ttce re*a/ant C"mrnitrnefit). (b)
Each Lender shall, unless zuctrl Deffi Purutrare Transaction is an assignrnent or transfer, prompfly notity the Age{rt in witftE if it knowingly enters into a Debt Purchase Transaction wifi a Sharehokier Affilide {a 'tlotifiable Debt Purehase Transaction"), sutl,t notiftcatisn to be suffir(ially in the form set out in Part A Sc.hedule 13 (Fonns cflffilffite ffiPurcfiase Transactian Nofice).
{c)
A Lender shall prornp$y notify tre A8erot if a t{otiftable Debt Purchase Transaction to whictr it is a parly:
(i) (li)
is terminated, or @ases to be uuitr a StranehdderAffiliate,
Sucfq notification to be subtar{ialty in ffie for,rm set out in Pari 2 of Scheriule 13 (Forns of Notifiable Ddf Rroh*s,Xransac{ron fVofoe}.
-B9-
(d)
Eacfi Sharehoklier Af,filiate that is a Lender agrees that:
(i)
ifl relafion to any nreeting or oonferenoe crill to wttich alt,the Lenders are invited to att€rld or participate, it shall not attend or participate in the sarne if so reqr-ested by the Agient or, ur,tless ,1* 4gent othe(wis€ agrees, ,be entitted to receive the agenda cr any minutes of the same; and
(i0
in its capaoity.as Lender, unless the Agent sthenryise agr€es, it shall not
be enti$ed to receive any report or otier docurnent prepared at the befieS of, sr on he instructions ot, the Agent or o$e or {Tmre of lhe Lenders.
23.3
Shareholder Affiliates' notification to other Lenders of Debt Purchase Transactions
Any Sharehotder Affiliate whi.cfi is or beconres a Lender and Which enters into a DeH Purchase Transiction as a purchaser or a participant shall, by S.OOpnr on ttre Busirpss Day following the day on'$frich it entered into that Debt Purchase Transac{ion. notifo tfte Agent of the exient of .the C,omrnitnent(s) or amount outstanding to wfrich that Debt Purchase Transaction r.elates. Iihe Agent shall promptly disclose such inforrnatior..r to the
n
Lenders.
24.
CHAT{GES
24.1
The Obligors
To TH€OBIJGORS
No Obligor may assign any of its rights or ffanshr any of Finance Docurnents.
24.2
i$s
rigfrts or obftSations urder the
Additional Guarantors
(a)
(b)
Subjeet to csrnplhnm with the provisions of paragraphs (c) and (d) of Clause t19.6 {"Know your cufunref c*rcc*s) and the agreement of any amendments referred to under paragr.ph {d} below, the Parent,r }ay nequest that any of ib Subs}diaries, incorporated in Qroatia and under the srpervision or sut$ect i,o the Extraordinary Administratim Frooee'dittgs becorne a Guarantor,
A nrember of the Grcup shall become an Additlonal Guarastor
(i)
it
the Parent and 0te proposed .Obligor deliver to Sre AEent
a
duty
corndebd ard eNecuted Acoession Letier; and
(iD
the Argerd has rrreived all of the docx.rnerils md 'offier evidence listad in Part G df $dredule 2 (,AfritionA Guarantul itc rqldtion to that Additbnal Gury,mlbr" erh in fonn and subsbnoe satbfac. 4 to the Agent.
(c)
The A,gertt shallrrrsltfy the Parent and the Lenders promptry upon being saffied that it tras recdnd fin hrrn and subetance satisfactory to it) all the docurnents and other evidenoe Iisted in Fafi C of Schedule 2 tAffilsn* Guam+to{.
(d)
lf any legal prohibi,t*on ryflJld prwent or limit a SubsidiaE/s abitfty to beoorne:an Additiona{ Guarantr adror to enter into fransactiofl Seotmity, the Obligo,rs slnatl use their reasonde e$deavours la*tfulfy to over,cotne the proftibition.
(e)
iMditional Guafiantor ls not a member of ttle Group, ehe par,ties agree to in gosd fraittr ho agree amendnents to the provisiorca o[ C*ause {8 (Rep/esefltarrored), Ckrse 19 (lnfmralbn undedakdrrym), Ctause 20 iGonarail undeilaking$ (and tre rdated perrnissions {s the un&tta$
negotiate
,A
t.,
-90and Clause ?1 (Evenfs of Defaul$ to extend and/or limit such provisions as may be appropriate.to such Additiondl Guarantor.
r
:..',\
-gl
Section 11 The Finance Partbs 25.
ROIE oT THE AGEHT AI{D oTI{ERS
25.1 Appointmentof
tfte Agent
(a)
Each other Finance Party (other than the $ecurity Agent) alpoints thre Agent to ast as its agent under and in connection with the Financ€ Documents.
(b)
Each o{ter Finance Party authorises the Ageftt to perform the duties, obligations and responsibi{ities and to exercise the rigftts, pfi^tsrs and authorities specifically given to the Agrent under or in connection with the Finance Documerrts together with any ottrer incrdental rights, powers and autfiorities.
25.2 lr*tructions (a)
The Agent shall:
(tI
(i0 {b}
,\ unless a contrary indication appears in a Finance Docurnent, exercise or refrain from exercising any right, power or authority vested in it as Agent in accordanoe with any instructions given to it by:
{1}
all l-enders if the relevant Finanoe Doounrent stipulates the mafier is an all Lender decision;
(2)
in allqther cases, the Majority Lenders; and
not be liablre for any act (or ornission) if ft mts {or refrains horrn acting} in accordanoe with paragraph (i) aboue.
trhe Agent shall be entitled to request instructions, or clarffication of any instruction, from the Majorig Lenders (sr, ff the releryart Finance Document stipulates the matter is a decision for any sther Lender or group of Lenders, hom that Lender or gmlup of Lenders) as to u*rether, and ln what manner, it should exercise or refrain frorn exercising any r!}ht, poarer or authority. The Agent may refrain from acting unless and until it receives any sudr inskuc{ions or clarification that it has requested and shall not be liaHe to any party for any loss pending reoeipt of those instructions or clarifications.
{c}
$ave in the case of decisions stipulated to be a rnatter for any othel Lender or Sroup d Lenders under the relevant Ffuranoe Ooctrnrent and rinl,ess a conhary indication appears in a Finanoe Doanment, any'insfuctions given to ttre Agent by the Majority Lenders shall ovenide any r,mfrn*ing fuustructions given b'y any other Partias and vrill be binding on all Finarm Far{ies save for the Security /\gent.
(d)
The AEent may refrain from acting irr acoodance rulth any instructions of any Lender or Eroup of Lenders until it hm received any indernnificattion andlor security that it rnay in its discretjon require {rytrict'l nray be greater in exterrt ihan that contained in the Finance Doc,uments and ,which may irrhrde payment *n advanoe) for any mst loss or liability whiott it rnay incx.n in oomptyirq wittr tlrose imtrudions.
{e}
Tfie Agent is not auttrorised to acd on betlaif of a l:ernder (withord fin;t ot{aining that Lender's oonsent| in any legal or arbikafion proceedings rdaliing to any Finance Docurner,rt- Yhis paragraph (e) stratt not apgy to any @a{ or arbikatbn
,4I
rt -92 proceeding relating to the perfection, preservat&cn or protection of rights under the Security Docurnents or enforcement of the Transactron Security or Security Documents.
25.3
Duties of the Agent (a)
Subjed to paragraph (b) below, the Agent shall promofly forward to a Party the original or a copy of any document which is delirrered to the Agent for that Party by any other Party.
(b)
Wthout pre.iudice to Clause 22.8 (Copy of Tmnsfer Ceftificate, Assignment Agreernent and lncrease Conftrmation to Parc,n$, paragraph (a) above shall not apply to any Transfer Certificate, any Assignmen( Agreement, Accession Doc,ument or any lncrease Confirmation.
(c)
Except where a Finanoe Document specifically provides otherwise, the Agent is not obligdd to review or Check the adequacy, accllracy, validity or completeness of any docurnent it forwards to another Farty.
(d)
lf the Agent receives notice frorn a Party refening to this Agreement, describing a Default and stating that the circumstance desoribed is a Default, it shall promptly notify the other Finance Parties.
(e)
ff 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 or the Security Aglent) under this Agreement it shall prornp8y aotify the other Finance Parties.
(0
The Agent shall provide to the Parerrt, uciftin 5 Business Days of a request by the Parent (but no more frequently than orloe per calendar month), a list (which may be in ebctronic for,m) setting sut the names of the Lenders as at that Business Day, their respectirye Commitments, the #dfess and fax number (and the department or offioer, if aRy, for whose dention any communication is to be rnade) of each Lender for any comrnunication to b rnade or document to be delivered under or in connection with the Finanoe Documents, the electronic mail address and/or any otter informotion requied to enable the transmission of information by electronic rnail or other elerf,ronic means to and by each Lender to whom any cornrnunication urder or in connection with the Finance Documents may be made by that lTleans and ttle acpount @taits of each Lender for any payment to be distributed by the Agent to $lat Lender under the Finance Doournents.
(g)
The Agent's duties under the Finanoe Doou,ments are solely mechanical and administrative in nature. The Agent shall have on{y those duties, obligations and responsibilities erpressly spectfied fii ,tt€ Finanoe Documents to which it is expr€ssed to be a party (and no others sirdlbe irndied).
C
c
25.4
25.5
No,Educiary duties (a)
Nothing in any Finanoe Docurnent oonsttfurtes the Agent as a trustee or fiduciary of arry other person.
(b)
The Agent shatl not be hound to acoour{ b any Lender for any surn or the profit elernent of any sum rerdred by it forits otrrr mrnt.
Bx;iness wilfr tte Group TherAgent may accept deposits kom, {end mo(By to and gererally engage in any kind of banrking or other business with the Group.
-93-
25.6
Rights and discretions of the Agent
(a)
The Agent may:
(i)
rely on any repftesentation, notice or document believed try
it to be
gen ui ne, oorrect an d appmpriatel y autho rised,
(ii)
assume that:
(1)
any instructions received by it from the Majority Lenders, xry Lendes or any group of Lenders are duly given in acco,rdanm uflfi the terms o{the Finance Documents, and
(2) (iii)
unless it has rece,ived notioe of revocation, that those inskurilions have not been revokd; and
rely on a oertificate frorn any person:
(1) (2)
as to any matter of fuct or circurnstance which might rearsonably be expecbd to be within the knowledge of that person; or
zf
to the effect that such person approves of any particr.rlar dealing, transaction, step, action or thing,
as sufficient evidence trrat that is the case and, in th,e case of paragraph {ii)(l} above, rnay assume the truth and aocurarcy of that certificate. (b)
The Agent may assume (untess
it has received notice to the oonhary in ib
capacity as agent for the Lenders) that:
(i)
no Default has occurred (unless it has actual knowledge o1f a 5p53rdt arising under Clause 21.1 (Non-paynreng);
(ii)
any right, pou,er, authority or discretion vested in any party or any grorp of Lenders has not been exercised; and
(iii)
any notice or rcquest made by the Cornpany (other than a Utilisation Request ar Sdection Notice) is made on behalf of and s,ith the cons,errt and know{edge of all the Obligors.
(c)
The Agent may engage, pay for and rely on the advice or seryies of arny lau4rcrs, accountants, tax advisers, survelmrs or other professional advisers or experts.
(d)
without prejud{ce to ttre generality of paragraph (c) above or paragraptr (e} belovr, the Agent may at any lime eflgage and pay for (at the cost of the Borrouier) the services of any larvyers to act as independent counsel to ttre Agent {and so separate from arry laq,ers insfucted by the Lenders) if frte Agent derems rds.io be desirable.
(e)
The Agent may rely on the advice or seruioes of any lawyers, accountanb, &ax advisers, surveryols or other profussional advisers or experts (whether obfained @ the Agent or by any otfrer Parly) and shall not be liable for any damagr;s, ooejb 66 losses to any person, any diminution in value or any liability whatsower arisirqg,as a result of its so relying.
f\
-94(f)
The Agent may aot in relation to the Finance Documents through its personnel and agents and the,{grent shall not:
(i) (ii)
be liable for any error of judgment made by any such person; or
be bound to superv'ise, or be in any way responsible for any loss incurred
by reason df misconduc,i, omission or default on the part of any such rerson,
unless such enor or such loss was directly caused by the Agent's gross negligence or witful misconduct.
?'
(g)
Unless a Finance Docr.rmen't expressly provides otherwise, the Agent may disclose to any other Party any infoffnation it reasonably believes it has received as agent under this Agreernertt.
(h)
Without prejudice to rthe generality of paragraph (g) above, the Agent:
(i) (ii)
may disclose;and
on the written request of the Borrower, or the tvlajority Lenders shall, as soon as reasonably practicable, disclose,
the identity of a Defuulting Lender to the Borrower and to the other Finance Parties. (i)
f
25.7
Notwithstanding any cfiher prouision of any Finance Document to the contrary, the Agent is not obliged to () efpend or risk its own funds or otherurise incur any financial liability in the perforrnance of its duties, obligations or responsibilities or the exercise of any iight pever or authority if it has grounds for believing the repayment of sttch furds or a@uate indemnity against, or security for, such risk or tiability is not reasor,nbly assured to it or (ii) do or omit to do anything if it would or might in its opinim curstltute a breacl'r of any law or regulation.
Responsibility for documer*atfurn The Agent is not responsibb for: (a)
the adequacy, accumcy and/or oor@eteness of any information (wtrether oral or written) provided by ,the Ageilrt, an O,bligor or any other person given in or in conneclion with any Fina&ce tloq,rnert or the transactions contemplated by the Finance Documents tr any ffiter qreernent, anangement or document entered into, made or execr{ed in ar*ictpation of, under or in connection with any Finance Document;
(b)
the legality, validtty, ef{edtiums, adequacy or enforceability of any Finance Document or the Transaotisn Security or any other agreement, arr,angement or document entered i*to, rnade or eorecuted in anticipation of or in connection with any Finance Docunrentorthe Transaction Seulrity; or
(c)
any de{erminatiorn as to whe{hrer any krformation provided or to be provided to any Finance Party is non-puHic inbrmation the use of which may be regulated or prohibited by apphcabb,lawor regdation relating to insider dealing or otherwise.
-95-
25.8
No duty to monitor The Agrent sha{l not be bound to enquire:
(a) (b) (c) 25.9
whether or not any Default has occured; as tio the perfonnance, default or any breach by any Party of its obligations under any Finance Document; or wtretfrer any ofier event specified in any Finance Docx.rment has occunred.
Excltrsion of liabilfu
(a)
Without tirnitlng paragraph (b) below (and with,out prejudim to the prrovisions of paragraph (e) of Clause 29.11 (Disruption to Payment Sysfems efc.i, the Agent wili not be liable (including, without limitation, for negligence or any other category of liabiltg whatsoarer) for:
(i)
(i')
(tii)
any damages, costs or losses to any perso.r"r, any dirninution in value, or any liability whatsoever arising as a resutt of taking or not taking any action under or in connection with any Finance Documrent or the Transaction secxrrity, unless direcdy caused by its gross negligence or wilful misoonduct; exercising, or not exercising, any right, pot^/er or authorig given to it by, or in connection with, any Finance Dooi.rment, ttte Transaction security or any other agreement, arrangement or docunrent entered into, made or exec,uted in anticipation of, under or in mnnec.tion with. any Finance Document or the Transaction Security otler than by reason ,of its gross negligence or wilful misconduct; or
without pr,ejudice to the generality of paragr:aphs (i) and (ii) above, any darnages, costs or losses to any person, any diminution in value or any liability r,vtratsoever arising as a
(1) (2't
any
reult
of.
act event or circumstance nd reasonably within its control; or
tte general risks of investrnent in, or the holding of assets in, any iurisdic{ion,
including (in each case and without lirnitatlon) suc*r damages, cor;ts, tosses, dinrinution in value or liability arising as a result of: nationalisation, erqropriation or other gouernntental aclbns; any regulation, currency restriction, derualuation or fluctuafion; rnarket conditions affecting the execution or settlernent sf tr:ansactions or the value of asse{s (induding any Disruption Euent}; breakdown, fuitr,rre or malfilrrtion of any third party transport, telecornmtnrications, cornputer services or systerns; natrrd disasters or acts of God; $mr, tenorism, insurection or rerrolutbn: or sbilm or industrial action.
(b)
No Party (other (hatr the Agent) may take any proceedirgs agalnst any officer, Delegate, ernptoyee or agent of the Agerd in respecf of any clairn ft rnight have against tt}e Ageftt or in respect of any act or ornission of any kind by that officer, Debg'de, ernp{oyee or agent in relation to any Finanm Document and any officer, Debgate, ernployee or agent of the Agent respediuely may rely on tthis Clause subiect to Clause 1.5 {Thitd party nghts) and the proviaions of the Ttrird parties Ac1t.
n
n,
-96(c)
The Agent will not be liable for any delay (or any related consequences) in uediting an account with an amount required underthe Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the rqu{a$ons 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 to carry out any "know your custorner" or other checks in relation to any peson on behalf of any Lender and each Lender confinns to the Agent 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.
(e)
Without prejudice to any provision o{ any Finance Document exduding or limiting the Agents liability, any liability of the Agent arbrng under or in connection with any Financ-e Document or the Transaction Se,cur'rty shafl be limited to the amount of actual,loss which has been finally judicially detennined to have been suffered (as determined by reference to lhe date of default of the Agent or, if later, the date on which the loss arises as a result of such defauft) but without reference to any special conditions or circurnstances known to the Agent at any time which increase the amount of that loss. ln no event shall the Agent be liable for any loss of profits, goodwill, r'eputation, business opportunity or anticipated saving, or for special, punitirre, indirect or consequential damages, whether or not the Agent has been adyised cf the possibility of such loss or darnagres.
?
25.1O Lenrders'indemnity to the Ag'ent
(a)
Each Lender shall {in proportion to its share of the To{al Commitments or, if the Total Commitn'enG are then zero, to its share of the Total Commitments immediately prior io their redudion to zero) indernnify the Agent, within three Business Days of demaM, against any c,ost, loss or liability (including, without llmitation, for negligence or any other eategory of liability whatsoever) incurred by the Agent (otherwise than by reason of the gross negligence or witful misconduct of such Agent) (or, in ttre case of any cosl hrss or liability pursuant to Clause 29.11 (Drsfl{pffun to fuyw*nt Syslerns efc.) notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the ftaud of the Agent) in acting as Agent under the Finance Documents (un{ess the Agent has been reimbursed by the Borrower pursuant to a Finance Docurnent).
(b)
paragraph (c) belous, the Parent sfia*l irnrnediately on demand reimburse any'l-ender for any payrnent that Lender makes to the Agent pursuant to'pxragrapfa (ai above.
(c)
Par.agraph {b) above shall not apply to the exte*rt tnt the indemnity payment in respect of r^f[ich ttte Lender ctairns reinrburs€{rremt retates to a liability of the Agentto an Obligor.
;
Sublect
to
25.11 Reiignation of the Agent
(a)
The Agent rnay rest ,n and appoint one d its Affili#s acting through an office in the United Kingdorn as sucessor by giviqg notire to the other Finance Parties and the Parent.
(b)
Atternatively, the Agent may resign by giving five tsusiness Days' notice to the otherr Finance P.arties and the Parent, in which cce the Majority Lenders (after con:;ultatbn with the Parent) rnay appoint a suooessor Agent.
-97(c)
lf the Majority Lenders have not appointed a su@essor Agent ln accordance wisr paragraph (b) above within twenty days after notice of resignation wa$ given, the retiring Agent (after consultation with the Par,ent) may appoint a successor Agent acting through an office in the United Kingdom.
(d)
lf the Agent wishes to resign because (acting reasonably) it has concluded ttut it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may {,if it concludes (ac{ing reasonably) that it is necessary to do so in order tio perflrade the proposed suocegsor Agent to become a party to this Agreementi as Agerot) agree with the proposed successor Agent amendrnents to this Clause 25 and a3y other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of c.orporate hustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the succesrsor Agenfs normalfee rates and those amendments willbind the Farties.
(e)
The retiring Agent shall, at the cost of the Parent, make available to the sucoessor Agent such docurnents and records and provide such assistance as the sucmsorr Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. The Parent shall, within threre Br.lsiness Days of demand, reirnburse the retiring Agent for the amount of all costs and expenses (including legat fees) properly incurred by it in making averilable suctl documents and records and providing such assistance.
(0
The Agent's resignation *otice shall only take effect upon the appointrnent o{ a successor.
(g)
Upon the appointment of a successor, the retiring Agent shall be dischrarged frorri any further obligation in respect of the Finance Documents (oth,er than its obligations under paragraph (e) above) but shall remain entifled to th,e bene*t of clause 14.3 (lndemnity to the Agen} and this clause 25 (and any agency fues for the account of the retiring Agent shall cease to accrue from (and shalt be payable on) that date). Arry successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have hrad if sgch successor had kn an original Party.
(h)
After c,onsultation with fre Parent, the Majority Lenders may, by notioe trc tre Agent, require it to resign in accordance with paragraph (b) above. ln this erent the Agent shall resign in accordance with paragnaph (b) above.
(i)
The Agent shall resign in aoc.ordance with parqraph (b) above (and,
tra the erdent applicable, shall use reasonable endeavours to appoint a sucDessor Agent pursuant to paragraph (c) above) if on or after the date whioh is thnee months before the earliesil FATCA Application Date relaling to any payrnent kl the AEen{ under the Finanoe DocrJnefits, either:
(i)
the Agent taits t0 respond to a request under clause lz.s {FArcA lnformatian) and a Lender reasonably believes that tre Agenl witl not be (or wil{ have ceased to be) a FATCA Exernpt Farty on or after ihat FArcA Application Date;
(ii)
the infonnation supplied by the Agent pr.rrsuant to c{ause lil.B (FArcn lnformatioct) indicates that the Agent ulitl not be (or will trave ceased to be) a FATCA Exempt Party on or afrer that FATCA Applicaticn Dak:; or
{'.
-98-
(iii)
the Agent notifles the Parent and the Lenders that ttre Agent will not be (or
will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,
and the Parent or a Lender reasonab{y believes that a Party will be required to make a FATCA Deductirn that wouH not be required if the Agent were a FATCA Exempt Party, and the Parent or that Lender, by notice to the Agent, requires it to resign.
25.12 Replacement of the Agent (a)
After consultation with the Farent, the Malority Lenders may, by giving 30 days' notice to the Agent (or at any fine the Agent is an lmpaired Agent, by giving any shorter notice determined by the Maiority Lenders), replace the Agen{ by appointing a successor Agent.
(b)
The retiriig Agent shall (at its own cost if it is an lmpaired Agent and otherwise at the expense of the Lenders) rnake 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.
(c)
The appointment of the sucoessor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retlring Agent. As from this date, the retiring Agent shall be discharg€d from any further obligation 1n respect of the Finance Docrrments (other than ib otilpations under paragraph 25.11(e) above) but shall remain entjtled to frNe berffi of Gkl{se 14.3 {lndemnity to the AgenQ and this Clause 25 (and any agerioy frees fsr the account of the retiring Agent shall cease to accrue fro,m {and shdlbe Fyab{e on} that date).
(d)
Any successor Agent and eacfi c{the other Partbs shall have the same rights and obligations amongst thernseh,es as fi'ey would have had if such successor had been an original Party
C
25.13 Conrfidentiality (a)
ln acting as agent for the Firance Par{ies, the Agent shall be regarded as actrng through its agency division wffit shall be heated as a separate entity from any other of its divisions or d'eparffis.
(b)
If information is received by woffier divisim or department of the Agent, it rnay be treated as confidential to trat division or department and the Agent shall not be deerned to have nd$ce of il.
(c)
Notwithstanding any,other pror*irtun cf acy Firuarrce Document to the contrary, the Agent is not obliged to disdose to any otfier person (i) any confidential information or (ii) any other inforrnation if fu disdosure would or might in its reasonable opinion constitute a breadl of any taur or regulation or a breach of a fiduciary duty.
25.14 Relationship with the Lendels
(a)
The Agent may h'eat the person shov$n in its records as Lender at the opening of business (in the place of flrc Agentrs prinaipal oftce as notified to the Finanoe Parties frorn 6me to'{*rne} atte l-.ertder actfurg through ils Facility Office:
(t)
entitted to or Iiabb for any paynrerd due under any Finance Docurnent on that day; and
-99-
(]i)
entithd to receive and act upon any notice, r,equest, dccument
or cornrnunication or make any decision or deterrrunabon under any Finance Doanmor* made or delivered on flrat day,
unlass it has ,reoeived not less than five Business Days' pr.ior notice f,rorn that Lender tio the conhary in accordance with the benvrs of this Agrea*erit.
(b)
Any Lender firity by nofice to the Agent appoint a person to receive on its behalf all notices, osrnnrunir:ations, information and documents to be made or despatcttd to that l-ender under the Finance Docr*ments Such rrotice shall contain the address, fax number and (where oomrnunrcation by electn:nic majl or other dectronic rrm;lns is permitted rander Chuse 32.6 (Ele*onic mmmanicali,wt)) ebc{ronic mail address andlor qny ott}er inforrnation required to enable tlrc sendir*g and receipt of information by that means (ard, in each case, the departrnent or offioer, if any, for whose attention c:rqnrnunicatisl is tc be made) and be tlestsd as a notification of a substitute address, ftrx number, electronic mail address, departrnent and offioer by that Lender for trre purposm of Clause 32.2 (Addresses) and paragraph (a)(ii) of Gause 32.6 {Elxlronic comrnuniationN and the Agent shall be entitled to treat suctr person as the person entitled to receiue ali such notices, communications, infsnnation and documents as though that person tuere that Lender.
}{\
25.15 Gredit appraisal by tfre Lenders Without afiec*ing *he responsbility of any Obligor for information supplied by hirn o" on his behatf in connecti,on ta&h atry Finanoe Document, each ,Lender csrnfirrns to Ste, furent that it has been, and will corrlinue to be, solely responsible for rnakirE its own krdepen&rt appraisal and investigation df all risks arising under or in oonnection with any Finanoe Docrrnent indrrdirq but nst iimited to: (a)
the financial condittion, creditwofttliness, condition, affairs, status aruJ nature of each rnember,of tfie
(b)
&*p;
the legality, vahdrty, effuctivene*s, adequacy or enforceabilfiy of any
Finance Docurnent and the Transaction Security and any other agreenrent, anangement or
document entered into, made or executed in anticipation of, under connection with aoy Frrarre Document or the 'flnansacdion Security;
or
in
(c)
whether that 't€nd€r has recourse, and the nature and exter,rt of thart reoourse, again-st any ParS or any of its assets under s in connection wtth any Finance Docurnent, the Trarsactircn Security, the transactions contemplated by the Finance Documeris or any other agreernent, anangenrerf sr docum,?nt entered into, rnade or e(eouted ,in anticipation of, under or in oonr,pc*iion wittl any Finance Doournent or lhe n-ransacfion Security,
(d)
the adequacy, accuracy srd/or completeness o{ arry infor.r'nation provided bV the Ager*, the secur*ty Agent. any Party or by a*y otter person under or in connec{ion wih any Finance Document, the transadions conternpk&ed by the Finanoe Oo6t fl1sr*s or any other agreement, arrangernent or docurnrent Ertrered into" made or execuled rn anticipation of, under or in connection with arny Finance Ooorment;ard
(e)
the rigtrt or ttle of arry person in or to, or the ualue or sfficlencry of any paft of $e Chargad Prmetty, ttte priori$ of arry of &e Trstsaotinn Secunty or the existenoe of any Seou{ity atre{tng the Charged Property.
F
- 100
It -
25.16 Dedructlon frorn arnounts payable by the Agent lf any Party owes an arnount to the Agent under the Finance Documen8 the Agent may, after giving notice to that PaE, deduct an arnount not exoeediqg that amount from any paynnent to that Party whicla ffie Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amo,unt owed. For the purposes of the Finance Documents that Party shall be regarded as hiaving received any amount so deducted.
26. 26J
26.2
RoLE oF rne SCCUNIIY AGEilT
Security Agent as trustee
(a)
The Security Agent dedares that it holds the Transacdisn Security on trust for the $ecured Padies on thre tenns contained in this Agreernent.
(b)
Each of the Secrred Parties authorises the Security Agent to perforrn the duties, obligahons and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under or irq connection with the Finance Documents toEether with any other incidental rights, powers, authorities and discrefions.
lnstrructions
(a)
t
The Security Aoent shall:
(i)
subject to paragraphs (c) and (d) below, exeroise or ehain from exercising any r.ight p6rver, autrlority or discretion vested in it as Security Agent in accordance with any instructions given to it by tfe i\gent (acting on behalf of the Malority Lenders or, as the case rnay be, the Lenders), and
(ii)
not be tiable for any act (or omission) if it acts (or rcfrains frorn acting) in accordance with paragraph (i) above.
(b)
The Security Agent shall be entitbd to request instructions, or clarification of any instruction, from the Agent as to urtrether, and in what manner, it should exercise or refrain from exercising any r(1h1, power, authority or discretirrn and the Security Agent may refrain ftun aciing unless and until it receives those instructions or that clarification.
(c)
Paragraph (a) abo'rre sftdlnot apply:
(i) (ii)
where a comsary irdication appears in a Finance Document;
ufiere this Agleenrmt requires tfre S,ecurify Agent to act in a specified oumner'orto take a rycified action;
(iii) in respect of any provision $rhich protects fte Seourity Agenfs own position in its personal capacity as opposed to its role of Security Agent for the Secured Parties inchding, without lirnitatist, Gtause 26.5 (No duty to actountl b Clause 26.10 {Exclusion d fia#,ilM, Clause 26.13 {C,anfrdentialffi to Chuse 26.19 (Cusfodt'ans and nonlrnees} and Clause 26.?2. {Arytarare .af tifiel to Ctaure 20.e6 (Asapplicatian of
Irusfeedcfs];
-101-
(iv)
in respect of the exercise of the Security Agent's discretion to ,exercise a right, power or authori$ under any of:
(1) (2)
Clause 31.1 (Order of application); and Clause 31.4 (Permitted Deducfi'ons),
(d)
lf giving effect to instructions given by the Agent (acting on the instructions of the Majority Lenders would (in the Security Agent's opinion) have an effect equivalent to an amendment or waiver which is subject to Clause 36.2 (Exceptions), the Security Agent shall not act in accordance with those instructions unless oonsent to it so acting is obtained from each Party (other than the Security Agent) whose consent would have been required in respect of that amendment or wairrer.
(e)
ln exercising any discretion to exercise Finance Documents where either:
(i) (ii)
a right, power or authori$ under the
it has not received any instructions as to the exercise of that discretion; or the exercise of that discretion is subject to paragraph (cXiv) aborre,
the Security Agent shall do so having regard to the interests of all the Sec,ured Parties.
(0
The Security Agent may refrain from acting in accordance with any inslructions of the Agent 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 Finanoe Documents and which may include payment in advance) for any cost, loss or liabilig (together with any applicable VAT) v{trich it may incur in complying with those instructions.
(g)
Without prejudice to the provisions of the remainder of this Clause 26.2, in the absence of instructions, the Securi$ Agent may act (or refrain from acting) as it considers in its discretion to be appropriate, and shall not be tiable for any loss suffered by any person where it refrains from acting after instructions have been sent but have not been received"
(h)
At any time after receipt by the Security Agent of notice from the Agent direding the Security Agent to exercise atl or any of its rights, remedies, pou/ers or discretions under any of the Finance Docurnents, the Security Agenli may, and shall if so directed by the Agent (subject always to Clause 26.2(fll, take any action as it thinks fit to enforce the Transaction Security.
(i)
The Secured Parties shall not have any independent power to enfor,ce or have recourse to, any of the Transaction $ecurity or to exercise any rig;ht, porer, authority or discretion arising under the Seeurity Documents except through the Security Agent.
26.3
Duties of the Security Agent (a)
The Security Agent's duties under ttle Finance Documents are solely mechanical and administrative in nature.
(b)
The Security Agent shall promptly forward to the Agent a copy of any document received by the Security Agent from any Obligor under any Finance Docurnent.
q-.t
-102-
(c)
Except where a Finance Docunrent specifically provides otherwise, the Security Agent is not obliged to review or ctreck the adequacy, accuracy or completeness of any document it forwards to another party.
(d) tf the Security ,A,gent receives nstioe from a Party referring to any Finance Document, describing a Defuult aM stating that the circumstance described is a Default, it shatt prompfly notrfy the Agent.
(e) 26.4
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Docurnents to which it is expressed to be a party (and no others shall be implied).
No l[iduciary duties to Obligors Nothing in this Agreement constitutes the Se&Irity Agent as an agent, trustee or fiduciary
of any
Obligor.
,
(
26.5
No rJuty to account The Security Agent shall not be bound to aocsunt to any other Secured Party for any sum or tl're profit element of any sum receirred by it for its own arcount.
26.6
Business with the Group The Security Agent may accept deposits frrlm, lend money to and generally engage in any kind of banking or other business with any mernber of the Group.
26.7
Rights and discretions
(a)
The Securig Agent may:
(i) (ii)
rely on any representatisn, cornmunication, notlce or document believed by it to be genuine, corect arrd appropriately authorised; assume that:
(1)
C
any instructions rocdved by it from the Agent are duly given in accordance w{th {he terrr s of the Finance Documents;
(2)
unless it has received notice of revocation, that those instructions have not been revoked: and
(3)
if it receives afiy instrustions to ac-t in relation to the Transaction security, &lat dl ap,plicable conditions under the Finance Documents for so ac{i,rg fiave been satisfied; and
(iiD
rely on a certificate frorn anry person:
(1) (2)
as to any matter ryf fact or circumstance which might reasonably be expected to be wrhin the knowledge of that person; or
to the effed &at such person approves of any particular dealing, transaction, s&fp, artbn or th,ing,
as sufficient evkJenoe ltla{ that is the case and, in the case of paragraph (ii0(1) above, {nay assunle the huth and accuracy of that certificate.
-103(b)
The Security Agent shall be entitled to carry out all dealings with tfie Lenders through the Agent and may give to the Agent any notice or other corr,rnunication required to be given by the Security Agent to the Lenders.
(c)
The Security Agert rnay assume (unless it has received notice to ttre contrary in its capacity as security trustee for the Secured Parties) that:
(i) (ii) (iii) (d)
no Dehult has occurred;
any right, pourer, authority or discretion vested in any PaQ, any l_enders or any group of Lenders has not been exercised; and
any notice made by the Borrower is made on behalf of and with the consent ard knowledge of all the Obligors.
The Security Agent may engage and pay for the advice or serviees of any lawyers,'acc,ountants, tax advisers, surveyors or other professional advisers or experts.
(e)
without prejudice to the grenerality of paragraph (d) above or paraEraph (f) below, the security Agent may at any time engage and pay for (at the cost of the parent) the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by any Finance Party) if ihe Security Agent deerns this to be desirable.
(0
The Security Agent may rety on the advice or services of any lawysps, accountiants, tax advisers, surveyors or other professional advisers or
[email protected] (whether obtained by the Security Agent or by any other Party) and sihall not be liable for any darnages, costs or losses to any person, any diminulion in value or any liabili$ whatsoerrer arising as a result of its so relying.
(g)
The Security Agent, any Receiver and any Delegate may act in relation to the Finance Docurnents and the Transaction Security through its officers, employees and agents and shall not.
(i) (ii)
be liable for any enor of judgment made by any such person; or
17,
be bound to supervise, or be in any way responsible for any loss incuned
by reason of misoonduct, omission or default on the part of any
suc*r
person,
unless such enor or such loss was direc{y caused by the secr.rrity Agent's, Receive/s or Delegate's gross negligence or wilful misconduct. (h)
Unless this Agreentent expressly specifies otherwise, the Security Agent rnay disclose to any other Party any information it believes it has reoeived as security trustee under this Agreement.
(i)
Notwithstanding any dter provision of any Finance Document to the oontrary, the Security Agent is not obliged to do or omit to do anything if it would, or nright in its opinion, constitute a breacf,r of any law or regulation or a breach of any fidgc{ary duty or duty of corfidentiality.
0)
Notwithstanding ary provision of any Finance Document to the contrary, the Security Agent is not obtged to expend or risk its own funds or otherwise incur any financial liabif,ty in the perforrnance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for
-104bellevtrq the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not assured to it.
26.8
Responslbllltyfordocumentation None of the Secrrity Agent, any Receiver nor any Delegate is responsible or liable for:
(a)
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Security Agent, an Obligor or any other person in or in connection with any Finance Document or the transactions conternplated in the Finance Documents or any other agreement, arrangement or document entered into, made or ex,ecuted in antidpation of, under or in connection with any Finance Document
(b)
l'
the legality, validity, effectiueness, adequacy or enforceability of any Finance Document, the Transaction Security or any other agreement, affangement or documeni entered irlto, rnade 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
Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or othenvise.
26.9
No duty to monitor The Security Agent shallnot be bound to enquire:
(a) (b)
whether or not any Defuutt has oocurred;
(c)
whether any other erent specified in any Finance Document has occuned.
as to the performance, default or any breach by any Party of its obligations under any Finance Doumrent; or
26.10 Exc;lusion of liability
(a)
Without limiting parryraph (b) be{ow (and without prejudlce to any oher provision of any Finance Docurnent exduding or limiting the liattility of tfre Security Agent, any Reoeiver or Detegate), none of the Security ASenL any Receiver nor any Detegate wilt be liable (induding, without limitation, for negligence or any other category of liabilrty whatsoever) for:
(i)
any damages, oocfs or losses to any person, any diminution in value or any liability whatsreuer arbing as a result of taking or not taking any action under or in connection with any Finance Dooument or the Transactisn 'Searity urdess direcfly caused by iE gross negligence or witful misconduct;
(ii)
exerc'rsing or not exercising any right, power, authority or discretion given
to it by or in oonnerlion with any Finance Docurnent, the Transaction Security or any dher agreement, anangement or docurnent entered into, made of executed in antiapation of, under or in connecdjon with, any Finanoe Dos.rnerrt orthe Tnansaction Security;
(iii)
any shortfall t{hk}h arises on the enforoement or realisation of the Transaction Security; or
-105-
(iv)
without prejudice to the generality of paragraphs (i) to (iii) erbove, any darnages, costs, losses, any diminution in value or any liability vyhatsoever arising as a result of:
(1) {2)
any act, event or circumstance not reasonably within its control; or
the general risks of investment in, or the hohing of assets in, any jurisdiction,
induding {in each case and without limitation) such damages, costs, losses, diminution in value or liabitity arising as a result of: nationalisation, expropriafion or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; rnarket conditions aflbcting the execution or settlement of transactions or the value of assets; trreakdown, fuilure or malfunction of any third party transport, telecommunications, cpmputer services or systems; natural disasters or acts of God; war, trenorism, insunection or revolution; or strikes or industrial actiorr. (b)
No Party (other than the Security Agent, that Rereiver or that Derlegate (as
L,
applicable)) may take any proceedings against any officer, employee r:r agent of the Security Agent, a Receiver or a Delegate in respect of any claim it rnight 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 Finance Doeument or any Transaction Securi$ and any offic.er, employee 6p 2rgent of the Security Agent, a Recniver or a Delegate may rely on this Clause subject to Clause 1 .5 (Third party rights) and the provisions of the Third Parties Act. (c)
Nothing in this Agreement shall oblige the Securig Agentto carry out:
(i) (i
i)
any "knov{ your customer" or other checks in re{ation to any per$on; or
any check on the extent to which any transaction contemplated by this Agreement might be unlav'rful for any Secured Party (other than the Security Agent),
on behalf of any $ecured Party (other than ttre Security Agent) and eaolr Secured Party (other than the Security Agent) confirms to the Security Agent that it is solely responsible for any such checks it is required to carry out and that it nray not rely on any statement in relation to such checks made by the Security Agent. (d)
\Mthout prejudioe to any provision of any Finance Document excludingl or limiting the liability of the Security Agent, any Receiver or Delegate, any liabitrty of the Security Agent, any Receiver or Delegate arising under or in connection with any Finance Docurnent or the Transaction Security shatl be lirnited 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 Securig Agent, f?eceiyer or Delegate (as the case may be) or, if later, the date on which the loss arises as a result of such default) but without rebrence to any special conditions or circumstances knourn to the Secunty Agent, Reoeiver or Delegate (as the case may be) at any time which increase the amount of thd loss. ln no event shall the Security Agent, any Receiver or Delegate be liable fur any loss of profits, goodwill, reputation, business opportunity or antidpated saving, or for speciarl, punitive, indirect or consequential damages, whether or not ttre Security Agent, lleceiver or Delegate (as the case may be) has been advised of trle possibitig of such loss or damages.
LJ
-10626.11 Lenrders'lndemnfty to the Security Agent
I
(a)
Each Lender shall in proportion to its share of the Total Commitments (or, tf the Total Commitments are then zero, to its share of the Total Commitments immediatety prior to tfpir reduction to zero), indemnify the Security Agent and e\rery Rereiver and every Delegate, within three Business Days of demand, against any cost, loss or liability inc,urred by any of them (otherwise than by reason of the relevant Security Agenfs, ReceiveCs or Delegate's gross negligence or wilful misconduct) in acting a$ Security Agent, Receiver or Delegate under, or exercising any authority conferred under, the Finance Documents (unless the relevant Security Agent, Receiver or Delegate has been reimbursed by an Obligor pursuanl to a Finance Document).
(b)
Subject
(c)
Paragraph (b) above shall not apply to the extent that the indemnity payment in respec{ of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
to
paragraph (c) below, the Parent shall imrnediately on demand reimburse any Lender for any payment that Lender nrakes to the Security Agent pursuantfo paragraph (a) above.
26.12 Resignation of the Security Agent
3
(a)
The Security Agent may resign and appoint one of its Affiliates as sucoessor by givinE notioe to the Parent and to the Agen,t on behalf of the Lenders.
(b)
Alternativety the Security Agent may resign by giving 30 days' notice to the other Parties (or the Agent on behatf of fie Lenders), in rvhich case the Majority Lenders may appoint a successor Security Agent.
(c)
lf the Majority Lenders have not apoin{ad a
(d)
The retiring Security Agent shall make available to the successor Agent such documents and records and provide such assistance as the successor Security Agent may reasonably requesd for the purposes of perforrning its functions as Security Agent under the Finance Documents. the Borrswer shall, within three Business Days of dernand, reimburse the rcdiring Security Agent for the arnount of all costs and expenses (includirq legnl fees) properly incurred by it in making
su@essor Security Agent in accordance with paragraph (b) above within 20 daye after notice of resignation was given, the restiring Security Agent (after consultation with the Agent) may appoint a successor Security Agent.
available suc-h doouments and rccords and providing such assistance. (e)
The Sec{rrity AEent's
(i) (ii) (0
restfatlur
the appointrnent of a
natice shaH onty take efiect upon:
*cessor; ard
&e hansfier of all the Transactlon Security to that successor.
Upon the appointrner{ of a s.rccessor, the retiring Security Agent shall be discharged from arry furster oblrgation in reSret of the Finance Documents (other than its obligations under paragraph (b) of CIause 26.23 {Winding up of trusf) and paragraph (d) above) but stmll rsnain erfiiled to the beneftt of this Clause %.12 and Clause fi.4 (ldeanity ta the Secxr/*b, iwn{) (and any Security Agent hes for the aocount of the retiring Secudty Agen{ shall caase to accrue from (and shall be payable on) that date) Any sucoessor and each of the other Parties shall have
-107the same rights and obligations amongst themselves as they would hrave had if that suc,c,essor had been an original Party.
(g)
The Majority Lenders rnay, by notice to the Security Agent, require it to resign ir accordance with paragraph (b) above. ln this event, the Security #rgent strall resign in accordance with paragraph (b) above.
26.13 Confidentiality
(a)
ln acting as trustee 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 departmenG.
(b)
lf information is reoeived by another division or department of the Security Agent, it may be treated as confidential to that division or department and the Secunity Agent shall not be deemed to have notice of it.
(c)
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obtiged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or rn@ht h its reasonable opinion, constitute a breach of any law or regulation or a breach of any fiduciary duty.
s
26.14 lnformation frorn the Lenders Each Lender shall supply the Security Agent with any information that the Security Agent may reasonably specify as being necessary or desirable to enable the Securily Agent to perform its functions as Security Agent.
26.15 Credit appraisal by the $ecured Parties Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Secured Party confiinns to Orc Security Agent that it has been, and will continue to be, solely responsible for making its own independent appraisal and irwestigation of all risks arising under or in connection with any Finance Document including but not limited to:
(a) (b)
the financial condition, status and nature of each rnember of the Group;
the legality, validity, effectiveness, adequacy or enforceability cf any Finane Document, the Transaction Security and any other agreement, arrangemert or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Securlty;
(c)
whether that Secured Party has recourse, and he nature and ex(ent of that recourse, against any Party or any of its respective assets under or in connecdisn with any Finanoe Doqrnent, the Transaction Security, the trarsar*ioars contemplated by the Finance Documents or any other agreement, arrangetner* or document entered into, made or executed in anticipation of, urnder or in connection with any Finane Document or the Transaction Security;
(d)
the adequacy,
accuracry or completeness of any information provirled by ffre Securi$ Agenl, any Par$ or by any other person under or in connectiron *ith any Finance Document, the transactions contemplated by any Finance Dofi$r*er{ or any other agreernent, arangement or doe,ument entered into, made or execuied in anticipation of, under or in connection with any Finance Document; and
)
-108-
(e)
the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the oriority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
26.16 Securlty Agent's managernent time and additional remuneration
(a)
Any amount payable to the Secunty Agent under Clause26.11 (lenders' indemnity to the Security,Agenf), Glause 16 (Costs and Expenses) or Clause 14.4 (lndemnity to the tuuW Agen$ shall include the cost of utilising the Security Agenfs management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Security Agent may noti[r to the Parent and the Lenders., ard is in addition to any other fee paid or payabie to the Security Agent.
(b)
Without prejudice to paragrraph (a) aborre, in the event of:
(i) (ii)
C
(iii)
a
befault; or
the Security Agent belng requested by an Obligor or the Lenders
to undertake duties which the Security Agent and the Parent agree to be of an exceptional naturc or outside the scope of the normal duties of the Security Agent under the Finance Documents; or
the Security Agent and the Parent agreeing that it is otheruvise appropriate in the circurmstances,
the Parent shall pay to the Secunty Agent any additional remuneration (together with any applicabb VAT) thd rnay be agreed between them or detennined pursuant to paragraph (b) behn/.
(c)
j
lf the Security Ageril afld the Famrd fail to agree upon the nature of the dutles or upon the additional rerxroeratist refened to in paragraph (b) above or whedher additional remuneration is appropriate in ttrc circumstances, any dispute shall be determined by an irnesfflrent'bar* (acting as an expert and not as an arbitrator) selected by the $ecurity Agert and approved by the Parent or, failing approval, nominated (on the application of the Security Agent) by the President for the time being of the Law Sodety of Engtand and Wales (the costs of the nomination and of the investment bank beir4g payable by the Borrovrer) and the determination of any investment bar* shall be final and binding upon the Parties.
26.17 No responsibility to perfect
Trramsactikm
$ecurity
The Security Agent shall rwt be liabfs ior any failure to:
(a)
require the deposit lyith lt d any deed or document certifying, representing or constituting the title ol anl eq;ff b a4y of the Charged Property;
(b)
obtain any licence, cofisent or dtter authority for the execution, delirrery, legality, validity, enforoeability or a*u*ssflbitity in evidence of any Finance Docunent or the Transaction Securitu
(c)
register, file or reoord or otherwise protect any of the Transaction Security (or the priority of any of the Transadion Secudty) under any law or regulation or to give notice to any person d the emution of any Finance Docurnent or of the Transaction Smurfu;
Y,c k
-109-
(d) (e)
take, or to require any Obligor to take, any step 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 any law or regulation; or require any further assurance in relation to any Security Doanment.
26.18 lnsurance by Security Agent
(a)
The Security Agent shall not be obliged:
(i) (ii) (aii)
to insure any of the Charged Property; to require any other person to maintain any insuranoe; or
to trerify any obligation to arlange or maintain insurance conbrined in any Finance Document,
and the Security Agent shall not be liabte for any damages, costs or losses to any person as a result of the lack of, or inadequacy of, any sucfi insurance.
(b)
(r
\fly'here the Security Agent is named on any insurance policy as an insured party or
a loss payee, it shall not be liable for any damages, cpsts or losses to any person as a result of 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 the Agent requests it to do so in writing and the Security Agent f;ails to do so witlrin fourteen days after receipt of that request.
26.19 Custodians and nominees The Security Agent may appoint and pay any person to acil as a custodian or nominee on any terms in relation to any asset of the trust as the Seority Agent may determine, including for the purpose of depositing with a custodian this Agrement 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 prooeedings or acts of any person.
26.20 Delegation by the Security Agent
(a)
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or othenvise to any person for any period, all or any right, power, authori$ or discretion vested in it in its capacity as such.
(b)
That delegation may be made upon any tenns and condiUons (including the power to subdelegate) and subject to any restricfions that the Security Agent, that Reeiver or that Delegate (as the case may be) nuy, in its discretion, think frt in the interests of the Secured Parties.
(c)
No Security Agent, Receiver or Delegate shal{ be bound to supervise, or be in any
way responsible for any damages, costs or losses incurred by reason of any misoonduc't, omission or default on the part of, any such delegate or suildelegate.
)
,\( , - 110-
26.21 Adclltlonal Securlty Agents
(a)
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
(i)
if it considers that appointment to be in the interests of the Secured Parties;
(ii)
for the purposes of conforming to any legal requirement, restriction
or
condition 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 the Parent and the Secured Parties of that appointment.
(b)
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or irnposed by the instrument of appointment.
(c)
The remuneration thai the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in perfonning its functions pursuant to that appointment shatl, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
26.22 Accephnce of title The Security Agent shall be entiued to accept without enquiry, and shall not be obliged to investigate, any right and title that any Obligor may have to any of the Charged Property and shall not be liable for, or bound to require any Obligor to reniedy, any defect in its right or title.
26.23 Winding up of trust
I
lf the Security Agent, with the approval of the Agent, determines that:
(a)
all o{ the Secured Obligations and all other obligatiqns secured by the Security Documents have been fully and finally discharged; and
(b)
no Secured Party is under any commitment, obl(Tation or liability (actual or contingent) to make advances or provide otfter financial acCIomrnodation to any Obligor pursuant to the Finance Documents,
then:
(i)
the trusts set out in this Agreement shall be wourd up and the Security Agent shall release, without recourse or warrarty, all of the Transaction Security ard the rights of the Security Agent under each of the Securig Doouments; and
(ii)
any Security Agent which has resigned pursuant to Clause 26.12 (Resignation of the Securty Agent! shall release, without recourse or warran$, all of its rights under each Security Docx.rment.
26.24
Relleases
Up'cn
a disposal of any of the Charged Property pursuant to the enforcement of the
Trarnsacti,on Security by
a Receiver or the Security Agent, the Security Agent shall (at the
-111 cost of the Borrower), wittrout recourse, representation or warranty, release thrat property from the Transaction Security and is authorised to execute, without the need for any further authority from the Secured Parties, any release of the Transaction Security or other c[aim over that asset and to issue any certificates of non-crystallisation of floatirE charges that may be required or desirable.
26.25 Powers supplementa{ to Trustee Acts The rights, powers, authorities and discretions given to the Security Agent under or in connection with the Finance Documents shall be supplementat to the Truster: Act 1g2S and the Trustee Act 2000 and in addition to any which may be vested in the Security
Agent by law or regulation or othenrrise.
26.26 Disapplication of Trustee Acts Section 1 of the Trustee Act 2000 shall not apply to the duties of the Securily Agent in relation to the trOsts constituted by this Agreement. lA/here there are any incoisistencies between the Trustee Act 1925 or the Trustee Act 2000 and the piovisions of this Agreement, the provisions of this Agreement shall, to the extent permitted try law and regulation, prevail and, in the case of any inconsistenry with the Trustee Ac{ 2000, the provisions of this Agreement shall constittrte a restriction or exclusion for the purposes of that Act. 27.
Coxoucr oF BUstNESs By Tt{E FlruExcE
!'
pARTtEs
No provision of this Agreement will:
(a)
interfere wlth the right of any Finance Parg to arrange iis affairs (tax or othenvise)
in whatever manner it thinks fit;
(b) (c)
obtige any Finanoe Party to investigate or daim any credit, retief, rernission or repayment availabte to it or the extent, order and rnanner of any claim; 9r obtige any Finance Party to disclose any information relating to its affirirs (tax or otherwise) or any computations in respect of Tax.
28.
SxaRrxe AiloNG
28.1
Payments to Finance parties
txe Frxauc€
pARTtEs
lf a Finance Party (a "Recovering Party") receives or recovers any amourrt from an Obligor other than in accordance with Clause 29 (Payment Mechanics) or Clause 31 (Application of Procwds) (a "Recovered Amount') and applies that amount to a payment due under the Finanoe Documents then:
(a) (b)
the Recovering Party shall, within three Business Days, notify details of the reeipt or recovery, to the Agent;
the Agent shall determine wtrether the recdpt or recovery is in excxlss of ttre amount the Recovering Party would have been paid had the reoeipt or recol€ry been received or made by tte Agent and distributed in accordance witfr Clause 2g
(Payment Mechanics|, without taking acrount of any Tax whictr would b,e imposed on the Agent in relation to the receipt, recovery or distribution; and
(c)
the Recovering Party shall, within three Business Days of demand by llhe Agent, pay to the Agent an amount (the "sharing Paymsnt") equal to such receipt or recovery less any amount wtrich the Agent determines may be retained by the
v
-112Recovering Party as its share of any payment to be made, in accordance with Clause 29.6 (Parli al paynen:ts).
28.2
Redlistrlbutlon of paymenb The Agent shall treat the Sharing Payment ,as $f it had been paid by the relevant Obligor and distribute it between the LeMers (other than the Recovering Party) (the "shadng Parllies") in accordance with Clatrse 29.6 (Farfu'al payments) towards the obligations of that Obligor to the Sharing Parties.
28.3
Recovering Party's rights
On a distribution by the Agent urder Ctause 28-2 (Redistibution of paymenfs) of
a
payment received by a Recovering Party froni an Obligor as between the relevant Oblrgor and the Recovering Party, an arnount of the Reoovered Amount equal to the Sharing Payment wilt be treated as not having been paid by thaft Obligor.
o
28.4
Reversal of redistribution
lf any part of the Sharing Payment receird or refi)vered by a Recovering Party beconres reperyable and is repald by that Reoouering Party, then:
(a)
each Sharing Party shall, upon request of the Agent, pay to the Agent for the account of that Reoovering Pafi an ,arnount equal to the appropriate part of its share of the Sharing Payrnent (toge{her with such amount as is necessary to reimburse that Recovering Party for ib proportion of any interest on the Straring Payment v/trich that Recouerfoig Parry is required to pay) (the "Redistributed Amount"); and
(b)
as between the relevant Obligor ard eaoh rclevant Sharing Party, an arnount equal to the relevant Redistdbt&d Amount wM be treated as not having been paid by that Obligor.
28.5
!
Exceptions
(a)
This Clause 28 shall not appfu to the extent that the Recovering Party wou$ not, after making any payment pursuar[ b this Clar.rse, have a valid and enforoeable claim against the rete'vant ob[gcr
(b)
A Recovering Farty is ndt obfig€d to share with any ottrer Finance Party any amount u/hictt the Reocnteriq Parly h6 reoeiied or recovered as a rezuE of taking legal or arbkation poewtn€s, if:
(0
it notified that other Fir*ame Pdty of the legal or arbitration procedingr; and
(ii)
that other Finance Far$ had an opportunity to participate in those legal or arbitration proceartiags but did not do so as soon as reasmably practicable having ,receryed notioe and did not take separate legal or arbitrati o n grcce*lrqgs.
-113Section 12 Administration
29.
Peyuetr Mecnenrcs
29.1
Payments to the Agent
29.2
(a)
On each date on which an Obligor or a Lender is required to make a payment under a Finanoe Document, that Obligor or that Lender shall maker the same available to ttrc Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the tinre and in such funds s,peffied by the Agent as being anstomary at the time for se{tlemerit of transaclions in the relevant cuffency in the place of payment.
tb)
Payment shall be rnade to such account in the principal financ.ial cenhe of the country bt ttrat curency (or, in relation to Euro, in a principal financial oentre in such Farticipating Member State or London, as specified b!, the Agenl) with such bank as the Agent specifies, such account being the "MADISON PACIf:|C TRUST CLIENT AC CSH" held at The Bank of New Yor.k Mellon SA/NV ydth SWIFT IRWBEBB and Account Number: 9873189780 as at the date of this Agreernent.
,
Distributions by the Agent Each payment received by the Agent under the Finance Documents for anrcttrer Party shall, subject to Clause 293 (Distributions to an Obligot\ Clause 29.4 (Clawdack) and Clause 25.16 (Mudiut ftorn amounts payable by tlre Agen} be rnade avai*atile by the Agent as soon as pracficaHe after receipt to the Party entitled to reeive payarent in accordance with this Agrrement (in the case of a Lender, for the aocount o!'its Facility Office), to such account as that Party may notify to the Agent by not ftess than 5 Bus,iness Days' notice with a bank in the principal financial cenfe of the country of that cunency (or, in relation to €, in a principal financial centre in such Participating Member State or London, as specified by ttnt Party)
29.3
Distributions to an Oblitlor The Agent may (with the oonsent of the Obligor or in accordance with Clause 30 (Set-otr)) apply any amouot received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount dtrc from that Obligor under the Finance Documents or in or towards purchase of any amount of any curTency to be so erpptied.
29.4
Clawback
(a)
[A/here a su,n is b be paid to the Agent under the Finance Bocuments for another Party, the Agierit h not obliged to pay that sum to that otfrer Party (or trc enter into or perfonrn arry re#ated exchange contract) unttl it has beenr able to establish to its
satisfaclion &rd it has actually received that sum.
(b)
pals an amount to another Party and it proves to be the case that the Agent had not actr^tally reoeived that amount, then the Party to whom thd amount tf the Agent
(or the proceeds
d any related exchange conbact) was paid by Sre Agr-.nt shatl on
demand rcfufld the same to the Agent together with interest on that arrnount from the date of paynent to the date of receipt by the Agent, calsulated by the Agrent to reflect its cost of funds.
b
-114-
29.5
,/\i '
)Yl
lmpalred Agent (a)
lf, at any time, the Agent becomes an lmpaired Agent, an obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordanc,e with clause 29.1 {Paymenfs fo the Agent) may instead either:
(i) (ii)
(
pay that anrcunt direct to the required recipient(s); or
if in its absolute discretion it considers that it is not reasonably practicable !o pay that amount direct to the required recipient(s), pay that amount or tfie relevant part of that amount to an interest-bearing account held with an Acceptat{e Bank and in relation to which no lnsofuency Event has occurred and is continuing, In the name of the obligor or the Lender makirlg the payrnent (the "Paying Party") and designated as a trust account for the bene,fit of the Party or Parties beneficially entitled to that pgyrnent under the Finance Documents (the "Recipient Pafi" or ''Recipient Pa rties").
ln each case such paymenb must be made on the due date for payment under the Finance Docunents. (b)
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Par$ or the Recipient Parties pro rata to their res pective entitlenents -
(c)
A Party which has made a payrnent in accordance with this Clause 29.5 shall be discftarged of the rebvant payrnent obligation under the Finance Documents and shall not take arry otedit risk wrth respect to the amounts standing to the credit of the trust account.
(d)
Prompuy upon the appointment of a successor Agent in accordance with clause 25.12 (@/aemenf of the Agenf), each Paying Party shall (other than to the extent that that Parg has given an instruction pursuant to paragraph (e) below) give all requbite lnstructions to the bank with whom the trust account is held to transfer the a.rnount {together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 29.2 (flist{ibutians hy the Agen{).
(e)
A Paying Party slull, prompffy upon request by a Recipient party and to the
c
extent:
(i) (ii)
ttiat it has not girren an instr,r.rction pursuant to paragraph (d) above; and ffiat it has
bwt
prouided wift the necessary information by that Recipient
Party,
give all requisite insfirc{krns to the bank wtth whorn the trust account is held to transfer the relevant arnount (together with any accrued in&erest) to that Recipient PaO.
-'\ \-
-115-
29.6
Partial payments
(a)
lf the Agent receives a payment that is insufficient to discharge all ttre amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligatiorrs 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 Escrow Agent and the Seo.lrity Agent (including of any Receiver or any Delegate of the security Agent) under the Finanoe Documents;
29.7
(ii)
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreernent;
(iii)
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; 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 Majorig Lenders, vary the order set out in paragraph (aXi) to (iv) above.
(c)
Paragraphs (a) and (b) above will ovenide any appropriation made by
ern
Obligor.
No setoff by an Obligor All payments to be made by an Obligor under the Finance Documents shall ber calculated and be made without (and free and clear of any deduction tor) set-off or counterclairn.
29.8
29.9
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 Ltnpaid Surn under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
Currency of account
(a)
Subject to paragraphs (b) and (c) below, Euro is the currency of account and payment for any sum due from an Oil$or urder any Finance Document.
(b)
Each payment in respect of costs, s(penses or Taxes shall be mrade in the currency in which the costs, expenses or Taxes are incuned.
(c)
Any amount expressed to be payable in a cunency other than € shall be paid in that other currency.
-11629,10
'\(,\
Chernge of currency
(e)
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 cunency 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 the Parent); and
(ii)
(b)
s.
any tran,slation from one curency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that cunenry or curency unit into the other, rounded up or down by the Agent (acting reasonabty).
lf a chan$e in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Parent) specifies to be necessary, be amended to cornply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in curTency.
29.11 Disruption to Payrnent Systems etc. lf either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Parent that a Dlsruption Event has occurred:
(a)
the Agent may, and shall if requesied to do so by the Parent, consult with the Parent with a view to agreeing with the Parent such changes to the operation or administration of the Facilities as the Agent may deem necessary in the circumstances;
(b)
the Agent shall not be obliged to consutt with the Parent in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances aruC, in any event shall have no obligation to agree to such changes,
(c)
the Agent may consult with the Finance Parties in relation to any changes
tr'
mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in tfre circumstanes'
(d)
any such changes agreed upon by fte Agent and the Parent shall (whether or not it is finally determined that a Disrupli'on Errent lras occuned) be binding upon the Parties as an amendment to (or, as the case rnay be, waiver of) the terrns of the Finance Docurnents notwithstandirp the provisions of Clause 3S (Amendrnents and Waiversl;
(e)
the Agent shall not be liable for any darnages, costs or losses to any person, any diminution in value or any liatflity wtratsoever (including, without limitation for negligence, gro:is negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 29.11; and
(0
the Agent shall noti$ tre Finance Parties of all changes agreed pursuant to paragraph (d) abwe.
29.12 Deltaulting Lenders
<
-117(a)
Without prejudice to ib obligations under Clause 5.7 (Lenders'Participntions), if a Lender (a "Default Lender") fails to fund its participation in any Loan within 2 Business Days of a l-ltilisation Date, its Commitment in respect of such Loan shall be automatically canoelled (a "Default cancellation"). Following a Default cancellation, a Backstop Party (as defined in the commitment Lrrtter) may assurne the amount of (re Commitment subject to such Default Cancellation by executing and de{ivering an lncrease Confirmation (or procuring that Eligible lnstitutions execr.tt,e and deliver New Lender Accessions) within 5 Busirness Days of the date of ttte Default Cancellation, in each case in accordance: with and subject to the Backstop Lefter and the Commitment Letter (such assrlrnption of Commitment being a'Backstop Commitment").
(b)
The Backstop Commitment will be utilised on the date specified in tfre relevant lncrease Confirrnation or New Lender Accession, in accordance with the same mechanics specified in this Agreement (including Clause 5 (Utilisation), Sctredule lQ {utilisation and Appl*ntion of Loans) and schedule 11 (Rdemptian and Repayment Mecfianics)) as would have applied had the Default Lender funded on
the conect Utilisation Date (save that the Specified Existjng
Financial lndebtedness to be redeemed or refinanced shall be that specified in tfre relevant lncrease confirmaEon andlor New Lender Accession for the Backstop Commitment). (c)
30.
The Parent and ttre Original Lender shall give any required notices to the Agent and the Escrow Agent to give effect to the provisions of this Clause lbllowing a Default cancellation, and the Agent and the Escrow Agent may rely on such notices without furtrer authorisation from any other party.
SEr-Orr
A Finance Party may set off any matured obligation due frorn an Obligor under the Finance Documents (to tf+e extent beneficially owned by that Finance Party) against any matured obligation owed by tfrat Finance Party to that Obligor, regardless of ttre plaoe of payment, booking branch or curnency of either obligation. lf the obligations are in different currencies, the Finance Far$ may convert either obligation at a market rate of exchange in its usual course of business for tfre purpose of the set-off.
31.
APPLICATIoN oF PRocEEDs
31.1
Order of Application All moneys from time to tirne reeived or recovered by the Security Agent in r;onnecfion with the realisation or enbrcernent of all or any part of the Transaction Security shall be held by the Secunty Agent on trust to apply thern at such times as the Searrity Agent sees fit (and to the extant that such moneys are sufficient to satisfy the Seculed Obligations in full, as soon as practicable), to the extent pennifted by appticable law, in the following order of pr,iority:
(a)
in discharging any sums owing to the Security Agent (in ils capacity ars trusftee), any Receiver or any Delegate of the Securtty Agen|
(b)
in payment to the Agent, on behatf of the Secured Partles, for application tswa{ds
the discharge of all sums due and payable by any Obligor under any of the Finance Docunrents in accordance with clause 29.6 {partiar paymentsl;
(c)
if none of the OblEors is under any further actual or contingent liability uftder eny Finance Docunren{ in payment to any person to whom the Securihy Agen{ is obliged to pay in pdorty to that Obligor; and
5
_
(d) 31.2
118
_
the balance, if any, in payment to the relevant Obtigor.
lnvergtment of Proceeds
Prior to the application of the proceeds of the Transaction Security in accordance with Clause31.1 (Orderof Applicalion) the Security Agent may, at its discretion, hold all or part of those proceeds in a suspense or impersonal account(s) (whether or not interest beaning) in the name of the Secvrity Agent or Agent with any financial institution (inclurding itself) and for so long as the Secudty Agent thinks fit, or until such time as the proceeds are sufficient to satisfy the Secured Obligations in full, (the interest, if any, being credited or charged to the relevant account) pending the application from time to tinre of those monies at the Security Agent's discretion in accordance with the provisions of this Clause 31.
31.3
CurrencyConversion
(a)
For the ptrrpose of or pending the discharge of any of the Secured Obligatlons the
Security Agent may convert any rnoneys received or recovered by the Securig Agent from one currency to another, at the spot rate at which the Security Agent is able to purchase ttrc cunency in which the Secured Obligations are due with the amount reeived.
(b)
The obligations of any Obligor to pay in the due currency shall only be satisfrcd to the extent of the arnount of the due currency purchased after deducting the costs of conversion.
31.4 PermittedDeductions The Security Agent shall @ entitbd (a) to set aside by way of reserve amounts required to meet and (b) to make and pay, any dedudions and withholdings (on ac@unt of Tax or otherwise) which it is or rnay be requlmd by any applicable law to rnake fron"l any distribution or payment made by it under this Agreement, and to pay all Tax which may be assr:ssed against it in res,pect of any of the Charged Property, or as a consequence of performing its duties, or ry virhre of ih capacity as Security Agent under any of the Finance Documents or {therwise (exce$ in oonnection with its remuneration for perfb rming its duties under'ttlis Asreernemt)
31.5 Dis,charge of Secured Obligdiors (a) Any payrnent to be ma& in respect of the Secured
Obligations by the Security Agent may be made to the Ager{t on behdf of the Lenders and that payment shall be a good discfiarge to fire erdefit of that paynent, to the $ecurity Agent.
(b) 31.6
The Security Age,nt is urder no obtigatbn to rnake payment to the Agent ln the same curnency as thd ln vtfti& ary Unpaid Surn is denominated.
Surns received by Obtigorr lf any of the Obligors receives any sum wtr,oh, pursuant to any of the Finance Documents, should have been paid to ,the S€cu{ity Agpnt, {hat surn shail pmmptly be paid to the Security Agent for applicaticnn
32. 32.1
il emrdanre with this Clause.
Norrces Gommunications in wriling Anlr 69p6,r",unication to be
m*
under or in connecfiion with the Finanoe Docurnents shall be made in writing and, unbss sthewvi*6hted, nray be made byfax or Hter.
- 119
32.2
-
Addresses The addtess and fux number (and the department or offioer, if any, for whose attention the communication is to be made) of each Party for any comrilunication or document to be made or delivered under or in connection with the Finanoe Documents is:
(a) (b) (c)
in the case of the Parent, that identified with its narne betow;
in the case of each Lender (other than the Original Lender) or any otfuer Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party: and in the case of the Agent, the Original Lender, and Security Agent, that identified with its name below,
or any substitute address or 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.
32.3
Delivery
(a)
v
Any communication or document made or detivered by one person to another under or in connection with the Finance Documents willonly be effectivr-.:
(i) (ii)
if by way of fax, when received in legib{e form; or
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 prerpaid in an envelope addressed to it at that address,
and, if a particular department or officer is specffied as part of its address details provided under Clause 32.2 (Addrcsses), if addressed to that department or ofhc,er.
(b)
Any communication or document to be made or delivered to the Agent or to the Security Agent will be effective only when actually received by the Agent or the Security Agent and then only if it is expressly marked for the attention of the department or offtcer identified with the Agen{s or the Security Agent's signature below (or any substitute department or officer as the Agent shall sper:ify for this purpose).
(c) (d)
All notices kom or to an obligor shall be sent through the Agent.
Any comrnunication or document made or dehvered to the Parent in erccordance with this Clause will be deemed to have been made or delivered to erach of the Obligors.
(e) (0
All notices to a Lender from the Security Agent shall be sent through thel Agent.
Any cornmunication or document whictr becomes effective, in accordance with paragraphs (a) to (e) above, after 5:0O p.rn. in the frace of reoeipt shall be deemed only to become effective on the following day.
32.4
Notification of address and fax number Promptly upon reoeipt of notification of an address aM fux nu?iber or change of address or fax nurnber pursuant to Clause 32.2 (Addresses) or ctrarqrng its own address or fax number, the Agent shall notify the other parties.
f,
,.L -120-
32.5
Communication when Agent is lmpaired Agent
lf the Ageot is an lmpaired Agent the Parties rnay, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an lmpraired Agent) all the provisions of the Finance Docurnents which require contmunications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties direcly. Thir; provision shall not operate after a replacement Agent has been appointed.
32.6
Electroniccommunication
(a)
Any communication to be made between any two Parties under or in connection
witt the Finance Docurnents may be made by electronic mail or other electronic means to the extent that those trrro Parties ag{ee that, unless and until notified to the contrary, this is to be an accepted fonn of comrnunication and if those two parties: ,
(
(i)
notify each other in writing ot their elecdronic mail address (and the email address(es) idenffied with its narne bdow shall constitute such notification by each relevant Party) and/or any other information required to enable ttrc sending and receipt of infonnation by that means; and
(,ii)
notify each other of any change to tlreir address or any other such information supplied by them by not less than 5 Business Days' notice.
(b)
Any electronic communimtion made between ttrose two Parties rvill be effective only when actually received in readabte form and in the case of any electronic cornmunication mde by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this prlrpose.
(c)
Any electronic communication $&ich becomes ef$ective, in accordance with paragraph (b) above, after 5.00 p.m. in the p{ac.e of receipt shall be deemed only to becorne effective on the fol{owir,g day.
)
32.7
Englbh language
(a)
Any notice given under or in connec{ion wilh any Finance Docurnent must be in English.
(b)
All other documents provided under or in connection with any Finance Docurnent musd be:
(0 (ii)
in Engtish; or
if not in Englisfu and if so required by the Agent, accompanied by a ertified English translation and. in thb case, the English transtation will prevail unless the docurneflt is a constitutiona{, statutory or other official document.
33.
Cer.cuurpxs
33.1
AccpunE
Ar{D
Cgnnrrceres
ln arny litigatircn or arbitrati'on proceedirrys arisiqg out d or in connection with a Finance Docurnent, the entries made in the aocounts maintained by a Frnance Party are prima faci,e evidence of tlrc matters to urhich ttey retate.
V
,,
-121-
33.2
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 evidernoe of the matters to which it relates.
33.3
Day count convention Any interest, comrnission or fee accruing under a Finance Document will accnre frorn 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 practioe in the Relevant Market differs, in accordance with that market practice.
34.
Plnrtel
rNVALtDtw
lf, at any time, any provision of the Finance Documents is or becomes illegarl, 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 affecded or impaired.
35.
RemeolEs axo WetveRs
No failure to exercise, nor any delay in exercising, on the part of any Securecl party, any right or remedy under the Finance Documents shatl operate as a waiver of an,y such oight or remedy or constitute an election to affirm any of the Finance Documents. No electisn to
affirm any of the Finance Documents on the part of any Secured Party shall lbe effedive unless it is in writing. No single or partial exercise of any right or remedy shall preveot any further or other exercise or lhe exercise of any other right or remedy. The r$hts and remedies provided in this Agreement are cumulative and not exclusive of any righb or remedies provided by law.
36.
AmeHourHTS AND WnrveRs
36.1
Required consents
(a) (b)
Subject to Clause 36.2 (Exceptions) any term of the Finance Documents rnay be amended or waived only with the consent of the Majority Lenders and the Borrower and any such amendment or waiver will be binding on all Panties.
The Agent, or in respect of the Security Documents the Security Agent, may effect, on behalf of any Finance Par$, any amendment or waiver permitted by this Clause.
36.2
Exceptions
(a)
An amendment or waiver of any term of any Finance Document that hars the effect of changing or which relates to.
(i)
the definition of "fillajority Lenders", the "Super Maiority Lenderls"' or "Majority Non€ank Lenders" in Clause 1.1 (Definitionsl;
(ii)
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
(iii) an extension of the Availability Period or any requirement
tha{
a
cancellation of Commitrnents redued the Commitment of flre Lenders rateably under a Fadlity;
&
-122-
(iv)
a change to the Borrowers or Guarantors (other than, for the avoidance of doubt, a change to the Parties pursuant to the operation of Clause 24 {Changes to the ObfJgors));
(v)
any provision whi6t expressly requires the consent of the Lenderc, the Super Majonty Leflders sr the Majority Non-Bank Lenders;
(
(vi)
Clause 2.5 (Finance Parfbs' nghfs and obligations), Clause 7.2 (Change of Contrat and Exfension), Clause 7.3 (Disposa/s), Clause 7.4 (Termination of Extraordinary Administntion Proceedings), Clause 7.7 (Applicatian of prcpynents), Clause 22 (Changes to the Lenders), Clause 24 {Changes io the Obligars), Clause 28 (Sharing among the Finance Parties\ orthis Ctause 36 (Amendments and Waivers);
(vii)
the nature and scope sf the guarantee and indemnity granted under Clause 17 (Gwararrtee and ln*mnity\;
(viii) (ix)
the nature or scope of tfre Charged Property, or
the manner in rvhich the proceeds of enforcement of the Transaction Security are distributed,
shall not be made without the prior consent of the Super Majority Lenders and, in the case of an arnendment or'waiver relating to the definition of "Majorig NonBank Lenders", may not be effected without the consent of the Majority Non-Bank Lenders.
(b)
An amendment or waiver of any term of any Finance Document that has the effect of changing or which rela{es to:
(i) (ii)
the definition of '(houp" in Glause 1.1 {Definitions),
an increase in any Comrnibnent or the definition of "Maturity Date" in Clause
(iii)
\.1
1
.
1 (iDel?nifibns);
any extension to the date of payment of any amount under tlre Finance Document (other than pursuant to Clause 2.4 (Exfension Option|; and
(iv)
Clause 40 (Gaaeril'ng Lawl or Clause 41 .1 (Juisdiction of English Courfs),
shall not be made withou( the consert of all the Lenders.
36.3
(c)
An amendment or vraiver of any tenn of any Finance Document that has the effect of changing or whictt relates to CXanse 2.4 (Extension Aptionl shall not be effected without the consent of the Maiorlty terders and the Majorig Non-Bank L.enfurs.
(d)
An amendment or wairer u&ich relates to the rights or obligations of the Agent, or the Security Agent (each in treir capadty as such) may not be effected without the consent of the Agent or the Seanrity Agent (as the case may be).
ExcludedCommitments
lf any Lender fails to respond to a request for a consent, waiver, amendment of or in relettion to any term of any F,inance Docurnert (other than in relation to Clause 2,4 (Exfension Option) or any other vde of {-erders under the terms of this Agreernent (other than an amendment, wairer or consent referrd to Clause 36.2 (Excepfbns) withln 5 Bu:;iness Days of that reque$ bdng made (unless, the Parent and the Agent agree to a l6nrg€r time period in relation to any request):
_123_ (a)
its Commihnent(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility when ascertaining whether any relevant percentage (induding, for the avoidance of doubt, unanimity) of Total Comrnitments has been obtained to approve that request;and
(b)
its status as a Lender shall be disregarded for the ptnpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
37.
CorunoeunALfry
37.1
Confidentiallnformation Each Finance Party agrees to keep all Confidential lnformation confidential and not to disclose it to anyone, save to the extent permitted by Clause 37 "2 (Dit;closure of Confidential lnformatian) and to ensure that atl Confldential lnformation is pro,tected with security measuies and a degree of care that would apply to its own conftdential information.
37
.2
Disclosure of Confidential lnformation Any Finance Parg may disclose: (a)
to any of its Affiliates and Related Funds and any of its or their officers, rnembers,
directors, employees, professional advisers, auditors, partners and Represeniatives such Confidential lnformation as that Finance Party shall consider appropriate if any person to whom the Confidential lnformation is to be given pursuant to this paragraph (a) is informed in writlng of its c,onfidential nature and tlrat some or all of such Confidential Information may be prioe-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidenlliality of the information or is othenvise bound by requirements of confidentiality irr relation to the Confidential lnformation ; (b)
to any person(s):
(i)
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights andlor oUlgations under one or more Finanoe Documents and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
(ii)
with (or ttrough) whom it enters into (or rnay potentially ,enter into), whether directly or indirectly, any sub-participation in relation to, or any other kansac{ion under which payments are to be made or may be made by referenoe to, one or more Finance Documents and/or one or rnore OblQors and to any of that person's Affiliates, Related Funds, Reprcsentatives and professional advisers;
(iii)
appointed by any Finance Party or by a person to whom paraglraphs (b)(i) or (bXii) above applies to receive communications, notices, infonnation or documents delivered pursuant to the Finance Documents on tts behalf (including, without lirnitation, any person appointed under paragraph (b) of Clause 25.14 (Relationship with the Len&rsll;
(iv)
who invests in or othenrise finances (or may potentially irnvest in or otherwise finance), directly or andirecfly, any transaction re{bned to in paragraph (b)(i) or (b)(ii) above;
(
(rri;\i -124-
(v)
_ I.
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governrnental, banking, taxation or other regutatory authority or similar body or the rules of any relevant stock exchange, listirE authority or pursuant to any applicabte law or regulation;
(vi)
to whom or for whose benefit that Finance Parly charges, assigns or otheryvise creates Security (or rnay do so) punsuant to Clause 22.9 (Secrnff over Lenfurs' nghfs);
(vii)
to whom information is required to be disclosed in oonnectton with, and for the purposes of, any litigation, arbitration, ;administrative or other irwestigations, proceedings or disputes;
(viii) wtro is a Party, or (ix) with the oonsent of the Borrower,
L
in each case, such Confidential lnformation as that Finance Party shall consider appropriate if:
(1)
in re{ation to paragraphs (b)(i), (bXii) and (bxiii) above, the person to whorn the Confidential lnfonnation is to be given has entered into a Confidentiality Undertaking except that there shall be no requirenrent for a Confidentiality Undertaking if the recipient is a professional adviser and is sublect to professional obligations to maintain the confidentiality of the Gonfidential lnfonnation;
{2) in relation to paragraph (bXiv) above, the person to whom the
Confidmtial lnfonnation is to be given has entered into a Corftentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential lnformation they recr*ve and is informed that some or all of such Confidential In onnation may be price-sensitive information;
(3) in rekfion to paragraphs {b)(v), (bXvi) and (b)(vii) above, the
J
person to whom the Confidential lnfonnation is to be given is infonned of its confidential nature and ttrat some or all of such Confidential lnformation may be price-sensitive information except that the.re shall be no requirernent to so inforrn if, in the opinion of that Finance Party, it is not practicable so to do in the circr.rns{ances;
(c)
to any person appc*rfred by that Finance Party or by a person to
(d)
to fte Escrovv fuent, the custodian, any Debgate or Representatiue of the
whom paragraphs (b)(i) or (bffii) above applies to provide adrninistration or sefrlement services in respect of one or more of the Finance Docrments including without limitation, in relation h fie trading of participations in nespect of the Finance Docurnents, such Confidential lnformation as rnay be rssr{ed to be disc{osed to enable such service provider to provide any of the senrices referred to in this paragr4h (c) if the service provider to whorn the Confidential lnformation is to be given has entered into a confiden6ality agreernent substantially in the forrn of the LMA Master Confidentiality Undertaklng for Use With Adrninistration/Settlernent SeMoe Providers or sucft other fonn sf csnfidentiality undertaking agreed betureen the Parent and Sre re{evar( Finance Parfy;
Securiff Agent, any Receiver, any Security Agent or co-sBcrlrity trustee or cosecurity agent and to any such person's Affiliates ard any of their officers,
\
,
t
-125-
directors, employees, professional advisers, auditors, partners and Representatives such Confidential lnformation as that Finance frart1l shall consider appropriate if any person to whom the Confidential lnformation is tro be given pursuant to this paragraph (d) is informed in writing of its confidential nature and that some or all of such Confidential lnformation may be price-sensi,tive information except that there shall be no suc'h requirernent 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 relatbn to the Confidential lnforrnation; and
(e) to any rating agency (including its professional
advisers) such Confidenfial lnformation as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents aMlor the Bonower if the rating agency to whom the Confidential lnformation is to be given is informed of its confidential nature and that sorne or all of such Co nfi deiltia I I n form ation may be price-sensitive infonn atio n.
37.3
Entire agreement
fy'
This Clause 37 constitutes the entire agreement between the Parties in releition to the obligations of the Finance Parties under the Finance Documents regarding Confidential lnformation and supersedes any previous agreement, whether express or implied, regarding Confidential lnformation.
37.4
lnsideinformation Each of the Finance Parties acknowledges that sorne or all of the Confidential lnformation
is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including seatrities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential lnformation for any unlawfr.ll purpose.
37.5
Notification of disclosure Each of the Finance Parties agrees (to the extent permitted by law and rel;ulation) to inform the Parent:
(a)
(b) 37.6
of the circumstances of any disclosure of Confidential lnformation made pursuant to paragraph (bXv) of Clause 37.2 (Dr'sclosure of C;ontidential lnformattbn) except where such disclosure is made to any of the persons refened to in that paragraph during the ordinary course of its supervisory or regulatory function, and upon becoming aware that Confidential lnformation has been discloserj in breach of tris Clause 37.
Gontinuingobligations
The obligations in this Clause 37 are continuing and, in particular, shall survive and remain binding on each Finane Party for a period of turelve months ftom the earlier cil:
(a) (b)
the date on which all amounts payable by the Obligors under or in connrection with this Agreement have been paid in full and all Commitnents have been cance&sd or otherwise cease to be available; and the date on which such Finance Party othenivise ceases to be a Financre pary.
o
r:!c;
-126-
38.
CorurtoexrrALlry or Fulorxc Rlres
38.1
Corrrfidentiality anddisclosure (a)
The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent pernitted by paragraphs (b) and (c) below.
(b)
The Agent may disclose: (i)
any Funding Rate to the relevant Borrower pursuant to Clause
8.5
(Notification of rctes of jn{ere50; sn6 (ii)
q,
any Funding Rate to any person appointed by it to provide administration seruices in respect of one or rnor€ of the Finance Documents to the extent necessary to enable such service p,rovrider to provide those services if the service provider to whom that irrformation is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confi dential ity u ndertaking for Use With Ad min stratio nlSettlement Servi ce Providers or such other fornr of confidentiality undertaking agreed between the Agent and the relevant LeMer. i
(c)
The Agent may disclose any Funding Rate, and each Obligor may disclose any Funding Rate, to: (D
any of its Affiliates and arry sf its or their officers, directors, employees, professional advisers, atrfitors, partners and Representatives if any person to whom that Flmdfuq Rate is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitrve infornudkxr except that there shatl be no such requirement to so inforrn if the recipient is subject to professional obligations to maintain tl'e confidentialig of that Funding Rate or is otherwise bound by requirements sf confidentiality in relation to it;
(ii)
any person to whom irffommtinn is required or requested to be disclosed by any court of cornpetent jurisdic{ion or any governmental, banking, taxation or otler regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its conffential nafirre and urat it rnay be price-sensitive information except that there shall be no {Bquirement to so inform if, in the opinion of the Agent or the relevant fraiger, as tfie case may be, it is not practicable to do so in the circurctares;
(iii)
any person to whom irforyrrilion b rcquired to be disclosed in connection with, and for tte purposes af, any litigation, arbitration, administrative or other investfiations, procaedings or disputes if the person to whorn that Funding Rate is to be given,is informed in writing of its confidential nature and that it may be prioe+ersitFre inforrnation except that there shail be no requirement to so infurm ,if, kr the ogrinion of the Agent or the elevant Obligor, as the cas rnay be, it b not practicable to do so in the
)
circumstanoes; and (iv)
any person with
tte
co{ls€rrt sf the refiavant Lender.
\l
-127-
38.2
Relatedobligations
(a)
(b)
The Agent and each Obligor acknowledge that each Funding Rate ,is or,rnay be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Fundilng Rate for any unlaMulpurpose. The Agent and each Obligor agree (to the extent permi$ed by taw and regu{ation) to inform the relevant Lender:
(i)
(ii)
of the circumstances of any disclosure made pursuant to paragraph (cXii) of clause 38.1 (confidentiality aN drbclosure) except wfiere such disclosure is made to any of the persons referred to in that paragraph durirE the ordinary course of its supervisory or regulatory func*ion; ard ripon becoming aware that any information has been disc}osed in breach of this Clause 38.
38.3
No Event of Default No Event of Default will occur under Clause 213 Obligor's failure to cornply with this Clause 38.
39.
(ather obtigatbns) by reason only of an
CouNrenpanrs Each Finance Document may be executed in any number of counterparts. a,nd Srb has the same effect as if the signatures on the counterparts were on a sing&e copy of the Finance Document.
,J
_128_
Section 13 Goveming law and Enforcement 40.
Govenxrrc uew This; Agreement and any
non-contradual obligations arising out of or in connection with it
are governed by English taw.
41.
ENroRceuenr
41.1
Juriisdiction of Engl&sh Csurts
C
41.2
(a)
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connec{ion with Stis Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising or,rt of or in connection with this Agreement) (a "Dispute,,).
(b)
Each obligor agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
(c)
NotwithstaMing paragraph (a) above, no Finance Farty or Secured Party shall be prevented frorn taking proceed,ings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties and Secured Parties may take concunent proceedings in any number of jurisdictions.
Senyice of Process (a)
U (b)
Without prejudice to any other mode of service allowed under any relevant law, each Obligor:
(i)
irrevocably appoints Kirkland and EIIis lnternationat LLP as its agent for service of process in relation to any proceedings before the English courts in conne
(ii)
agrees that failure by a process agent to notify the relevant Obtigor of the process will not invalidate the proceedings concerned.
lf any person appointed as afi agent for service of process is unable for any reason to act as agent for seruice of process, the Parent (on behatf of all the Obligons) rnust imrnediatety (ard in any event within 3 days of such event taking plaoe) apporint ano$rer agent on terms acceptable to the Agent. Failing this, the Agent may appoint anoths agent for this putpose.
THts AcReeMENT has been entered
inb on ffre date stated at the beginning of this Agreement.
-129ScuEoule
1
The Original Parties
Part I - The Original Lenders
OriginalLender
Facility A
Knighthead Capital lnvestments S.i.r.l.
€77,904,000
Knighthead Capilal lnvestments ll S.i.r.l.
€9,891,000
Kala lnvestments S.i.r.l.
€12,205,000
Total
€200,000,000
lncremental Facility
L,}
a
- 130Paft ll - The OrQinal Elsmonters
c)
?
Name otongtnal Eloffower
anghRal .Jnr&d lcflon and rBglstrafion number {er equivatent lf any}
Agrokor
IMBSI0800 20970
d.<1.
r1(,\')
-131Part lll - The Guarantors Name of Guarantor
Original Jurisdiction and registration lurn!i1.(o; gquivalent if any)
Agrokor d.d.
Crcatia OIB 0593259187
Agrokor Trgovina d.o.o.
Croatia OIB 4071 5974731
Belje d.d
Croatia OIB 924044451 55
Jamnica d.d.
Croatia OIB 05050436541
Roto Dinamic d.o.o.
Croatia OIB 247 231 22482
Konzum d.d.
Croatia OIB 29955634590
PIK Vrbovec
-
Mesna lnduskija, d.d.
Croatia OIB 7890917M15
Velpro Centar d.o.o.
Croatia OIB 46660800468
Ledo d.d.
Croatia OIB 87955947581
mStart d.o.o.
Croatia OIB 1 989545301 2
PIK-Vinkovci d.d.
Croatia OIB 1777 4531 631
Solana Pag d.d.
Croatia OIB 349491 47 151
Zvijezda d.d.
Croatia OIB 914920
Sojara d.o.o.
Croatia OIB 87720689078
Vukovars ki Poljoprivred n o d.d. Uupik d.d.) Adriatica.Net d.o.o.
I
nd
ustrijski Kom bi nat
1 17
(i
48
Croatia OIB 06849543412 Croatia OIB 20350489217
j
(\(.\t
-132Part lV
(
J
-
Tbe Post-C,loskrg Guarantors
Nsme of GuaEntor
Original JuriedicUon and registration number (or oquivalenl lf any)
Belje Agro-vet d.o.o.
Croatia OIB 78769491 591
Mladina d.cl.
Croatia OIB 0023331 8664
DB Kantun Veleprodaja d.o.o.
Croatia OIB 57339268l.82
Zitnjak d.d.
Croatia OIB 2il35300118
IRIDA d.o.o.
Croatia OIB 723834
LG Moslavina d.o.o.
Croatia OIB 5561 34370'l
Mondo-Tera d.o.o.
Croatia OIB 1 40726801 84
Eko Biograd d.o.o.
Croatia OIB 4200557U48
Felix d.o.o.
Croatia OIB 94397504836
A007 d.o.o
Croatia OIB 4231 282 1 469
Projektgraclnja d.o.o.
Croatia OIB 19659143269
461
54
I
_ 133
_
Scueouue 2
Conditions Precedent Part A - Conditions precedent to lnitial Utilisation 1.
Frnaucr Documexrs The fotlowing agreements duly executed by the Obligors party to them:
(a) (b) (c) (d) 2.
the Backstop Agreement; the Commitment Letter; and the Fee l-etters.
EscRow Accoururs
(a) (b) 3.
this Agreement
lxo EscRow AeReeruexr
t.
Evidence that each of the Escrow Accounts is open and fully operational and a letter between the Agent and the Borrower specifying the details of each account narne and acoount number. Each Escrow Agreement has been duly executed by the parties thereto.
OrxeR DocUuENTs AilD EvIoENcE
(a)
Evidence that Kirkland and Ellis lnternational LLP has accepted its appointment as process agent in accordance with Clause 41.2 \Seruice of process).
(b) (c)
The OriginalCashflow Forecast.
(d)
A legal opinion from Bogdanovid, Doli6ki & Partners to the Agent and the Original Lenders confirming the validity of the mechanism by which the Existing Financial lndebtedness intended to be refinanced to create super priority ranking indebtedness under and in accordance with the terms of this Agreement.
(e)
The Agent being satisfied that no law, regulation, ruling, judgment,
(0
(g) (h)
A funds flow statement detailing the proposed movement of funds on or before the Closing Date.
order, injunction or other restraint exists that, in the judgrnent of the Majorily Lenders, prohibits, resbicts or imposes a materially adverse condition on the Parent's ability to comply with or perform under the Facilities or the exercise by the Lenders of their rights as a secured party with respect to the security or guarantees.
Evidence that all Transaction Costs then due from the Parent or any other member of the Group (including but not limited to fees payable to tlre Finance Parties' legal and other advisers and any agreed on-account payments) have been paid or will be paid by the Closing Date. Confirmation from the Finance Parties that all docurnents required for completion by the Finance Parties of all necessary "know your customed' requirernents have been provided.
A list of each Existing Loan Agreement and Eligible Bills of Exchange, each of the guarantees issued by any member of the Group and any Obligor and a list of all
3
-134assets held by a member of the Group which ar€ expressed to be subject to Security.
(i)
Alistof each MaterialCompany as at31 December2015.
0
Creditors' Committee's approval of the Finance Documents on behalf of the Parent, duly executed by the chairman of the Crcditors' Cornmittee.
(k)
Commissione/s approval of the terms of the Finance Docurnents on behalf of the Guarantors, duly executed by the Commissioner.
(l)
lnstruction notice from the Agent to the Escrow Ag:ent to transfer funds from the Agent's client account to the Refinance Escrow Acoount.
(m)
Release notice from the Agent to the Escrow Agent in respect of the following transfers:,
$ (n)
(i)
transfer from the Repayment Escrow Account !o the Agent's client account in respect of Transaction Costs; and
(iD
transfer of the balance of the funds held Account to the Liquidity Escrow Account.
in the Repayment Escrow
Rebase notice from Parent to the Escrow Agent transferring monies from the Liquidity Escrow Account to an account hetd by the Parent.
(o)
A copy of any other Authorisation or other docurnent, opinion or assuranc€ which the Agent reasonably considers to be necessry or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforoeabilrty of any Finance Document, such Authorisations not to impose any conditions that are not acceptable to the Lenders.
u,
_ 135
_
Part B - Conditions Subsequent
(a) (b)
A copy of the constitutionaldocuments of each Obligor.
A copy of a resolution of the board of directors of each Obligor:
(i)
Approving and ratifying the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and ratifying the execution of the Finance Documents to which il is a party;
(ii)
authorising a specified person or persons to execute any furth,er Finance Documents to which it is a party on its behalf; and
(iii)
authorising a specified person or persons, on its behalf, to sign and/or despatch all docurnents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a pa(y.
(c) A copy of a resolution signed
by all the shareholders in each Guarantor established as a limited liability company approving and ratifying the terrns of, and the transactions contemplated by, Finance Documents to which the Guzlrantor is a party
(d) (e)
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above and who has signed any Finance Document. A certificate of each Obligor (signed by a director) confirming that.
(i)
borrowing or guaranteeing (and, as applicable, granting Security in respect of) the Total Commitments would not cause any borrowing, guarantee or security limit binding on it to be exceeded;
(ii)
subject to the Transaction Security, there subsists no Security or QuasiSecurity over an Escrow Account.
(iii)
other than the Extraordinary Administration Proceedings, none of the circumstances set out in Clause 21.4 (lnsotvency proceedings) or Clause 21.5 (Ceditors'process) applies to any Obligor or would be likely to apply as a consequence of borrowing and guaranteeing (arld granting Security in respect of) the TotalCommitments.
(0
A certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in this Schedule is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
o
, ).,
_ 136_
Prart C -
(a) (b) (c)
Conditions precedent
b be delivered by an Addltlonal
Guaraplor
An Accession Letter executed by an Additional Guarantor and tlre Paron{, A copy of the constitutional documents of the Additional Guarantor, A copy of a resolution of the board of directors of the Additional Guarantor:
(i)
approving the tenns of, and the transactions contemplated by, tho Accession Letter and the Finance Documents and resolving that lt execute, deliver and perform the Accession Letter and any other Finance Document to whictr it is party;
(ii)
authorising a specified perscn or persns to execute the Accession Letter and other Finance Docsrnents on its behalf;
(iii)
authorising a speci{ied person or persons, on its behalf, to sign andlor despatch atl otlrcr documents and notices (including any Utilisation Request) to be sigred andicr despatched by it under or in connection with the Finance Documents to which it is a party; and
(iv)
authorising the Paront to act as its agent in connection with the Finance Documents.
(
(d)
A specimen of the signafure of eacfr person authorised by the resolution referred to in paragraph (cXl) above.
(e)
A certificate of the Additional Guarantor (signed by a director) confinning that borrowing or guaranteetng or seouring, as appropriate, the Total Commitrnents would not cause any borrowing, guarantee, security or sirnilar limit binding on it to be exceeded.
(0
J
(g) (h) (i)
O (k)
A certificate of an authorised signatory of the Additional Guarantor certifying that each copy document listed in this Part C of Schedule 2 (Conditions Precedenf) is correct, complete and in fuf{ force and effect and has not been amended or superseded as at a date rrc mrlier than the date of the Accession Letter. lf applicable, Creditors'Cornmi'ttee's approval of the Finance Documents on behalf of the Parent, duly exeu,rted by the chairman of the Creditors' Committee.
lf applicable, Cornnrissirsner's approval of the terms of the Finance Documents on behatf of the Guarantors, duty executed by the Commissioner. A copy of any other Auttrorisathn or other docurnent, opinion or assurance wtrich the Agent considers to be necessary or desirable in connection with the entry into and performance of ttre kansactions cofltemplated by the Accession Letter or for the validity and enforceabilrty of arry Finance Document. lf available, the latest audibd frnardal staternents of the Additional Guarantor.
lf the proposed Additional Gurantor b incorporated in a jurisdiction other than England and Wales, evidenoe lha( fte process agent specified in Clause 41.2 (Serw'oe of prooess), if nct an O6{igor, has acoepted its appointment in re{ation to the proposed Additienal &.larantor.
(l)
The Security Doctrments urtlictr are rcquired by the Agent to be executed by the proposed Additional Guarantor.
-137 (m)
Any notices or documents required to be given or executed under the terms of those Security Documents.
(n)
Evidence that all necessary or desirable Authorisations from any government authority or other regulatory body In connection with the entry into and performanoe of the transactions contemplated by the Accession Letter, any Finance Document or Transaction Document to which the Additional Guarantor is party or for the validity or enforceabili$ of any of those documents have been obtained and are in full force and effect, together with certified copi,es of those obtained.
(o)
Such other inforrnation or documents that the Agent may reasonably require, including any information and evidence in respect of the Additional Guarantor required by any Finance Party to enable it to be satisfied with the results of all "know your customer" or other checks which it is required to carry out in relation to such Gfuarantor.
(p)
Guarantor is not incorporated in England and \lVales such documentary evidence as legal counsel to the Agent may require, that such Additional Guarantor has complied with any law in its jurisdiction relating to financial assistance or analogous process.
lf the Additional
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{
-149Scxeoule 3 Form of Transfer Certificate
To:
[.] as Agent and [.] as Security Agent
Frorn:
lThe Existing Lendefi (the "Existing Lender") and [Ihe New Lender] (the "Ne'w Lender")
Dated:
Agrokor d.d. 1.
- ["*l
facilities agreement dated [.] 2017 (the "Agreement")
We refer to the Agreement" This is a Transfer Certificate for the purpos;es of the Agreement. Terms defined in the Agreement have the same meaning in this Trans{er Certificate unlesS given a different meaning in this Transfer Certificate.
2.
3.
We refer to Clause 22.6 (Procedurc for transfer)'.
(a)
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation and in accordance with Clause 22.6 (Prctcedurc for transfer) all of the Existing Lender's rights and obligations under the Facilities Agreement, the other Finance Documents and in respect of the T'ransaction Security which relate to that portion of the Existing Lender's Commitrnent(s) and participations in Utilisations under the Facilities Agreement as specified in the Schedule.
(b) (c)
The proposed Transfer Date is [.]. The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 32.2 (Addresses) are set out in the Schedule.
The New Lender expressly acknowledges the timitations on the Existing Lender's obligations set out in paragraph (c) of Clause 22.5 (Limitation of responsibility of Existing Lenders).
4.
The New Lender confirms, for the benefit of the Agent and without liability to the Bonswer or any Obligor, that it is:
(a) (b) (c)
[a Qualifying Lender (other than a Treaty LendeQ;] [a Treaty Lender;]
[not a Qualifying Lender].
5"
This Transfer Certificate may be executed in any number of counterparts and lhis has the same effect as if the signatures on the counterparts were on a single copy of fris Transfer Certificate.
6.
The New Lender confirms that it [does/does not] wish to be treated as a Public+n{y Lender.
7.
(-i
This Transfer Certificate is intended by the parties to constitute, and shall const'tule, an instrument acknowledging indebtedness for the purposes of Article 77 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 as amendedl. Further it is intended that the participation in the Loans transferred under this Transfer Certihcatre
*
l.l
/\ - 150 -
are to be a transferable securi$ 'for ttle purposes of the FSA Handbook on Collective lnverstment Schemes Rule 5.2.7(1 ). 8.
This Transfer Certificate and any oon-contractual obligations arising out of
or in
connection with it are governed by English law. 9.
Thisr Transfer Certificate has been entered into on
the date stated at the beginning of this
Transfer Ceftfficate.
Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender's interest in the Transaction Security in all jurisdictions. lt is the responsibility of the i.lew Lemder to ascertain whether any other documents or othrar formalities are required to pe,r$ecf a transfer of such a share in the Existing
Lender's Transaction Securtty in any iurisdiction and, if so, execution of those documents and cornpletion of those formalities.
O
U
to arrange for
i ')
-151
-
Txe ScueoulE
CommitmenUrights and obligations to be transfeored [i n se
ft rel ev a nt detarls]
lFacility Office address, fax number and aftention details for notices and axount details for payments,l
lExisting Lenderl
lNew Lenderl
By:
$ This Transfer Certificate is accepted for the purposes of the Agreement by the Agent and the Transfer Date is confirmed as [.].
lAgenfl
By:
[Security Agenfl
,} By:
-152-
SCHEoULE 4
Fomr of Assignrnent Agreement To:
[o] as Agent, 0bligor)
From:
flhe Exisfing Lenderl (the "Existing Lender") and lthe New Lenderl(the "New L,ender")
[e J
as Security Agent and [o] as Parent (for and on behalf of each
Dated:
Agrokor d.d.
- [.] facilities
agreement dated [.] 2017 (the'Agreement"]
1.
We refer to the Agreernent. This is an Assignment Agreement, This agreement shall take effect as an Assignment Agreement for the purpose of the Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a differrent rneaning in this Assignrnent Agreement.
2.
We refer to Clause 22.7 (Procedure for assignment):
o
(a)
The Eisting Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which relate io that portion of the Existing Lendeis Conmitrnents and participations in Loans under the Agreement as specified in the Schedule.
(b)
The Existing Lender is released from all the obligations of the Existing Lender which conespond to that portion of the Existing Lender's Commitments and participations in Loans under the Agreement specified in the schedule.
(c)
r
The Nerr Lender becornes a Party as a Lender and is bound by obligations equivalent to thme from which the Existing Lender is released under paragraph (b) above.
3. 4.
The proposed Transfer Date is [.].
On the Transfer Date the Neur Lender becomes Party to the Finance Documents as a Len,Cer.
5.
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 32.2 (Addrcsses) are set out in the Schedule.
6.
The New Lender expressly acknowledges the limitations on the Existing Lendeds obligations set out in paragraph (c) of Clause 22.5 {Limitation of responsibitity of Existing Lendersl of the Agreement,
7.
The New Lender confirms, for the benefit of the Agent and withotrt liability to any Obligor, that it is:
(a) (b) (c)
[a Qualiffing Le,ruder (other than a Treaty Lender];l [a Treaty Lendetl
[not a Qualifyrog Lender].
(
_153_ 8.
The New Lender confirms that it [does/does not] wish to be treated as a Public-only Lender.
9.
This Assignment Agreement is intended by the parties to constitute, and shall constitute, an instrument acknowledging indebtedness for the purposes of Article 77 of thre Financial Services and Markets Act 2000 (Regulated Activities) Order 2O01 as amendedl. Further it is intended that the participation in the Loans assigned under this Assignment Agreement are to be a transferable security for the purposes of the FSA Handbook on Collective lnvestment Schemes Rule 5.2.7(1).
10.
This Assignment Agreement acts as notice to the Agent (on behalf of each Finance Pary) and, upon delivery in accordance with Clause 22.8 (Copy of Transfer Certificate and Assignment Agreement to Bonower), to the Borrower of the assignment referrr:d to in this Assignment Agreement.
11.
This Assignment Agreement may be executed in any number of counterparts ernd this has the same effect as if the signatures on the counterparts were on a single copy of this
Assignment Agreement. 12.
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
13.
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
Note:
The execution of this Assignment Agreement may not transfer a prorportionate share of the Existing Lender's interest in the Transaction Secunity in all jurisdictions. lt is the responsibility of the New Lender to ascertain wlhether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender's Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formarlities.
Y
-{54TtreSonerum Rights to be assigned and ofotigations to be released and undertaken
linsertttuaidefadsJ [Facility Office address, fax number and #"b.fiion deta/s for notires and account details for
pryrren{s.l
{Existing Lenderl
[i$eiv Lenderl
. This Assignment Agreement is accepted by ttre Agent as an Assignment Agreement for the purposes ol'the Agreement and the Transfer &de is confirmed as [.]. Signature of this Assignment Agreeme'nt by the Ager*t oonstitutes confirmation by the Agent of receipt of notice of the assignment referred to herein, which notice the Agent receives on behalf of each Finirnce Party.
lAgenfi
By:
- 155 Scneoule 5 Form of lncrease confirmation2
To: I
J
as Agent and
[
] as Parent, for and on behatf of each obligor
From: [*.*] (the "lncrease Lender") Dated:
AgrokorD.D. - [ | Facilities Agreement dated [ ] (the "Facilities Agreement,,]
1.
We refer to the Facilities Agreement and the Commitment Letter (as defined in the
Facilities Agreement). This agreement (the "Agreement") shalltake effect as ian lncrease Confirmatlon for the purpose of the Facilities Agreement and the Commitnrent Letter. Terms defined in the Facilities Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement. References to clauses anr to clauses of the Facilities Agreement.
2.
We refer to Clause 2.2 (lncreased Commitments and New Lender Acoessions) of the Facilities Agreement.
3.
The lncrease Lender agrees to assume and will assume all of the obligations corresponding to the Facility A Commitments specified in paragraph 5 below (the "Relevant Commitments").
4-
The proposed date on which the increase in relation to the lncrease Lender and the Relevant Commitment is to take effect (the "lncrease Date") is [**'/ the First lSyndication lncrease Date / the Second Syndication Increase Date / the Third Syndication lncrease Date / [rnserf date of commitments being assumed in the case of any proposed tJtitisation of the Facility A l|natlrcated Amount *,13.
5.
On the lncrease Date the Facility A Commitment of the lncrease
Lendetr shall be increased. by an amount equal to €[**"] (such increase being the "Facility A lncrease
Amount'a), IEtrHERs:
6.
The Parent and the lncrease Lender agree that on the ["** First Syndicatiorr Utilisation Date / Second Syndication Utilisation Date / Third Syndication Utilisation Dals "'*16 (the "Releyant Utilisation Date"):
(a)
(b)
an amount equal to 50 per cent of the Facility A lncrease Amount shall be applied in accordance with Clause 5.2 (Syndication utilisation Dates) to redeem the Specified Existing Financial lndebtedness of the Increase Lender set out in the Schedule; and an amount equal to 50 per cent of the Facilig A lncrease Amount shall be applied in accordance with paragraph 3.1 (b) of Clause 3.1 (puryose).
To be entered into by Original Lender and lncrease Lenders increasing their Facility A Commitrnents on any 3 a
3 c
Commitment lncrease Date. Delete as applicable
This amount is calculated as the aggregate Specified Existing Financial lndebtedness for the relevant Lender (as
specified in the Schedule) multiplred by hruo. Use this option on eacfi lncrease Commitrnent Date other than in respect of the Facility A Unallocated lrrnouot. Delete as applicable. tf the lncrease Confirmation is being entered into under the provisions set out i1 clause 2g..t 2 (Defaulting Lenders), inseri the proposed Utilisation Date lor the increased Commitment.
Y
- 156 -
7.
The lncreese Lendor, by executing this Agroement:
(a)
conflrme thsi 11 le legally and boneficlally entltlsd to the Spoclfled Exlailng Flnanolal lndobtodnses eot out ln tho Schodulo froe frorn any sncumbrancee and that there ano no othor roprerenlatlone or warrantles appllcable to the redomptlon of the Spoclfled Exbtlng Flnanclal lndobtednees eet out ln the Schodule, either oxpross or{mplled;
(b)
irrevocably authorises the Agent to apply:
(i)
an amount equal to 50 per cent. of the Facility A lncrease Amount
in
accordance with Clause 5.2 (Syndication Utilisaton Dafes) of the Facilities Agreernent for the purposes of redeeming the specified Existing Financial lndebtedness and confirms that application of an amount equal to 50 per cent of the Facility A lncrease Amount in accordance with and pursuant to paragraphs 1.2 and 2 of Schedule 1A (Utilisation and Applicatian of Lians) and Schedule 1'l (Rede mption and Repayment Mechanlcs) of the Facilities Agreement will constitute a redemption in full and cancellation of the specified Existing Frnancial lndebtedness under and in accordance with the Specified Existing Financing Documents; and
(
(ii)
to apply an amount equal to 50 per cent of the Facility A lncrease Amount in accordarrce with paragraph 3 of Schedule 10 (Utilisation and Apptication of Loans) and the L(uidity Escrow Agreernent;
(c)
confirns that no further act, c-onsent, agreernent, undertaking, settlement, waiver, amendment, variatiion, notbe, trade confirmation or other communication or action is required under the Specified Existing Financing Documents in order to effect a redemption and canellation of the Specified Existing Financial lndebtedness in accordance with the Specifted Existing Financing Documents as contemplated in the Facilities Agrwnent and the Commitment Letter; and
(d)
inevocably uraives any redemptionlrepayment notice periods, redemptionlrepays,pnl fiees or break costs in respect of
any
the
redemption/prepayrment of its Specified Existing Financial lndebtedness. l7
C IoR8: B.
9.
The Parent and the lncrease Lender agree that on the Facility A Unallocated Amount Utilisation Date (the "Rehuant lJtilisation Date"):
(a)
an arnount equal to 50 per cent of the Facility A lncrease Amount shall be applied in acoordanoe with Glause 5.3 (Facility A Unallocated Amounf) to redeem the SpeciH Existng Financial lndebtedness of the lncrease Lender set out in the Schedule; and
(b)
an amount equal to 50 per cent of the Facility A lncrease Amount shall be applied in accordance with paragraph 3.1(b) of Clause 3.1 (Pupose).
The lncrease Lender, by executing tris Agreement:
(a)
it is legally and beneficialiy entifled to the Specified Existing Financial lndebtedness set out in the Schedule free from any encumbrances and
confirms that
Thls option will need to be anrended in circumstanoes rv+!€re a DIP Lender elects to redeem, prepay or cancel the Exlsting OIP Financing by way of set cfi in the circurnstances refiened lo rn paragraph 4 of Sctredule 1O (Utilisation and,Appliatim of loans), Use this option on each lrrcrease Commitsnen{ Oale in respect of ttre Facitrty A Unallocated ra,mount.
_157_ that there are no other representations or warranties applicable to the redemption of the Specified Existing Financial lndebtedness set out in the Schedule, either express or implied;
(b)
irrevocably authorises the Agent to apply:
(i)
an amount equal to 50 per cent. of the Facility A lncrease, Amount in accordance with Clause 5.3 (Facitity A lJnallocated Amaunfl of the
Facilities Agreement for the purposes of redeeming the Specilted Existing Financial lndebtedness and confirms that application of an arnount equal to 50 per cent of the Facility A lncrease Amount in accordance with and pursuant to paragraphs 1.2 and 2 of Sctredule '10 (Utitlisatian and Application of Loans) and Schedule 11 (Redemption and Repayment Mechanics) of the Facilities Agreernent will constitute a redenrption in full and cancellation of the Specified Existing Financial lndebteclness under 4nd in accordance with the Specified Existing Financing Docunrents; and
(ii) (c)
(d)
to apply an amount equal to 50 per cent of the Facility A lncrease Amount in accordance with paragraph 3 of Schedule 10 {lJtilisation anal Apptication of Loansl and the Liquidity Escrow Agreenient;
)
confirms that no further act, consent, agreement, undertaking, settlement, waiver, amendment, variation, notice, trade confirmation or other communication or action is required under the Specified Existing Financing Documents in order to effect a redemption and cancellation of the Specified Existing Financial lndebtedness in accordance with the Specified Existing Financing Documents as coniemplated in the Facilities Agreement and the Commitnent Letter; and
irrevocably waives any redemption/repayrnent notice periods, any redemption/repayment fees or break costs in respect of the redemption/prepayment of its Specified Existing Financial lndebtedness. l
10.
The Facility Office and address, fax number and attention details for notices to the
lncrease Lender for the purposes of Clause 32.2 (Addresses) of the Facilities Agreement are set out in the Schedule.
11.
This Agreement and any non-contractual obligations arising out of or in connerction with it are governed by English law.
12.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
Note:
The execution of this lncrease Gonfirmation may not be sufficient for Sle lncrease Lender to obtain the benefit of the Transaction Security in alt jurisdictions. lt is the responsibility of the lncrease Lender to ascertain whether any other documents or other formalities are required to obtain the benefit of the Transaction Secgrity in any jurisdiction and, if so, to arrange for execution of those docurments and completion of those formalities.
)
_ 158
THe
\ _
Scxeoule
Specified Existing Financial lndebtedness of the lncrease Lender to be redeemed on the Relevant Utilisation Date Specified Exisfi ng Financing Documents
Amount of Specifi ed Existing Financial lndebted,ness {converted into Euro at the Apf licab*e Exchan ge Rate)
Idefarls]
€[*.]
ldefatlsl
€{*.1
C
[Facilityr office address, fax number and attention details for rotices and account details for
payrnentsl
flncrease Lender] By:
This Agreernent ts accepted as an lncrease Confirmation for the purposes of the Facilities Agreement by the Agent and as an lncrease Confirmation for the purprees of the Commitment Letter and the lncrease Date is confirmed as Agent
t
By:
[
]
- 1s9 Scxeour-E 6
Form of New Lender Accessione
To: [
] as Agent and
[
| as Parent, for aM on behalf of each Obligor
From: ["**] (the "New Lender"] Dated:
Agro{rorD.D. -[ | Facilities Agreement dated I I (the "Facilities Agreemenf') 1.
We refer to the Facitities Agreement and the Commitment Letter (as ddined in the Facilities Agreement). This agreement (the "Agreement") shall take eft
2.
J
We refer to Clause 2.2 {lncreased Commitments and New Lender Aoessioras) of the Facilities Agreement and agree:
(a)
the New Lender will become a Party as a Lender under the Agreeonent and agrees to assume and will assume all of the obligations conespording to the Facility A Csrnmitments specified in paragraph 4 bdow (tlrc Relevant Commitmenb") as if it were an Original Lender under the Facilities Agrreenrent;
(b)
each of the Obtigors and the New Lender shall assume obligdinns tnrrards one another and/or acquire rights against one another as the Obligors ald ttre Ngr1;, Lender would have assumed and/or acquired had the l'lew Lendr>r been arr OriginalLender;
(c)
the New Lender and each of the other Finance Parties shaH asstrne obligations towards one another and acquire rights against one another as ttrd,fr*e$/ Leflder and those Finance Parties would have assumed and/or acquired had the lncrease Lender been an Original Lender:
(d)
the Commitments of the other Lenders under the Facilitias Agreexnent shafl continue in full force and effect.
3.
The proposed date on which the New Lender becomes a Party and the iircrease in relation to the New Lender and the Relevant Commitrnent is to t*e etred (tte "Accession Date') is f**/ the First Syndication lncrease Date / tfre Somnd tsyndication lncrease Date / the Thid Syndication lncrease Date / [rnserf date of mwrfucenfs herng assumed in the case d any ptryased l/tilisation of the Facility A L/,riaffied Amount **]ro.
4.
On the Accession Datf fre Facility A Commitment of the New Lender crin be "Facili$r A Amount').1t
e
To be used by a Lender ntrich is rst the Or[inal Lender on any Cornrni&nenl loorease Da,te. Delete as applicable This amounl is calcllated as sle aggrBgate specified Existing Financial lndebtedness hr specifud in the Schedute) ru.ffip{ed by two
10 't1
e*.1
(the
ttc *bnrr,n Lerdsr
(as
J
-160lElrHERl2
5.
The Parent and the New Lender agrse that on the [**' Flrst Syndication Utilisatlon Dato I Second Syndication Utilisation Bate / Third $yndication Utlllsatlon Date "'1!3 (the "Relevant Utllisatlon Oate] :
(a)
an amount equd to 50 per cent of the Factlity A Amount ehall be epplied ln accordanoe with Clause 5.2 \Syndication Utillsallon Dafos) to rodoem the Specified Existing Financial lndebtedness of the New Lender as tet out ln the Schedule; and
(b)
an amount equal to 50 per cent of the Facility A Anrount shall be applied
in
accordance with paragraph (c) of Clause 3.1 (Putrpose).
6.
Ther New Lender, by executing this Agroement:
(a)
conflnns ,that it is legally and beneficiatty entitled to the Specified Existing Financial Indebtedness set out in the Schedule free from any encumbrances and that there are,no other representations or warranties applicabte to the redemption or repayment (as the case rnay be) of the Specified Existing Financial lndebtedness set crut in the Schedule, either express or imptied;
(b)
irrevocably authorises the Agent to:
(
(i)
apply an arnount equ'al to 50 per cent of the Facility
A
Amount in accordance with Clause 5.2 (Syndlcation Utilisalton Dafes) of the Facilitles Agreerlent fm the 'Errposes sf redtrming the Specified Existing Financial lndebtedness ard confinns that application of the Facility A Amount in accordance xith and pursuant to paragraphs 1.2 and 2 of Schedule 10 {Utilisrltia,l and Fgplicatian of Loans) and Schedule 11 {Redernption and Repayanenl fllechanbs) of the Facilities Agreement will constitute a redernption in full and canellation of the Specified Erjsting Financial lndebtedness under and in acoordance rvith the Specified Existing Financing Doaurnents; and
(ii)
to appty an amowt
eqr.atr
to 50 per cent of the Facilrty A Amount
in
aerordanoe with,paragraph 3 of Schedule 1A {Ufilisation and A1splicatictn of Loans) and {f're ttqufority Escrou+ Agreement, (c)
confirms that no firtrer act, rsnsent, agreernent, undertaking, settlernent, waiver, amendment, vsialion, na{kx, lrade oonfirmation or other communication or action is required under fte Spec{fied Extsting Financing Documents in order to effect a redemption and cancehation of the Specified Existing Financial lndebtedness in accordane ul*fi tle Specified Exis,tjrq Financing Documents as contemplated in the FaciliUes Agtwne{''* ard the Cornmitrnent Letter; and
(d)
irrevocably waives redemption/repayrnent
arry redernp,tion/repayment notioe p,eriods, any fees or break costs in respeot of the
redemptionlprepapnent of its Spectfied Existing Financiai {ndebtedness.ll{
12
t3 1{
Use this option on eacir lnceaae Conftnnatlrn Daie other than in respect of the Faoility A Unallocated Amounl. Delete as applicabte. lf tfie lncrease Confirmatioc b beifiS enierad ioto under the provisions set ou( in clause 29.12 (De*'aulting Lenders), insert the prcpo*d lffltsat rxr Bate {or the ircreased Comrnitrnenl. This option wrll need to be amended in oir'cirnslanoes rrtpre a DIP Lender elects to rcrdeem, prepay or cancel the Existing DIP Fhancing by *ay of set ofi.in frre cirannrg,arioes refened to in paragraph 4 of Scfndde 1O {Ulilisattbn
and Appl kxtien of aoarQ.
-16t[oRtt 7.
The Farent and tfte 't$eyv tender agree that orn ffie Facility A unallreated Arnou't Uhilisation Dafre (tte Eefutrant Utilisation Date"):
(a)
an amounl egual to 50 per cent oj rhe racility A Amarnt shall be app{ied in acco(dance with clause 5-3 (Facitity e walrrafrxl Aarounff to redeefi! the specffied Existins Financial tndebtedness of th€ New Lender.as set out in the Sdrqtrule; and
(b)
an amount eq{ml to 50 oer oe1lof s.re Faci[ity ,{ rkmou$t sfian .be apptied arcordane with paragraph (c) of Clause g., (,ftr;rase,.
in
The Nera Lender, byexecuting this Agreement:
(a)
confinns that tt is legally and beneficially eriltiued to ttre $pecifted Existirq Firrancial lndetfie&res set out in the scne^iue ftee horn a,ny encumhrances and that there are rp offrer represertalion$ or rryarrenses q#[cable b tte redemptiorn or repayrnent {as the case may be, of
fie Se*irra €rdril; Financial lndebfudness 6ed out in the schedure. eiurersB,ess ortnrpfed: (b)
inevocably authsrises the Agent to:
{0
apply an arnount equal to 50 per cer{ of tre Facills A Arrount in -*rwunfl acoordance with clausg 5-3 {FadW A {*tagrylted of the Facflities Agreement for the purposes a rx**irg ele specified ,Exis*ing Flnaaoial lnd#edness and oonfrvns thar wftcatio, rt rre Facility A Amount in eccordance wittr ard p,nwadt to paagrap|*s 12 ard E .of s€fiedule 1o (lttitisafan and Ap4icatiun of {aanq} and $tredule 1i {n{rytan and Repavnent,ued*a@ of &e eoiffir, *g;ot u,i,r oonstitr.rb a redemption in fuil and mnoe04i,sn d *{e sp.e; Exis*ing Finanrial {ndebtedness under and in eordame *trin ur* specined Existing Ftnancing Documentil and
(i0
to appry an amount equar to so pe. cant of src Facifig A Amormt in aocordane uith paragraph 3 0f sctredrse ro (.{,r,ffisa&on ;d/edto filom of tr-oans| srd the Leuidity Escrowfurearrer4
(c)
confir,ms that ns fiJrtrer act, consent, agreement, wrder{*tng, seffernffit, waivel amendmefit, vadathn, notice, naae oonfirmattora s wrer mnrrv,mlcation or acibn is rcquired under sre specifk$ rinmJrlg ooouments in order to effec* a redempEon and canodHion of lls{rg ttre $pecrified g#rri.!g Finandal lndeb+d^ess in aaoodatloe wri &e speciH Flnanc&g D.*rn*,rb as contemptated in ep Facerix Agr*rnent and the comrnameai#,
=I**
(d)
ireuocamy wdves
any
edernptimftepayment
.,x
redernptiorrurrepaunprrrt
rdilDe periods. eny
fees or break' oostr im respeot 6 relemption/prqaurrent of its specified Extsting ri-r-"*r tr,rdebtedness.!
9.
The New t'effbr oorlfr'rms to Seouued Part{es
(a) l'Jse 'thb
J
ffiat{t
tie
me
Existing Lender, fi,e other Finanm Far*es and the
tEs rnade (and stutl mntinue to make) iB owm imdryndemt ir*resligatiran and assessnEnt of the tlnancial condition and arffairs *f esch obtigor ar.d ib related optbn st eadl lncteaee oornmhrcr{ Date in esped of ttre FBrltity
rfi
d.hsllffitsd *{r.ourd-
J
-162entities in connection with its participation in the Facilities Agreement and has not relied exclusively on any information provided to it by any other Finance Party; and
(b)
10.
will continue to make its own independent appraisal of the creditworthiness of eactt Obligor and its re{ated entities whiist any arnount is or may be outstanding under the Finance Documents or any Commitment is in foroe.
The New {-ender confinns, for the benefit of the Agent and without tiabitity to the Borrower or any Obligor, that it is:
(a) (b) (c)
a
C
11,
The
[a Qualifoing Lender (other than a Treaty Lender);] [a Treaty Lender;l {not a Qualifying Lenderl. Neq
/ Lender confirnrs that it [does/does not] wish to be treated as a Public-only
Len,Cer.
12.
The Facility Offioe and address, fax number and attention details for notices to the New LenrCer for the purposes of Clause 32.2 {Addresses) of the Facilities Agreement are set out iin the Scfiedule.
13.
This; Agreernent and any non-contractual obligations arising out of or in connection with it are governed by English law.
14.
This; Agreement has been entered into on the date stated Agreement.
at the beginning of this
Note: Ther execution sf this New Lender Accession rnay not be sufficient for the New Lender to obhin the benefit of the Transaction Security in all jurisdictions. lt is the responsibility of the New Lender to ascertain wMter any other documents or other formalities are required to obtain the benefit of the Transaction Security in any' jurisdiction and, if so, to arrange for execution of those documents and connpletion of those fonnalities.
_163_
TrrScueoule Specified Existing Financial lndebtedness of the New Lender to be rcdeerned on the Relevant Utilisation Date Specified Existing f ininEng Documeots
Amount of Speclfied fxbftnglinanffilndebtedness {oonverted inlo Euro atffie Applicable Exchange,Rattef
[defailsl
q*"1
[defafls]
q*.I
[Facility office address, fax number and attention details for notices and aocourt details for
paymentsl
[New Lender]
J
By:
This Agreement is accepted as a New Lender Accession for the purposes of gre Facilf,{es Agreement by the Agent and as a Nerry Lender Aocession for the purposes of tf,E Gomrniknenit Letter and the Accession Date b corfirmed as I l. Agent By:
J
\(
-164Scueoulr 7 Form of lncrenrental Facility Lender Accession
To: I
I as Agent and
From: [*"-]
[
] as Parent, forand on behalf of each Obligor
(the "lncremental Facility Lefider'']
Dated:
AgrokorDD. -[ I Facilities Agreement dated t I{trre'Facilities Agreement"} 1.
We refer to the Facilities Agreernent and the Commitment Letter (as defined in the Facilities Agreement). This agreernent (the "Agreement") shall take effect as an lncremental Facility Lender Accession for the purpos€ of the Facitities Agreement and the Connmitment Letter. Terms defined h the Faci{ities Agreernent have the same meaning in this Agreement unless given a difhrent meaning in this Agreement. References to clauses are to clauses in the Facilities Agreement.
2.
We refer to Clause 2.2 (lncreased C,ommitments and New Lender Accessions) of the Facilities Agreement and agree:
(a)
the lncrernental Factlity Lender wil{ beoome a Party as a Lender under the Agreement and aErem to asurne and wilt assume all of the obligations corresponding to the Inorcrnental Facility Commitments specified in paragraph 4 below (the "Relevarrt Commfrments") as if it were an Original Lender,under the Facilities Agreerner{
(b)
each of the Obl$ors and ttrc lnmrnenEl Facility Lender shall assume obligations towards one another andUor aoquire rights against one another as the Obligors and the lncrernental Fmility Le*der would have assumed and/or acquired had the I ncremental Facility Lefl& been an Orig inal Lender;
(c)
the lncremental Facility {-ender and each of the other Finance Parties shall assume obligations towards one arlotfler and acquire rights against one another have assumed andlor acquired M ffie Increase Lender been an Original Lender;
as that lneremental Fadlity l-ender and those Finance Parties urould
(d)
the Commitrnents of the offiter Lenders under the Facilities Agreement
shall
continue in fullforre and effect, 3.
The proposed datre on vutlioh tfie lnorenerfial Facility Lender becomes a Parg and the increase in relation to the lncrenenElFaritity L-ender and the Relevant Commitrnent is to take efiect (the "Accession Bate} is f]
4.
On the Accession Date, the {ncrornemkl Facility Commitment of the Incrernental Facility Lender will be €[*"] (the "lncremerrtal Facility Amounf').
5.
Ther Parent and the lncrennental
Faoli$ Lerder agree that on the lncremental Facilfu Utilisation Date, the lncrernental Facility Arnount shaU be applied or deenred to be applied in ;accordance with Clause 5:d {fmcremeffal fadfi l}tilisation Dafe) to redeem the Exi:sting Financial lndebtedr'mss df the {nsernerfal Facility Lender (the rSpecified Existing Financlal lndebtedneseJ in acoqv}anoe with the relevant Existing Supply Docu ments (the'Speclfied Existiog Ffurarrci ng .Docum enE ") .
t\
-16s6.
[The lncrernental Fac{lity Lender, by executing this Agr"eer-nent.
(a)
confirms fld it is legally and beneficially enti$ed to the Specified Existing Financial lrdebhdness set out in the Sctredute f,ree frorn any enclrn':tbnances and that there are rto otter representations or warranties applicable to tlre repayment of the Specified Existing Financial lndebtedness set out in the Sdrcdule, either express or imf{ied,
(b)
inevocably authortm the Agent to apply Sre {ncremental Facilily Arnount in acrtrdanoe wift Clatee 5.4 {lncremental Facility,{Jf{isafi,on Oafe} of the Faci}ities Agreernent for the purposes of redeerning t'he Specified Existtng Financial lndebtedness of the lncremental Facility Lender set out in the Sci'redtrte;
(c)
confirms that no ftrrtrcr act, consent, agreement, underf,aking, setlement, waiver, arnendment, vsi,ation, notice, trade confirnration or other communiozrtion or action is requled uoder the Specified Existing Finarrcing Doa-rrents in oruler to effeot a redernplion and canoellation of the Specified Existing Financial lnclebbedness in accordanoe with the Sfiecified Existing Financing Doour rents as contemplated in the Faclilities Agreernent; and
(d) 7.
{
any redemption/repayment notice pariods, any redem$ionlnapayrnent fees or break costs in respect of the redermptionlpqayment of its Specified Existirq Financid lndebtedness I fBCl inevocably waives
The lnwemental Facili$ l--ender confirms to the Existing Lender, the other Finance Parties and the $ecured Paflies tlrat lt:
(a)
has made {and shall continue to make) its cnrn iodependent investigation and asses.snent d Ste financial condition and affairs of eacfi Obtigor and its relsted entities in connedion with its participation in the Facilities Agreemenrt and has not relied exdusive{y on any information provided to it by any other Finanoe Party; and
(b)
will mntinue &o rnake its own independent app+aisal of the creditworthiness of eact Obligor ard itts related entities *rtrilst any anronnt is or may he outstanding under ttle Finance Doctnnents or any Commitrr,pnt is in foroe.
8.
The Facility Office and address, fax number and attention details for notices to the lncrernental Facitity t-ender for the purpos€s of Clause 32.2 (Addrcsses) oi'the Faci{iues Agreement are set out ln the Sctredule.
9.
This Agreement ar,rd any tloneontractual ob{igafiorxs arising sut of or in oonneciion with it are governed by Engilisfi bw-
1G.
This Agvsenent has been er*ered into on Sre date s,tafed at the beginning of this Agreernent.
Note:
The execution of ffiis lncrenrental Facility Lender Accession rnay not be sufficiert't for the lncrernental Facility Lender to obtain ttre benerffi of the Transaction Security in ali iurisdiotioas. ft b tfte responsibility of tlrc {ncren*ntal Facility Lerder to ascertain wheilfier alry dlrer docurnenb or otfier fonnaliUes are requirred to sb{ain the benefit of the Trsrsactfon Security in any iurbdiction and, if so, tr arrange for execution sf those {oa,nnemb and comptetinn of those f,orr+alities.
{
_ 166
_
Txe $cxeoulE Sperclfied Existing Financial lndebtedness of the lncremental Facility Lender to be redee+ned ln accordance with Clause 5.4 {lncremental Facility Utilisation Date) of the Facilities Agreement Speclfied Existing Finance Dmumenb
{detailsl
Amount of Specified Existing Financial lndebtedness (converted into Euro at the Applicable Exchange Rate)
q*l
[Facility office address, fax nunr'ber and attention details for notices and account details for paymentsl
a
flncremental Facility Lenderl By:
This Agreernent is accepted as an dncremental Facility Lender Accession for the purposes of the Facilities Agreement by tre Agedt [and as an lncremental Facility Lender Accession for the purposes oltthe Commitrnent Letter and tte Accession Date is confinned as [.".]1. Agent By:
C
-167ScHeourc
I
Form of Accession l.,efier
To:
[.] as Agent and [*""] as Security Agent
From:
[Subsrdrary] and Agrokor d.d.
Dated: Dear Sirs
Agrokor d.d.
-
[.] facilities agreement dated I.l2017 (the'Facilities Agreement")
.
We refer to the Facilities Agreement. This letter (the'Aocession Lette/') shall take effect as an Accession Letter for the purposes of the Facilities Agreement. Terms defined in the Facilities Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.
2.
lSubsidiarylagrees to become an Additional Guarantor and to be bound by tlre terms of the Agreement and the other Finance Documents as an Additional Guarantor pursuant to Clause 24.2 (Additional Guaranfors) of the Agreernent. [Substdrary] is a cornpany duty incorporated under the laws af lname of rclevant jwisf,idionl.
3.
flhe
1
Borrower confirms that no Default is continu{rqg or would occur as [Subsrdtary] becom ng an Additional Guarantor.l
a resuit of
i
4.
[Subsidiary's] administrative details are as follows: Address: Fax No: Attention:
5.
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
fIhis Accession Letter is entered into by deed.] For and on behalf of
[.] By:
For and on behalf of ISubsrdr'ary{
)
-168-
ScHEpuLe9
Existing Ses{lrity
IToBEDEli-EJ@
a
j
(\{, :,l'
_169_
Scueouu i0 t/tlHsat'xrn and Application of ,t-oans 1.
Utilisation
on each utilisation oale, tfie arnount of eactr Loan will be applid as folfisurs: 1-1
lnitial Utilisation Bale
(a) (b)
Each Original l-erder strall make its participatjon in the Facility A Loan ava*able by the Business Day pr*or to the fnitial Utilisation Date thror.qtr iL farittry 6ffioe-
An arnount equal to 50 per cent of the proceeds of the Facility A L.oan admnoed pursuant to c{ause 5.{ (lniital Lltitisation Date), being an arnount equart b €100,000,000, s*rdt be made available by the original Lenders by pay,rnent cf funds into the Madibon Account for value on the Business Day pnor to tt* fn itirf Utilisation Date, utrich funds shall be applied in redernpti* of ffre $,pecdfied Existing Financial kdeftltedness of the Originat Lenders set out bdovy, sucfr redemption tio ocour in aeoordanoe with paragraph z of this sctredule. Original Lender
Specified
Existing Finance Socuments
:
Specified -Eximg Financial
lndeHedrpss
{EUR)
Knighthead CaUtrt lnvestments S.i-r.l 31,419.O00.o0
Knighthead Capitat lnvestrnents li S.d.r.l.
Kala
tnvestnne,nts
v (c)
1.2
Syn
d
{a)
An arnount eqilral to tle rernaining 50 per ent of the Faci{ity A Loan advanoed pursuant to daue 5.1 {lnitial iu/dtisatian Datel, treing an amounii equa{ to €100,000'008, stlall ftefl be advanced on the lnrtial Utilisation Date 6lursuant to the rnecfranisrn sat out in pa.ragraph s of this sctedure. ication Utilisation Aat€s Each Lender under Facitity A shall rnake its participation in the Facil}ty A toan available by fre Busines Day yior to the releuant Syr.ldication through
(b)
ib FactffyOfre.
Utitrsaiiom
oxe
An amount eqlml b 50 per cent of the proceeds of the Facility A Loan advanced pursuant tro clause 5.2 (srcdcation lJiltisatron Da{es} ofl eacfr €iyndioation Utjlisation Date shdl be made aryailable by eactr New Lender (and *i t,o**" Lender) by payrarertt gf funds into the Madison Acoount for value cr'r $rc Etrsiness Day prior to the retryant Syndirxtion Utilisatbn Date, wtrictr funds ful be apsbd in redeeming andlor fwErtt"€ fte specined Exrsting Financial lr*debtedness s*red to that Netiv Lstder {or lrrcrease Lender) under ttl" .eerarrt specified Exi*i{!E Financing Docrrnrer'fts and in each case as set out in ttre rebvart l,lew i--enrCer
- 170 Accession (or lncrease Confirmation) dated on or about the dato of the applicable Syndication Cornrnitrnent lncrease Date, such redemption to occur in accordance with paragraph 2 of this Schedule.
(c)
1.3
An amount equal to the remaining 50 per cent of the Facility A Loan advanced pursuant to dause 5.1 {Syndbatbn Utilisation Datel shall then be advancd on each Syndication Utilisation Date pursuant to the mechanism set out in paragraph 3 of this Schedule.
Facility A Unallocated Amount Utilisation Dates (a)
Each Lender under Facility A shall make its participation in the Facility A Loan available by the Business Day prior to each Facility A Unallocated Amount Utilisation Date through its Facf,ity Office.
(b)
An amount equal to 50 per oent of the proceeds of the Facility A Loan advanced pursuant'to clause 5.3 {fadw A Unallocated Amounf) on the each Facility A Unallocated Amount Utilisation Date shall be made available by each lncrease Lender (or New Lender) by paymant of funds into the Madison Account for value on the Business Day prior to the relevant Facility A Unallocated Amount Utilisation Date, which funds shall be applied in redeeming and/or repaying the Specified Existing Financial lndeNedness incurred by each such lncrease Lender (or New Lender) under the relevant Sp,ecified Existing Financing Documents and in each case as set out in the appticable lncrease Confirmation (or New Lender Accession), in each oase entered into prior to the relevant Facility A Unallocated Amount Utilisaticn Daie in accordance with clause 5.3 (Facility A Unallxated Amountl, such redeffiion to mur in accordance with paragraph 2 of this Schedule.
(c)
An amount egual io (he nemaining 5O per cent of the Facility A Loan advanc,ed pursuant to clause 5.1 (F*ility A Unallocated Amounf) shall then be advance{ on each Facility A Unallocatd Amount Utilisation Date pursuant to the mechanism set out in paragnaph 3 of this Schedule.
2.
Reclemption andlor Repa3pment of Existing Financial lndebtedness (a)
Payments into Re$inamce Escrow Account On each Uti{isation Dab in resped of Facility A, the Agent shall pay the proceeds of the po(ion of Fac{frty A Loan reSerenced under paragraph 1.1(b), 1.2(b), 1.3(b) or 1.4(b) (as the case nqay be) into the Refinance Escrs'^, Account by giving a written instruction to ttrc Escrow Bank to do so before 10:00am London time on that Utilisation Date indudirfg the payrnent reference "MadPac client a/c".
It is acknowledged bV me Padies that the Refinance Escrow Account is in the name of the Parent ar d all surns in the Ref;nance Escrorry Account from time to time are the properff sf fie Parer{. Any interest accruing on ttn R,efinance Escrow Account sha?l be for the aocount of the Parent. (b)
Payments into Rep4nnent &srow Account The Parent shal{ uncsnditionalty and inevocably inskuct the Escrow Agent (as set out in the Refinance Escrow Agr'eernent) that immediately upon receipt of the above amounts lnto the Refinance Escrow Account pursuant to paragraph 2(a) above, the Escrow Agent shall pay the full amount of such sur.ns into the Repayment Escrow $,coounl
\
-
171 -
It is acknowbdged by the parties that the R$ay,nrent Escrow Accotrnt is in the name of the Agent on behatf of the Lendecs in iLs capaoily as Agenl under and su$ect to the terms of the Facility Agreernent. Any inferest accruing on the Repayrnent Escrow Account shall be for the accowlt of the Lenders. The paynrents of the above monies into the Rqpayrnent Escrow Acmunt shall satish/ the paylnent obligation of the Borowers in rdation to the refinancing of the Specified Existing Financial lndebtedness of eractr l-ender in accordance with this Schedule and in the amounts set out in the relevalt lncrease Confirmation and/or the relevant F{€rri Lender Accession.
3.
Advance of balance of {-ltilisation
is)
Paynenb into Liquidity Escrow Account The Agent shafl issue a release notice to the Escrour Agent before 10:O0am Lon
(i)
transfer the Transaction Costs pr.rsuant
to
Glause 5.9(a) (Escrow
Amounfs) of this Agreement to the Agent; and
(ii)
to kansfier the remaining sums on ttre Repayrnent Escrow Accrount to the Liquidrty Escrow Accou nt.
It is acknottrledged
bry the Parties that the Liq,r.ridiiy Escrow Acoount is in Sre narne of the Parent, and all sums ln the Liquidity Escrorr Accast tom time to tirne are the property of the Parent. Any interest aoauing orir $te Lqddity Escrow Account shall be for the acoount of the parent.
fhe payments of the above
monies from the Repayrnent Account shalll satisfy the obligation on each Lerder, New Le.nder andlry lncrease Lender to advance the remaining balanoe of the relevant Facility A Loan as refurenced under paragraph 1.1(c), 1.2(c), 1.3{c) or 1.4(c) above (as the case rnay be}.
(b)
Funds on Liquktitgr Escrow Account
The Parent agrees that the Escrow Agent shatl hoh all such arnounts in the Liquidity Escrow Amount until such time as there is a drawing frorn the Liquidity Escrsw Account to fund the Borrowers' worrking capital requirements in aocordance with C{ause 3.1(b) of the Facility Agreorner{.
4.
tletting of Existing DIP Financing A DIP Lender may elect to set off its obligation to fund 50 per oent. of a Facility A Loan parrsuant to paragraph f .2{b) above against its right to reeive an amount in repayrnent of the relevant Existing DIF Financing as required pursuant to par4raph (b) of Clause 3 (Purpose).
v
-172-
r\(: 7l
SCHEDULE 11
Redemption and Repayment ft/lechanics
For the purpose of all Utilisations and repayment, prepayment, redemption and repurchase transaction:; conternplated by this Schedule 11, all fractions shall be rounded to the nearest €1,000 or USD 1,000, as applicable (whether such haction arises by virtue of Applicable Exchange flates, pro rata allocation methodology, or otherwise). Part A: Existing Bonds
Where a L,ender holds Existing Bonds (a "Bondholder Lende/'), the Borrower shall apply an amount equal to 5O per cent of the amounts utilised under Facility A and funded by that Bondholdel' Lender in repurchase of an equivalent amount of the Existing Bonds held legally or beneficially by Bondholder Lender. This Part A of Schedule 11 govems the terms on which that repurchase shall ocrur, .
1. 1.1
COUpIXY NoreS REPURCHASE OBLIGATIoNS
1.2
The, foltowiqg cornmon terrns shall apply to the repurchase:
a Bondholder Lender owns any Existing Bonds, the repurchase shall be in the relevant amount (and in relation to the relevant series) of Specified Existing Financial lndebtedness for that Bondholder Lender as set out in its lncrease Confirmation or New Lender Accession that Bondholder Lender.
Wh,are
(a)
the pdce payable by the Bonower for the purposes of refinancing the Specified Existing Financial lndebtedness shall be calcxrtatred as the aggregate par value of that (the Bondholder Lender excluding any accrued interest "Redemption Price") (such accrued interest remaining payable by the relevant issuer to the Bondholder Lender in its capacity as bondholder under the relevant Existing Bond Documertation);
the relevant Existing Bonds being purchased by the Borrower from
(b)
payrnent of the Redemption Price shall be satisfied by the transfer from the Refinance Escrow Account to the Repayrnent Escrow Account of an amount equal to the Redemption Prioe in accordance with Schedule 10 (Utilisation and Applicatbn of Loans). The Bondholder Lender agrees (in its capacity as a bondholder under the relevant Existing Bond Documentation) that this is in substitution for any obligation to transfer the arnount to a designated account esfiblished at Eurociear or Clearstream or DTC, as the case may be;
(c)
settlement of the Specified Existing Financial lndebtedness shall be in Euro. To the extent that the r.elevant repurchase of Specified Existing lndebtedness indudes any US 2020s, the relevant Bondholder Lender and Bonower agree that the Ap$icable Excfiange Rate shallapply;
(d)
the Bondholder Lender rmrrants that the Existing Bonds transferred are:
(0 (ii)
transfrerrcd with good, valid and rnarketable Utle;
(iii)
free and dear of any encumbranoe save fur sudr encumbranoes as may be contained in ttrc Facility Agreernent;
fully paid, not sutrject to any option to purchase or similar rights, and not subgect to any restric#on on transfieC and
-173there are no other representations or waranties applicable to the sale, r3xptess Dr implied;and
(e) 1.3
the purchase shall be deemed to take effect on, be settled on, and the transfur of the Existing Bond effected on, ttre relevant Utilisation Date.
The procedures for ttre delivery of Existing Bonds affected by the above transacti,ons b set forth in paragraph 2 (with respect to Euro Notes) and paragraph 3 (with respect to US 2020s) below.
2.
PRocEDURE FOR THE TRAI{SFER OF EURO HOTES
2.1
The transfer of Euro Notes by a Bondtrolder Lender to the Borrower pursuant to the Agreement shall be executed via Euroclear Bank, SANV ("Euroclear") or Clearstream Banking, soci6t6 anonyme ("Clearstream"), as applicable.
2.2
2.3
3. 3.1
Each Bondholddr LeMer shall anange to have its Euro Notes delivered to the aocotr{t designated by the Parent with Euroclear or Clearstream, h€ld with Bank of New York Mellon, London Branch, as the case may be, without the simultaneous payment for suc*t Euro Notes. Upon the purchase of Euro Notes by the Borrower, that Borrovner shall either:
(a)
hold such Notes in its own name or within a wholly owned subsidiaty, and not thereafter transfur such Notes wtrilst the relevant indenture is outstandiog; or
(b)
provide instructions that sucfr Eum Notes be transfened
to the account
designated by BNY Mellon Corporate Trustee Services Limited, as tl-ustee forlhe Existing Bonds (the 'Trustee") at either Eurodear or Clearstream, as the case may be and provide written instructions to the Trustee to cancel any l=uro Nobs so delivered.
PRocEDURE FOR TTIE TREISTTE OF US 282OS
The transfer of US 2020s by Bondholder Lenders to the Bonower pursuant to the Agreement shall be executed via The Depository Trust Company fDTG').
3.2
Each Bondholder Lender shall anange to have its relevant US 2020s deliv,ened to ttle DTC account held with Bank of Nevv York Mellon, London Branch desiEnified by the Borrower without the simultaneous payrnent for such US 2020s.
3.3
Upon the purchase of US 2020s by a Bonower, that Bormwer shall either:
(a)
hold such Notes in its own name or within a wholty owned subsidiary, and not thereafter kansfer sucfi Notes wtrilst the relevant indenture is outstarding, or
(b)
provide instructions that suclr US 202Os be kansfened to the account desiginaied by the Trustee at DTC, and provirle wrifien instruc'tions to the Trustee to cffiod any US 2020s so delivered.
Part B: Existing Loans Netrr Lender is a party to an Exis6fig Loan Agreement (a "8ank txmdefi, the Borrower[(s)l shall apply an amount equal to 5O per oent of the amounts utilised under Facility A' and funded by that relevant Bank Lender in repayment or prepayrnent of an equivalent amount of the outstanding Existing Loans held legally or beneficially by that Bank Lender. This Pa'rt I d{ Schedule 11 govems the terms on which any repayrnent or prepayment of the Existing tl.-san€ shall occur.
Where
a
*
(\(: -174Where a Bank Lender has outstanding Existing Loans under more than one Existing Loatn Agreement, the repayment or prepayment will be made against the loans (and in the amounts) set out in the relevant Accession Document; Thel following common terms shalt apply to any repayment or prepayment under this part
B, notwithstanding any provision to the contrary in the Existing Loan Agreement:
(a)
(b)
(c)
(d)
the price payable by the Bonower for the purposes of refinancing the Specified Existing Financial lndebtedness shall be at the aggregate par vatue of the debt belng repaid by the Bonower from that Bank Lender, excluding any aocrued interest, break costs and without premium or penal$ (such accrued interest remaining payable by the relevant borrower to the Bank Lender in its capacity as lender under the relevant Existing Loan Documentation) ("Repayment Amount"); any repayment or prepayment of the relevant Existing Loans shall be imnrediately satisfied by the transfer of funds from the Refinance Escrow Account to the Repaymqnt Escrow Account in an aggregate amount equal the Repayment Amount in accordance with Schedule 1Q (lJtilisation and Application of Loansl; settlement of funds relating to the Repayment Amount shall be in Euro and to the extent that any of the Existing Loans are denominated in a currency other than Euro, the relevant Bank Lender and Borrower agree that the Applicable Exchange Rate shall apply when calculating the Repayment Arnount; the relevant Existing Loans shall be deemed to be repaid or prepaid in full and the corresponding fucilities under the relevant Existing Loan Agreements shall be cancelled, in each case on the relevant Utilisation Date; the Bank Lender hereby waives any prepayment, repayment, make-whole or break fees costs or expenses that might otherwise have been payable in respect of the repayment;
the Bank Lender hereby waives any notice or other process requirements or restrictions that might othent/ise have been applicable to the repayment;
{
(e)
{the Bank Lender shall waive or be responsible for procuring the waiver of any restriction relating to non-pro rata repayment or prepayment of the relevant Existing Loans under the Existing Loan Agreementsl; and {TBCI
(0
the Borrower shall not be liable to gross up the payment to the Bank Lender to account for tax, currency conversion, partial payment or otherwise notwithstanding any provision in the relevant Existing Loan Agreement to the contrary.
Part C - Eligibte Bilts of Exchange
Where a NIew Lender is the holder of an Eligible Bill of Exchange (a "Local Lender'), the Borrower shall apply an amount equat to 50 per cent. of the amounts utilised under Facility A and funded by tlhat relevant Local Lender in repayment or prepayrnent of an equivalent amount of the outstanding Eligible Bills of Exchange held legally by that Local Lender. This part C of Scfredule 11 governs the terms on which any repayment or prepayment of the Eligible Bills of Exctrange shall occur.
1.
The repayment or prepayment will be made against the Eligible Bills of Exchange (and in the amounts) set out in the relevant Accession Document;
2.
The following common terms shall apply to any repayment or prepayment under this part C, notwithstanding any provision to the contrary in the Eligible Bills of Exchange:
(a)
the price payable by the Bonower for the purposes of refinancing the Specified Existing Financial lndebtedness shall be at the aggregate par value of the debt
.),(
\
-175being repaid by the ,Bonower from that Local Lender, excluding any accrued interest, break costs and without premium or penalty (such accrued interest remaining payable by the relevant bon
(b)
settlement of funds relating to the Repayment Amount shall be in Euro and to the extent that any of the Brgible Bt-fts of Exchange are denominated in a currency other than Euro, the retevant Local L-ender and Borrower agree that the Applicable Exchange Rate shall apply when calculating the Repaymenl Amount;
(c)
the reler4ant Eligible Bills of Exchange shall be deemed to be repaid or prepaid in full and cancelled in an amount eqr.ral to the Repayment Amount, in each case on the Third syndication Utilisdbn Date, the Local Lender hereby waives any prepayment, repayment, make-ryho.le or break fees costs or expenses that might otherwise have been payable in respect of the repayment;
(d)
the Local Lender hereby waives any notice or other process requirements or restrictions that might otherwise,trave been applicable to the repayment; and
(e)
the Bonower sha{l not be liable to g{oss up the payment to the Local Lender to account for tax, c{Jrrensy conterskrn, pattial payment or otherwise notwithstanding any provision in the releraant Et8rbb Egts of Exchange to the contrary.
The Parent, original Lenders, and any releuant t$ew Lender shall endeavour to agree, acting in good faith such technical, mechanicat, or edministrative clarifications or adjustments to this Schedule 11 (Redemption and Rqaymenf Mechanbs) as they may consider necessary or advisable in order to effect properiy the rdnance of Extsting Financial lndebtedness as provided for in this l\greement, and shall iftstruct the Agent to effect such changes. Such clarifications or adjustment,s shall not oblige any party to assume any additional risk obtigation or liability beyond th
at alread,y inctuded.
t\6"t, ,
_176_
Scxeoulr Restructurin g
M
12
ilestones
1.
The Parent shall undertale a reubw of the senior rflanagerTrcnt executives and as'sess the requiremenls fur a hminess of the size of the Group.
2
The Parent shall procure that AlixPartners (or any &ird party finns selected by the Comrnissioner) provide reconrmendations of suitable candidates and the P;rrent shall appoint the rdevant senkr rnanagement executines in line urith those recomrnendations by the earlier of {a} oonaenst}zrl agreement and (b) during Sre irnplementation of the Settlement Agreerner*.
3.
The Parent shall procure that a Group business plan is made public by the Restructuring Advisor by 31 q$ober 20{7 including, but not be lirnited to, cost savings arrrd working capital initiatives indudiqg details of non-core disposal pflognsns, tirning and execution plan.
4.
The Parent shall deliver a proposal for the financial re$rudurlng of the Group (the ''Restructuring Proposd) to ttrc legal and financial advisors to the Lenders by 30 November 2017.
5.
The Parent shall make prubtc the Restructuring Proposal of the Group by 12 January 2018.
'
-177ScHEourc 13
Forms of notifiabte debt purchase transaction notice
Paft 1 - Form of Notice on Entering into Notifrable Debt Purchase Transaction
To: t From. [le
lasAgent Lender]
Dated:
Agrokor d-d.
-[.]
facilities agrcement dated t.l 2017 (the "Agreernent"]
1.
We refer to paragraph (b) cf Clause 23.2 (Disenfranchisement o{ Shaehotder Affitiates) of the Agreement. Terms defined in the Agreement have the same meaning in this notice unless given a dffferent rneaning in this notioe.
2. 3.
werhave entered into a Notifiable Debt purchase Transaction. The Notifiable Debt Purchase Transaction refened to in paragraph 2 above relates to the amount of our Commitrnen(s) as set out below.
Cr:mmitrnent
Amount of our Comn'litrnent to which Notifiable Debt Purchase Transaction relates (Base Cunency)
[Facili$ A
Commitrnent
[insert amount (of that Commitment) relevant
lncrementalFacility Commitment ILender] By:
&bt
to which the
Purchase Transaction appliesl
{insert amount (of that Cornmitrnent)
to
relevant Debt Purchase Transaction applies]
which the
-178Part 2 . Form of Notlce on Termination of Notifiable Debt Purchase Transaction / ilotifiable Debt Purchase Transaction ceasing to be with Shareholder Affiliate
To: t
IasAgent
From: fihe Lender] Dated:
Agrokor d.d.
O
-
{.1
facilities agreement dated l1!2A17 (the "Agreement"}
1.
We refer to paragraph (c) of Clause 23.2 {Disenftanchisement o{ Shareholder At'filiafes) of the Agreement. Terms defined in the Agreement have ttte same meaning in this notie unless given a different meaning in this notice.
2.
A Notifiable Debt Purchase Transaction which we entered into and which we notified you of in a notice dated [ ] has [terminatedf[ceased to be wtth a Shareholder Affiliate].
3.
The Notifiable Debt Purchase Transaction referred to in paragraph 2 above relertes to the amount of our Commitment(s) as set out below.
Commilment [Facility A
Commitment
Amount of our Commitment to which Notiftable tlebt Purchase Transaction relates (Base Currency)
[insert amount (of that Commitment)
to which
th€
relevant Debt Purchase Transaction appliesl
lncrementalFacility Commitment ILender] By:
[insert amount (of that Cornmitment)
to
relevant Debt Purchase Tnansaction appliesl
\,{hicft the
-1V9SCHEDUL€,I4
Form of Utilisation Request(Facility A Una{&ocated Amount}
From: To:
[Parent] Madison Pacific Trust Limited (as Ageng
Dated: Dear Sirs AGR0KOR
D.D.
AGREEflEIIt'',
-
Supea-PntoRrry TERM Fnctlrnes AmeeHeNT oATED t
! 2O1T (THE ,,FectLtrres
1-
to the Facilrties Agreernent. Fhis is a Utilisatjon Request. Terms defined in the Facilities Agree[nent harre the sarne r,neanlr'q in this Utilisation Request unless given a diffterent nteaning in this Utilisation Request.
2.
We wish to borrow a Loan on the following terrns:
Wr-' refur
(a) Borrower: [parrent] (b) Proposed Utilisation Date: [ *** I {or, if ihat is not a Business Day, the next Business Day)*
(c) Facility to be utilimd: (d) Curency of Loan: (e) Amount: (0 lnterest Period:
FacititrA EurD [ [
**
"*
I or, tf ]ess, the Available Facility
t
3'
We confirm that no Event of Defauh lras crccuned and is continuing or would result fronr the proposed Loan.
4.
Thiis Loan is to be made availab{e in
5.
This Utilisation Request is
awfldaoe wtth ctause 5.3 (Facitity A Unaltocated Amounfl, Schedule 10 lutilisatkxl ad Mimtion of Loans) and Schedule 1j (Redemption and Repaymenf iiledmnics| of the Facilities Agreernent. irrewc*le.
Yours faithfully
authorised signatory for [the Parentt] T{OT€S:
'
To be at least [tO] Business Days sfter daae of Utifsalion F]aqrcst-
/
-180SC+TEDULE
\(;'( i'(
{5
fotrn of 0noromentat Facllity Notice
To: t
lasAgent
From: ffhe Parentl [New Lenderj
Dated:
Agrokor d.d.
1.
- [.I facilities
agi?€sm€rd dated
[.] 2017 (the 'Agreemenf,']
We refer to the Ag{€ement and in particular Clause 2.3 (lncrcrnedal F:sdtlft.fi ttrcreot. Terms defined in ttlis AEreeroent have the sarne meaning wtrcn used in this krcrer*ental Facility Notice.
2.
We have agreed with the f,oil
S
upply ContracllNew Bills af ErchaEe
Arnount l
3. 4.
The Availability Period is:
to be designated as an
ncrernental Facfr ity Comurhnrent
{r[
The date on which *re Increrner*elFacility Cornmitrnents refierred to above are to bemnre effectiye is IDAIQ (fte'{trFedtion Date").
5.
[Mechanics/ev*1et?ce fw t&rr{*ve of the ei$ing Suply Gorst.acts 6o tqether with Lefider mrffifficaciwr- ryreerng to such reduc/ianl
6.
The purpose of ttre kaorcnie{*,al Supply Conbac*s is {rl
7.
The appli*xble Margin stla[ lbe as {ollouls {at the date sf this lrto{ie}: {"*T lper cer[. per annifin.
8.
The final repayrnentdate,is:
The Parent For and on befualf of Parent
[.1
Direc{or
Fdlty
not othe*rise aedied in re&rction
tfffitddel
be inserhd,
rf ltre Exis$rrg
-181 [New Lender]
For and on behalf of [Nar Le{dsrJ
[.]
Director
{.$6na{rre
or1ge
ta the Faoiilk,qgmefrenfl $rcrualunes
Txe
Pamrr
For and on betralf af
By: Ante Rarlrljd< Fu ndig,n :
C,ornnrissiqrer
TreOrueir* Eonrcwms Forand on betnf of AGROKOR DJ'.
By:
Anb Rsr$ak
Function: Conunissioner
-'\Gtr'
[Slgnafure page to the Facilitbs AgrxmentJ Tttg Gu*R,lnrroRs
For and on behalf of AGROKOIR D.O.
By: Ante Ftamljak
Funclion: Commissioner
36Lh [Sqmature pEge to the Facilities Agrcement]
For and on behatf of AGROKOR TRGOVINA D.O.O.
: Robert Juri5id
Function: CEO
apokorkgwina d8.o,Zagr€b.hD.k{&S
[Slgnatue page b,the Facitities AgreementJ
Forand on behalf of BELJE D.D.
zt)vt {\ Functionj, J5r U f- c TO€.
Qr
-rq
L"
C Orr ?,a )i
5
Agreomen{ [Srgrrature page to the Facitities
For and on behalf
of
JAIIiNICA D.D.
By: Mislav Gali6 Function: PresirJent of the Management Board
(l0Lr 6
[Sfornafure page to
Forandon ROTO
the Facilities AgreementJ
Mrdfof
DtltAttc D-oo.
t A',^
By: Siniiia lrruli6
Functio4l Direc*or of the Conr.,pany
[!;P,l!aoru,o, ^ . -.ucaoqjsifif,
,'t (^'{.t | ' lSignature page to the Facitities Agreementl
For and on behalf of
By: afrAv(o
L41\\
Function:
Fe'tV
o
\t\lT cr
T+1<
tr/W)
[Slgnat{rr? BagB & ffie
Haoffis
Agreement]
Fcr ard qr behatf of
Ptl(yREo,EC.reSilA
ptK vBapuEC
ilESNA II{PI'STRIJA 184 d.ll.-t?EflEc I Funr{kxt: Oirector of the ComP?ny
o
J6tttrd
For and m befialf VELPRO CENTAR.O.O.O.
r.tilutno,cElvfA[
C> Bt
TvANEeN-'
oRif
Function : Oirector
d fte mrryury
3
ds,o. za lrgorlnu i urltge
Z{rob.
Mardana eavKa
!
{;SQndurc
pqe
fo
&e Fad{ies Agioetrner*l
Forand on bshalfof LEDO DJD.
By:
Oftfl,to
FtrnciloJ[
ffl*ssc-
rAgS
{}ENT
OF
T*(s
Nftu*eE{E{JT b*Po
a
o
lStrrafirrepage b lhe
Fs
and co behalf
F.ffir
of
ffiTARTO.O-O.
Ilor" Ftg!&n: Pre*Iert of the Management Bmrd
t$nent*an{
,
Lr[i
[Signafurc page fo
fr+ro
Faci&{rbs Agrcement]
Fsr artd orr belralf sf
{/Lr/lv A!/W Func'tion: p/,f,*.Tf Of -''
ftr
Oq"E y
a
o
l$rgldire fige to the Facitities Agreement]
For and on behalf of SOLANA PAG D.D.
Function:
e€Ne
RA( MANt6€E- /Cgo
r14.iLr,1
{Signafure page to the Facilities AgreementJ
For and on behaff of ZVIJEZDA D.D.
Kp
€S"t t1 t
R l"J yfr g
//By: Func{ion:
P(es D
eNT 0r,ru€
tl fr ru p 6 pl e-^/T z o ft tzo
O
a
(\ (c,';.j' ,,
fSrgnature page to the Facilities AEreement]
For and on behalf of SOJARA D.O.O.
a l1€TKt? j;:t7&t/r c By:
Function:
J(2e'€7OP'
/'t'
[Signaturc page {o {fd€ Fscfflbs fureemenfJ
bdalf of \n$($rAni${I PiOLTOPRIVREDI{O F{OUSTRLHI$ fi(ffiilAr P.D. {vUPlK For and on
U HLte€U tc Furrt
r: Sl€€c-rog
(
Ot r#€ copr?AArf
D.D.)
[Srgnature page to the Facilities Agroement]
For and on behalf of ADRIATICANET D.O.O.
By:ter4lgc4V nA\ t.Jr! UiA?r+ Function: .. e O
16
{t
{Sigrrmfare
prye {o ttle Factlities Agreementl
THEAGEIIT
MADISOI{ PACIFIC TRUST LTIITED
Signature':
Print Name: Address: Email: Fax:
Attention:
f)avid Jacob Samrrt NaPhdi 1720,171F, TorerOne, Frdrniralsf.;entre, 18 Harcourt Road, Hong l6rqg aoent@madisonoac-corr +852 2599 9501 Jonathan Hatch/ Openat*x,r5 13am
THE SECURTTY AGENT
ttiADISOl'I PACIFIC
Signature:
Frint Address: Email: Fax: Attention:
Jacob Samuel 1724,171F,
lt{ahtdi
TowerOrre,.edn*r@C"e*e,
aoent@m?disonoac.s,n +852 2590 9501 Jonathan Hatctr/ OpereCbre
18 Harcourt Road, Hong Kong
Tmr
I
,a;: {$ignature page
fra
the Facilitias Agreerner,{
Tue ORretNlr-Lsroens
K'{IGHTHEAD CAPTTAL INUESNf,ENTS
Si.R.L.
,,,842 Name:
ns:
1t4rril1rl.f,lU*
taot
| ila*rn
Leqal contact
Addre.ss:
Ermil: Fax Attention : Ooeratiooal
do Knigh&aad Gapital Management, LLC Ffieor, l{ew Yo*, ilY 10036 ltorrado€iknl*{Bad.csn
Co@4
Email: Fax Attrsntion :
clo Knigftthed GaFital ltrlanagement, Fhor. t{awYodr, finf 1(F36
LLC
ms@knEhtMau4 2€A564iltl6 li$dtadFied@
Wth-a conyb SGG S.A.
Address: Attention:
412F, lurtedEadr L-2()86 Luxenrbourg
[email protected] 1+SS2) 47 11Ol
FredqicGer{eur,CorpqabOfficer
and
l{ortrem Trust H€dge Frr,rit Scmilces
Emait Fac
Awrue of tte Americas, 12ffr
2:12-356.:tg2i l-anra L. Terade, Esq.
Addrcss:
Emall: Fax
114O
ttF$ Barlr
IH
2fi44+{t$6
[email protected]
11{O Auerue 6f *{e Anrcricas,
lZtr
/Slgrnatr€ page to lhe Fac#lfres fureer.nen{ I$.I IGHTH EAD
CAPfTAL I i{\,E5TI,1ENTS II S.A. R.L
By:
Name:
Its:
6l*r&
4lU,w
Crc{&*,"-
Legalg:ntact
Addrss: Email: Fax. Attention : O p_erati,c na
I Contac.t
Email: Fax Attention :
clo Kntgtrihead Capital Management, LLC Ftoor, NanvYor*, NY 10&36
[email protected]
212-3S5a346 MiclraelFriedberg
moyto
SGG S.A.
Addrass:
412F, route d'Esch I--20S6 Luxembanrg
Email: Fax:
Frederic. Ga rde ur@sqqq rouo-corn (+3s2) 47 11 01 Fredefc Gardeur, Gorporate fficer
Attention
:
and
Nortrern Tfljst Hadge Fund Servicos Ernail: Fax:
1140 Avenue of the Americas, 12th
[email protected] 21235S.3S21 Laura L. Torrado, Esq.
Address:
VlJifi a
c/o lftr(fithead Capital Managemenl LLC Floor, NewYork, NY 10036
tiF$ Bank Bebt 201"24+3666
Ops@r$rc-com
1f4O Avenue of the Americas, 12th
ii,'Ll\:
fSrSrcatu e
p€re b Ur fiaolfilbs grcenrlng
I(ALA INVESIII,TENTS S.A.R.L.
By:
Name,{s16t41e
w: (145a 4
&
l*rrt*
ld**
Legal contad
Addrees;
c/o Knighthead CApitdl tilarrynrniem(, LLC { {40 Avenue of ttre Americas, llZth Floor, Neur York, lW {OUl6
Ernail:
[email protected]{l 212-35S3921 l-aura L. Tonado, Esq.
Fax Attention
:
Ooeqtiona, Con*O
Address:
Ema[L Far
Attentfon: With a
c/o ltuigtrthoad @itd frlarryerml(. {J_C Floor, tlewyork, trly {@36 [email protected]
212-3ffi4ffi Mictrae{Friedbee
mpyto
SGG S.A.
Address:
Email: Fax Afrenlion :
412F, route dEsch L-m06
l$rcffiourg
Frederic.Gardeur&sooorulamn (+352)471{ 01 Frederic Gardew, Corpor*Omoer
and
Horthern Trust Hedge Fund Serdoes Email: Fax:
I
t
HFS EanLDetot 0as6rrrsomr 201-244-3665
itlttO A,yanue of the Arnericas, i2{h
